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).