FLORIDA SUPREME COURT CASE NO: SC Petitioner, L. T. Case No.: 5D

Transcription

1 DANIEL RAY ERICKSON, FLORIDA SUPREME COURT CASE NO: SC Petitioner, L. T. Case No.: 5D v. TOMMY GAIL BREEDLOVE, FRANK LORETO, JR., BRIAN KEITH MCGINNIS, CHARLES EDDY NUGENT, JR., KATHLEEN MARIE NOVER REID, KENNETH R. FRAZIER, JR., MARLENE KOBITZ WELLS, IGNACIO VELEZ, JR., PETER FRANK MAGRINO, JEFFREY N. KRAFT, JR., FLORIDA DEPARTMENT OF LAW ENFORCEMENT, HERNANDO COUNTY SHERIFF S OFFICE, and OFFICE OF THE STATE ATTORNEY FOR THE FIFTH JUDICIAL CIRCUIT, Respondents. / CORRECTED ANSWER BRIEF OF RESPONDENTS, BREEDLOVE, LORENTO, MCGINNIS, NUGENT, REID, FRAZIER, VELEZ, KRAFT, AND HERNANDO COUNTY SHERIFF S OFFICE John M. Green, Jr. Loren E. Levy Fla. Bar No Fla. Bar No N. E. First Avenue, Suite 2 The Levy Law Firm Ocala, FL Riggins Lane 352/ Tallahassee, FL /

2 TABLE OF CONTENTS Table of Authorities...iii Preliminary Statement...vii Statement of the Case and of the Facts...1 Summary of Argument...10 Standard of Review...12 Argument...12 I. THIS COURT LACKS JURISDICTION TO CONSIDER THE DISTRICT COURT S DECISION OR SHOULD DECLINE TO EXERCISE ITS JURISDICTION...12 II. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN DISMISSING ERICKSON S COMPLAINT FOR FAILURE TO PROSECUTE PURSUANT TO FLORIDA RULE OF CIVIL PROCEDURE 1.420(e)...22 III. THE DISMISSAL OF ERICKSON S COMPLAINT DID NOT VIOLATE HIS CONSTITUTIONAL RIGHT TO ACCESS TO THE COURTS...34 Conclusion...36 Certificate of Service...37 Certificate of Compliance...38 ii

3 TABLE OF AUTHORITIES Cases: Am. Wall Systems, Inc. v. Madison Intern. Group, Inc., 898 So.2d 111 (Fla. 5th DCA 2005)...26 Aravena v. Miami-Dade County, 928 So.2d 1163 (Fla. 2006)...19 Cabrera v. Pazos, Larrinaga & Taylor, P.A., 922 So.2d 422 (Fla. 2d DCA 2006)...21 Canakaris v. Canakaris, 382 So.2d 1197 (Fla. 1980)...12 Carlson v. Jeflis Property Mgmt. Corp. 904 So.2d 642 (Fla. 2d DCA 2005)...passim Coastal Petroleum Co. v. Am. Cynamid Co., 492 So.2d 339 (Fla. 1986), cert. denied sub. nom., 479 U.S (1987)...20 Cosio v. Keithly, 907 So.2d 1170 (Fla. 2005)...27 Cosio v. Keithly, 889 So.2d 1017 (Fla. 2d DCA 2005)...26 Crossley v. State, 596 So.2d 447 (Fla. 1992)...19 Del Duca v. Anthony, 587 So.2d 1306 (Fla. 1991)...17 Dye v. Security Pacific Fin. Servs., Inc., 828 So.2d 1089 (Fla. 1st DCA 2002)...passim Erickson v. Breedlove, 937 So.2d 805 (Fla. 5th DCA 2006)...1, 9, 30 iii

4 Erickson v. State, 4D (Fla. 4th DCA Apr. 6, 2006)...3 Erickson v. State, 5D (Fla. 5th DCA Feb. 14, 2006)...2 Erickson v. State, 5D (Fla. 5th DCA Sept. 30, 2003)...2 Fuster-Escalona v. Wisotsky, 781 So.2d 1063 (Fla. 2000)...passim Fuster-Escalona v. Wisotsky, 715 So.2d 1053 (Fla. 4th DCA 1989)...14 In re Amendments to Fla. Rules of Civ. Proc., 917 So.2d 176 (Fla. 2005)...21 Johnson v. Dezayas, 906 So.2d 1238 (Fla. 2d DCA 2005)...26 Lucaya Bch. Hotel Corp. v. M.L.T. Mgmt. Corp., 898 So.2d 1118 (Fla. 4th DCA 2005)...28, 30 Lukowsky v. Hauser & Metch, P.A., 677 So.2d 1383 (Fla. 3d DCA 1996)...passim Maderia Mgmt., Inc. v. Chapman Realty Corp. 459 So.2d 1177 (Fla. 2d DCA 1984)...28 Metro. Dade County v. Hall, 784 So.2d 1087 (Fla. 2001)...12, 17 Mikos v. Sarasota Cattle Co., 453 So.2d 402 (Fla. 1984)...11, 28, 31 Niedermeir v. Office of Baucus 153 F. Supp. 2d. 23 (D.D.C. 2001)...23 iv

5 Patton v. Kera Technology, Inc., 895 So.2d 1175 (Fla. 5th DCA), review granted, 912 So.2d 318 (Fla. 2005)...15, 16 Patton v. Kera Technology, Inc., 31 Fla. L. Weekly S700 (Fla. Oct. 26, 2006)...passim Sewell Masonry v. DCC Constr., Inc., 862 So.2d 893 (Fla. 5th DCA 2003), review vol. dismissed, 870 So.2d 823 (Fla. 2004)...passim State v. Erickson, 852 So.2d 289 (Fla. 5th DCA 2003)...2 Tompkins v. First Union Nat. Bank, 897 So.2d 1282 (Fla. 2005)...15 Tompkins v. First Union Nat. Bank, 833 So.2d 199 (Fla. 5th DCA 2002)...15, 30 Wilson v. Salamon, 923 So.2d 363 (Fla. 2005)...17, 32, 34 Statutes: (5)(d), Fla. Stat. (2005) , Fla. Stat. (2005)...1 Rules: Florida Rule of Civil Procedure 1.420(e)...passim Florida Rule of Civil Procedure Florida Rule of Criminal Procedure v

