NEI v. Foodtech Hialeah, Inc.

• Decision Date: 21 February 2001
• Docket Number: No. 3D99-820.,3D99-820.
• Citation: 777 So.2d 1191
• Parties: NATIONAL ENTERPRISES, INC., Appellant, v. FOODTECH HIALEAH, INC., Appellee.
• Court: Florida District Court of Appeals

777 So.2d 1191

NATIONAL ENTERPRISES, INC., Appellant, v. FOODTECH HIALEAH, INC., Appellee.

No. 3D99-820.

District Court of Appeal of Florida, Third District.

February 21, 2001.

Liebler, Gonzalez & Portuondo, P.A. and J. Randolph Liebler, for appellant.

Ricardo R. Corona, for appellee.

Before SCHWARTZ, C.J., and JORGENSON, COPE, LEVY, GERSTEN, GODERICH, GREEN, FLETCHER, SHEVIN, SORONDO, and RAMIREZ, JJ.

ON REHEARING EN BANC

GREEN, J.

We grant rehearing, withdraw our opinion of January 5, 2000 and substitute this opinion in its place.

This is an appeal from a final order dismissing this case for lack of prosecution. The question presented for our consideration is whether the good faith filing of two notices of hearing, that are unquestionably legal nullities since they were directed to a motion already disposed of by the trial court, are sufficient record activity to prevent a dismissal pursuant to Florida Rule of Civil Procedure 1.420(e). In accordance with our earlier holding in Alech v. General Insurance Company, 491 So.2d 337 (Fla. 3d DCA 1986), we conclude that they are not and affirm the order under review.

This case began on August 15, 1995, when National Enterprises, Inc. ("NEI") filed a complaint against Foodtech Hialeah, Inc. ("Foodtech"). At the time, NEI was represented by the law firm of Haley, Sinagra & Perez, P.A. On January 9, 1996, Foodtech, then represented by Forrest Sygman, Esq. filed its answer, affirmative defenses and counterclaim. NEI moved to dismiss Foodtech's counterclaim on January 31, 1996. This motion was granted by the trial court in an order dated June 13, 1996.

From the time that the trial court entered the order dismissing Foodtech's counterclaim until December 1998, or 2½ years later, there was absolutely no record activity in this case for purposes of Rule 1.420(e).¹ In fact, the only thing that transpired in this case during this 2½ year "hiatus" period was a substitution of counsel for both parties.² At some unknown point in time, NEI substituted J. Randolph Liebler, Esq. of the firm of Liebler, Gonzalez & Portuondo, P.A. for Haley, Sinagra & Perez, P.A.³ Thereafter, Foodtech also substituted its counsel of record by filing a stipulation for substitution of counsel on October 31, 1997, seeking to substitute Richard R. Corona, Esq. as its counsel of record for Mr. Sygman. The trial court granted this substitution on the same date that it was requested by Foodtech.

From August 1997, when the record reflects that Mr. Liebler had undertaken the representation of NEI until December 1998 (or 16 months), there was no record activity in this case. On December 30, 1998, or at least one year after the commencement of his representation of the plaintiff, Mr. Liebler filed a notice of hearing on the motion to dismiss counterclaim and served the same on Mr. Corona. This notice did not attach a copy of the motion to be heard nor did the notice contain a description of the motion. The hearing on the motion was specially set by Mr. Liebler for January 13, 1999. Mr. Liebler claims, and it is not disputed for purposes of this appeal, that the file that he had received from NEI's predecessor counsel did not contain an order on the motion to dismiss counterclaim. He therefore believed that this case was still not yet at issue in December 1998.

Mr. Corona, on the other hand, responds, and it is not disputed for purposes of this appeal, that he was confused by this notice of hearing because the file that he had inherited from Foodtech's predecessor counsel, did not reflect the pendency of any outstanding motions in this case. For this reason, Mr. Corona requested and obtained a continuance of the hearing from Mr. Liebler so that he could review the court's file. Upon his review of the court's file, Mr. Corona discovered that the motion to which NEI's notice was directed was the same motion which had already been disposed of by the trial court in the June 13, 1996 order.

On January 15, 1999, apparently still unaware of the June 13, 1996 order, Mr. Liebler filed a renotice of hearing of NEI's motion to dismiss counterclaim. On that same date, Mr. Corona filed the defendant's motion to dismiss for lack of prosecution pursuant to Rule 1.420(e). NEI filed a memorandum in opposition asserting, among other things, that its two notices of hearing dated December 30, 1998 and January 15, 1999, constituted record activity and that the file received by its successor counsel from prior counsel had not included a copy of the order granting plaintiffs motion to dismiss counterclaim dated June 13, 1996. A hearing on the motion to dismiss for lack of prosecution was conducted. The trial court granted this motion and this appeal followed.

