10 Fla. L. Weekly Supp. 468b
Insurance — Small claims — Dismissal — Failure to prosecute — Trial court erred in finding that late docketed subpoena return constituted record activity where return was filed one month beyond six month limit of rule 7.110(e) — No merit to argument that trial court implicitly found good cause why action should remain pending when it granted motion to compel insurer to respond to discovery requests filed with complaint — Insurer’s failure to respond to discovery does not establish compelling circumstances necessary to qualify for “good cause” exception to rule — Remand to enter order granting motion to dismiss
STATE FARM AUTOMOBILE INSURANCE COMPANY, Appellant, vs. MARGARET FILLYAW, Appellee. Circuit Court, 5th Judicial Circuit (Appellate) in and for Marion County. Case No. 2002-AP-1943. L.C. Case No. 1999-SC-3252. May 5, 2003. Appeal from the County Court of Marion County, Judge Frances S. King.
OPINION
(MERRITT, Presiding Judge.) This case began when the appellee, (Fillyaw) filed suit against the appellant, (State Farm) on October 13, 1999, seeking to recover cost of medical treatment Fillyaw alleged was required as a result of her involvement in an automobile crash. The case initially proceeded as all cases do with the initial filing of the usual pleadings associated with discovery; interrogatories, requests for admission, issuance of subpoenas, notices regarding the taking of depositions, and so on. However, as the case progressed a certain lethargy seems to have overtaken the litigation and the pleadings, that at first appeared with such celerity began to be docketed at a more leisurely pace. The clerk of court’s progress docket chronicles this ebbing flow, noting that four filings in February 2000, were followed by three in March, then two in April, then one in August, two in November and one on December 1, 2000. Subsequent to the December filing, there followed a period of paucity where the record is devoid of the docketing of any pleading until July 2, 2001.
Having observed this lack of activity, State Farm filed a motion to dismiss for failure to prosecute, ostensibly pursuant to Florida Small Claims Rule 7.110(e). This was done on November 27, 2001, and alleged that there had been no record activity in the case six months subsequent to the filing of a “Notice of Unavailability” that was docketed on December 1, 2000. State Farm’s motion did mention that the clerk of court had docketed a subpoena with a signed certified return receipt on July 2, 2001 but this was filed seven months after the December 1st filing. It appears from these circumstances that State Farm’s filing of the motion to dismiss on November 27th was incorrectly premised on Fla. R. Civ. Proc. 1.420(e). State Farm could have filed a motion to dismiss pursuant to Fla. Sm. Cl. R. 7.110(e) by June 2, 2001, even if the last prior docketing date of December 1, 2000 was used.
Apparently, on receipt of State Farm’s motion, Fillyaw responded with remarkable alacrity. In short order, Fillyaw had five documents docketed on November 27, and 28, 2001. One of these was Fillyaw’s, “Response to Motion to Dismiss” in which she admitted that she, “served a Response to Request to Produce on November 13, 2000, and acknowledges that no calendar record activity occurred since that date.” Having admitted there was no calendar activity, Fillyaw proceeded in her response to claim that she had good cause for avoiding dismissal in that she was entitled to rely on the clerk’s error in filing the subpoena return originally signed for on March 1, 2000, on July 2, 2001. Fillyaw’s response did not address how the subpoena return filed after seven months constituted the required showing of record activity in six months as required by Fla. Sm. Cl. R. 7.110(e). Perhaps, Fillyaw’s counsel was also under the impression that he was proceeding under Fla. R. Civ. Proc. 1.420(e). Alternatively, Fillyaw claimed dismissal was inappropriate in that she had filed a request to produce and interrogatories with her complaint and that State Farm had not answered these.
A hearing was eventually held by the trial court on February 7, 2002 and trial court denied State Farm’s motion to dismiss in an order entered on February 14, 2002. As the basis for this decision, the following language is extracted verbatim from the trial court’s order:
“[t]he Court having identified record activity consisting of a filing of a subpoena issued duces tecum without deposition (Records Mail-In Only), issued on Dr. Joseph Warner, sent by certified mail from attorney, signed for Randi Horn on March 1, 2000, such document having been docketed by the Clerk of Court on or about July 2, 2001, the Court finding that such represents record activity designed to move this matter toward resolution.”