6 Other Authorities: Admin. Order Establishing Motion Practice Proceedings, Order No. H (on file with clerk, available online at 5th Jud. Cir. Ct. website)...32 Black s Law Dictionary (8th ed. 2001)...22 vi

7 PRELIMINARY STATEMENT Petitioner, Daniel Ray Erickson, will be referred to herein as Erickson. Respondents, Tommy Gail Breedlove, Frank Loreto, Jr., Brian Keith McGinnis, Charles Eddy Nugent, Jr., Kathleen Marie Nover Reid, Kenneth R. Frazier, Jr., Ignacio Velez, Jr., and Jeffrey N. Kraft, Jr. will be referred to as Hernando County Sheriff s Office Deputies. Respondent, Hernando County Sheriff s Office will be referred to as Sheriff s Office. Respondent, Florida Department of Law Enforcement will be referred to as FDLE. Respondent, Office of the State Attorney for the Fifth Judicial Circuit will be referred to as State Attorney s Office. References to the record on appeal will be delineated as (R-volume #-document #-page#). References to the record on appeal at the Fifth District Court of Appeal will be delineated as (DCA-document #-page#). References to the petitioner s initial brief will be delineated as (IB-page #). vii

8 STATEMENT OF THE CASE AND OF THE FACTS This case involves whether the trial court abused its discretion in dismissing Daniel Ray Erickson s (Erickson) complaint for failure to prosecute within the one-year time period set forth in Florida Rule of Civil Procedure 1.420(e). The Fifth District Court affirmed the trial court s decision that Erickson did not meet his burden of establishing good cause. Erickson v. Breedlove, 937 So.2d 805, 807 (Fla. 5th DCA 2006). It is respectfully submitted that the district court s decision should not be disturbed. Erickson filed the instant action pro se against eight deputies employed by the Hernando County Sheriff s Office (Sheriff s Office), the Sheriff s Office itself, the Florida Department of Law Enforcement (FDLE), the Office of the State Attorney for the Fifth Judicial Circuit (State Attorney), and two assistant state attorneys. (R-I-1-38) The complaint alleged numerous causes of action stemming from Erickson s arrest in February 2002 for failure to register as a sex offender pursuant to section , Florida Statutes (2005), and prosecution of that charge. (Id.) The complaint was filed in September (Id.) Counsel for the Sheriff s Office, appearing specially and without waiving service of process on behalf of the Sheriff and the eight deputies employed by his office, responded to the complaint by filing a motion to dismiss. (R-I-39-44) The motion argued that the complaint should be dismissed because it failed to 1

9 contain a short and plain statement of the ultimate facts showing that the pleader was entitled to the relief sought, attempted to state a cause of action against a nonexistent defendant the Hernando County Sheriff s Office, failed to state a cause of action against seven of the deputies in their individual capacities because the complaint inconsistently alleged actions taken in the course of their official duties, and failed to state a cause of action against the Sheriff in his official capacity. The motion also argued that the deputies were statutorily immune from liability for good faith compliance with the statutory registration requirements for sexual offenders and that individual counts in the complaint should be dismissed in light of the specific relief sought. (R-I-40-42) The motion further advised that the trial court s decision dismissing the criminal charge against Erickson for failure to register as a sexual offender had recently been reversed. See State v. Erickson, 852 So.2d 289 (Fla. 5th DCA 2003). That case held that the state could amend its information alleging that Erickson failed to register as a sexual offender to assert a charge of failure to register as a sexual predator in violation of sections (5)(d) and , Florida Statutes (2005). Erickson, 852 So.2d at 291. Thus, the charges against Erickson remained pending. 1 (R-I-42) 1 A review of the fifth district court s records reveals two recent per curiam affirmed opinions involving Daniel Erickson. Erickson v. State, 5D (Fla. 5th DCA Feb. 14, 2006); Erickson v. State, 5D (Fla. 5th DCA Sept. 30, 2

10 Counsel for FDLE, the State Attorney s Office, and two employees of that office also filed a motion to dismiss Erickson s complaint. (R-I-52-56) That motion argued that the complaint should be dismissed because it failed to contain a concise statement of the facts supporting relief and failed to attach numerous documents referred to in the complaint. (R-I-53) The motion further argued that individual counts in the complaint should be dismissed in light of the specific relief sought. (R-I-53-55) The defendants also filed objections to the Requests for Admissions submitted by Erickson. (R-I-57-74; R-I-77-80) The objections were that the requests exceeded the 30 permitted by Florida Rule of Civil Procedure and were unduly burdensome. (Id.) Erickson disagreed, arguing that the rule at the time of the incident did not include a limitation on the number of requests. (R-I ; R-I-87-88) Erickson also moved to strike the motions to dismiss of counsel for the Sheriff s Office and counsel for FDLE and the State Attorney s Office because 2003). A review of the online docket for the most recent decision indicates that it involved lower tribunal cases CF, CF, and CF. Case numbers and were specifically referenced in Erickson s complaint as the predicate for his action against the State Attorney s Office and two of its employees. (R-I-27-38) The fourth district court also recently per curiam affirmed a Florida Rule of Criminal Procedure action filed by Erickson. Erickson v. State, 4D (Fla. 4th DCA Apr. 6, 2006). 3

