Green v. Lingle

166 So. 3d 221, 2015 Fla. App. LEXIS 9278, 2015 WL 3777711
CourtDistrict Court of Appeal of Florida
DecidedJune 18, 2015
DocketNo. 1D14-3925
StatusPublished

This text of 166 So. 3d 221 (Green v. Lingle) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Green v. Lingle, 166 So. 3d 221, 2015 Fla. App. LEXIS 9278, 2015 WL 3777711 (Fla. Ct. App. 2015).

Opinion

WOLF, J.

Appellant, Barbara Green, challenges an order granting a motion to quash service of process and dismissing her cause of action against appellee, Jennifer Lingle. We find one of the issues raised by appellant to be dispositive. The trial court erred in denying appellant’s request for an extension of the 120-day time period to perfect service against appellee Lingle, as set forth in Florida Rule of Civil Procedure 1.070®, because the statute of limitations had run, and it is unclear that the trial court was aware that it was permitted to grant an extension even without good cause. Carter v. Winn-Dixie Store, Inc., 889 So.2d 960, 961 (Fla. 1st DCA 2004).

On April 29, 2014, the trial court entered an order granting the motion to quash and dismissing the case as to Lingle. The court indicated there was a hearing held on the matter, although no transcript appears in the appellate record. “Based upon the argument and the Court’s review of the record,” the court found “it appears that the service of process was not served on the Defendant, Jennifer Lingle, within 120 days after the filing of the initial pleading” and that “it does not appear that the Plaintiff has shown good cause or excusable neglect for the failure to serve within that time period nor has the Plaintiff complied with § 48.161, Fla. Stat. or § 48.171, Fla. Stat.,” which set certain requirements for filing substitute service through the Secretary of State.1

Appellant filed a motion for reconsideration and rehearing. Appellant argued (1) [223]*223she showed excusable neglect and good cause for the delay in service, and thus she was entitled to an extension of the 120-day time period in which to serve process; or alternatively, (2) even if the court found she did not show good cause in the delay, she was still entitled to an extension to perfect service because the statute of limitations had run, and she would be left without recourse against the defendant. The court denied the motion. This timely appeal follows.

Appellant argues that regardless of whether she had good cause for failing to serve process within 120 days, the trial court erred in dismissing her cause of action because the statute of limitations has already run, and therefore she will be unable to refile. She relies on a line of cases that held under the current version of rule 1.070(3), a trial court generally abuses its discretion in failing to grant an extension of the 120-dáy time period where the statute of limitations has run. Thus, she asks this court to reverse and remand with instructions that she be given a reasonable amount of time within which to serve ap-pellee. Alternatively, she asks this court to reverse and remand for the trial court to consider the appropriate factors.

Because it is unclear whether the trial court considered all of the proper factors, we reverse and remand for further consideration.

In Chaffin v. Jacobson, 793 So.2d 102, 104 (Fla. 2d DCA 2001), the Second District held that under rule 1.070(3) a court generally abuses its discretion in dismissing a case for failure to comply with the 120-day rule if the statute of limitations has run:

[I]n a case such as this, where the statute of limitations has run, we agree with

Judge Cope that:

Discretion in these circumstances must be exercised with the understanding that Florida has a longstanding policy in favor of resolving civil disputes on the merits. Furthermore, the purpose of Rule 1.070(3) ⅛ to speed the progress of cases on the civil docket, but not to give defendants a “free” dismissal with prejudice. Thus, where there has been no showing of good cause or excusable neglect, but the statute of limitations has run, discretion should normally be exercised in favor of giving the plaintiff an extension of time to accomplish service.
Skrbic v. QCRC Assocs. Corp., 761 So.2d 349, 354 (Fla. 3d DCA 2000) (Cope, J., concurring in part and dissenting in part).

(Emphasis added).

This court adopted the reasoning of Chaffin in Sly v. McKeithen, holding, “In situations where the statute of limitations has run, the trial court should normally exercise discretion in favor of giving the plaintiff additional time to perfect service.” 27 So.3d 86, 87 (Fla. 1st DCA 2009) (emphasis added) (citing Chaffin, 793 So.2d at 104). “Where the statute of limitations has run, ‘[discretion in these circumstances must be exercised with the understanding that Florida has a longstanding policy in favor of resolving civil disputes on the merits,’ ” and that rule 1.070(3) should “serve as ‘a case management tool’ and not as ‘a severe sanction.’ ” Id. (quoting Chaffin, 793 So.2d at 103-04; Brown v. Ameri Star, Inc., 884 So.2d 1065, 1067 (Fla. 2d DCA 2004)).

