MICHAEL ROBINSON v. ELLEN MAREK ( 2018 )


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  •               NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
    MOTION AND, IF FILED, DETERMINED
    IN THE DISTRICT COURT OF APPEAL
    OF FLORIDA
    SECOND DISTRICT
    MICHAEL A. ROBINSON,                  )
    )
    Appellant,                )
    )
    v.                                    )              Case No. 2D17-3383
    )
    ELLEN MAREK; and TONI JAE HILL, a/k/a )
    T.J. HILL HERITAGE HILLS INDUSTRIES, )
    LLC,                                  )
    )
    Appellees.                )
    )
    Opinion filed August 24, 2018.
    Appeal from the Circuit Court for Pasco
    County; Linda H. Babb, Judge.
    Brett Wadsworth of Brett Wadsworth, LC
    (deceased), Tampa, for Appellant.
    James A. Boyko, Spring Hill, for Appellee
    Ellen Marek.
    No appearance for remaining Appellee.
    MORRIS, Judge.
    Michael Robinson appeals an order dismissing an action for lack of
    prosecution. We reverse because record activity occurred during the grace period after
    the trial court filed its notice of lack of prosecution, thus precluding dismissal for lack of
    prosecution.
    In 2007, Ellen Marek filed an action against Robinson and two other
    defendants for breach of a construction contract. On April 7, 2015, the trial court
    granted Robinson's motion for summary judgment and entered summary judgment in
    favor of Robinson. On May 6, 2015, Robinson filed a motion for attorney's fees, but it
    was never set for hearing. On March 24, 2017, the trial court issued a notice of lack of
    prosecution. On May 11, 2017, Robinson filed a notice of hearing on his motion for
    attorney's fees. On June 21, 2017, the trial court entered an order dismissing the action
    for lack of prosecution, finding that there had been no record activity for over two years.
    Robinson appeals the order of dismissal, arguing that the trial court erred
    in dismissing Marek's action for lack of prosecution because he filed a notice of hearing
    on his pending motion for attorney's fees, which he claims constituted record activity
    that precluded dismissal under Florida Rule of Civil Procedure 1.420(e).
    Rule 1.420(e) provides as follows:
    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 the action or not, after reasonable notice to the
    parties, unless a party shows good cause in writing at least 5
    -2-
    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.) "Record activity is defined as the 'filing of pleadings, order of court,
    or otherwise.' " Zuppardo v. Dunlap & Moran, P.A., 
    186 So. 3d 1067
    , 1068 (Fla. 2d
    DCA 2016) (quoting Fla. R. Civ. P. 1.420(e)). "The test for record activity during the
    ten-month period and during the sixty-day grace period is a bright-line rule 'under which
    any filing of record is sufficient to preclude dismissal.' " 
    Id. (quoting Citibank,
    N.A. v.
    Konigsberg, 
    149 So. 3d 1185
    , 1186 (Fla. 2d DCA 2014)). Previous interpretations of
    the rule required a filing that affirmatively moved the case forward, but there is no longer
    a distinction "between active or passive record activity." 
    Id. (first citing
    Wilson v.
    Salamon, 
    923 So. 2d 363
    , 365 (Fla. 2005); then quoting Citibank, 
    N.A., 149 So. 3d at 1186
    ). The rule requires "only a cursory review of the record" to determine whether
    there is record activity. 
    Id. (quoting Citibank,
    N.A., 149 So. 3d at 1186
    ); Wilson, 
    923 So. 2d
    at 368 ("[T]he rule establishes a bright-line test that will ordinarily require only a
    cursory review of the record by a trial court. . . . We find this bright-line rule appealing in
    that it establishes a rule that is easy to apply and relieves the trial court and litigants of
    the burden of determining and guessing as to whether an activity is merely passive or
    active."). This bright-line rule "applies to both time periods set forth" in rule 1.420(e): the
    ten-month time period as well as the sixty-day grace period. See Chemrock Corp. v.
    Tampa Elec. Co., 
    71 So. 3d 786
    , 792 (Fla. 2011).
    Here, the trial court provided notice on March 24, 2017, that no activity
    had occurred within ten months. Then, on May 11, 2017, Robinson filed a notice of
    hearing of his pending motion for attorney's fees. This notice of hearing, filed within the
    -3-
    sixty-day grace period, constituted "record activity" that was sufficient to avoid dismissal
    under rule 1.420(e). See Wilson, 
    923 So. 2d
    at 364, 369 (holding that motion for
    attorney to appear pro hac vice constituted record activity that prevented dismissal
    under rule 1.420(e)); Edwards v. City of St. Petersburg, 
    961 So. 2d 1048
    , 1049-50 (Fla.
    2d DCA 2007) (holding that "motion for hearing and for witness attendance" filed within
    sixty-day grace period constituted record activity preventing dismissal under rule
    1.420(e)); Weston TC LLLP v. CNDP Mktg. Inc., 
    66 So. 3d 370
    , 371 (Fla. 4th DCA
    2011) (holding that "notice of the absence and unavailability of [plaintiff's] attorney"
    constituted record activity under rule 1.420(e)); Lingo Constr. v. Pritts, Inc., 
    990 So. 2d 705
    , 706 (Fla. 4th DCA 2008) (holding that "motion to set a date for arbitration" filed
    within sixty-day grace period prevented dismissal under rule 1.420(e)). Therefore, the
    trial court erred in dismissing the action for lack of prosecution. Accordingly, we reverse
    the order of dismissal.
    Reversed and remanded.
    LaROSE, C.J., and KELLY, J., Concur.
    -4-