5D05-202 Pixton v.Williams Scotsman

State: Florida

Court: Florida Fifth District Court

Docket No: 5D05-202

Case Date: 01/23/2006

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2006

ROBERT PIXTON AND NANCY PIXTON, ETC., Appellant, v. WILLIAMS SCOTSMAN, INC., ETC., ET AL., Appellee. ______________________________________/ Opinion filed January 27, 2006 Appeal from the Circuit Court for Orange County, A. Thomas Mihok, Judge. Marcia K. Lippincott of Marcia K. Lippincott, P.A., Lake Mary, for Appellant. Penny W. Schmidt and Neil L. Weinreb of Schutt, Schmidt & Burnett, Jacksonville, for Appellee. CASE NO. 5D05-202

SEMENTO, L. J., Associate Judge. Robert and Nancy Pixton, ("Pixtons"), husband and wife, appeal a trial court's order dismissing their negligence action against Williams Scotsman, Inc., et al., ("Scotsman"). The Pixtons assert that the court failed to apply the correct rule of law in dismissing their action for failure to timely serve process, the trial court abused its discretion in dismissing their action because the statute of limitations had expired, and that the sanction of a complete dismissal was too severe.

On December 28, 2003, the Pixtons filed a negligence complaint against Scotsman two days prior to the expiration of the applicable four-year statute of limitations.1 Then, on April 22, 2004, prior to the expiration of the 120 days within which to serve process,2 Pixtons' counsel filed a motion for enlargement of time to perfect service of process on the defendants, stating that "[t]o date, the Plaintiffs have been unsuccessful in obtaining service of process upon the Defendants," and "this motion is filed in good faith and not for purposes of delay." Pixtons' counsel also submitted an "Agreed Order Granting Plaintiffs' Motion for Extension of Time" which the court entered, allowing the Pixtons an additional 90 days to perfect service of process. A summons was issued for Scotsman on July 2, 2004, and service was perfected on July 8, 2004. Scotsman filed a motion to dismiss for failure to comply with the 120 day service rule, since the summons was issued 188 days after the complaint was filed and not served until 194 days after the filing. Scotsman contends that no excusable neglect or good cause was shown for the delay. The trial court held a non-evidentiary hearing on the motion to dismiss. At the hearing, Pixtons' counsel advised the court that the use of the phrase "Plaintiffs have been unsuccessful in obtaining service of process" in the motion for extension of time was in error because no attempt had been made to serve process at that time, and that the proposed "Agreed Order" was also in error because no other party consented to an extension. The Pixtons claimed that both errors were mistakes resulting from the use of

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