11 of an asserted conflict of interest. (R-I-46-48; R-I-49-51) His argument was that counsel could not represent both the office and the individual employees of that office. (Id.) In addition, Erickson filed a motion to transfer the case to the trial court judge who had dismissed the criminal charge against him for failing to register as a sexual offender. (R-I-82) He argued that his current civil case was derived from the criminal charge and, therefore, the same judge should be assigned to the case. (Id.) All of these matters were set for hearing on March 31, (R-I-83) In a letter to Erickson from the judicial staff attorney, Erickson was advised that his request to participate in the hearing by telephone was permissible. However, it will be your responsibility to place the call at the appointed time if you wish to appear by telephone. (Id.) At the hearing, Erickson did not participate. (R-I ) After hearing the arguments of counsel for the defendants, the trial court apparently orally ruled on the pending motions. (R-I-101) In its written order, the court granted the motions to dismiss without prejudice and gave Erickson 20 days to file an amended complaint. The court denied Erickson s objections to the alleged conflicts of interest of defense counsel. 4

12 Lastly, the trial court denied the motion to reassign the case because the judge requested was assigned to the criminal division. (Id.) Before the trial court s written order was rendered, however, Erickson filed two motions. The first motion requested that the court hold the matter in abeyance until 2005 because the criminal appeal on which the complaint is based will not be final until late This is critical to the false arrest tort. By then plaintiff will be ready to resume prosecution. (R-I-89) The second motion, filed a few days later, was a Motion for Reconsideration and/or for Clarification. (R-I ) There, Erickson explained why he did not appear at the telephonic hearing and submitted arguments that he would have made if he had been able to appear. Erickson requested reconsideration of the court s order regarding the Requests for Admissions and its ruling on the alleged conflict of interest issue. In fact, the majority of his motion was devoted to this issue. (R-I-94-98) Erickson also requested the court to clarify its order regarding the filing of an amended complaint. (R-I-98-99) He requested 60 days, as opposed to 20 days, to file the amended complaint. (R-I-98) The remainder of his argument was as follows: The plaintiff seeks a clarification if an amended complaint is ordered. As plaintiff read the motions, it appears two defendants requested substitution of Hernando County Sheriff s Office for Richard Nugent, 5

13 Sheriff of Hernando County in his official capacity, which plaintiff would still abbreviated HSO with the court s permission. The other defendant wants substitution of Office of the State Attorney for the Fifth Judicial Circuit for Brad King, State Attorney for the Fifth Judicial Circuit in his Official Capacity. The first long defendant, Richard etc. would be designated in the pleading as HCSO, and the second long defendant, Brad etc. as SA in the pleadings. This only requires a change in the case title and in two paragraphs of the complaint. Thus the court should note the changes by court. (R-I-99) Counsel for the Sheriff s Office subsequently filed a response to Erickson s motion to hold the case in abeyance, arguing that the motion failed to show good cause for abeyance. (R-I ) Counsel for FDLE and the State Attorney s Office also filed a response to the motion for reconsideration, arguing that it should be denied. (R-I ) The final record activity before the motion to dismiss for failure to prosecute was Erickson s answer to the Sheriff Office s response on the motion for abeyance. In that answer, Erickson asserted that his request for abeyance would be more fully briefed in 45 days, that the motion had been filed due to very limited law library access time... and for waiting until the underlying charges on appeal will be determined, and that the court should allow adequate time for proper responses to all issues raised in this and other pending pleadings or immediate [sic] 6

14 hold case in abeyance. (R-I , emphasis in original) The reply was filed on May 17, (Id.) Counsel for the Sheriff s Office filed its motion to dismiss for failure to prosecute on October 3, (R-I ) The motion stated that no record activity had occurred since August 2004, which was a Notice of Change of Address filed by Erickson. 2 The motion argued that no non-record activity had occurred within the past year to constitute good cause and, therefore, the complaint should be dismissed. (R-I-124) Erickson responded to the motion to dismiss by arguing that his Motion for Reconsideration and/or for Clarification was still pending. (R-I ) Erickson argued that his pending motion usually does not need to have oral argument, thus no hearing is mandated. (R-I-129) He further argued that, because of his incarceration, an oral hearing could not be set. Thus, the pending motion precluded dismissal. (Id.) After a hearing, the trial court dismissed Erickson s complaint without prejudice. (R-I-132) The court s order stated as follows: After having reviewed the file, having heard argument of Plaintiff and defense counsel and being otherwise duly advised, the Court finds that there was no record activity designed to advance Plaintiff s action for the one (1) year 2 Although the motion references the change in address filing, the trial court s docket sheet does not include this notice. The final pleading in the record before the motion to dismiss was on May 17, (R-I ) 7

15 preceding Defendant s filing of the Motion to Dismiss for Failure to Prosecute. Furthermore, the Court finds no evidence of non-record activity occurring during the one (1) year period designed to advance the case and, finally, the Court finds no good cause to justify allowing the action to remain pending. (Id.) Erickson timely filed his pro se Notice of Appeal. (R-I-134) On appeal, Erickson argued that the trial court erred by dismissing his case because his motion for reconsideration and/or clarification remained pending, citing Lukowsky v. Hauser & Metsch, 677 So.2d 1383 (Fla. 3d DCA 1996), disapproved Patton v. Kera Technology, 31 Fla. L. Weekly S700 (Fla. Oct. 26, 2006). (DCA-A-10) His position was that a trial judge has the duty to periodically review their cases and bring up motions which attorneys have not set for a hearing under the case management system. (DCA-C-3) The Hernando County Sheriff s Office Deputies and the Sheriff s Office answered by arguing that the mere fact that a motion was filed and was unresolved did not establish good cause to preclude dismissal under rule 1.420(e). In addition, Erickson s pending motion for reconsideration and/or clarification and abeyance did not relieve Erickson of his responsibility to prosecute his case. (DCA-B-8) The district court framed the issue as whether the existence of the motion for reconsideration constituted good cause so as to prevent dismissal for 8

