Renovaship, Inc. v. Quatremain

• Decision Date: 21 December 2016
• Docket Number: No. 3D16–2210,3D16–2210
• Parties: RENOVASHIP, INC., Petitioner, v. Barclay QUATREMAIN, et al., Respondents.
• Court: Florida District Court of Appeals

208 So.3d 280

RENOVASHIP, INC., Petitioner,
v.
Barclay QUATREMAIN, et al., Respondents.

No. 3D16–2210

District Court of Appeal of Florida, Third District.

Opinion filed December 21, 2016.

Schatzman & Schatzman and Arnold D. Schatzman, for petitioner.

Behar, Gutt & Glazer and Ira Gutt and Robert J. Edwards (Fort Lauderdale);

208 So.3d 282

David J. Schottenfeld (Plantation), for respondents.

Before EMAS, FERNANDEZ and SCALES, JJ.

EMAS, J.

INTRODUCTION

Petitioner Renovaship, Inc. filed a petition seeking certiorari review of the trial court's order vacating an earlier order dismissing the action for lack of prosecution. Renovaship asserts that the trial court lacked jurisdiction to vacate its earlier dismissal order and to continue exercising jurisdiction over the case. We agree, treat this proceeding as a petition for writ of prohibition¹ and, for the reasons that follow, grant the petition, and quash the order on review.

FACTS

Petitioner Renovaship, together with Dennis Carbee, Oscar Medina and Denny Rodrigues, were the defendants below.² Respondent Barclay Quatremain was the plaintiff below, and commenced the action on January 21, 2009. Renovaship and the other defendants answered the complaint, and Renovaship filed a counterclaim against Quatremain, to which Quatremain filed an answer and affirmative defenses.

On November 20, 2014, the trial court sua sponte issued a Notice of Lack of Prosecution, see Fla. R. Civ. P. 1.420(e),³ and Notice of Hearing on the Court's Motion to Dismiss for Lack of Prosecution. The notice included a hearing date of March 12, 2015, and required any party opposing dismissal to show good cause in writing, at least five days before the March 12, 2015 hearing, why the case should remain pending.

The order further provided that the parties were required to attend the March 12, 2015 hearing, and advised that "[t]he failure of the party opposing the motion to appear at the hearing and to timely file a showing of good cause in writing, if required,

208 So.3d 283

shall constitute an abandonment of any justified defense to the motion and the above styled action shall be dismissed for lack of prosecution upon further order of the Court on the date of the hearing. ..."

Quatremain failed to file any separate pleading of good cause in response to the notice. Also, and importantly, Quatremain (and his counsel) failed to appear at the March 12, 2015 hearing. On March 12, 2015, the trial court entered an order dismissing the action for lack of prosecution. No motion for rehearing was filed, and no appeal was taken from this dismissal order.

On June 29, 2016, more than fifteen months after entry of the dismissal order, Quatremain filed a motion to vacate the March 12, 2015 order dismissing the action for lack of prosecution. Attached to the motion was an Affidavit of Good Cause, in which Quatremain's counsel averred, inter alia, that:

- He did not receive the November 20, 2014 Notice of Lack of Prosecution until December 11, 2014;

- He filed a notice of trial on January 28, 2015, and this was good cause and record activity within the 60–day time period required by the Notice and by rule 1.420(e) ;⁴

- He did not receive the March 12, 2015 order dismissing the case for lack of prosecution, and thereafter continued to litigate the case, under the belief that the action remained pending;⁵

- He first learned of the March 12, 2015 dismissal order on April 26, 2016, when he contacted the trial court's judicial assistant regarding the status of a pretrial order.

Renovaship opposed the motion to vacate, contending, inter alia, that the trial court no longer had jurisdiction and was therefore without authority to vacate the dismissal order. The trial court granted Quatremain's motion, and on August 29, 2016, entered an order vacating its earlier dismissal order of March 12, 2015.

ANALYSIS

As a general rule, "a trial court loses jurisdiction upon the rendition of a final judgment and expiration of the time allotted for altering, modifying or vacating the judgment." Ross v. Wells Fargo Bank , 114 So.3d 256, 257 (Fla. 3d DCA 2013).⁶

208 So.3d 284

The trial court retains jurisdiction to the extent such is specifically reserved in the final judgment or as otherwise provided by statute or rule. Id. In the instant case, the order dismissing the action for lack of prosecution contained no reservation of jurisdiction, and the order became final when no motion for rehearing was served within the fifteen-day period following the order of dismissal. See Fla. R. Civ. P. 1.530(b). Thus, Quatremain's only avenue to alter, modify or vacate that dismissal order was by motion filed pursuant to Florida Rule of Civil Procedure 1.540(b), which, under limited circumstances and time constraints, provides relief from a judgment, order or decree. Pruitt v. Brock , 437 So.2d 768 (Fla. 1st DCA 1983). That rule provides in relevant part:

(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud; etc. On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, decree, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial or rehearing; (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) that the judgment or decree is void; or (5) that the judgment or decree has been satisfied, released, or discharged, or a prior judgment or decree upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment or decree should have prospective application. The motion shall be filed within a reasonable time, and for reasons (1), (2), and (3) not more than 1 year after the judgment, decree, order, or proceeding was entered or taken.

Quatremain's motion to vacate contained no mention of rule 1.540 or any rule upon which he asserted an entitlement to vacatur of the dismissal order. However, we can discern, from the contents of his motion, two potential bases for which he sought relief:

1. Under rule 1.540(b)(1), that the order of dismissal for lack of prosecution was erroneously entered because there was evidence of record activity; that Quatremain, through mistake, inadvertence, surprise or excusable neglect, was unaware that this order had been entered; and that both parties had continued to engage in discovery and motion practice despite the dismissal order.

2. Because neither Quatremain nor his counsel ever received the March 12, 2015 order, and did not became aware of its existence until April 26, 2016, the dismissal order must be vacated.

We decline to reach the merits of the first claim: any asserted error in the trial court's entry of a dismissal order should have been appealed by Quatremain or...