Publicidad Vepaco, C.A., and Latele Television C.A., Appellants,
Nelson Mezerhane and Rogelio Trujillo, Appellees.
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.
Office of Mesa & Associates, P.A., and Manuel Arthur Mesa
and Matthew Carcano, for appellants.
& Associates, P.A., and Elliot B. Kula and William D.
Mueller, for appellees.
LOGUE, SCALES, and GORDO, JJ.
the plaintiffs below, appeal the trial court's order
dismissing this case for lack of prosecution. We affirm.
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.
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.
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
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) ...