16 failure to prosecute. Erickson, 937 So.2d at 807. The court affirmed the trial court s decision that Erickson did not meet his burden of establishing good cause. As the court stated: The record is devoid of any evidence that the trial court was even made aware of the existence of the motion for reconsideration. Trial judges should not be expected to unilaterally review the hundreds of files assigned to them in search of motions which have been filed but have not been set for hearing or otherwise brought to the court s attention. Litigants have an affirmative obligation to move their cases to resolution. The district court also certified conflict with Dye v. Security Pacific Financial Servs., Inc., 828 So.2d 1089 (Fla. 1st DCA 2002). Erickson then petitioned this Court for review. (DCA-14-15) This Court postponed its decision on jurisdiction, appointed counsel to represent Erickson, and set a briefing schedule. (DCA-17-18) 9

17 SUMMARY OF THE ARGUMENT I. THIS COURT LACKS JURISDICTION TO CONSIDER THE DISTRICT COURT S DECISION OR SHOULD DECLINE TO EXERCISE ITS JURISDICTION. The district court certified conflict between its decision and the first district court s decision in Dye. This Court, however, recently disapproved of Dye s holding that any pending motion tolled the one-year period for dismissal based upon failure to prosecute in its decision in Patton. Accordingly, there no longer is any conflict between the fifth district court s decision in Erickson and the first district court s decision in Dye. In any event, this case is no longer of such significance to justify this Court s further review because of the recent change to rule 1.420(e). II. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN DISMISSING ERICKSON S COMPLAINT FOR FAILURE TO PROSECUTE PURSUANT TO FLORIDA RULE OF CIVIL PROCEDURE 1.420(e). Erickson s argument that he established good cause under the circumstances of this case due to the pending motion for reconsideration and/or clarification and motion for abeyance, which he characterizes as dispositive motions, and difficulties that he encountered in prosecuting his case resulting from his incarceration essentially asks this Court to disregard the applicable 10

18 standard of review (abuse of discretion) and substitute its judgment for that of the trial court. As such, it should be rejected. Certainly, most motions filed during the progress of a lawsuit seek to decide and resolve issues. In that respect, all motions can be described as being dispositive. This Court in Patton, however, rejected the position that any pending motion precluded dismissal for failure to prosecute. The question remaining, therefore, is what types of dispositive motions if any may constitute good cause precluding dismissal for failure to prosecute. A survey of the district court decisions addressing the issue, as well as this Court s decisions in Patton, Fuster-Escalona, and Mikos, delineate the distinction by confining good cause to those situations where the duty to proceed rested entirely with the trial court. Only at that time is the litigant relieved of its responsibility to ensure that the case is diligently prosecuted. Any ruling to the contrary would place the burden of proceeding with the case upon the trial court instead of the plaintiff. III. THE DISMISSAL OF ERICKSON S COMPLAINT DID NOT VIOLATE HIS CONSTITUTIONAL RIGHT TO ACCESS TO THE COURTS. It is the plaintiff s responsibility to prosecute its case and pending motions only may constitute good cause where the duty to proceed rested entirely with the trial court. The duty to proceed does not automatically transfer to the trial 11

19 court in all cases involving incarcerated plaintiffs. In this case, no constitutional violation has occurred. STANDARD OF REVIEW Whether the trial court properly dismissed the action because of the plaintiff s failure to show good cause pursuant to rule 1.420(e) is reviewed for abuse of discretion. Patton, 31 Fla. L. Weekly at S701; Metro. Dade County v. Hall, 784 So.2d 1087, 1090 n.4 (Fla. 2001) ( The abuse of discretion standard is triggered only if the trial court must make a determination of good cause. ). A trial court abuses its discretion by taking action that is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only where no reasonable person would take the view adopted by the trial court. Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla. 1980). If reasonable people could differ as to the propriety of the trial court s action, it cannot be said that the trial court abused its discretion. Id. ARGUMENT I. THIS COURT LACKS JURISDICTION TO CONSIDER THE DISTRICT COURT S DECISION OR SHOULD DECLINE TO EXERCISE ITS JURISDICTION. The district court certified conflict between its decision and the first district court s decision in Dye. This Court, however, recently disapproved of Dye s holding that any pending motion tolled the one-year period for dismissal 12

20 based upon failure to prosecute in its decision in Patton. Accordingly, there no longer is any conflict between the fifth district court s decision in Erickson and the first district court s decision in Dye. In Dye, the defendant initially filed a motion to dismiss for failure to state a cause of action. One year later, the defendant moved for dismissal because of the plaintiff s failure to prosecute. Dye held that, where the earlier motion had not been disposed of, the duty to proceed rested upon the trial court even though it had never been set for a hearing. Thus, the trial court erred in dismissing the case for failure to prosecute. 828 So.2d at In reaching its decision, Dye relied upon the third district court s decision in Lukowsky. There, the trial court dismissed the case for failure to prosecute where a summary judgment motion remained pending. The third district reversed and established a bright line rule that, whenever a dispositive motion is pending before the court, and the parties are awaiting the court s ruling on that motion, the duty to proceed rests squarely upon the court. During that period of the court s deliberation, the cause cannot be dismissed for lack of record activity. Lukowsky, 677 So.2d at Dye also relied upon this Court s decision in Fuster-Escalona v. Wisotsky, 781 So.2d 1063 (Fla. 2000). In that case, the trial court had dismissed the plaintiff s complaint without prejudice for failure to state a cause of action. 13

