Publicidad Vepaco, C.A. v. Mezerhane, s. 3D18-1424

• Citation: 290 So.3d 974
• Decision Date: 06 November 2019
• Docket Number: 3D18-1194,Nos. 3D18-1424,s. 3D18-1424
• Parties: PUBLICIDAD VEPACO, C.A., and Latele Television C.A., Appellants, v. Nelson MEZERHANE and Rogelio Trujillo, Appellees.
• Court: Court of Appeal of Florida (US)

290 So.3d 974

PUBLICIDAD VEPACO, C.A., and Latele Television C.A., Appellants,

v.Nelson MEZERHANE and Rogelio Trujillo, Appellees.

Nos. 3D18-1424

3D18-1194

District Court of Appeal of Florida, Third District.

Opinion filed November 6, 2019.

Rehearing Denied December 5, 2019

Law Office of Mesa & Associates, P.A., and Manuel Arthur Mesa and Matthew Carcano, Miami, Florida, for appellants.

Kula & Associates, P.A., and Elliot B. Kula and William D. Mueller, Miami, Florida, for appellees.

Before LOGUE, SCALES, and GORDO, JJ.

LOGUE, J.

Appellants, the plaintiffs below, appeal the trial court's order dismissing this case for lack of prosecution. We affirm.

Facts

In the case below, Publicidad Vepaco, C.A., and Latele Television C.A., two Venezuelan corporations, sued Nelson Mezerhane and Rogelio Trujillo, two Venezuelan nationals living in Florida for fraud, conspiracy to defraud, conversion, conspiracy to commit conversion, civil theft, and unjust enrichment. The allegations stemmed from loans made available to the plaintiffs by a bank principally owned by one of the defendants. As the litigation proceeded, a dispute arose over the control of the plaintiff corporations which led to different attorneys claiming to represent the plaintiffs. Mr. Andrew M. Kassier of Andrew M. Kassier, P.A., and Mr. Albert J. Piantini of Piantini and Associates, P.A., maintained they represented the plaintiffs. At the same time, Mr. Manuel Arthur Mesa of the firm of Mesa & Associates, P.A. maintained he represented the plaintiffs. In fact, at one point, the defendants filed a motion to stay the proceedings until the issue of control of the plaintiff corporations was resolved. The plaintiffs opposed the motion, which was ultimately denied by the trial court.

On October 18, 2017, pursuant to Florida Rule of Civil Procedure 1.420 (e), the defendants filed a notice that no record activity had occurred since December 21, 2016. Plaintiffs filed no record activity in response. On December 27, 2017, the defendants filed their motions to dismiss for failure to prosecute. After being continued at the request of the plaintiffs, the hearing took place on January 31, 2018. The trial court deferred ruling on the motions to dismiss and concluded that an evidentiary hearing was necessary on the issue of representation and that the court would "also convene an evidentiary hearing on the issue of good cause in conjunction with the representation hearing." The trial further ruled that the pleadings were "frozen" as to the good cause issue.

The evidentiary hearing was held on April 12, 2018. At the hearing, the court determined that both sets of plaintiffs' counsels – Mr. Kassier and Mr. Piantini, and Mr. Mesa – were aligned in interest in avoiding the dismissal and therefore, the court could properly hear argument on the merits of the dismissal motions. On May 8, 2018, the trial court entered a detailed eleven-page order dismissing the case, without prejudice, for lack of prosecution. The court denied the plaintiffs' motion for rehearing and both groups of the plaintiffs' purported counsel filed notices of appeal.¹

Standard of Review

We review a trial court's determination of whether good cause exists in the context of a motion to dismiss for lack of prosecution for an abuse of discretion. Metro. Dade Cnty. v. Hall, 784 So. 2d 1087, 1090 n.4 (Fla. 2001) (noting that dismissal is mandatory under the rule if there has been no action taken toward prosecution within one year and "[t]he abuse of discretion standard is triggered only if the trial court must make a determination of good cause."); Johnson v. Maroone Ford LLC, 944 So. 2d 1059, 1060 (Fla. 4th DCA 2006) ("The standard of review of a trial court's dismissal of a cause of action for failure to prosecute is abuse of discretion.").

Analysis

Motions to dismiss for failure to prosecute are governed by rule 1.420(e).² Under rule 1.420(e), if there has been no record activity for a period of 10 months and there has been no stay of the proceedings, any interested party may serve notice to all parties that no record activity has occurred. Id. If no record activity occurs in the 60 days immediately following service of the notice of record inactivity and there is no stay, then the action "shall be dismissed by the court" either by its own motion or the motion of any interested party. Id. However, dismissal may be avoided if, not later than 5 days prior to the hearing on the motion to dismiss, a party shows good cause in writing as to why the action should remain pending. Id.

Rule 1.420(e) has been interpreted as "a mandatory rule. Unless a party can satisfy the exceptions provided for in the rule, it specifically states ‘shall dismiss,’ and there is no discretion on the trial court's part if it is demonstrated to the trial court that no action toward prosecution has been taken within a year." CPI Mf'g Co., Inc. v. Industrias St. Jack's, S.A. de C.V., 870 So. 2d 89, 91 (Fla. 3d DCA 2003) (citation omitted); see Wilson v. Salamon, 923 So. 2d 363, 368 (Fla. 3d DCA 2005) ( [t]he language of the rule is clear—if a review of the face of the record does not reflect any activity in the preceding year, the action shall be dismissed, unless a party shows good cause why the action should remain pending ....").

Here, it is undisputed that no record activity occurred in the underlying case during the 10-month period preceding the defendants' October 18, 2017 notice of record inactivity. Likewise, it is undisputed that there was no record activity following that notice until December 27, 2017, when the defendants filed their motion to dismiss for lack of prosecution. At that point, the...