As reflected in this language, the trial court has concluded that a document filed on July 2, 2001, seven months after the last docketed filing on December 1, 2000, constitutes record activity. While the dissent would affirm the lower court’s order predicated on the discretion of the lower court to declare the document “record activity”, such a finding is unsupportable under Florida Small Claims Rule 7.110(e). The rule requires that:
“All actions in which it affirmatively appears that no action has been taken by filing of pleadings, order of court, or otherwise for a period of 6 months shall be dismissed by the court on its own motion or on motion of any interested person, whether a party to the action or not, after 30 days’ notice to the parties, unless a stipulation staying the action has been filed with the court, or a stay order has been filed, or a party shows good cause in writing at least 5 days before the hearing on the motion why the action should remain pending.” emphasis supplied.
A review of the case law at both the appellate and circuit level has disclosed no cases dealing with the application of the small claims rule to the particular facts now under consideration. The committee notes accompanying Rule 7.110(e) make it clear that it is patterned on Fla. R. Civ. P. 1.420(e). Therefore for purposes of the analysis required here, cases interpreting the ambit of the application of 1.420(e) will be analogous in reasoning.
The dissent’s argument that the lower court was correct in finding that the late docketed subpoena return constituted “record activity” is negated by the failure to address the fact that the document was filed one month beyond the six month time-limit set out in the rule. The Florida Supreme Court has made it abundantly clear in its analysis of the application of the analogous R. Civ. P. 1.420(e) that,
“actions “shall” be dismissed if it appears on the face of the record that there was no activity within the past year. This requires only a review of the record. There is either activity on the face of the record or there is not. If a party shows that there is no activity on the face of the record, then the burden moves to the non-moving party to demonstrate . . . . that one of the three bases that would preclude dismissal exists.” emphasis in original. Metropolitan Dade County v. Hall, 784 So.2d 1087 at 1090 (Fla. 2001).
As an alternative to a showing of “record activity”, Fillyaw argues the trial court’s denial of the motion to dismiss should be affirmed on the basis that the trial court implicitly found there was “good cause” when the court granted her ore tenus motion to compel State Farm’s response to interrogatories and request to produce that were filed at the same time as her complaint. The dissent has adopted Fillyaw’s argument and cites in support the case of Waldman v. Frankel, 343 So.2d 1325 (Fla. 3rd DCA 1977). This case in inapposite. In Waldman, the appellate court found that the plaintiffs’ motion to compel answers to interrogatories filed within the one year time limit specified by Rule 1.420(e) constituted sufficient record activity. Only incidentally did the appellate court observe that the defendant’s, “failure to answer the interrogatories attributed to the delay in bringing this cause to trial.” The appellate court made no finding that the defendant’s failure to answer in and of itself qualified under the “good cause” exception to the rule and as such the language is obiter dicta.
The case of Eisen v. Fink, 511 So.2d 1092 (Fla. 2nd DCA 1987) is more apropos to the circumstances found in Fillyaw’s case. In Eisen, the plaintiff had failed to actively prosecute her claims for a period of 1½ years prior to the filing of the defendant’s motion to dismiss pursuant to Fla. R. Civ. P. 1.420(e). In response to the motion to dismiss the plaintiff claimed “good cause” existed because the defendant had said he was going to set the deposition of the plaintiff, that there were ongoing settlement negotiations between the parties, and further argued the defendant’s delays in filing answers to the plaintiff’s first set of interrogatories. The appellate court labeled these and other reasons offered by the plaintiff, as “insubstantial excuses” and reversed the trial court’s order denying the defendant’s motion to dismiss. Id. at 1093.
Fillyaw appears to have taken a similar but not as varied approach in her response, claiming that a request to produce and interrogatories filed with her original complaint on October 13, 1999 and that State Farm, “never filed responsive discovery to these requests and that discovery remains outstanding.” This claim does not establish the compelling circumstances necessary to avoid dismissal for “good cause”. As the Fifth District Court of Appeal observed in the case of, Nichols v. Lohr, 776 So.2d 366 (Fla. 5th DCA 2001), “Florida Rule of Civil Procedure 1.420(e) is perhaps a harsh rule, but all things in the temporal spectrum must have an end.” Id. at 367.
Since it has been determined the trial court’s order denying State Farm’s Motion to Dismiss must be reversed based on the misapplication Fla. Sm. Cl. R. 7.110(e) the remaining issues raised by the parties shall not be addressed.
The trial court’s order denying State Farm’s motion to dismiss is reversed, the order is vacated and this case is remanded to the trial court with directions to enter an order granting State Farm’s motion to dismiss without prejudice. (REVERSED and REMANDED with DIRECTIONS.)
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