Lingle argues the ease at hand is distinguishable from Chaffin and Sly because here service had not been properly obtained at the time of the hearing on the motion to dismiss. Instead, appellee argues that appellant made no good faith effort to effect proper service before the [224]*224hearing on the motion to dismiss,' even though the motion to dismiss alerted her to the deficiencies in her substitute service. Appellee complains that appellant waited until the day before the hearing to request, for the first time, an extension in order to effect proper service. Thus, appellee argues it was not an abuse of discretion to dismiss here.

Appellee is correct that Chaffin, Sly, and several other opinions have considered the fact that service was obtained prior to the hearing on the motion- to dismiss in determining that the trial court abused its discretion in dismissing. See, e.g., Kohler v. Vega-Maltes, 838 So.2d 1249, 1251 (Fla. 2d DCA 2003) (finding “the trial court abused its discretion in granting the motion to dismiss where the statute of limitations had run and an affidavit of compliance had been filed at the time of the hearing on the motion to dismiss”); Scullock v. Gee, 161 So.3d 421 (Fla. 2d DCA 2014) (trial court abused its discretion by dismissing complaint where service was made more than 120 days after the complaint was filed and the statute of limitations had run).

Appellee’s argument overlooks several factors. First, although courts have considered as a factor whether service was perfected prior to the hearing on a motion for dismissal, no court has set this factor as a bright-line rule. Instead, the general rule set forth in Chaffin is that in this context, “‘discretion should normally be exercised [to give] the plaintiff an extension of time to accomplish service.’ ” Chaffin, 793 So.2d at 104 (emphasis added).

To set as a bright-line rule that counsel has to perfect service prior to a hearing on a motion to dismiss, without consideration of the other facts in the case, is contrary to the purpose of the amendment to rule 1.070(j), which was to avoid the “often .... harsh results, such as where noncompliance triggered dismissal without prejudice, but expiration of the statute of limitations would preclude refiling of the action.” Totura & Co., Inc. v. Williams, 754 So.2d 671, 677 (Fla.2000). As this court explained in Sly, ‘“Florida has a longstanding policy in favor of resolving civil disputes on the merits,’ ” and rule 1.070(j) is to “serve as ‘a case management tool’ and not as ‘a severe sanction.’ ” 27 So.3d at 87-88 (quoting

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Related

Kohler v. Vega-Maltes
838 So. 2d 1249 (District Court of Appeal of Florida, 2003)
Crews v. Shadburne
637 So. 2d 979 (District Court of Appeal of Florida, 1994)
Totura & Co., Inc. v. Williams
754 So. 2d 671 (Supreme Court of Florida, 2000)
Sly v. McKeithen
27 So. 3d 86 (District Court of Appeal of Florida, 2009)
Kozel v. Ostendorf
629 So. 2d 817 (Supreme Court of Florida, 1994)
Chaffin v. Jacobson
793 So. 2d 102 (District Court of Appeal of Florida, 2001)
Brown v. Ameri Star, Inc.
884 So. 2d 1065 (District Court of Appeal of Florida, 2004)
Skrbic v. QCRC Associates Corp.
761 So. 2d 349 (District Court of Appeal of Florida, 2000)
Pixton v. Williams Scotsman, Inc.
924 So. 2d 37 (District Court of Appeal of Florida, 2006)
Britt v. City of Jacksonville
874 So. 2d 1196 (District Court of Appeal of Florida, 2004)
Carter v. Winn-Dixie Store, Inc.
889 So. 2d 960 (District Court of Appeal of Florida, 2004)
Powell v. Madison County Sheriff's Department
100 So. 3d 753 (District Court of Appeal of Florida, 2012)
Scullock v. Gee
161 So. 3d 421 (District Court of Appeal of Florida, 2014)

Cite This Page — Counsel Stack

Bluebook (online)
166 So. 3d 221, 2015 Fla. App. LEXIS 9278, 2015 WL 3777711, Counsel Stack Legal Research, https://law.counselstack.com/opinion/green-v-lingle-fladistctapp-2015.