Sheen v. the Time Inc Magazine Co, 00-3512
| Decision Date | 30 January 2001 |
| Docket Number | 00-3512,3 |
| Parties | NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF BRIAN J. SHEEN, Appellant, vs. THE TIME INC. MAGAZINE CO. and JOHN SIMS, Appellees. CASE NO. 3D00-3510 JANUARY TERM, A.D. 2002 IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT Opinion filed |
| Court | Florida District Court of Appeals |
An Appeal from the Circuit Court for Miami-Dade County, Robert P. Kaye, Judge.
Bailey & Dawes and Guy B. Bailey and John E. Hughes, III, for appellant.
Holland & Knight and Sanford L. Bohrer and Scott D. Ponce, for appellees.
Before SHEVIN, SORONDO, and RAMIREZ, JJ.
Brian Sheen appeals a final order dismissing his action for
lack of prosecution. We affirm.
In July 1991, Sheen, Sheen Financial Resources, Inc., and First Preservation Capital, Inc., f/k/a Sheen Investment Management Group, Inc. (collectively, Plaintiffs), filed suit against The Time Inc. Magazine Company (Time) and John Sims (Sims) for defamation, based on an article that Sims wrote while employed by Time for its publication, Money magazine. Thereafter, Plaintiffs filed an amended complaint, which Time and Sims answered in March 1992. From April 1992 to August 1993, the record shows there were various motions filed relating to substitution of counsel and withdrawal of counsel, as well as the trial court's orders addressing those motions.
In June 2000, Sheen filed Requests to Admit, to which Time responded. The index to the record on appeal, however, does not show any activity during the seven year period between August 1993 and October 2000.
On October 20, 2000, the trial court entered a sua sponte Notice of Dismissal for Lack of Prosecution on the grounds that it appeared on the face of the record that there had been no activity by filing of pleadings, order of the court, or otherwise in the cause for a period of one year. The notice of dismissal ordered that good cause be shown in writing, at least five days before the hearing, as to why the action should remain pending; and set the matter for hearing on November 27, 2000, to determine whether the case should be dismissed. The trial court's notice also advised that in the absence of any showing of good cause why no action had been taken, the matter would be dismissed by separate order, without further notice.1
Sheen's counsel did not file a written response to the notice of dismissal, nor did he make an appearance at the November 27, 2000 hearing. After reviewing the record, including the requests for admission and answer, the trial court found that the requests had been undertaken in bad faith and without any design to move the case forward toward a conclusion on the merits. Furthermore, the court found that the filings during the year preceding the filing of the notice of dismissal were merely passive efforts to keep the 1991 action on the docket. The trial court entered an order dismissing the action, without prejudice, for lack of prosecution. Sheen did not move for rehearing. He now appeals the trial court's ruling.
We begin our analysis with rule 1.420(e), Florida Rules of Civil Procedure, which provides as follows:
Failure to Prosecute. All actions in which it appears on the face of the record that no activity by filing of pleadings, order of court, or otherwise has occurred for a period of 1 year shall be dismissed by the court on its own motion or on the motion of any interested person, whether a party to the action or not, after reasonable notice to the parties, unless a stipulation staying the action is approved by the court or a stay order has been filed or a party shows good cause in writing at least 5 days before the hearing on the motion why the action should remain pending. Mere inaction for a period of less than 1 year shall not be sufficient cause for dismissal for failure to prosecute.
The case law interpreting rule 1.420(e) makes it clear that not every document filed in a case qualifies as record activity. See Toney v. Freeman, 600 So. 2d 1099, 1100 (Fla. 1992); Otero v. Gastroenterology Group of South Florida, P.A., 710 So. 2d 148, 149 (Fla. 3d DCA 1998); Heinz v. Watson, 615 So. 2d 750 (Fla. 5th DCA 1993); Caldwell v. Mantei, 544 So. 2d 252 (Fla. 2d DCA 1989); Boeing Co. v. Merchant, 397 So. 2d 399, 402 (Fla. 5th DCA 1981). This is because for purposes of rule 1.420(e), "[r]ecord activity must be more than a mere passive effort to keep the case on the docket; the activity must constitute an affirmative act calculated to hasten the suit to judgment." Toney, 600 So. 2d at 1100. Under this definition of record activity, documents filed of record concerning discovery may, but do not always, constitute sufficient record activity.2 See Anthony v. Schmitt, 557 So. 2d 656, 659 (Fla. 2d DCA 1990), approved by, Del Duca v. Anthony, 587 So. 2d 1306, 1309 (Fla. 1991).
