Weston Tc Lllp v. Cndp Mktg. Inc.

• Decision Date: 27 July 2011
• Docket Number: No. 4D10–1063.,4D10–1063.
• Citation: 66 So.3d 370
• Parties: WESTON TC LLLP, Appellant,v.CNDP MARKETING INC., a Florida corporation, and Helen C. Schur Parris, Appellees.
• Court: Florida District Court of Appeals

66 So.3d 370

WESTON TC LLLP, Appellant,
v.
CNDP MARKETING INC., a Florida corporation, and Helen C. Schur Parris, Appellees.

No. 4D10–1063.

District Court of Appeal of Florida, Fourth District.

July 27, 2011.

[66 So.3d 371]

Peter A. Mardinly, Weston, for appellant.Michael S. Bendell of Michael Bendell, P.A., Boca Raton, for appellees.GROSS, J.

We reverse an order of dismissal because there was sufficient record activity under Florida Rule of Civil Procedure 1.420(e) to avoid dismissal.

In February 2008, Weston TC LLLP filed suit against CNDP Marketing, Inc. and Helen C. Schur Parris for breach of a lease. The defendants answered and counterclaimed. Between February and October 2008, the parties engaged in discovery and other litigation activity. On December 31, 2008, the defendants moved for sanctions against the plaintiff.

No further file activity occurred until November 25, 2009, when the defendants filed a notice of lack of prosecution. In their notice, the defendants asserted Weston had not filed anything for ten months and stated they would seek a dismissal for lack of prosecution after one year of inactivity under Rule 1.420(e). On January 19, 2010, within the 60–day grace period provided by Rule 1.420(e), Weston filed a notice of the absence and unavailability of its attorney; the notice provided that it should be construed as “an application and request for continuance, extension of time and/or for [p]rotective [o]rder as appropriately required.”

One week later, the defendants moved to dismiss for lack of prosecution. They argued that the notice of absence and unavailability was insufficient to avert a dismissal under the rule, citing Chemrock Corp. v. Tampa Electric Co., 23 So.3d 759 (Fla. 1st DCA 2009), rev'd., ––– So.3d ––––, 2011 WL 2566394 (Fla.2011).

In response, Weston argued that its notice was sufficient record activity and contended that Chemrock was inconsistent with Wilson v. Salamon, 923 So.2d 363 (Fla.2005), and the district court opinions applying that case. In a supporting affidavit, Weston's attorney averred that he lived full-time in Pennsylvania in close proximity to his elderly mother. The attorney described in detail his mother's severely deteriorating health and how much of his time from June to November 2009 was spent taking care of her, eventually leading to his neglect of the case. When confronted with the defendants' notice of failure to prosecute, the attorney faxed a settlement offer to the defendants' attorney, which was good until December 31. The defendants did not respond. The attorney then attempted to assess the state of the contested discovery in order to file something of substance but ran out of time. After determining that the plain language of Rule 1.420(e) required only some record activity, the attorney filed the January 19 notice of absence.

At a hearing, the circuit court concluded that the January 19 notice of absence was insufficient record activity to comply with Rule 1.420(e) and dismissed the case for lack of prosecution.

We agree with Weston that there was sufficient record activity in this case for it to avoid dismissal under Rule 1.420(e). Whether there has been “record activity” within the meaning of Rule 1.420(e) is a question of law reviewed de novo, as it involves the construction of a

[66 So.3d 372]

procedural rule. See Swait v. Swait, 958 So.2d 552, 553 (Fla. 4th DCA 2007).

The current version of Florida Rule of Civil Procedure 1.420(e) provides:

(e) Failure to Prosecute. In 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 10 months, and no order staying the action has been issued nor stipulation for stay approved by the court, any interested person, whether a party to the action or not, the court, or the clerk of the court may serve notice to all parties that no such activity has occurred. If no such record activity has occurred within the 10 months immediately preceding the service of such notice, and no record activity occurs within the 60 days immediately following the service of such notice, and if no stay was issued or approved prior to the expiration of such 60–day period, the action 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 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.

For many years, Florida courts drew a distinction between “active” and “passive” record activity, with only active activity being sufficient to avoid dismissal under Rule 1.420(e). See, e.g., Gulf Appliance Distribs. v. Long, 53 So.2d 706 (Fla.1951) (construing the statutory predecessor to Rule 1.420(e), which had different operative language than the rule). Courts struggled to apply the framework. Wilson v. Salamon, 864 So.2d 1122, 1123 (Fla. 2d DCA 2003) (“In the fifty years since Gulf Appliance was decided, the courts have never managed to establish a workable, predictable definition that distinguishes ‘passive’ activity from ‘active’ activity.” (citations omitted)). After the second district in Wilson certified a question on the framework of the rule, the Supreme Court took the opportunity to recede from Gulf Appliance and announce a bright-line rule. See Wilson v. Salamon, 923 So.2d 363 (Fla.2005).

In Wilson, the circuit court had dismissed an action for failure to prosecute, and the district court reluctantly affirmed. Id. at 363–64. In the operative twelve-month period, one of plaintiff's out-of-state attorneys filed a motion to appear pro hac vice as co-counsel, which was granted by an order filed in the record. Id. at 364. There was no further activity in the record after that order until the defendants moved to dismiss. Id. In affirming the circuit court's dismissal of the action, the second district held the pro hac vice motion to be insufficient activity to preclude dismissal under Rule 1.420(e) and asked the Supreme Court, by way of certified question, whether the order granting the motion was itself sufficient record activity. Id.

The Supreme Court reviewed the history of Rule 1.420(e), which replaced the statute at issue in Gulf Appliance, and noted that the case law spawned by Gulf Appliance diverged from the rule's plain language, as amended by the Court. See id. at 364–67. The Court quoted with approval language from its earlier opinion in Metropolitan Dade County v. Hall, which indicated that to decide whether there was record activity under Rule 1.420(e) “requires only a review of the record. There is either activity on the face of the record or there is not.” Id. at 366–67 (emphasis in Wilson removed) (quoting

[66 So.3d 373]

Metro. Dade Cnty. v. Hall, 784 So.2d 1087, 1090 (Fla.2001)). Consistent with this statement in Hall, the...