Gomez and Valdes v. State Farm Florida Insurance Co.

Third District Court of Appeal
State of Florida
Opinion filed January 4, 2017.
Not final until disposition of timely filed motion for rehearing.
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No. 3D15-1436
Lower Tribunal No. 10-01987
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Pedro Gomez, etc., et al.,
Appellants,
vs.
State Farm Florida Insurance Company,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Jorge E. Cueto,
Judge.
Peckar & Abramson, and Ralf R. Rodriguez and K. Stefan Chin, for
appellants.
Russo Appellate Firm, P.A., and Elizabeth Russo and Kevin D. Franz;
Chimpoulis Hunter & Lynn, P.A., and Brian Hunter (Plantation), for appellee.
Before LAGOA and LOGUE, JJ., and SHEPHERD, Senior Judge.
LAGOA, J.
Appellants, Pedro Gomez and Yolanda Valdes (collectively “Appellants”),
appeal from the trial court’s denial of their Motion to Vacate Order of Dismissal
for Lack of Prosecution. Because a Stay Order entered by a prior trial court judge
was in effect at the time the order of dismissal was entered, we reverse and remand
for reinstatement of Appellants’ complaint.
I. FACTUAL AND PROCEDURAL HISTORY
On January 13, 2010, Appellants filed a complaint against State Farm
Insurance Company (“State Farm”), Appellants’ property insurer (hereinafter, the
“Insurance Case”). State Farm filed its answer and the case proceeded with
discovery.
On April 18, 2011, Appellants filed in federal court a voluntary bankruptcy
petition under Chapter 7 (hereinafter, the “Bankruptcy Case”). The bankruptcy
petition schedules listed the Insurance Case against State Farm as a potential asset,
and that case became the property of the bankruptcy estate. On April 20, 2011,
Appellants filed a suggestion of bankruptcy in the Insurance Case and, on that
same day, the trial court sua sponte entered a stay order stating, “pending further
order from the Bankruptcy Court” (hereinafter, the “Stay Order”).
On February 25, 2015, the Trustee in the Bankruptcy Case filed a Trustee’s
Verified Notice of Abandonment of the Insurance Case. The Notice of
Abandonment is self-executing upon the expiration of the 21-day period for
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objections. Because no objections were filed, the claim was deemed abandoned
without necessity of a court order on March 17, 2015.
Subsequently, Appellants’ counsel contacted State Farm’s counsel to discuss
ending the Stay Order and recommencing litigation in the Insurance Case. During
that conversation, State Farm’s counsel informed Appellants’ counsel that the case
had been dismissed in 2013. Appellants’ counsel had no knowledge of the
dismissal.
A review of the record shows that on July 9, 2013, the trial court scheduled a
case management conference in the Insurance Case for August 16, 2013 and
notified the parties via e-mail.1 The trial judge now sitting in the division where the
Insurance Case was pending was the successor to the trial judge who entered the
Stay Order in 2011. Appellants’ counsel did not attend the case management
conference and an Order of Dismissal without prejudice was entered on August 19,
2013. At the time of the entry of the Order, the trial court was unaware of the Stay
Order previously entered by the prior trial judge. At the time of the entry of the
August 19, 2013 Order of Dismissal, the Stay Order had not been dismissed or
vacated.
Upon learning of the dismissal, Appellants’ counsel filed a Motion to Vacate
Order of Dismissal and to Reopen Case (“Motion”) based upon two grounds: (1)
1The Order Setting Case Management Conference was a notice setting a case
management conference for 81 separately listed cases. Three separate pages of
email addresses followed the notice.
3
Appellants never received notice of the case management conference and/or the
Order of Dismissal and therefore their due process rights were violated; and (2) the
Order of Dismissal was inconsistent with the Stay Order.
In support of the Motion, Appellants’ counsel filed two uncontested
affidavits, which established that Appellants’ counsel did not receive either the
order setting the case management conference or the subsequent order dismissing
the case. The undisputed record evidence also established that at the time the e-
mails were sent by the trial court, Appellants’ counsel’s firm was migrating over to
a new Unified Messaging System and the e-mails did not make it through to either
counsel’s Exchange server or Outlook files.2 The unrebutted evidence established
that counsel for Appellant “never received the e-mail from the Court regarding the
Case Management Conference set for August 16, 2013 or any subsequent e-mail
regarding the Dismissal Order, in his Outlook in-box.”
At the hearing on the motion, the trial court acknowledged “that there was a
stay in place that I did not know about.”3 Following a hearing on the motion, the
trial court denied the motion, and this appeal ensued.
2 The Network Technician for the law firm of Appellants’ counsel testified that
he “was unable to locate any e-mails from the Court regarding the Case
Management Conference set for August 16, 2013 or the Dismissal Order in the
Exchange server, or in [Appellants’ counsel’s] Outlook files, or in any system
internal to the Network.”
3 It is unclear from the record why State Farm’s counsel, who attended the case
management conference, did not bring the Stay Order to the trial court’s attention
prior to the entry of the Order of Dismissal.
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II. ANALYSIS
Rule 1.420(e), Florida Rules of Civil Procedure, states in pertinent part as
follows:
Failure to Prosecute. 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 . . . 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 . . . .
(emphasis added).
Here, it is uncontroverted that the Stay Order staying the action was entered
by the division’s prior judge, and it is further uncontroverted that the Stay Order
was in effect at the time the Order of Dismissal was entered for lack of
prosecution. The trial court’s entry of dismissal for lack of prosecution while the
Stay Order was in effect directly contravenes the express language of Rule
1.420(e). Dismissal for lack of prosecution is not permitted under Rule 1.420(e) if
a stay order has been issued by the trial court. Indeed, once the trial court entered
the Stay Order, Appellants did not have to pursue any further activity in the
Insurance Case to prevent a dismissal for lack of prosecution. See Zbin v. Parker,
647 So. 2d 886, 887 (Fla. 4th DCA 1994) (reversing final order of dismissal for
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lack of prosecution as prior order abating case constituted a stay order
contemplated by Rule 1.420(e), Fla. R. Civ. P., and plaintiff did not have to pursue
any further record activity in order to avoid dismissal for want of prosecution);
See also Bekins Van Lines v. Schaeffer, 630 So. 2d 633, 634 (Fla. 4th DCA 1994)
(finding that temporary stay was sufficient to prevent dismissal for lack of
prosecution); Dolan v. Hartford Ins. Co., 566 So. 2d 316, 317 (Fla 4th DCA 1990)
(reversing order of dismissal and finding that action stayed as to a party, whether
by court order or automatic stay, should not be dismissed for failure to prosecute).
We therefore find that the trial court dismissed a properly stayed action for lack of
prosecution in contravention of Rule 1.420(e).
Accordingly, we reverse the Order of Dismissal and remand the cause to the
trial court for reinstatement of the complaint.
REVERSED AND REMANDED.
LOGUE, J., concurs.
SHEPHERD, Senior Judge, dissents.
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