15 Fla. L. Weekly Supp. 181a
Attorney’s fees — Insurance — Personal injury protection — Dismissal — Failure to prosecute — Motion to dismiss claim for attorney’s fees for failure to prosecute is granted — Small claims rules do not require 30-day notice and grace period to afford opportunity to cure inaction prior to dismissal for failure to prosecute
1st HEALTH, INC. As Assignee of PATRICIA DOAN, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 12th Judicial Circuit, Sarasota County. Case No. 2003 SC 016847 NC. November 21, 2007. Emanuel LoGalbo, Jr., Judge. Counsel: Gregory A. Zitani and Anthony D. Barak, Barak & Zitani, L.L.C., Sarasota. Robert H. Oxendine, Oxendine & Oxendine, P.A., Tampa, for Defendant.
ORDER GRANTING MOTION TO DISMISS
THIS CASE is before the court post-judgment, after a jury verdict in favor of defendant. Plaintiff noticed for hearing a Motion to Dismiss Defendant’s Claim for Attorney’s Fees for Failure to Prosecute, pursuant to Rule 7.110(e), Florida Small Claims Rules. In opposition defendant argued that plaintiff had not first filed a 30 day notice under the rule before filing the instant motion, maintaining that the import of the rule is to provide the opposing party an opportunity to cure the flaw of inaction by taking some action to advance the progress of the cause during the 30 day timeframe, which in essence would, under defendant’s theory, act as a grace period. Plaintiff urged that under the plain language of the rule, no such pre-filing notice requirement exists; thus there is no grace period as argued by defendant.
The court agrees with the plaintiff. There are several reasons. Plaintiff cites Sebree v. Shantz, etc., 963 So.2d 842 (Fla. 3rd DCA 2007), which applied the 2002 version of Rule 1.420(e). In its analysis, the court utilized a two-step approach as explained therein. The court finds that there is virtually no substantive difference between Rule 1.420(e) (2002) and the current version of Small Claims Rule 7.110(e). [The former provided that the notice be reasonable, while the latter is specific in mandating that there be a 30 day notice.]
Therefore, this court concludes, there should be no difference in the application of the rules.
Furthermore, the Supreme Court explained how the two-step process is meant to work in Del Duca v. Anthony, 587 So.2d 1306 (Fla.1991). No specific mention was made by the Del Duca court or the Sebree court that the analysis included an intermediate step in order to determine whether the opposing party had attempted to cure the inaction during the time within which the notice was first given and the hearing on the motion. Hence, this court’s conclusion that there should be no difference in the application of these two rules.
Interestingly, the Sebree court did, in footnote 3, take notice of a circumstance where the party is given an opportunity to cure during a grace period. This came as a result of the fact that Rule 1.420(e) was recently amended so as to specifically provide that the absence of record activity during the grace period is one of several pre-requisites to a successful motion to dismiss. See Swait v. Swait, 32 Fla. L. Weekly D1465 (Fla. 4th DCA 2007) where the grace period within which an opposing party would have an opportunity to avert dismissal was discussed with some detail.
The failure to amend Rule 7.110(e) so as to be in conformity with the specifics of the recently amended Rule 1.420(e) means whatever policy considerations there may have been that served to establish the grace-period opportunity-to-cure provision in the Florida Rules of Civil Procedure, though they may be cogent, have decidedly not been replicated in the Small Claims Rules.
And yet, the Supreme Court has had occasion to conform the Small Claims Rule to the Rules of Civil Procedure. As of 1973, the Small Claims Rule read as follows:
“(e) Failure to Prosecute. 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 one year 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 reasonable notice to the parties, unless a party before the hearing on the motion shows good cause in writing why the action should remain pending.”
And the Court added this language in its commentary:
“Note: Substantially the same as FRCP 1.420. See also Section 45.19(1) Florida Statutes.”
See 270 So.2d 729 (Fla.1972).
And, in 1997:
“(e) Failure to Prosecute. 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 party before the hearing on the motion shows good cause in writing 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.”
The reason given in the body of the opinion was the following:
“Rule 7.110(e) is amended to be consistent with Rule of Civil Procedure 1.420(e). The present language prevents the dismissal of an action for failure to prosecute only if a party, before the motion to dismiss hearing, shows good cause in writing. The new language prevents the dismissal of an action for failure to prosecute when a stipulation staying the action has been filed with the court, when a stay order has been filed, or when a party shows good cause in writing at least five days before the hearing on the motion.”
See 682 So.2d 1075 (Fla. 1997). Thus, it may be said that the Court recognizes when there is a variation among the rules of court, and chooses on its own terms when it will provide for consistency.
In view of the foregoing, this court finds that we are not there yet; the Small Claims Rules have not been modified to the point that would allow for defendant’s view of Rule 7.110(e).
Furthermore, for this court to choose to apply defendant’s arguments would mean that this court would be re-writing the rule. Such an approach, in this court’s view, would be contrary to law. The Sebree court specifically said that the change found in Rule 1.420(e) “[was] legally irrelevant,” and chose to “apply the rule in effect at the time of the motion.” Id., at 845.
The Motion to Dismiss Defendant’s Claim for Attorney’s Fees for Failure to Prosecute is granted.1
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1The application of the rule of court for “failure to prosecute” in the context of a post-judgment matter/action for attorney’s fees seems remarkable, but nonetheless appears to have been sanctioned in Donner v. City of Miami, 695 So.2d 390 (Fla. 3rd 1997). We learn of the holding in this “PCA-affirmed” case solely from the dissenting opinion. The significance of such a circumstance, gleaning a holding from a dissenting opinion in a case that was PCA-affirmed, was not discussed.