On this appeal, NEI cites to Del Duca v. Anthony, 587 So.2d 1306 (Fla.1991) and asserts that the filing of its two notices of hearing, within one year preceding the appellee's motion to dismiss for lack of prosecution, was sufficient record activity to withstand Foodtech's motion to dismiss where the notices of hearing were calculated to move this case forward and were filed in good faith. We disagree and find that NEI has misconstrued the supreme court's decision.

Initially, we note that the obvious intent of rule 1.420(e), or the failure to prosecute rule, is to make litigants, particularly plaintiffs, more vigilant about hastening suits to their just conclusion. See e.g. Eastern Elevator, Inc. v. Page, 263 So.2d 218, 220 (Fla.1972) (stating that "[w]e are interested today in moving causes and in expediting litigation in the proliferation of increasing law suits."). The resolution of a motion to dismiss for failure to prosecute involves a two-step process. "First, the defendant is required to show there has been no record activity for the year preceding the motion. Second, if there has been no record activity, the plaintiff has an opportunity to establish good cause why the action should not be dismissed." Del Duca, 587 So.2d at 1308-09.

Contrary to the argument advanced by NEI on this appeal, the record activity necessary to withstand a dismissal pursuant to Rule 1.420(e) must be valid activity. That is because record activity that is invalid or constitutes a legal nullity cannot possibly advance a cause forward or hasten a case to judgment. Thus in Alech, we held that a notice of trial filed at a time when the case was not at issue was a nullity and as such, did not constitute proper record activity sufficient to defeat an otherwise valid motion to dismiss for a lack of prosecution made. Alech v. Gen. Ins. Co., supra.

The second district has similarly construed this record activity requirement. In Buss Aluminum Products, Incorporated v. Crown Window Company, 651 So.2d 694 (Fla. 2d DCA 1995), the court held that an untimely filed and legally insufficient reply to affirmative defenses did not constitute record activity for purposes of Rule 1.420(e). As the court recognized, "[i]t does nothing to hasten the suit to judgment and is a mere passive effort to keep the suit on the docket." Id. at 695.

In this case, had the appellant's two notices of hearing been directed to an unresolved motion, they most assuredly would have constituted record activity within the meaning of the rule. See Escalona v. Kersten, 682 So.2d 223 (Fla. 3d DCA 1996); Heinz v. Watson, 615 So.2d 750, 753 (Fla. 5th DCA 1993). However, because these notices were directed to a motion already argued and ruled upon by the trial court, they were absolute legal nullities for purposes of the rule and did nothing to advance this suit. See Buss Aluminum Prods., Inc., supra. Therefore, they could not toll the running of the one year period, notwithstanding their good faith filing.

We think that the appellant's reliance upon the supreme court's decision in Del Duca for the proposition that the good faith filing of the notices of hearing, in this case, constituted sufficient record activity is wholly misplaced. First of all, Del Duca merely sets forth the standard to measure the prosecutorial effect of otherwise valid discovery. See Buss Aluminum Prods., Inc., 651 So.2d at 695. Del Duca does not purport to legitimize the good faith filing of invalid or frivolous papers or pleadings in lawsuits.

The facts in Del Duca essentially were that the plaintiff/petitioner had timely filed a valid request to produce and notice of service of interrogatories on the defendant 364 days after the date of the last record activity. Unlike the invalid notices filed herein, the court was faced with the question of whether Del Duca's otherwise valid discovery was filed as a bona fide attempt to move the case towards a conclusion or whether it was filed as a mere attempt to avoid dismissal under rule 1.420(e). The issue, therefore, in Del Duca was confined solely to "the question of the proper test for trial courts to apply when considering a dismissal for failure to prosecute when some [valid] discovery activity had occurred during the last year." Del Duca, 587 So.2d at 1308. The court expressly recognized that a conflict existed among the districts as to the test to be applied. Id. at 1307. In resolving the conflict on this narrow issue, the court adopted the second district's objective test which "allows a trial judge to dismiss the cause if the discovery is in bad faith and is also without any design `to move the case forward toward a conclusion on the merits.'" Id. at 1308. Even if the Del Duca standard somehow had any applicability to the two notices filed in this case, it is readily apparent that they could not pass its test as these invalid notices surely could not have advanced this case forward toward a conclusion.⁴ See Buss Aluminum Prods., Inc., 651 So.2d at 695.

The appellant's subjective good faith intentions in the filing of the two notices is certainly understandable under the facts of this case. We cannot permit, however, the subjective good faith intention of the appellant, to outweigh the...