CHERYL PEEPLES, AS PARENT AND NATURAL GUARDIAN OF ARIAN PEEPLES vs CARLTON PALMS EDUCATIONAL CENTER, INC., GRACES SUPPORT SERVICES, LLC, DISABILITY RIGHTS FLORIDA, INC., AND BELLWETHER BEHAVIORAL FLORIDA MANAGEMENT CORP.

• Court: District Court of Appeal of Florida
• Decided: March 3, 2023
• Docket: 22-0452
• Status: Published

Opinion

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

CHERYL PEEPLES, AS PARENT AND NATURAL GUARDIAN OF ARIAN PEEPLES,

Appellant,

v. Case No. 5D22-452 LT Case No. 2018-CA-002406-AX

CARLTON PALMS EDUCATIONAL CENTER, INC., GRACE’S SUPPORT SERVICES, LLC, DISABILITY RIGHTS FLORIDA, INC., AND BELLWETHER BEHAVIORAL FLORIDA MANAGEMENT CORP.,

Appellees. ________________________________/

Opinion filed March 3, 2023

Appeal from the Circuit Court for Lake County, Dan R. Mosley, Judge.

Chad A. Barr, of Chad Barr Law, Altamonte Springs, for Appellant.

Ronald L. Harrop, of O’Connor & O’Connor, LLC, Orlando, for Appellee, Grace’s Support Services, LLC. Sharon C. Degnan and Sebastian C. Mejia, of Kubicki Draper, Orlando, for Appellees, Carlton Palms Educational Center, Inc., and Bellwether Behavioral Florida Management Corp.

No Appearance for Remaining Appellee.

JAY, J.

The trial court dismissed Appellant’s complaint for failure to prosecute

under Florida Rule of Civil Procedure 1.420(e). In this appeal, Appellant

argues that dismissal was improper because there was record activity within

the ten months that immediately preceded the lack of prosecution notice. We

agree with Appellant and reverse the order of dismissal.

I.

Appellant sued Appellees on behalf of her son. No activity occurred in

the case from December 26, 2018, until May 31, 2019. On that date, the judge

assigned to the case changed pursuant to an administrative order.

On March 11, 2020, Appellee Grace’s Support Services, LLC (“Grace’s

Support”), filed a notice of lack of prosecution. The notice alleged that no

record activity had taken place for fourteen months. Citing rule 1.420(e), the

notice maintained that if no activity happened in the next sixty days, the court

should dismiss the case for failure to prosecute.

2 No activity occurred in the next sixty days. Grace’s Support moved to

dismiss the case for failure to prosecute. Soon thereafter, the other Appellees

moved to dismiss the case on the same basis. In response, Appellant argued

that dismissal was inappropriate because there had been record activity in

the ten months before the March 11, 2020 notice—specifically referencing

the May 31, 2019 judge reassignment by administrative order. After holding

a hearing, the trial court dismissed Appellant’s complaint. This appeal

followed.

II.

Whether record activity occurred in the relevant timeframe is reviewed

de novo. Tate v. McNeil, 268 So. 3d 212, 214 (Fla. 2d DCA 2019). To make

that determination, we begin with the text of rule 1.420(e), which states in full:

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

3 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. (Emphasis added).

The “words of a governing text are of paramount concern, and what

they convey, in their context, is what the text means.” Ham v. Portfolio

Recovery Assocs., LLC, 308 So. 3d 942, 946 (Fla. 2020) (quoting Antonin

Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 56

(2012)). Therefore, unless the context dictates otherwise, a court must

interpret every word according to its plain, obvious, and common-sense

meaning. Id. at 946–47.

In evaluating the words of rule 1.420(e), the Florida Supreme Court

has observed that “the language of the rule is clear—if a review of the face of

the record . . . reveals activity by ‘filings of pleadings, order of court, or

otherwise,’ an action should not be dismissed.” Wilson v. Salamon, 923 So.

2d 363, 368 (Fla. 2005). This “bright-line rule” is “easy to apply and relieves

the trial court . . . of the burden of determining . . . whether an activity is merely

passive or active.” Id. Accordingly, when evaluating activity under rule

1.420(e), a court need only conduct a “cursory review of the record” because

“there is either activity on the face of the record or there is not.” Id. That is,

4 “there is no need to examine the type or quality of [the] docket entries.”

