SEBREE V. SCHANTZ

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SEBREE V. SCHANTZ

State: Florida

Court: Florida Third District Court

Docket No: 04-2523

Case Date: 08/08/2007

Preview:Third District Court of Appeal
State of Florida, July Term, A.D. 2007
Opinion filed August 8, 2007. Not final until disposition of timely filed motion for rehearing. ________________ No. 3D04-2523 Lower Tribunal No. 98-6713 ________________

Wynelle L. Sebree,
Appellant, vs.

Schantz, Schatzman, Aaronson & Perlman,
Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Herbert Stettin, Judge. Gregg J. Ormond, for appellant. Adorno & Yoss, and Jack R. Reiter and Natalie J. Carlos, for appellee.

Before GREEN, RAMIREZ, and SHEPHERD, JJ. SHEPHERD, J. Wynelle L. Sebree appeals a final summary judgment and amended final summary judgment rendered on May 25, 2004, and September 14, 2004,

respectively, which award the now defunct law firm of Schantz, Schatzman, Aaronson & Perlman, P.A. $33,500, plus interest, for unpaid attorney fees. Sebree seeks to redeem herself from the force of the judgment on the ground that the trial court interlocutorily erred by denying an earlier-filed motion to dismiss the action for failure to prosecute. We agree that the trial court erred in denying this motion and accordingly reverse the final summary judgments on appeal with directions that the complaint in this case be dismissed without prejudice. A brief summary of the factual and procedural background is necessary to our decision. FACTUAL AND PROCEDURAL BACKGROUND The record reflects that Schantz, Schatzman filed suit against its former client, Wynelle Sebree, for attorney fees claimed to be due and owing on March 28, 1998. The law firm was self-represented by Martin Pico, Esq., an associate of the firm. On November 24, 1998, the law firm obtained a default final judgment for the full amount of the sum claimed. This judgment was recorded on December 6, 1998. During the next several months, the law firm located and garnished the funds in two of Sebree's personal bank accounts. Sebree responded with a motion to set aside the default final judgment on the ground of insufficiency of service of process. Apparently recognizing procedural error, the law firm, on March 26, 1999, joined Sebree in an "Agreed Order for Disgorgement of Garnished Funds,

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Dissolving Writs of Garnishment, Setting Aside Final Judgment and Default, and Quashing Service of Process." For reasons not apparent from the record, one of the banks was ordered to pay Schantz, Schatzman $1,500 from the garnished funds. Although the case number on the Agreed Order is the same as that on the default final judgment, and the Agreed Order states "the judgment and default are vacated and set aside," there is no further identification of the default final judgment either by date or book and page recording information. After entry of the Agreed Order, proper service was achieved on Sebree and from April 14, 1999, through August 12, 1999, the parties litigated the reconstituted case. Sebree filed an answer to the complaint and a legal malpractice counterclaim. Schantz, Schatzman, still self-represented by attorney Pico,

responded with a reply and avoidance of affirmative defenses, a motion for enlargement of time, a motion to dismiss counterclaim, and a notice of taking deposition of Michelle Sebree. The signature block on each of the law firm filings reads as follows: Respectfully submitted, SCHANTZ, SHATZMAN, AARONSON & PERLMAN, P.A. Attorneys for SSA&P, P.A. Suite 1050

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