NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
1385 STARKEY, LLC, )
)
Appellant, )
)
v. ) Case No. 2D15-5579
)
SUPERIOR FENCE & RAIL OF PINELLAS )
COUNTY, INC., )
)
Appellee. )
___________________________________)
Opinion filed January 18, 2019.
Appeal from the Circuit Court for Pinellas
County; Bruce Boyer, Judge.
Thomas C. Jennings III of Repka &
Jennings, P.A., Clearwater, for Appellant.
Christopher L. Johnson, Oviedo,
for Appellee.
PER CURIAM.
1385 Starkey, LLC (Starkey), seeks review of a final judgment awarding
Superior Fence and Rail of Pinellas County, Inc. (Superior Fence), damages for civil
theft. The final judgment was entered after the trial court prohibited Starkey from
participating in the trial of this action because Starkey had been administratively
dissolved. We reverse because the trial court erred in denying Starkey's motion to
continue the trial in order for Starkey to reinstate itself as an active entity.
Superior Fence filed suit against Starkey, an active Florida limited liability
company, in 2009. In 2010, Superior Fence filed its second amended complaint, which
is the operative complaint, asserting claims of civil theft, replevin, and conversion. In
response, Starkey filed a counterclaim and third-party complaint. The trial court
scheduled a pretrial conference for Monday, October 26, 2015, and scheduled a bench
trial for November 3, 2015. The order setting trial provided that all motions except
motions in limine were to be filed and heard before the pretrial conference absent good
cause.
Despite this language, Superior Fence filed a motion to dismiss Starkey's
counterclaim and third-party complaint on October 23, 2015—the Friday afternoon
before the Monday morning pretrial conference. The basis for the motion was that in
2013 Starkey had been administratively dissolved as an entity by the Florida
Department of State and that under chapter 605, Florida Statutes (2015), Starkey was
prohibited from prosecuting or defending the action. At the same time, Superior Fence
filed a motion asking the court to take judicial notice of a document from the Department
of State that showed Starkey's dissolution was for failure to file an annual report. The
record does not reflect any reason why the motions had not been filed at an earlier date
in order to be heard prior to the pretrial conference.
Although we do not have a transcript of the pretrial conference, the motion
to dismiss was apparently addressed at that time. The parties dispute whether the trial
court denied the motion or deferred ruling on it, and an order was not entered reflecting
any ruling on the issue.
2
At the start of the trial on November 3, 2015, Superior Fence sought to
reargue the motion to dismiss. Starkey responded that the trial court had previously
denied the motion and argued that the pretrial ruling should stand. In fact, Starkey
stated that at the pretrial conference the court had ordered Starkey's counsel to prepare
a written order denying the motion, which Starkey had with it and which it proffered to
the court. Superior Fence responded that the court had deferred ruling.
The trial court did not directly address the parties' differing recollections as
to what had occurred at the pretrial conference. Instead, the court permitted Superior
Fence to "renew" its motion and to argue that dismissal was required under section
605.0212(6), Florida Statutes (2015). Starkey maintained that under section 605.0709 it
was entitled to fully participate in the case in order to wind up its business and affairs. It
indicated that it had not previously reinstated itself because it understood that the court
had denied the motion to dismiss at the pretrial conference and that it could proceed to
defend itself as part of the winding up process.
The court recessed for twenty-five minutes. When the proceedings
resumed, the court asked Starkey if it had anything to add. Starkey reiterated its
position that the court had previously denied the motion and, in light of that, expressed
surprise that the court was reconsidering the issue. Starkey further argued that if the
court was inclined to dismiss the case as to Starkey then a continuance was warranted
so that Starkey could take the steps necessary to reinstate itself to active status.
The court stated that it was going to grant Superior Fence's motion and
preclude Starkey from participating in the case, either to defend itself or to prosecute its
counterclaim and third-party complaint. Starkey renewed its request for a continuance
3
to give it time to reinstate itself, noting that it was winding up its affairs and should be
permitted to participate in the trial. It requested a recess until that afternoon so that it
could "correct this matter immediately" and make payment of the requisite funds for
reinstatement. The trial court denied this request and proceeded with a bench trial in
Starkey's absence. The court ruled in favor of Superior Fence and directed counsel for
Superior Fence to submit a proposed final judgment. In the meantime, Starkey took the
necessary steps for reinstatement. On November 12, 2015, it filed a certificate from the
Department of State reflecting that it had been returned to active status as of November
6, 2015.
Despite this filing, on November 16, 2015, the trial court rendered final
judgment in favor of Superior Fence. Starkey filed a motion for new trial and a motion
for rehearing and for relief from judgment on November 19, 2015, citing its
reinstatement along with section 605.0715, which provides that reinstatement will relate
back and take effect as of the date of the administrative dissolution and that the
company "may resume its activities and affairs as if the administrative dissolution had
not occurred." § 605.0715(4)(b). The trial court denied the motions without a hearing.
This appeal followed.
The parties cite to differing statutory sections to argue their respective
positions as to whether Starkey was entitled to participate in the litigation after it was
administratively dissolved for failure to file its annual report. They also cite and attempt
to harmonize two seemingly inconsistent cases from this court dealing with analogous
statutes addressing dissolved corporations. See Trans Health Mgmt., Inc. v. Nunziata,
159 So. 3d 850 (Fla. 2d DCA 2014); PBF of Fort Myers, Inc. v. D&K P'ship,
890 So. 2d
4
384 (Fla. 2d DCA 2004). We decline to address whether their attempt at harmonization
is correct (or the threshold question of whether the cases are indeed inconsistent)
because regardless, under the circumstances here, we conclude that the trial court
abused its discretion in denying Starkey's motion to continue in order that it could
reinstate itself as an active entity.
This court has previously recognized that "in certain circumstances, the
denial [of a motion to continue] may create an injustice which outweighs the policy of
not disturbing the trial court's ruling." Ramadon v. Ramadon,
216 So. 3d 26, 29 (Fla. 2d
DCA 2017) (alteration in original) (quoting Fasig v. Fasig,
830 So. 2d 839, 841 (Fla. 2d
DCA 2002)). In this case, the trial court's decision to deny Starkey's motion for a
continuance occurred after the court allowed Superior Fence to reargue its motion to
dismiss on the morning of the trial. Had the court permitted Starkey to reinstate itself to
active status prior to the beginning of trial, the effect of reinstatement would have been
to make it as if the dissolution had never occurred. See § 605.0715(4). In summary,
the trial court should have granted Starkey's request for a brief continuance on the
morning of trial to allow Starkey the opportunity to reinstate itself so that Starkey would
have been able to fully participate in the trial rather than suffer a judgment from an
uncontested trial. See id.; see also Chakra 5, Inc. v. City of Miami Beach,
254 So. 3d
1056, 1062-63 (Fla. 3d DCA 2018) ("[W]hen the issue of an entity's status with the
Florida Secretary of State is raised, the appropriate course by a trial court is to abate
the action for a brief period of time to permit compliance with the statute; only after a
failure to comply within a reasonable time may sanctions such as dismissal be
considered.").
5
Based on the uncertainty as to the trial court's ruling at the pretrial
conference and the court's decision precluding Starkey's participation in the trial after
denying its request for a brief continuance in order to reinstate itself as an active entity,
we reverse the final judgment and remand for further proceedings.
Reversed and remanded.
SILBERMAN, VILLANTI, and ROTHSTEIN-YOUAKIM, JJ., Concur.
6
