final until disposition of timely filed motion for rehearing.
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.
E. Nutt, West Palm Beach, for appellee.
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.
present this opinion in three parts:
1. the procedural history;
2. our review; and
3. a detailed comparison to an analogous case.
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).
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).
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.
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 ...