21 The plaintiff filed a motion for rehearing and, one month later, a motion to disqualify the trial judge. After one year expired since the filing of the motion to disqualify, the defendant moved to dismiss for failure to prosecute. The trial court granted the motion and dismissed the case. No order, however, was entered on the motion to disqualify. The fourth district court affirmed the dismissal, holding that the mere filing of a motion to recuse the trial judge, without any attempt to set the motion for hearing, is not sufficient to excuse a plaintiff s lack of record activity during the year in which the motion not noticed for hearing remained pending. Fuster- Escalona v. Wisotsky, 715 So.2d 1053, 1054 (Fla. 4th DCA 1998). This Court accepted jurisdiction based upon conflict with Lukowsky and reversed, holding that: This court holds that a motion to disqualify constitutes record activity regarding a claim of failure to prosecute, and that the trial court s failure to act immediately on the motion to disqualify violated section and rule 2.160, as did the trial court s ruling on the motion to dismiss while the motion to disqualify was pending. Thus, the decision below is quashed, the case is remanded, and we approve Lukowsky. Fuster-Escalona, 781 So.2d at Dye viewed this Court s approval of Lukowsky as establishing a rule that the action could not be dismissed for failure to prosecute whenever a motion remained pending and unresolved. Dye, 828 So.2d at As this was the same 14

22 argument that Erickson presented to the fifth district court, it is understandable why the court certified conflict with Dye. In fact, the instant case was the second case wherein the fifth district court certified conflict with Dye. See Sewell Masonry v. DCC Constr., Inc, 862 So.2d 893 (Fla. 5th DCA 2003), review vol. dismissed, 870 So.2d 823 (Fla. 2004). This case also is the fourth case that this Court has considered based upon conflict between a decision of the fifth district court and Dye. See Tompkins v. First Union Nat. Bank, 897 So.2d 1282 (Fla. 2005); Sewell Masonry; Patton v. Kera Technology, 31 Fla. L. Weekly S700 (Fla. Oct. 26, 2006). 3 This Court, however, recently disapproved of both Dye and Lukowsky. Patton, 31 Fla. L. Weekly at S701. This Court accepted jurisdiction in Patton based on conflict between Dye and Lukowsky and the fifth district court s decision in Patton v. Kera Technology, Inc., 895 So.2d 1175 (Fla. 5th DCA 2005). In Patton, a hearing was held on a motion to dismiss the amended complaint and to strike. No transcript of the hearing existed, and the parties disagreed on the outcome of the hearing. At a subsequent hearing, the trial court 3 Sewell Masonry certified conflict with Dye but the case was later voluntarily dismissed. This Court initially accepted jurisdiction to review Tompkins v. First Union Nat. Bank, 833 So.2d 199 (Fla. 5th DCA 2002), based on asserted conflict with Dye. The Court, however, later concluded that jurisdiction was improvidently granted and dismissed the case. Tompkins v. First Union Nat. Bank, 897 So.2d 1282 (Fla. 2005). 15

23 stated that he had absolutely no recollection of the disposition of the motions or of his decision. Patton, 31 Fla. L. Weekly at S700. More than a year after the hearing, the defendant moved to dismiss for failure to prosecute. The plaintiff responded that good cause existed because the court had unfinished business that precluded dismissal since no order had been entered related to the earlier motions. Id. at S700. The trial court rejected the argument and dismissed the case. The fifth district court affirmed, holding that: Generally, where a proposed order directed to a dispositive motion is submitted for review, a court retains jurisdiction over the case until the order becomes final. In that regard, the court has unfinished business. However, the court s failure to enter an order, without more, may not always be sufficient to avoid dismissal for lack of prosecution. The plaintiff bears responsibility to expedite litigation and Plaintiff s failure to take steps within Plaintiff s control to resolve the case or to ensure prompt dispatch of court orders warrants dismissal.... Even if we assume that the trial judge ruled upon Appellee s motion at the hearing, but did not instruct Appellants to prepare an order, Appellants failure to take any affirmative action toward resolving the case for more than one year warrants dismissal. Patton, 895 So.2d 1178 (citations omitted, emphasis added). This Court began its analysis in Patton by describing the nature of the conflict between the fifth district court s decision and Dye and Lukowsky. The conflict at issue in the present case concerns petitioner s claim that it was improper to dismiss the case for failure to prosecute because there was a motion pending 16

24 before the court. Patton, 31 Fla. L. Weekly at S700. This Court characterized the fifth district court s decision as standing for the proposition that the trial court s failure to enter an order disposing of a motion is not always sufficient to avoid dismissal for lack of prosecution and that dismissal was warranted because the plaintiff failed to take steps within their control to resolve the case or to ensure prompt dispatch of court orders. Id. This Court found that the fifth district court s decision was in apparent conflict with the decisions in Dye and Lukowsky, which held that a case could not be dismissed for failure to prosecute because motions were pending. Patton, 31 Fla. L. Weekly at S700. Turning to the merits of the case, this Court explained that analysis of whether an action should be dismissed for failure to prosecute under Florida Rule of Civil Procedure 1.420(e) involved the two-part test as set forth in Wilson v. Salamon, 923 So.2d 363 (Fla. 2005). The first step is to determine whether any record activity has occurred in the past year. If there has not been any record activity, the second step is to determine whether the plaintiff has established good cause why the action should remain pending. Wilson, 923 So.2d at 366; see Metro. Dade County, 784 So.2d at 1090; Del Duca v. Anthony, 587 So.2d 1306 (Fla. 1991). During the second step, however, the analysis favors the defendant and the plaintiff has the high burden to establish good cause. Wilson, 923 So.2d at 367 n.2. 17

