5D03-1968 Patton v. Kera Tech.

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D03-1968

Case Date: 02/14/2005

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2005

NOEL THOMAS PATTON, EVE M. PATTON, ET AL, Appellants, v. KERA TECHNOLOGY, INC., ET AL, Appellees. ______________________________/ Opinion filed February 18, 2005 Appeal from the Circuit Court for Orange County, James C. Hauser, Judge. Kenneth L. Mann of Kenneth L. Mann, P.A., Orlando, for Appellants. John S. Schoene of John S. Schoene, P.A., Maitland, Attorney for Appellee, Kera Technology and George Cheng-Hao Huang. Todd M. Hoepker of Todd M. Hoepker, P.A., Orlando, Attorney for Appellee Gabriel Simon. CASE NO. 5D03-1968 (CORRECTED OPINION)

ON MOTION FOR REHEARING PETERSON, J. Noel Thomas Patton, Eve M. Patton, and Edwin W. Dean, ("Appellants"), move for rehearing of our affirmance of their appeal of a final order dismissing their action, without prejudice, for failure to prosecute pursuant to Florida Rule of Civil Procedure

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1.420(e). We grant the motion and substitute the following for our previous affirmance per curiam. Appellants were represented by a Florida attorney and by two Georgia attorneys, ("Atlanta co-counsel"), when their initial complaint was filed. In November 1999,

Terrance McCollough, ("McCollough"), was substituted as Florida counsel of record for Appellants. In March 2001, McCullough filed a motion to amend the complaint, the court granted it, and McCollough provided a proposed order to the court that omitted Atlanta co-counsel from the certificate of service. Accordingly, the court sent conformed copies of the order to McCollough and to counsel for Appellees, but not to Appellants' Atlanta co-counsel. From that point forward, the certificate of service on each document filed omitted Atlanta co-counsel and, other than pro hac vice motions, no other document contained in the record bears the signature of Atlanta co-counsel. In May 2001, McCollough filed a notice of hearing on Appellees' motions to dismiss the amended complaint and to strike, filed on May 1, 2001. The notice of hearing was signed by McCollough and listed Atlanta co-counsel. The hearing was held on July 9, 2001, but no transcript exists, and the parties disagree on the outcome of the hearing. McCollough informed Atlanta co-counsel by email that the court reserved ruling. However, Appellees assert that the court issued its ruling and instructed

McCollough to submit a proposed order, which McCollough failed to do. Nothing in the record supports either party's assertion and at a subsequent hearing, the trial judge stated that he had "absolutely no recollection" of the disposition of the motions or of his decision.

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More than one year after the July 9, 2001 hearing, Appellees served a motion to dismiss the case for lack of prosecution, ("LOP Motion"), on McCollough, together with a notice of hearing. Consistent with the earlier exclusions, Atlanta co-counsel were omitted from the certificate of service and were not served with either document. On August 21, 2002, the trial court entered an order dismissing the case, without prejudice, pursuant to rule 1.420(e). Again, the order was not provided to Atlanta co-counsel. Nearly four months after the trial court entered its order of dismissal, Appellants filed an "emergency motion" for substitution of counsel, to quash orders of dismissal, and for a case status management conference. The motion alleged that the trial court's prior dismissal deprived Appellants of due process because their Atlanta co-counsel were never served with copies of the motion to dismiss, notice of hearing or order of dismissal as required by Florida Rule of Civil Procedure 1.080(b). The court agreed, quashed the earlier order dismissing the case, and allowed for the substitution of Florida counsel. Approximately two weeks later, Appellees served Appellants' substitute

counsel and Atlanta co-counsel with the previously filed LOP motion. Appellants timely filed a written response asserting, inter alia, that good cause existed to preclude dismissal because: 1) local counsel McCollough abandoned the case without notifying Atlanta co-counsel; 2) record activity (the emergency motion) occurred between the time the court quashed the original orders of dismissal and the time Appellees re-served the previously filed LOP motions; and 3) the court had unfinished business that precluded dismissal because no order had been entered related to the motions argued on July 9, 2001. Following a hearing on the matter, a successor judge entered an order dismissing the case, without prejudice, for lack of prosecution. No transcript of that

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hearing exists and the order does not explain the reason for the dismissal. Appellants filed a motion for rehearing, reconsideration and clarification, which the court denied and this appeal followed.1 Appellants first assert that the court's failure to enter an order disposing of the motions argued on July 9, 2001, constitutes "unfinished business," which prohibited the court from dismissing the case. We disagree. Generally, where a proposed order directed to a dispositive motion is submitted for review, a court retains jurisdiction over the case until the order becomes final. See Lukowsky v. Hauser & Metsch, P.A ., 677 So. 2d 1383, 1384 (Fla. 3d DCA 1996). In that regard, the court has "unfinished business." However, the court's failure to enter an order, without more, may not always be sufficient to avoid dismissal for lack of prosecution. The plaintiff bears responsibility to expedite litigation and Plaintiff's failure to take steps within Plaintiff's control to resolve the case or to ensure prompt dispatch of court orders warrants dismissal. See Sewell Masonry Co. v. DCC Const. Inc., 862 So. 2d 893 (Fla. 5th DCA 2003) (noting that "it is not the duty of the trial judge to schedule hearings on motions for parties who do not themselves seek rulings on their pleadings"); Dashew v. Marks, 352 So. 2d 554 (Fla. 3d DCA 1977) (holding that the court's failure to enter a written order on an oral decision did not relieve plaintiff of the duty to proceed and did not affect the defendant's right to dismiss the case for lack of prosecution); Bakewell v. Shepard, 310 So. 2d 765 (Fla. 2d DCA 1975) (holding that the court's failure to enter an order on motion argued did not constitute good cause sufficient to
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This court has jurisdiction pursuant to Florida Rule of Appellate Procedure 9.030 (b)(1)(A) and Art. V.

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