Florida Supreme Court Order

8/12/2019 Florida Supreme Court Order

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SUPREME COURT OF FLORIDA

CASE NO. SC06-2018

DANIEL RAY ERICKSON,

Petitioner,

v. Case No. 5D05-3967

TOMMY GAIL BREEDLOVE,et al.,

Respondents. ______________________________

ON APPEAL FROM THE DISTRICT COURT OF APPEAL,

FIFTH DISTRICT, STATE OF FLORIDA

REPLY BRIEF OF PETITIONER

MILLS & CREED, P.A.

Rebecca Bowen Creed

Florida Bar No. 0975109865 May Street

Jacksonville, Florida 32204(904) 350-0075

(904) 350-0086 facsimile

Attorneys for Petitioner



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TABLE OF CONTENTS

Table of Contents .................................................................................................i

Table of Citations ................................................................................................ii

Argument ...........................................................................................................1

I. THIS COURT HAS JURISDICTION TO CONSIDER THE

FIFTH DISTRICT'S OPINION AND SHOULD NOT

DECLINE TO EXERCISE ITS JURISDICTION IN ANY

EVENT...........................................................................................1

II. BECAUSE THE MOTION FOR RECONSIDERATION WAS

A “DISPOSITIVE” MOTION – AND THE DUTY TO

PROCEED ON THIS MOTION RESTED ENTIRELY WITH

THE TRIAL COURT – THE PETITIONER ESTABLISHED

GOOD CAUSE TO AVOID DISMISSAL UNDER RULE

1.420...............................................................................................4

III. THE TRIAL COURT’S DISMISSAL OF THIS ACTION

VIOLATED PETITIONER'S CONSTITUTIONAL RIGHT OF

ACCESS TO COURTS................................................................. 10

Conclusion........................................................................................................11

Certificate of Service.........................................................................................12

Certificate of Compliance................................................................................... 12



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TABLE OF CITATIONS

CASES

Barrett v. City of Margate, 743 So. 2d 1160 (Fla. 4th DCA 1999) ..................... 5, 6

Cabrera v. Pazos, Larrinaga & Taylor, P.A., 922 So. 2d 422

(Fla. 2d DCA 2006)...................................................................................3

Cape Royal Realty, Inc. v. Kroll , 804 So. 2d 605 (Fla. 5th DCA 2002).................. 6

Commercial Garden Mall v. Success Academy, Inc., 453 So. 2d 934

(Fla. 4th DCA 1984) ................................................................................. 8

Dye v. Security Pacific Financial Services, Inc., 828 So. 2d 1089 (Fla. 1st

DCA 2002), overruled in part , Patton v. Kera Tech., Inc., 946 So. 2d

983 (Fla. 2006) .........................................................................................1

Erickson v. Breedlove, 937 So. 2d 805 (Fla. 5th DCA 2006)

(Appendix to Initial Brief of Petitioner, Tab G) ................................ passim

Esquivel v. McDonough, 946 So. 2d 104 (Fla. 1st DCA 2007).............................. 5

Feldman v. Renault Motors, 550 So. 2d 31 (Fla. 3d DCA 1989) ........................... 7

Francisco v. Victoria Marine Shipping, Inc., 486 So. 2d 1386

(Fla. 3d DCA 1986)...................................................................................6

Fuster-Escalona v. Wisotsky, 781 So. 2d 1063 (Fla. 2000)........................... passim

Gleneagle Ship Mgmt. Co. v. Leondakos, 581 So. 2d 222

(Fla. 2d DCA 1991), approved , 602 So. 2d 1282 (Fla. 1992)....................... 9



iii

Griffin v. Unemployment Appeals Comm’n, 868 So. 2d 1262

(Fla. 4th DCA 2004) ................................................................................. 5

Haines v. Kerner , 404 U.S. 519 (1972) ................................................................ 5

Johnston v. State, 863 So. 2d 271 (Fla. 2003)....................................................... 4

Kohn v. City of Miami Beach, 611 So. 2d 538 (Fla. 3d DCA 1992) ....................... 6

Ludovici v. McKiness, 545 So. 2d 335 (Fla. 3d DCA 1989) .............................. 5, 6

Lukowsky v. Hauser & Metsch, P.A., 677 So. 2d 1383 (Fla. 3d DCA 1996),

disapproved in part , Patton v. Kera Tech., Inc., 946 So. 2d 983 (Fla.