25 This Court held that the district court decisions in Dye and Lukowsky did not follow this two-step procedure. Rather, these decisions found that a trial court has a duty to proceed when there is a pending motion for which there has not been a disposition. We do not agree with these holdings. The holdings do not adhere to the plain meaning of the rule and the two-step procedure. Where there has been no record activity for a year, we reiterate that the second step requires a determination of good cause. Patton, 31 Fla. L. Weekly at S701 (emphasis added). This Court further held that: In a situation where there is a pending motion, the issue when applying the second step is whether the pending motion provided good cause why there was no record activity during the one-year period. We do not approve the First District s reading of our decision in Fuster- Escalona as holding that an LOP motion cannot be granted if there is any pending motion. In Fuster- Escalona, the pending motion provided good cause because of the statute and rule of procedure requiring the trial court to rule on a motion to disqualify the trial judge. Our Fuster-Escalona decision is distinguished on that basis. Patton, 31 Fla. L. Weekly at S701 (emphasis added, citation omitted). Perhaps for this reason, Erickson now argues that conflict exists with the decisions of this Court in Patton and Fuster-Escalona and with the decisions of the First and Third Districts in Dye and Lukowsky, all of which establish that a pending dispositive motion may furnish good cause under the Rule. (IB-17, emphasis added) 18

26 Such an argument seemingly ignores this Court s decision in Patton, which disapproved of Dye and Lukowsky, and how the Court distinguished Fuster- Escalona from the facts present in those cases as well as Patton. If Fuster-Escalona is distinguishable from Dye, Lukowsky, and Patton, the instant case simply cannot conflict with that decision. See Aravena v. Miami-Dade County, 928 So.2d 1163, 1166 (Fla. 2006) (one of the tests for conflict jurisdiction is irreconcilable decisions); Crossley v. State, 596 So.2d 447, 449 (Fla. 1992) (conflict of decisions existed when court reached opposite result on controlling facts which, if not virtually identical, more strongly dictated the result reached by the alleged conflict case). As previously discussed, moreover, Dye did not hold that a pending dispositive motion tolled the one-year failure to prosecute period. To the contrary, it held that any pending motion tolled the time period and that the duty was then placed on the trial court to proceed. Patton, 31 Fla. L. Weekly at S701. This Court also disapproved of Lukowsky to the extent it conflicted with its decision. Patton, 31 Fla. L. Weekly at S701. Lukowsky involved a pending summary judgment motion and established a bright line rule that the action cannot be dismissed during pendency of any dispositive motion, where the parties are awaiting the court s ruling on that motion, the duty to proceed rests squarely upon the court. 677 So.2d at

27 This Court in Patton appeared to differentiate between any pending motion and certain types of dispositive motions. If a dispositive motion remained pending, in which the trial judge had not issued even an oral ruling, that would have furnished good cause under the rule. Id. at S701. This Court, however, did not define the term dispositive motion or the precise reason for its qualifying phrase in which the trial judge had not issued even an oral ruling. Id. 4 There is nothing in the fifth district court s decision that conflicts with Patton. Indeed, Erickson relied upon the court s prior decision in that case, which this court approved. At the heart of this court s decision in Patton was its adherence to the requirement that litigants must show good cause for their inaction to avoid dismissal and its conclusion that trial courts do not have a duty to proceed whenever a motion remains pending. Erickson reaches the same conclusion. In any event, this case is no longer of such significance to justify this Court s further review. At the time that the trial court dismissed Erickson s complaint without prejudice, rule 1.420(e) provided as follows: All actions in which it appears on the face of the record that no activity by filings 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... after reasonable notice to the parties, unless... a party shows good cause 4 In light of the facts present in that case, the language also is dicta. See Coastal Petroleum Co. v. Am. Cynamid Co., 492 So.2d 339 (Fla. 1986), cert. denied sub. nom., 479 U.S (1987). 20

28 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. Subsequent to Erickson s filing of the instant appeal, rule 1.420(e) has been significantly amended. As the committee notes explain, the rule was amended to provide that an action may not be dismissed for lack of prosecution without prior notice to the claimant and adequate opportunity for the claimant to re-commence prosecution of the action to avert dismissal. Fla. R. Civ. P (e), 2005 comm. notes. The current version of rule 1.420(e) essentially requires any interested party to warn the plaintiff that 10 months has passed since the last record activity. If the plaintiff still fails to take any record activity in the next two months, the case may be dismissed absent good cause. The new version of the rule became effective on January 1, In re Amendments to Fla. Rules of Civ. Proc., 917 So.2d 176, 177 (Fla. 2005). Although the instant case is governed by the prior rule, 5 the new rule will significantly eliminate litigation over dismissals for failure to prosecute. After receiving a warning that the case could be dismissed if no record activity occurs within the next 60 days, only the most dilatory litigants, or those litigants who have 5 See Cabrera v. Pazos, Larrinaga & Taylor, P.A., 922 So.2d 422, 424 n.2 (Fla. 2d DCA 2006) (recent amendment to rule 1.420(e) not applicable to case decided under prior rule). 21

29 abandoned their cases, will fail to conduct record activity or make some other effort to move the case towards a conclusion. II. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN DISMISSING ERICKSON S COMPLAINT FOR FAILURE TO PROSECUTE PURSUANT TO FLORIDA RULE OF CIVIL PROCEDURE 1.420(e). Erickson s argument that he established good cause under the circumstances of this case due to the pending motion for reconsideration and/or clarification and motion for abeyance, which he characterizes as dispositive motions, and difficulties that he encountered in prosecuting his case resulting from his incarceration essentially asks this Court to disregard the applicable standard of review (abuse of discretion) and substitute its judgment for that of the trial court. As such, it should be rejected. Erickson begins his argument by characterizing the pending motions as dispositive, without defining the word. He then proceeds to argue that dispositive motions automatically establish good cause and suspend the one-year failure to prosecute time period. (IB-18-19) Erickson glosses over the precise relief sought in his motions in describing them as dispositive. He requested reconsideration of a discovery order regarding admissions and his motion to preclude opposing counsel from representing more than one defendant. His motion to clarify only related to a 22

