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Publicidad Vepaco, C.A. v. Mezerhane

Florida Court of Appeals, Third District

November 6, 2019

Publicidad Vepaco, C.A., and Latele Television C.A., Appellants,
v.
Nelson Mezerhane and Rogelio Trujillo, Appellees.

         Not final until disposition of timely filed motion for rehearing.

          Appeals from the Circuit Court for Miami-Dade County, Bronwyn C. Miller, Judge Lower Tribunal No. 11-42771.

          Law Office of Mesa & Associates, P.A., and Manuel Arthur Mesa and Matthew Carcano, for appellants.

          Kula & Associates, P.A., and Elliot B. Kula and William D. Mueller, for appellees.

          Before LOGUE, SCALES, and GORDO, JJ.

          LOGUE, J.

         Appellants, the plaintiffs below, appeal the trial court's order dismissing this case for lack of prosecution. We affirm.

         Facts

         In the case below, Publicidad Vepaco, C.A., and Latele Television C.A., two Venezuelan corporations, sued Nelson Mezerhane and Rogelio Trujillo, two Venezuelan nationals living in Florida for fraud, conspiracy to defraud, conversion, conspiracy to commit conversion, civil theft, and unjust enrichment. The allegations stemmed from loans made available to the plaintiffs by a bank principally owned by one of the defendants. As the litigation proceeded, a dispute arose over the control of the plaintiff corporations which led to different attorneys claiming to represent the plaintiffs. Mr. Andrew M. Kassier of Andrew M. Kassier, P.A., and Mr. Albert J. Piantini of Piantini and Associates, P.A., maintained they represented the plaintiffs. At the same time, Mr. Manuel Arthur Mesa of the firm of Mesa & Asssociates, P.A. maintained he represented the plaintiffs. In fact, at one point, the defendants filed a motion to stay the proceedings until the issue of control of the plaintiff corporations was resolved. The plaintiffs opposed the motion, which was ultimately denied by the trial court.

         On October 18, 2017, pursuant to Florida Rule of Civil Procedure 1.420 (e), the defendants filed a notice that no record activity had occurred since December 21, 2016. Plaintiffs filed no record activity in response. On December 27, 2017, the defendants filed their motions to dismiss for failure to prosecute. After being continued at the request of the plaintiffs, the hearing took place on January 31, 2018. The trial court deferred ruling on the motions to dismiss and concluded that an evidentiary hearing was necessary on the issue of representation and that the court would "also convene an evidentiary hearing on the issue of good cause in conjunction with the representation hearing." The trial further ruled that the pleadings were "frozen" as to the good cause issue.

         The evidentiary hearing was held on April 12, 2018. At the hearing, the court determined that both sets of plaintiffs' counsels - Mr. Kassier and Mr. Piantini, and Mr. Mesa - were aligned in interest in avoiding the dismissal and therefore, the court could properly hear argument on the merits of the dismissal motions. On May 8, 2018, the trial court entered a detailed eleven-page order dismissing the case, without prejudice, for lack of prosecution. The court denied the plaintiffs' motion for rehearing and both groups of the plaintiffs' purported counsel filed notices of appeal.[1]

         Standard of Review

         We review a trial court's determination of whether good cause exists in the context of a motion to dismiss for lack of prosecution for an abuse of discretion. Metro. Dade Cnty. v. Hass, 784 So.2d 1087, 1090 n.4 (Fla. 2001) (noting that dismissal is mandatory under the rule if there has been no action taken toward prosecution within one year and "[t]he abuse of discretion standard is triggered only if the trial court must make a determination of good cause."); Johnson v. Maroone Ford LLC, 944 So.2d 1059, 1060 (Fla. 4th DCA 2006) ...


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