2006)........................................................................................................1

Niedermeir v. Office of Baucus, 153 F. Supp. 2d 23 (D.D.C. 2001) ....................... 5

Patton v. Kera Tech., Inc., 946 So. 2d 983 (Fla. 2006)................................. passim

Pearson v. Pefkarou, 734 So. 2d 551 (Fla. 3d DCA 1999).................................... 6

Pollock v. CCC Invs. I, LLC , 933 So. 2d 572 (Fla. 4th DCA 2006),

reh’g denied , 2006 Fla. App. LEXIS 13731 (Fla. 4th DCA

Aug. 8, 2006), review denied , 2007 Fla. LEXIS 185

(Fla. Jan. 30, 2007)....................................................................................4

Register v. State, 619 So. 2d 498 (Fla. 2d DCA 1993) .......................................... 5

Wilson v. Salamon, 923 So. 2d 363 (Fla. 2005).................................................. 10



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STATUTES AND RULES

Fla. Admin. Code R. 33-602.205 ......................................................................... 8

Fla. R. Civ. P. 1.280(b).......................................................................................9

Rule 1.420(e)............................................................................................. passim

OTHER

Black’s Law Dict. (7th ed. 1999) .........................................................................7

Webster’s New Collegiate Dict. (1980 ed.).......................................................... 7



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ARGUMENT

I. THIS COURT HAS JURISDICTION TO CONSIDER THE FIFTH

DISTRICT’S OPINION AND SHOULD NOT DECLINE TO

EXERCISE ITS JURISDICTION IN ANY EVENT.

The Fifth District’s Opinion in Erickson v. Breedlove, 937 So. 2d 805 (Fla.

5th DCA 2006), conflicts with the decisions of this Court in Fuster-Escalona v.

Wisotsky and Patton v. Kera Technology, Inc., and with the decisions of the First

and Third Districts in Dye v. Security Pacific Financial Services, Inc. and

Lukowsky v. Hauser & Metsch, P.A., all of which establish that

whenever a dispositive motion is pending before thecourt, and the parties are awaiting the court’s ruling onthat motion, the duty to proceed rests squarely upon the

court.

Fuster-Escalona v. Wisotsky, 781 So. 2d 1063, 1065 (Fla. 2000) (citing Lukowsky

v. Hauser & Metsch, P.A., 677 So. 2d 1383, 1384 (Fla. 3d DCA 1996)); accord

Patton v. Kera Tech., Inc., 946 So. 2d 983 (Fla. 2006); see also Dye v. Security

Pacific Finan. Servs., 828 So. 2d 1089 (Fla. 1st DCA 2002) (citing Lukowsky).

Nothing in Patton alters this ruling. To the contrary, this Court reiterated in

Patton that

[i]f petitioners could have shown that a dispositivemotion remained pending, in which the trial judge had

not issued even an oral ruling, that would have furnishedgood cause under the rule.



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946 So. 2d at 987. In Patton the Court disapproved of Dye and Lukowsky only to

the extent that the First and Third Districts relied on the existence of any pending

motion to preclude dismissal of a case for failure to prosecute. See id . at 987.

Patton distinguished the facts – not the ruling – of Fuster-Escalona, noting

that the pending motion to disqualify in that case “provided good cause because of

the statute and rule of procedure requiring the trial court to rule on a motion to

disqualify the trial judge.” Id . Although not mentioned by this Court in Patton, it

is evident from the Fuster-Escalona decision that the Court rejected as

“unpersuasive” any argument that the pending motion to disqualify was not a

“dispositive” motion sufficient to establish good cause for the lack of record

activity. Fuster-Escalona, 781 So. 2d at 1065.

