Riesgo v. Weinstein
| Decision Date | 15 April 1988 |
| Docket Number | No. 87-805,87-805 |
| Citation | 523 So.2d 752,13 Fla. L. Weekly 954 |
| Parties | 13 Fla. L. Weekly 954 Rene RIESGO, Jr., Appellant, v. Ira WEINSTEIN, Intervenor/Appellee, and Allen Lee Larson, Chemical Tank Lines, Inc., a Florida corporation, Progressive Casualty Insurance Company, Interstate Fire and Casualty Company, and Florida Insurance Guaranty Association, a corporation doing business in Florida, Appellees. |
| Court | Florida District Court of Appeals |
Randall O. Reder and Jonathan L. Alpert of Alpert, Josey & Grilli, P.A., Tampa, for appellant.
A. Broadus Livingston and Rosa I. Rodriguez of Carlton, Fields, Ward, Emmanuel, Smith, Cutler & Kent, P.A., Tampa, for intervenor/appellee.
Rene Riesgo appeals from a final order awarding his former attorney, Ira Weinstein, attorney's fees. We reverse.
In October 1977 Riesgo retained Weinstein to represent him pursuant to a written contingency fee contract in an action for damages for injuries Riesgo sustained in a motor vehicle accident. During Weinstein's representation of Riesgo two offers of settlement were made, one for $20,000 and one for $100,000. Riesgo declined both offers.
In September 1981 Riesgo discharged Weinstein and hired Patrick Dekle to represent him. Weinstein and Dekle filed a joint motion and stipulation whereby they sought Dekle's substitution as counsel for Riesgo and Weinstein asked the court to retain jurisdiction to determine his fee for services rendered. The court entered an order granting the attorneys' requests and retained jurisdiction to set Weinstein's fees.
Dekle requested Weinstein turn the case file over to him to facilitate prosecution of the case. Weinstein refused, and Dekle started anew with discovery, prosecuting the case to trial. After the first day of trial an offer of settlement of $400,681.64 was made and accepted by Riesgo. The parties then filed a joint stipulation for dismissal with prejudice, which the trial court granted in October 1983 by way of an order in which it also retained jurisdiction to resolve Weinstein's lien for attorney's fees.
Several hearings were set to resolve the lien for attorney's fees, but they were all cancelled because of conflicts. Then, in June 1985 Riesgo filed a motion to dismiss for failure to prosecute. The trial court denied the motion, after a hearing thereon, finding that Dekle and Weinstein had been in contact by telephone and letter during the year preceding the filing of the motion in an attempt to keep the matter out of the courts. The trial court found that this nonrecord activity constituted good cause not to dismiss the action.
A hearing was finally conducted pursuant to the charging lien for attorney's fees, and the court entered an order awarding Weinstein $30,000. The order contained no findings in support of the award.
As his first point on appeal, Riesgo contends that the trial court erred in denying his motion to dismiss for failure to prosecute pursuant to Florida Rule of Civil Procedure 1.420(e) because there was no affirmative record activity by Weinstein for over a year. Weinstein contends that this matter is not subject to a motion to dismiss under Rule 1.420(e) because it proceeds from a reservation of jurisdiction by the trial court to resolve a lien for attorney's fees subsequent to the entry of a final judgment. We agree. In Ravel v. Ravel, 326 So.2d 223, 224 (Fla. 2d DCA 1976), we held that
Even if we agreed with Riesgo that this matter is subject to a Rule 1.420(e) motion to dismiss, the trial court was correct in its disposition of the motion. We have held that nonrecord activity can preclude dismissal of an action for failure to prosecute if good cause, i.e., a compelling reason, is shown to avoid dismissal. American E. Corp. v. Henry Blanton, Inc., 382 So.2d 863 (Fla. 2d DCA 1980). As noted previously, the trial court found that such good cause was shown by Weinstein. It is Riesgo's burden to show that the trial court abused its discretion in so finding, Adams Eng'g Co. v. Constr. Prods. Corp., 156 So.2d 497 (Fla.1963), and Riesgo did not carry his burden.
As his second point on appeal, Riesgo contends that the trial court erred in awarding Weinstein attorney's fees based on the contingency fee contract...
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