Waldeck v. MacDougall, 300 So. 3d 1218, 1220 (Fla. 4th DCA 2020). “[I]t is

a mechanical, ministerial review of the record with no discretion on the part

of the trial court.” Id.

Here, Grace’s Support filed its notice of inactivity on March 11, 2020.

Under rule 1.420(e), the notice was valid if “on the face of the record,” “no

activity by filing of pleadings, order of court, or otherwise” took place “within

the 10 months immediately preceding” the service of the notice. However, the

trial court progress docket shows that on May 31, 2019—nine months and

eleven days before the notice—there was a “Judge Reassignment Per Admin

Order 2018-56-A.”

Plainly, Administrative Order 2018-56-A is a court order. In turn, that

order triggered activity in the case: the reassignment of the presiding judge.

Appellees claim that the May 31st “docket notation” cannot be record activity

because it is not a valid “filing.” This argument is at odds with the plain text of

the rule, which states that for a notice to be viable, there must be “no

activity[,]” “on the face of the record[,]” “by filing of pleadings, order of

court, or otherwise[.]” Fla. R. Civ. P. 1.420(e) (emphasis added). “As Justice

Wells noted in Hall, there is either activity on the face of the record or there is

not.” Wilson, 923 So. 2d at 368 (citing Metro. Dade Cnty. v. Hall, 784 So. 2d

5 1087, 1090 (Fla. 2001)). Here, the progress docket, which is quintessentially

part of the face of the trial court record, shows activity on May 31, 2019. See

Fla. R. Jud. Admin. 2.420(b)(1)(A) (providing that “court records” are “the

contents of the court file, including the progress docket and other similar

records generated to document activity in a case”). Accepting Appellees’

position requires looking beyond the face of that record to make a subjective

determination about the nature of the activity at issue. Wilson prohibits us

from doing so. See Wilson, 923 So. 2d at 368 (“[I]f a review of the face of the

record reveals activity by ‘filing[] of pleadings, order of court, or otherwise,’ an

action should not be dismissed.”); Diamond Drywall Sys., Inc. v. Mashan

Contractors, Inc., 943 So. 2d 267, 269 (Fla. 3d DCA 2006) (observing that

Wilson’s clear intention was to overturn precedent that required courts to look

behind the face of the record to make subjective determinations).

III.

Given that record activity occurred on May 31, 2019, the March 11,

2020 notice was invalid because there had not yet been ten months of record

inactivity. See Fla. R. Civ. P. 1.420(e). And because the notice did not comply

with rule 1.420(e), the trial court erred by dismissing Appellant’s complaint

under that provision. See Bondar v. Town of Jupiter Inlet Colony, 321 So. 3d

774, 780 (Fla. 4th DCA 2021) (“[S]ince the applicable time periods are

6 calculated with reference to the date of entry of a notice of no activity for a

stated period, such notice to all parties is a crucial and necessary step in

initiating the dismissal procedure contemplated by rule 1.420(e). Therefore,

if the Court’s Notice was validly entered, dismissal pursuant to rule 1.420(e)

was required; but, if the Court’s Notice was invalidly entered, then dismissal

under the rule was improper.” (internal citation omitted)); DRD Marine Corp.

v. Byrd Techs., Inc., 77 So. 3d 867, 869 (Fla. 4th DCA 2012) (“Even if the

defendant had served the notice instead of filing the motion to dismiss, the

notice still would have been improper because record activity occurred in the

ten months which would have immediately preceded the serving of the

notice.”); A-1 Presto Roofing Corp. v. Espinosa, 51 So. 3d 566, 567 (Fla. 3d

DCA 2010) (“Thus, under the rule, if there is any record activity within the ten

(10) months immediately preceding the service of such notice, the case

should not be dismissed.”). Accordingly, we reverse the order of dismissal

and remand the matter to the trial court with directions to reinstate Appellant’s

complaint.

REVERSED and REMANDED with directions.

SOUD and BOATWRIGHT, JJ., concur.