30 single issue raised in the defendant s motion to dismiss, i.e., the proper naming of parties, and requested additional time to file an amended complaint. If these types of motions were considered dispositive, almost any motion would fall in that same category. As previously discussed, this Court did not define the term dispositive motion or its use of the conditional phrase in which the trial judge had not issued even an oral ruling in Patton. 31 Fla. L. Weekly at S701. Interestingly, the term has not been defined or described in any other case involving rule 1.420(e). Black s Law Dictionary (8th ed. 2001), has defined dispositive as bringing about a final determination. C.f. Niedermeir v. Office of Baucus, 153 F.Supp. 2d 23, 26 (D.D.C. 2001) (Defining dispositive motion as a motion that, if granted, would result either in the determination of a particular claim on the merits or elimination of such a claim from the case. ). Certainly, most motions filed during the progress of a lawsuit seek to decide and resolve issues. In that respect, all motions can be described as being dispositive. This Court in Patton, however, rejected the position that any pending motion precluded dismissal for failure to prosecute. The question remaining, therefore, is what types of dispositive motions if any may constitute good cause precluding dismissal for failure to prosecute. 23

31 A survey of the district court decisions addressing the issue, as well as this Court s decisions in Patton, Fuster-Escalona, and Mikos, delineate the distinction by confining good cause to those situations where the duty to proceed rested entirely with the trial court. Only at that time is the litigant relieved of its responsibility to ensure that the case is diligently prosecuted. Any ruling to the contrary would place the burden of proceeding with the case upon the trial court instead of the plaintiff. The fifth district court s earlier decisions in Sewell Masonry and Tompkins illustrate the relevant inquiry. Sewell Masonry involved a construction dispute. In that case, two motions were pending in the case, a motion to compel discovery and a motion to dismiss the amended complaint. Both motions had been filed more than one year prior to the motion to dismiss for failure to prosecute. 862 So.2d at 898. The plaintiff sought to establish good cause by arguing that, whenever a dispositive motion is pending before the trial court, the duty to proceed rests with the trial court and the cause cannot be dismissed for lack prosecution. Id. The plaintiff relied on Lukowsky for this proposition. The fifth district court rejected the plaintiff s argument and affirmed the trial court s dismissal for failure to prosecute. The court distinguished Lukowsky because that case involved a summary judgment that had been argued and the parties were awaiting the court s 24

32 ruling. In contrast, the motion to compel discovery and motion to dismiss the amended complaint were not set for a hearing, let alone argued to the court. The parties were not awaiting a court ruling on the motions. Sewell Masonry, 862 So.2d at 898. Sewell Masonry also distinguished its case from Fuster-Escalona by observing that this Court s decision was based on the trial court s responsibility to immediately rule on a motion to disqualify and that the plaintiff s failure to set a hearing on the motion was irrelevant. The court placed emphasis on the immediacy with which the rule and case law require a judge to act when presented with such a motion. Sewell Masonry, 862 So.2d at , quoting, Fuster- Escalona, 781 So.2d at court stated: Sewell Masonry concluded by certifying conflict with Dye. As the This extension in Dye of Lukowsky and Fuster-Escalona essentially transforms the obligation to move a case toward resolution from the parties onto the trial court. We concede that judges should be encouraged to take an active role in keeping themselves informed of the cases assigned to them, but the trial judge should not be placed in the role of scheduling hearings on motions for parties who do not themselves seek rulings on their pleadings. Litigants have an affirmative obligation to move their cases to resolution and not sit back and rely on the trial court to set their hearings for them. We therefore disagree with Dye. Sewell Masonry, 862 So.2d at 899 (emphasis added). 25

33 In the fifth district court s decision in Tompkins, the defendant had filed a motion to dismiss one count of a second amended complaint but the motion was not set for a hearing and an order was never entered. When the defendant subsequently moved to dismiss for failure to prosecute, the plaintiff conceded that no record activity occurred during the one-year time period but argued that good cause existed because of his attempts to obtain service on other defendants who he claimed were essential ingredients to moving the case forward. 833 So.2d at 201. The trial court dismissed the action because the attempts to serve the other defendants did not preclude the case from being advanced in other ways. The fifth district court affirmed, holding that the trial court did not abuse its discretion in failing to find the existence of a compelling reason which prevented or excused the prosecuting party from actively pursuing the case in court. Id. at 202; accord Am. Wall Systems, Inc. v. Madison Intern. Group, Inc., 898 So.2d 111, 112 (Fla. 5th DCA 2005) (affirming dismissal where trial court rejected the plaintiff s argument that the pending motion to withdraw filed by defense counsel prevented it from prosecuting the action because the plaintiff was free at any time to set a notice of hearing on the motion of adverse counsel to withdraw. ). The second district court also has certified conflict with Dye in two recent cases. See Johnson v. Dezayas, 906 So.2d 1238 (Fla. 2d DCA 2005); Cosio v. Keithly, 889 So.2d 1017 (Fla. 2d DCA 2005). This Court, however, denied 26

