Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Lesinski v. South Florida Water Management District

Florida Court of Appeals, Fourth District

September 6, 2017

MICHAEL LESINSKI, Appellant,
v.
SOUTH FLORIDA WATER MANAGEMENT DISTRICT, Appellee.

         Not final until disposition of timely filed motion for rehearing.

         Appeal of non-final order from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Thomas H. Barkdull, III, Judge; L.T. Case No. 2012CA017069XXXXMB.

          Christopher J. Rush of Christopher J. Rush & Associates, P.A., Boynton Beach, for appellant.

          James E. Nutt, West Palm Beach, for appellee.

          Gerber, C.J.

         The plaintiff appeals from the circuit court's order denying his Florida Rule of Civil Procedure 1.540(b)(1) motion to vacate the court's earlier Florida Rule of Civil Procedure 1.420(e) dismissal order. The plaintiff primarily argues the court erred in denying the motion because the motion established excusable neglect for his failure to timely respond to the court's notice of lack of prosecution. We disagree with the plaintiff and affirm.

         We present this opinion in three parts:

1. the procedural history;
2. our review; and
3. a detailed comparison to an analogous case.

         1. Procedural History

         After no record activity occurred for ten months in the underlying case, the circuit court, on August 16, 2016, entered a notice of lack of prosecution under Florida Rule of Civil Procedure 1.420(e). Rule 1.420(e) provides, in part:

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, 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 . . . unless a party shows good cause in writing at least 5 days before the hearing on the motion why the action should remain pending.

Fla. R. Civ. P. 1.420(e).

         The circuit court's notice set a hearing for November 9, 2016. No record activity occurred within the sixty days immediately following the service of the notice, and no stay was issued or approved before the sixty-day period expired. Instead, on November 7, 2016 (two days before the hearing), the plaintiff's counsel filed a "showing of good cause, " claiming he had not been prosecuting the case because the defendant never filed an answer to the pending version of the complaint. The plaintiff's counsel also noted that his office had failed to calendar the sixty-day and five-day deadlines under rule 1.420(e).

         On November 9, 2016, the circuit court held a very brief hearing. At the hearing, the plaintiff's counsel apologized for his failure to file a notice of good cause five days before the hearing, as rule 1.420(e) required. The plaintiff's counsel maintained that he was waiting for the defendant to file an answer to the pending version of the complaint. The court, without explanation, stated that the case was dismissed. The court entered a written dismissal order to that effect.

         The plaintiff then filed a timely motion to vacate the dismissal order under Florida Rule of Civil Procedure 1.540(b)(1) (2016) ("On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, decree, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusableneglect . . . .") (emphasis added). In the motion, the plaintiff's counsel alleged that, following the court's notice of lack of prosecution, the only deadline placed on his calendar was a "mandatory status conference/scheduling conference" to occur on November 9, 2016, and neither the sixty-day deadline regarding record activity, nor the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.