In Del Duca v. Anthony, the Florida Supreme Court approved the Second District Court of Appeal's decision in Anthony v. Schmitt, which sets forth a two-step test for trial courts to apply when considering a dismissal for failure to prosecute, where there has been some discovery activity during the year preceding the filing of a motion to dismiss under rule 1.420(e). Anthony, 557 So. 2d at 658-59, approved by, Del Duca, 587 So. 2d at 1308-09. Id. The issue in Del Duca involved only the first step, specifically, whether the discovery activity that had been filed in the record was not "a mere passive effort to keep the suit on the docket."3 587 So. 2d at 1309 (quoting Eastern Elevator, Inc. v. Page, 263 So. 2d 218, 220 (Fla. 1972)). The test that emerged from Anthony allows a trial court to dismiss an action if the only activity within the year is discovery taken in bad faith and "without any design 'to move the case forward toward a conclusion on the merits.'" Del Duca, 587 So. 2d at 1309 (quoting Barnett Bank of East Polk County v. Fleming, 508 So. 2d 718, 720 (Fla. 1987).
Thus, the first step of the test requires that the trial court determine whether there has been record activity, as that term has been interpreted by the Florida courts. A review of the record may in fact reveal no filings of record, in which case no further inquiry is necessary at that stage. See Metropolitan Dade County v. Hall, 784 So. 2d 1087, 1090 n.4 (Fla. 2001). However, where there has been some activity, as in this case, the trial court is left with the task of determining whether the activity in question constitutes sufficient record activity to preclude dismissal under rule 1.420(e). Del Duca, 587 So. 2d at 1309. If it is shown that no action toward prosecution has been taken within a year, the plaintiff then has the opportunity under the second step to present the trial court with good cause in writing to avoid dismissal. In the absence of good cause, the trial court is bound to dismiss the case. See Nesbitt v. Community Health of South Dade, Inc., 566 So. 2d 1, 2 (Fla. 3d DCA 1989); Martinez v. Fuenmayor, 533 So. 2d 935 (Fla. 3d DCA 1988).
Sheen relies on Metropolitan Dade County v. Hall, for the proposition that the trial court lacked jurisdiction to move to dismiss the action because there had been record activity in the case during the year preceding the filing of the notice of dismissal, i.e., the requests to admit. Sheen's reliance on Hall is misplaced.
In Metropolitan Dade County v. Hall, the Supreme Court of Florida reviewed Hall v. Metropolitan Dade County, 760 So. 2d 1051 (Fla. 3d DCA 2000), which this Court had certified to be in conflict with Levine v. Kaplan, 687 So. 2d 863 (Fla. 5th DCA 1997) and Smith v. DeLoach, 556 So. 2d 786 (Fla. 2d DCA 1990). In Hall, the defendant had deposed the plaintiff during the year preceding the filing of the motion to dismiss. The plaintiff had also served an offer of judgment on the defendant. Neither of these had been filed of record. The trial court granted the defendant's motion to dismiss for lack of prosecution; this Court reversed and certified conflict. The supreme court approved this Court's decision and disapproved of Smith and Levine. 784 So. 2d at 1091.
In Hall, the Supreme Court of Florida did not have to analyze the first step of the Del Duca test because there was no record activity on the face of the record since neither the offer of judgment nor the depositions taken had been filed of record. Instead, the opinion focused on the second step, the good cause showing. To that end, the court noted that in the absence of record activity, the non-moving party must show good cause to preclude dismissal; it identified the factors from Del Duca as a means of evaluating whether good cause exists. The court went as far as providing an example of what constitutes sufficient record activity and as such, good cause. Specifically, the court stated:
Rule 1.420(e) plainly states that actions 'shall' be dismissed if it appears on the face of the record that there was no activity within the past year. This requires only a review of the record. There is either activity on the face of the record or there is not. If a party shows that there is no activity on the face of the record, then the burden moves to the non-moving party to demonstrate within the five-day time requirement that one of the three bases that would preclude dismissal exists. The factors from Del Duca, whether any activity was done in good faith and whether the activity was with any design to move the case forward, are components in evaluating whether good cause exists. We also note that when there is record activity occurring during the preceding year, such as a notice for trial which has not been acted on by the...
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