Partin v. Flagler Hosp., Inc.

• Court: Florida District Court of Appeals
• Writing for the Court: PETERSON
• Citation: Partin v. Flagler Hosp., Inc., 581 So.2d 240 (Fla. App. 1991)
• Decision Date: 13 June 1991
• Docket Number: No. 90-360,90-360
• Parties: Della E. PARTIN and Thomas V. Partin, her husband, Appellants, v. FLAGLER HOSPITAL, INC., etc., et al., Appellees. 581 So.2d 240, 16 Fla. L. Week. D1608

Page 240

581 So.2d 240

Della E. PARTIN and Thomas V. Partin, her husband, Appellants, v. FLAGLER HOSPITAL, INC., etc., et al., Appellees.

No. 90-360.

581 So.2d 240, 16 Fla. L. Week. D1608

District Court of Appeal of Florida Fifth District.

June 13, 1991.

Jason G. Reynolds of Coble, Barkin, Gordon, Morris & Reynolds, P.A., Daytona Beach, for appellants.

Gregg L. Wirtz of Boyd & Jenerette, P.A., Jacksonville, for appellees.

PETERSON, Judge.

Della and Thomas Partin appeal the dismissal of their negligence complaint against Flagler Hospital, Inc. We reverse.

Partin sued Flagler for injuries received in 1981 when an elevator malfunctioned. This original suit was dismissed in 1985, but was followed by a similar complaint in that year. Service was not made until November 6, 1989. After it was served, Flagler successfully moved to dismiss the complaint pursuant to rule 1.070(j), Florida Rules of Civil Procedure, on the ground that service had not been made within 120 days after filing the complaint. The court ruled that Partin did not show good cause for not having made service within the time limit, and Partin does not appeal that ruling.

Partin argues that the dismissal is improper since rule 1.070(j) should be construed to operate in a non-self-executing manner analogous to rule 1.420(e). Under rule 1.420(e), an action may not be dismissed if record activity takes place before a motion to dismiss based upon the rule is filed. Service of process before the filing of a motion to dismiss for failure to prosecute has been held to be sufficient record activity to preclude dismissal under rule 1.420(e). Glassalum Engineering Corp. v. 392208 Ontario Ltd., 487 So.2d 87 (Fla. 3d DCA 1986).

Berdeaux v. Eagle-Picher Industries, Inc., 575 So.2d 1295 (Fla. 3d DCA 1990), lends credence to this argument. In Berdeaux, the court held that the rule should not be enforced after the defendant had been served. The rationale of the decision is similar to Partin's argument except that the decision was based on an analogy between rule 1.070(j) and rule 1.500(c), Florida Rules of Civil Procedure. Under the latter rule, defaults may not be entered if a defendant files an answer prior to the proposed entry of a default. Thus, under Berdeaux, a plaintiff who effects service after the time limit can escape dismissal if service is effected before a motion to dismiss is filed by the defendant.

The Fourth District took a contrary view in Morales v. Sperry Rand Corporation, 578 So.2d 1143 (Fla. 4th DCA 1991), and held that the rule should be enforced even though service is effected before the filing of a motion to dismiss. The Morales view is in line with rule 4(j), Federal Rules of Civil Procedure. The federal rule is almost verbatim the Florida rule, and federal cases are routinely dismissed on rule 4(j) motions made after untimely service. Morales and the federal procedure support Flagler's argument that the purpose of the rule would be frustrated if the only defendants who could avail themselves of the rule were those defendants who, although unserved, for some reason knew they were being sued. We believe that Morales is the correct view. A defendant aggrieved by untimely service should be able to enforce his rights.

We reverse, nevertheless, because we believe that rule 1.070(j) does not apply to cases filed prior to the effective date of the rule. We note that the instant action was pending at both the time rule 1.070(j) was adopted in 1988 and the effective date of January 1, 1989. In re Amendments to Fla.Rules of Civil Procedure, 536 So.2d 974 (Fla.1988). The order adopting the 1988 amendments was silent as to applicability to pending cases. When an earlier amendment was made to the rules of civil procedure, the supreme court did give direction as to applicability. In a later order, the supreme court stated:

It was provided [in an earlier order] that said amendments "shall become effective on the first day of October, 1961, and shall be applicable to all cases then pending, as well as those instituted thereafter." It has been brought to the attention of the Court that the applicability of said amendments to pending cases could result in a deprivation of substantial rights previously acquired by litigants. It is, therefore, ordered that the amendments to the Florida Rules of Civil Procedure promulgated by the order above described shall become effective on the first day of October, 1961, but shall be applicable only to cases commenced on and after said date.

In re Amendments to Fla.Rules of Civil Procedure, 132 So.2d 6, 7 (Fla.1961). Since the supreme court, in its order adopting rule 1.070(j), did not mention whether it should be applied to cases filed before January 1, 1989, as they did in the 1961 amendments, and since it is clear that a plaintiff's rights may be affected by the change, ¹ we conclude that it was the intent of the supreme court to apply the rule to cases filed on or after the effective date.

Examination of the rule itself suggests that it was not intended to apply to cases filed prior to its effective date. The rule requires service within 120 days of filing the action. For all cases filed more than 120 days prior to the effective date of the rule, literal compliance would have been impossible. Given the obvious inapplicability to many or most cases filed before the effective date, we believe...