ELEGELE v. Halbert
| Citation | 890 So.2d 1272 |
| Decision Date | 21 January 2005 |
| Docket Number | No. 5D03-3518.,5D03-3518. |
| Parties | Joseph ELEGELE, Appellant, v. Stanley E. HALBERT, etc., Appellee. |
| Court | Court of Appeal of Florida (US) |
Joseph Elegele, Orlando, pro se.
Christa Mansholt-Choy of Conroy, Simberg, Ganon, Krevans & Abel, P.A., Hollywood, for Appellee.
Joseph Elegele, the plaintiff in a legal malpractice action, appeals an order which dismissed his lawsuit for lack of prosecution. Elegele contends he never received notice of the hearing on the motion to dismiss and there was sufficient activity to preclude dismissal. Because the record does not refute Elegele's claim regarding notice, we would ordinarily remand for a new hearing. However, the record also establishes good cause to have precluded dismissal and so we reverse the order below outright.
The record establishes that Elegele hired attorney Stanley Halbert to represent him in a lawsuit against various defendants, including the Department of Health and Rehabilitative Services. Elegele filed the lawsuit after he was arrested on drug charges and the Department took custody of his children.
After the lawsuit was dismissed, Elegele filed this legal malpractice action against Halbert. Elegele alleged Halbert's failure to timely file an amended complaint and other omissions resulted in the dismissal of the lawsuit.
As part of his defense, Halbert moved for the Department to produce all records regarding its investigation of Elegele. After Halbert's motion was granted, Elegele moved to recuse the trial judge (Judge James Hauser) and filed a notice seeking to appeal the discovery order. We treated Elegele's appeal as a petition for certiorari review and denied relief on August 9, 2002.1
Less than a year later (July 23, 2003), Halbert served Elegele with a motion to dismiss the malpractice action for failure to prosecute. Halbert alleged the last record activity was the supplemental index for Elegele's appeal filed on July 24, 2002, more than one year ago, and so the case should be dismissed.
Elegele filed a response to Halbert's motion to dismiss claiming he had only recently received the motion and was concerned that Halbert may have already set a hearing without contacting him. Elegele also asserted two grounds to deny the motion to dismiss—the appeal in this court and his pending motion to recuse Judge Hauser.
About two weeks later, the trial judge (Judge Renee Roche) granted Halbert's motion to dismiss. The clerk was ordered to close the case and remove it from the active case list.2
Florida Rule of Civil Procedure 1.420(e) allows the trial court to dismiss a lawsuit for failure to prosecute:
All actions in which it appears on the face of the record that no activity by filing of pleadings, order of court, or otherwise has occurred for a period of 1 year shall be dismissed by the court on its own motion or on the motion of any interested person, whether a party to the action or not, after reasonable notice to the parties, unless a stipulation staying the action is approved by the court or a stay order has been filed or a party shows good cause in writing at least 5 days before the hearing on the motion why the action should remain pending. Mere inaction for a period of less than 1 year shall not be sufficient cause for dismissal for failure to prosecute.
The intent of rule 1.420(e) is to make litigants, particularly plaintiffs, more vigilant about hastening suits to their just conclusion. National Enterprises, Inc. v. Foodtech Hialeah, Inc., 777 So.2d 1191 (Fla. 3d DCA 2001). Under this rule, the defendant must first show there has been no record activity for the year preceding the motion.3 If there has been no record activity, the plaintiff then has an opportunity to establish good cause why the action should not be dismissed. Id.
As our sister courts have observed, rule 1.420(e) clearly contemplates notice and a hearing prior to a determination by the trial judge. Florida East Coast Ry. Co. v. Russell, 398 So.2d 949 (Fla. 4th DCA), rev. denied, 411 So.2d 381 (Fla.1981); Fields v. Fields, 291 So.2d 663 (Fla. 1st DCA 1974). Elegele claims Halbert never notified him of the hearing and there is nothing in the record to show that Elegele was in fact served with notice of the hearing. In such circumstances, the courts generally remand for a new hearing on the motion to dismiss. See Fallschase Development Corp. v. Sheard, 655 So.2d 214 (Fla. 1st DCA 1995)
(plaintiff was entitled to a new hearing on motion to dismiss for lack of prosecution where original hearing was rescheduled to an earlier date, plaintiff claimed it did not receive timely notice of this change and there was nothing in the record which refuted this claim).4
Here, however, Elegele stated grounds in his response sufficient to have precluded dismissal. Elegele alleged he filed a motion to recuse Judge Hauser and this motion was still pending. In Fuster-Escalona v. Wisotsky, 781 So.2d 1063 (Fla.2000), the Florida Supreme Court held the trial judge must immediately rule on a motion to recuse, even though the movant does not request a hearing, and cannot rule on a motion to dismiss while the recusal motion is pending.
Elegele moved to recuse Judge Hauser in March 2002 but the record does...
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Partlow v. State
...that are generally excluded (such as notices of hearing) when such matters are "germane to an issue on appeal." Elegele v. Halbert , 890 So. 2d 1272, 1274 n.4 (Fla. 5th DCA 2005). See also Philip J. Padovano, Florida Appellate Practice § 12:9 at 255 (2018 ed.) ("The appellate courts are req......
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Aqua Life Corp. v. Reyes
...Roofing Corp., 55 So. 3d 591 (Fla. 3d DCA 2010); Hunnewell v. Palm Beach County, 925 So. 2d 468 (Fla. 4th DCA 2006); Elegele v. Halbert, 890 So. 2d 1272 (Fla. 5th DCA 2005). 2. No transcript of the October 27, 2014 hearing has been provided. 3. We further note that, even if the court intend......
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Aqua Life Corp. v. Reyes, 3D14–2825.
...Roofing Corp., 55 So.3d 591 (Fla. 3d DCA 2010) ; Hunnewell v. Palm Beach Cnty., 925 So.2d 468 (Fla. 4th DCA 2006) ; Elegele v. Halbert, 890 So.2d 1272 (Fla. 5th DCA 2005).2 No transcript of the October 27, 2014 hearing has been provided, and thus it is impossible for this court to determine......
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The Florida Supreme Court dulls the edge of Rule 1.420(e).
...that has essentially been abandoned." Barnett Bank of East Polk County v. Fleming, 508 So. 2d 718, 720 (Fla.1987); Elegele v. Halbert, 890 So. 2d 1272, 1273 (Fla. 5th D.C.A. 2005) ("The intent of [R]ule 1.420(e) is to make litigants, particularly plaintiffs, more vigilant about hastening su......