County Civil Court: CIVIL PROCEDURE – Dismissal - trial court abused its discretion in dismissing cause of action for failure to prosecute pursuant to Rule 1.420(e) – record showed that plaintiff’s counsel experienced computer failure as a result of a hurricane and was litigating parallel cases, involving the same parties and similar issue, during the one-year period of no record activity - Dismissal reversed.  Verizon Florida, Inc. v. KMC Telecom, Inc., No. 05-0052AP-88A (Fla. 6th Cir. App. Ct. May 18, 2006). 

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

VERIZON FLORIDA, INC., a Florida Corporation,

                        Appellant,

vs.                                                                                    Appeal No.05-0052AP-88A

                                                                                         UCN522005AP000052XXXXCV

KMC TELECOM, INC.,

                        Appellee.

____________________________________/

Appeal from Dismissal

Pinellas County Court

Judge Walt Fullerton

 

Lorraine A. Valenti, Esquire

Attorney for Appellant

 

Marie A. Borland, Esquire

Timothy C. Ford, Esquire

Attorneys for Appellee

 

 

ORDER AND OPINION

 

            THIS CAUSE came before the Court on appeal, filed by Verizon Telecom, Inc. (Verizon), from the Order Granting Defendant’s Motion to Dismiss for Failure to Prosecute, entered June 27, 2005, in favor of KMC Telecom, Inc. (KMC).  Upon review of the briefs, the record and being otherwise fully advised, the Court reverses the trial court’s ruling as set forth below.

            The relevant facts are that Verizon filed its Complaint against KMC on February 6, 2004.  KMC filed its Answer and Defenses on March 4, 2004.  Verizon filed a Motion for Default on March 29, 2004, which the clerk denied since KMC had filed an answer.  There was no record activity until KMC filed its Motion to Dismiss for Failure to Prosecute, on April 29, 2005.  On May 4, 2005, the trial court issued a Notice of Intent to Dismiss for Failure to Prosecute.  The following day, May 5, 2005, Verizon filed several motions and its Response to Defendant’s Motion to Dismiss, attaching the affidavit of Lorraine A. Valenti, Esquire, attorney for Verizon.  The Response and Affidavit stated that the reason there had been no record activity for over one year is that the firm’s computer hard drive failed after Hurricane Charlie in September 2004, that there was a parallel case involving the same parties that lead to confusion, and that the attorney that was handling the files left the firm in November 2004.  The matter came before the trial court for a hearing on June 20, 2005.  After considering the evidence and parties’ arguments, the trial court granted KMC’s Motion to Dismiss.

            The issue before this Court is whether the trial court abused its discretion in dismissing Verizon’s cause of action for failure to prosecute under Florida Rule of Civil Procedure, Rule 1.420(e).[1]  Rule 1.420(e) requires that an action be dismissed for failure to prosecute if it appears on the face of the record that there was no activity for one year.  See Metropolitan Dade County v. Hall, 784 So.2d 1087, 1090 (Fla. 2001); Seabury v. Cheminova, Inc., 868 So.2d 625, 627 (Fla. 2d DCA 2004).  If there has been no record activity for one year, the burden moves to the non-moving party to demonstrate good cause why the action should not be dismissed.  See id.  Courts have recognized that good cause exists when there is a related action pending involving the same parties and similar claims.  See Seabury, 868 So.2d at 627-28; Lisa, S.A. v. Gutierrez, 824 So.2d 975, 976 (Fla. 3d DCA 2002); Mankowitz, M.D. v. Fishermen’s Hospital, Inc., 752 So.2d 753, 754 (Fla. 3d DCA 2000).

In this case, there is no dispute that there was no record activity for one year.  Hence, the burden moved to Verizon to establish good cause for its failure to prosecute.  As set forth above, the undisputed facts were that counsel for Verizon experienced computer failure as a result of a hurricane, that there were pending parallel cases that caused confusion, and that the attorney assigned to both cases left the firm.  It was also undisputed that in the parallel case, there was on-going litigation between the same parties involving a similar issue during the one-year period of no record activity.  The Court finds that the cumulative effect of these events, in particular the on-going litigation involving the pending parallel case, established good cause for Verizon’s failure to prosecute.  See id.  Accordingly, the Court finds that the trial court abused its discretion in dismissing the case.  Therefore, it is,

            ORDERED AND ADJUDGED that the Order Granting Defendant’s Motion to Dismiss for Failure to Prosecute is reversed and this cause is remanded for action consistent with this Order and Opinion.  It is further

            ORDERED AND ADJUDGED that Appellant’s Motion for Costs and Attorney’s Fees is denied to the extent that the Motion failed to set forth the grounds upon which fees are sought.  The Appellant may seek costs as set forth in the Rules of Appellate Procedure, Rule 9.400(a). 

            DONE AND ORDERED in Chambers, at Clearwater, Pinellas County, Florida this ______ of May 2006.

                                                ________________________________

                                                JOHN A. SCHAEFER

                                                Circuit Judge, Appellate Division

 

 

______________________________                        ______________________________

LAUREN LAUGHLIN                                            JAMES CASE

Circuit Judge, Appellate Division                               Circuit Judge, Appellate Division

Copies furnished to:

 

Judge Walt Fullerton

 

Lorraine A. Valenti, Esquire

1211 N. Westshore Blvd., Suite 414

Tampa, FL  33607

 

Marie A. Borland, Esquire

Timothy C. Ford, Esquire                                                      

Post Office Box 2231

Tampa, FL  33601

 


[1] The Court finds that recent amendments to Rule 1.420(e), which provide a plaintiff with a 60-day window of opportunity to show record activity after notice, is inapplicable to this action.  See Nicoletti v. Nicoletti, 902 So.2d 215, 216 (Fla. 2d DCA 2005)(stating that amendments to rules of procedure are prospective unless the language of the rule specifically provides otherwise).