Sebree v. SCHANTZ, SCHATZMAN, AARONSON

963 So. 2d 842, 2007 WL 2254509
CourtDistrict Court of Appeal of Florida
DecidedAugust 8, 2007
Docket3D04-2523
StatusPublished
Cited by1 cases

This text of 963 So. 2d 842 (Sebree v. SCHANTZ, SCHATZMAN, AARONSON) 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
Sebree v. SCHANTZ, SCHATZMAN, AARONSON, 963 So. 2d 842, 2007 WL 2254509 (Fla. Ct. App. 2007).

Opinion

963 So.2d 842 (2007)

Wynelle L. SEBREE, Appellant,
v.
SCHANTZ, SCHATZMAN, AARONSON & PERLMAN, Appellee.

No. 3D04-2523.

District Court of Appeal of Florida, Third District.

August 8, 2007.

*843 Gregg J. Ormond, Coral Gables, for appellant.

Adorno & Yoss, and Jack R. Reiter and Natalie J. Carlos, Miami, for appellee.

Before GREEN, RAMIREZ, and SHEPHERD, JJ.

SHEPHERD, J.

Wynelle L. Sebree appeals a final summary judgment and amended final summary judgment rendered on May 25, 2004, and September 14, 2004, respectively, which award the now defunct law firm of Schantz, Schatzman, Aaronson & Perlman, P.A. $33,500, plus interest, for unpaid attorney fees. Sebree seeks to redeem herself from the force of the judgment on the ground that the trial court interlocutorily erred by denying an earlier-filed motion to dismiss the action for failure to prosecute. We agree that the trial court erred in denying this motion and accordingly reverse the final summary judgments on appeal with directions that the complaint in this case be dismissed without prejudice. A brief summary of the factual and procedural background is necessary to our decision.

FACTUAL AND PROCEDURAL BACKGROUND

The record reflects that Schantz, Schatzman filed suit against its former client, Wynelle Sebree, for attorney fees claimed to be due and owing on March 28, 1998. The law firm was self-represented by Martin Pico, Esq., an associate of the firm. On November 24, 1998, the law firm obtained a default final judgment for the full amount of the sum claimed. This judgment was recorded on December 6, 1998.

During the next several months, the law firm located and garnished the funds in two of Sebree's personal bank accounts. Sebree responded with a motion to set aside the default final judgment on the ground of insufficiency of service of process. Apparently recognizing procedural error, the law firm, on March 26, 1999, joined Sebree in an "Agreed Order for Disgorgement of Garnished Funds, Dissolving Writs of Garnishment, Setting Aside Final Judgment and Default, and Quashing Service of Process." For reasons not apparent from the record, one of the banks was ordered to pay Schantz, *844 Schatzman $1,500 from the garnished funds. Although the case number on the Agreed Order is the same as that on the default final judgment, and the Agreed Order states "the judgment and default are vacated and set aside," there is no further identification of the default final judgment either by date or book and page recording information.

After entry of the Agreed Order, proper service was achieved on Sebree and from April 14, 1999, through August 12, 1999, the parties litigated the reconstituted case. Sebree filed an answer to the complaint and a legal malpractice counterclaim. Schantz, Schatzman, still self-represented by attorney Pico, responded with a reply and avoidance of affirmative defenses, a motion for enlargement of time, a motion to dismiss counterclaim, and a notice of taking deposition of Michelle Sebree. The signature block on each of the law firm filings reads as follows:

Respectfully submitted, SCHANTZ, SCHATZMAN, AARONSON & PERLMAN, P.A. Attorneys for SSA & P, P.A. Suite 1050 — First Union Financial Center 200 South Biscayne Boulevard Miami, Florida XXXXX-XXXX Telephone: (305) 371-3100 By: _____________________ MARTIN PICO, ESQUIRE Florida Bar No. 0092002

The last evidence of record activity during this time period is a nineteen-day Notice of Unavailability filed by counsel for Sebree on August 12. Forty-five days later, Schantz, Schatzman ceased doing business and merged its practice with another local law firm. Pico did not join the migration, but went his own way. For the next three and a half years, there was no filing of record in this case on behalf of either Schantz, Schatzman or Sebree. At some point, the trial court docket apparently began showing the case as closed.

Purportedly prompted by a call from a title company for a pay-off figure on the default final judgment, Schantz, Schatzman sought to locate both its litigation file and the court file in February of 2003. Neither could be found.[1] However, the law firm was able to obtain a copy of the default final judgment from the public record and initiated non-record collection activity with the Office of the Miami-Dade County Sheriff.[2] Somehow apprised, Sebree countered on April 3, 2003, with the first filing in the trial court since August 12, 1999, a Motion to Dismiss pursuant to Florida Rule of Civil Procedure 1.420(e). After affording the parties—now represented *845 by new counsel—a full hearing, the trial judge denied the motion to dismiss on June 16, 2003, based upon what the trial court considered to be "the very unusual set of facts and circumstances of this case." The judgments on appeal followed. The validity of those judgments rises or falls on the validity of this interlocutory order. We apply an abuse of discretion standard to our review of this order. See Metropolitan Dade County v. Hall, 784 So.2d 1087, 1090 n. 4 (Fla.2001); Lang v. Mason 911 So.2d 167, 169 (Fla. 2d DCA 2005).

ANALYSIS

Florida Rule of Civil Procedure 1.420(e), as it existed at the time of the ruling by the trial court below, read:

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 1 year shall be dismissed by the court on its own motion or on the motion of any interested person, whether a party to the action or not, after reasonable notice to the parties, unless a stipulation staying the action is approved by the court or a stay order has been filed or 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.

Fla. R. Civ. P. 1.420(e) (2002).[3]

The law construing the rule as it then existed mandated a two-step process:

First, the defendant is required to show there has been no record activity for the year preceding the motion. Second, if there has been no record activity, the plaintiff has an opportunity to establish good cause why the action should not be dismissed.

Del Duca v. Anthony, 587 So.2d 1306, 1308-09 (Fla.1991).

Discussing this two-step process, the Florida Supreme Court has made clear that the first step of the analysis favors the plaintiff. Wilson v. Salamon, 923 So.2d 363, 368 ("establish[ing] a bright-line test . . . [t]here is either activity on the record or there is not"); Diamond Drywall *846 Sys., Inc. v. Mashan Contractors, Inc., 943 So.2d 267, 269 (Fla. 3d DCA 2006)("Wilson has uniformly been interpreted to mean that any document appearing in the record within one year prior to the filing of a motion to dismiss precludes the entry of dismissal for failure to prosecute."). Schantz, Schatzman concedes that it has no argument under the first step of the analysis. Instead, Schantz, Schatzman seeks refuge in the second "good cause" step.

On the second step, the burden moves to the plaintiff to demonstrate "good cause" within the meaning of Florida Rule of Civil Procedure 1.420(e), Patton v. Kera Tech., Inc.,

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Bluebook (online)
963 So. 2d 842, 2007 WL 2254509, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sebree-v-schantz-schatzman-aaronson-fladistctapp-2007.