Dario Carnevale v. Guy M. Shir

• Court: District Court of Appeal of Florida
• Decided: May 15, 2024
• Docket: 2024-0351
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed May 15, 2024. Not final until disposition of timely filed motion for rehearing.

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No. 3D24-0351 Lower Tribunal No. 16-1219 ________________

Dario Carnevale, et al., Petitioners,

vs.

Guy M. Shir, et al., Respondents.

A Case of Original Jurisdiction—Mandamus.

Crabtree & Auslander, and John G. Crabtree, Charles M. Auslander and Brian C. Tackenberg, for petitioners.

Robert E. Menje, PLLC, and Robert E. Menje (Okeechobee), for respondents.

Before LOGUE, C.J., and EMAS and SCALES, JJ.

SCALES, J. Petitioners Dario and Flavia Carnevale, siblings, are plaintiffs below in

a multi-count action involving, inter alia, allegations of fraud, breach of

fiduciary duty, and professional negligence against their former attorneys. 1

They seek mandamus relief from this Court in the form of an order requiring

the trial court to sign a proposed order granting that portion of Petitioners’

November 13, 2020 summary judgment motion directed toward Count V of

Petitioners’ operative complaint. Count V alleges that Respondents were

professionally negligent in representing Petitioners in business dealings with

regard to condominium redevelopment and unit purchase transactions.

I. Relevant Background

On February 10, 2020, Petitioners obtained a partial summary

judgment on Counts I and II of their operative complaint (constructive fraud

damages and constructive trust). Then, on November 13, 2020, Petitioners

filed a motion for final summary judgment on the remaining counts of their

operative complaint (“summary judgment motion”).

The record provided to us by Petitioners reflects that the summary

judgment motion directed toward Count V was initially heard by the trial court

1 Respondents are defendants below, The Shir Law Group, P.A., Guy M. Shir, Stuart J. Zoberg, ZTJ Recovery, Inc., and Jodi Shir. The latter two defendants are not subject to the proposed summary judgment on Count V of Petitioners’ operative complaint that underlies this petition for writ of mandamus.

2 on August 23, 2021, and was continued to October 5, 2021. At both the

August 23rd and October 5th hearings, the trial court orally indicated its

intent to grant Petitioners’ summary judgment motion as to Count V.

At a March 18, 2022 hearing, the trial court stated that the reason she

had not yet entered an order with regard to Count V only, is that she did not

want to enter piecemeal orders, preferring rather to enter a single order on

all counts of Petitioners’ operative complaint. 2 Apparently reconsidering this

approach, the trial court, at this March 18, 2022 hearing, instructed

Petitioners’ counsel to submit a proposed partial summary judgment order

granting Petitioners’ summary judgment motion as to Count V. The record

we have been provided is unclear as to whether Petitioners, who were then

represented by counsel, submitted the requested order to the trial court

immediately following this March 18, 2022 hearing.

What our record does reflect is that on January 18, 2024, Petitioners,

who were then self-represented, in anticipation of a January 26, 2024 case

management conference, sent a proposed order to the trial court, along with

a cover letter requesting the trial court to enter the order, characterizing the

2 A discovery matter also caused an obstacle to the trial court’s entry of the summary judgment order as to Count V; however, prior to the March 18, 2022 hearing, Petitioners withdrew their request of the trial court that had caused the trial court to re-open discovery in October 2021.

3 trial court’s signing of the proposed order as a “ministerial act.” At the

January 26, 2024 case management conference, Petitioners argued that the

trial court should enter the proposed order. The trial court told Petitioners

that their arguments were outside the scope of the case management

conference and suggested that Petitioners set the matter for a hearing.

Petittioners then, through new counsel, filed the instant petition seeking a

writ from this Court directing the trial court to enter an order granting

summary judgment as to Count V of Petitioners’ operative complaint.

II. Analysis

We are concerned about the length of time that Petitioners’ summary

judgment motion has been pending in the trial court and we acknowledge

that, at the March 18, 2022 hearing, the trial court orally stated its intention

to grant Petitioners’ partial summary judgment as to Count V. Mandamus,

however, is available as a remedy only when the act sought to be compelled

is purely ministerial. To be purely ministerial in character means that the trial

court has no room for the exercise of discretion and its action is directed by

law. Wells v. Castro, 117 So. 3d 1233, 1236 (Fla. 3d DCA 2013). Mandamus

is warranted when a party with a clear legal right has no remedy left if the

trial court does not act. S. R. Acquisitions – Fla. City, LLC v. San Remo

Homes at Fla. City, LLC, 78 So. 3d 636, 638 (Fla. 3d DCA 2011).

4 We have held that a trial court has a ministerial duty to reduce certain

oral rulings to writing, but we have done so in the limited context of a ruling

related to the disqualification of the trial judge. Murphy v. Collins, 306 So. 3d

365, 369 (Fla. 3d DCA 2020); see also Godin v. Owens, 275 So. 3d 700, 701

(Fla. 5th DCA 2019). This duty is ministerial only so long as the record plainly

reveals that the trial court does not intend to make a substantive change to

the ruling. Murphy, 306 So. 3d at 369. Petitioners have cited no case that

would apply Murphy’s limited holding to the circumstances of this case.

In other words, we have been provided no authority suggesting that

the trial court has a ministerial duty to sign a proposed order partially granting

a final summary judgment motion, even a proposed order submitted at the

behest of the trial court after the trial court has orally granted the motion. Not

only is the trial court free to revisit and modify its interlocutory rulings at any

time,3 but this Court recognizes more generally that “[a] trial court has broad

discretion to manage its docket.” S.R. Acquisitions, 78 So. 3d at 638. Only

when the trial court has breached what is plainly a purely ministerial duty will

the remedy of mandamus lie. See, e.g., Griffin Windows & Doors, LLC v.

Pomeroy, 351 So. 3d 1125, 1127 (Fla. 3d DCA 2022) (holding that a trial

3 See Oliver v. Stone, 940 So. 2d 526, 529 (Fla. 2d DCA 2006); Bettez v. City of Miami, 510 So. 2d 1242, 1242-43 (Fla. 3d DCA 1987) (holding that a trial court may revisit a ruling denying summary judgment).

5 court has a duty to set an evidentiary hearing on the award of attorney’s fees

and costs after ruling on the entitlement to such fees); Thompson v. State,

985 So. 2d 1177, 1177 (Fla. 3d DCA 2008) (holding that a trial court has a

duty to hold a hearing and rule on a post-conviction motion filed seventeen

months earlier); Ivans v. Greenbaum, 613 So. 2d 130, 130 (Fla. 3d DCA

1993) (holding that “the trial court has a mandatory, non-discretionary duty

to set [a] case for trial”).

We deny the petition because, under the circumstances here,

notwithstanding the trial court’s oral pronouncements, the trial court does not

have a purely ministerial duty to enter a partial summary judgment on Count

V of Petitioners’ operative complaint.

Petition denied.