34 review of Cosio because it was a decision without published opinion. Cosio v. Keithly, 907 So.2d 1170 (Fla. 2005). Both Cosio and Johnson simply affirmed the trial court s dismissal and certified conflict with Dye without further discussion. The second district court s decision to certify conflict with Dye is instructive in light of its decision in Carlson v. Jeflis Property Mgmt. Corp., 904 So.2d 642 (Fla. 2d DCA 2005). Carlson involved a situation where a jury trial had been conducted and the jury had returned a verdict in the plaintiff s favor. The defendant s post-trial motions were denied. Over one year later, the defendant moved to dismiss for failure to prosecute. The trial court entered a final judgment a few days later without ruling on the motion to dismiss. On the defendant s motion for rehearing, the trial court denied both the motion for failure to prosecute and the motion for rehearing. 904 So.2d at 643. The second district court observed that the record was unclear as to whether the trial court had ordered any specific party to prepare the final judgment for the court. Somehow, a judgment was not submitted to the trial judge, and the trial judge did not himself prepare a judgment. Id. at 644. In reaching its decision, the second district court commented that, although facially rule 1.420(e) seemed to authorize the dismissal of an action for lack of prosecution at any stage in the proceedings when no record activity has occurred for one year, case law has recognized a few stages in the litigation 27

35 process when the application of this rule is essentially suspended. These exceptions generally exist when the action is in a state of limbo due to the failure of the court itself to act. Id. The court then observed that one of these exceptions to the rule was when the trial court had taken the matter under advisement. See Maderia Mgmt., Inc. v. Chapman Realty Corp., 459 So.2d 1177 (Fla. 2d DCA 1984). In this regard, the court also cited Lukowsky for the proposition that a case cannot be dismissed for lack of record activity when a dispositive motion is pending before the court and the parties are awaiting the court s ruling because the duty to proceed rests squarely upon the court. Carlson, 904 So.2d at 644, quoting Lukowsky, 677 So.2d at Another exception was where a notice for trial bars the court from dismissing the action for lack of prosecution. See Mikos v. Sarasota Cattle Co., 453 So.2d 402 (Fla. 1984). For this proposition, the court also cited Lucaya Bch. Hotel Corp. v. M.L.T. Mgmt. Corp., 898 So.2d 1118 (Fla. 4th DCA 2005). In that case, the court held that the duty to proceed rested entirely with the trial court, which specifically required parties to request hearings in writing after which the judge would set the hearing and notify the parties. After discussing these cases, the second district court concluded that: As illustrated by these cases, there are certain times when the responsibility to move a case forward rests with the trial judge and not necessarily with the parties. During these times, the dismissal of the case for failure to 28

36 prosecute is inappropriate. The question in this case is whether the stage in the proceedings between the rendition of the verdict by the jury and the entry of judgment by the judge is one of these periods. Carlson, 904 So.2d at 645. The court held that rule 1.420(e) cannot be applied to dismiss the case once a jury has rendered a verdict and the parties are simply awaiting the entry of a final judgment in accordance with that verdict because the duty to proceed rests entirely with the trial court. The preparation of documents may be delegated to the parties, but the responsibility to enter a judgment still remains with the court. Id. In reaching its decision, the second district court factually distinguished its case from the fifth district court s decision in Patton. To begin with, there was no dispute as to the outcome of the jury trial. Next, Patton involved a pending motion early in the litigation; not a jury verdict entered after trial. Certainly, the plaintiff in Patton would seem to have had many opportunities to continue the prosecution of his case through discovery or other actions intended to move the case forward, despite the motion pending before the trial court. Carlson, 904 So.2d at 646. Lastly, the dismissal in Patton would not undermine a dispositive decision in the plaintiff s favor on the merits of the action. is as follows: A quick summary of the current status of the law in the district courts 29

37 1st DCA Dye holds that a pending motion to dismiss the complaint precludes dismissal for failure to prosecute because the duty to proceed rested with the trial court. Dye now has been disapproved by this Court in Patton. 2nd DCA Carlson limits the suspension of the one-year period to situations where the duty to proceed rested entirely with the trial court. The second district also has certified conflict with Dye in other cases. 3rd DCA Lukowsky establishes a bright-line rule that whenever a dispositive motion is pending in the court, and the parties are awaiting the court s ruling on that motion, the duty to proceed rests squarely upon the court. 677 So.2d at Lukowsky also had been disapproved by this Court in Patton. 4th DCA Lucaya Bch. Hotel holds that a pending motion suspended the one-year period where the trial court s announced procedures precluded the parties from setting motions on the court s calendar and placed that duty on itself, relying on Fuster-Escalona. 5th DCA Patton, Tompkins, Sewell Masonry, and Erickson hold that the parties have a responsibility to expedite their cases and move them towards resolution. These decisions have rejected any rule that allows a pending motion to automatically suspend the one-year time period as a matter of law. This Court has approved of the decision in Patton. 30

38 Considering the varied opinions of the district courts, it is not surprising that this Court accepted jurisdiction to review Patton. It appears that the Court resolved the conflict with Dye by holding that the pendency of an unresolved motion only may establish good cause in those instances where duty to proceed rested entirely with the trial court, such as the case in Fuster-Escalona. This Court reached a similar conclusion in Mikos. There, the parties had filed a notice of readiness for trial but the trial court failed to set a trial date. After the expiration of one year, the defendant moved to dismiss under rule 1.420(e). The second district court held that, once a plaintiff has given notice that it is ready for trial, the trial court must enter an order fixing a date for trial and is therefore precluded from dismissing the action for lack of prosecution should the plaintiff fail to take any further action. This Court approved the second district court s decision, holding that: We agree with the decision below in all respects. A trial judge has sole discretion in determining the order in which cases will be tried. Lawyers simply have no power nor duty to determine which cases will be tried at particular times. The rules contemplate that whenever a plaintiff is ready for trial his attorney must notify the court and ask the court to enter an order setting a trial date. It is in appropriate for a trial attorney to pressure a judge into setting a date. We would like to add, however, that if a plaintiff subsequently indicated that he is not ready for trial, then the filing of the notice of trial will not be a bar to a dismissal for lack of prosecution. Mikos, 453 So.2d at 403 (emphasis added). 31