The question now before this Court is whether a pending motion for

rehearing, filed by a pro se, incarcerated plaintiff, is such a dispositive motion.

The Fifth District did not consider whether the Petitioner’s pending Motion for

Reconsideration was a dispositive motion or whether the pending Motion

otherwise provided good cause for the lack of record activity, as this Court

requires. See Patton, 946 So. 2d at 987. Instead, the Fifth District simply ruled in

its Opinion that the existence of the pending motion did not constitute good cause,

mistakenly finding the record “devoid of any evidence that the trial court was even

made aware of the existence of the motion for reconsideration” and refusing to



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consider whether this pro se, incarcerated Petitioner could have moved his case to

resolution notwithstanding a pending motion for rehearing. (See App.-G-2-3.)

Petitioner respectfully submits that this Court has jurisdiction to review the Fifth

District’s Opinion, which conflicts with the decisions of this Court and other

district courts of appeal.

Any suggestion by the Respondents that the recent amendment to Rule

1.420(e) effectively renders this case insignificant lacks merit. (See Corrected

Answer Brief of Respondents (hereinafter “Answer Brief”), at 20-22.) Even the

Respondents note that this case “is the fourth case that this Court has considered

based upon conflict between a decision of the fifth district court and Dye.”

(Answer Brief, at 15 (citations omitted).) Because the former Rule 1.420(e)

governs any dismissals before the effective date of the Rule’s amendment (January

1, 2006), conflicts will likely continue to arise as the district courts interpret and

apply the prior Rule. See Patton, 946 So. 2d at 986 (relying on the version of Rule

1.420(e) effective “[a]t the time of the trial court’s dismissal in this case”);

Cabrera v. Pazos, Larrinaga & Taylor, P.A., 922 So. 2d 422, 424 n.2 (Fla. 2d

DCA 2006) (finding that because the relevant events occurred before the effective

date of the Rule’s amendment, the prior Rule 1.420(e) governed) (cited with

approval in Erickson v. Breedlove, 937 So. 2d 805, n.1 (Fla. 5th DCA 2006)).



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II. BECAUSE THE MOTION FOR RECONSIDERATION WAS A

“DISPOSITIVE” MOTION – AND THE DUTY TO PROCEED ON

THIS MOTION RESTED ENTIRELY WITH THE TRIAL COURT –

THE PETITIONER ESTABLISHED GOOD CAUSE TO AVOID

DISMISSAL UNDER RULE 1.420.

Petitioner does not ask this Court to substitute its judgment for that of the

trial court, as the Respondents contend. (Answer Brief, at 22.) Although this

Court reviews the trial court’s dismissal of the Petitioner’s action under Rule

1.420(e) for an abuse of discretion, the trial court’s discretion is necessarily limited

by the rules of civil procedure and the case law. See Johnston v. State, 863 So. 2d

271, 278 (Fla. 2003) (noting that the trial court’s discretion in ruling on

admissibility of evidence is limited by the rules of evidence); accord Pollock v.

CCC Invs. I, LLC , 933 So. 2d 572, 574 (Fla. 4th DCA 2006) (finding that trial

court’s discretion to omit jury instructions “is strictly limited by the case law”).

Because the Motion for Reconsideration was a dispositive motion pending before

the trial court – and the duty to proceed on this dispositive motion “rested entirely

with the trial court” – the Petitioner established good cause under Rule 1.420(e) as

a matter of law. See Patton, 946 So. 2d at 987; accord Fuster-Escalona, 781 So.

2d at 1065-66 (Fla. 2000). The Fifth District’s Opinion upholding the dismissal

must be quashed, and this case remanded.

Nonetheless, Respondents suggest that the Petitioner’s Motion for

Reconsideration was not a “dispositive” motion. Respondents define “dispositive”



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as “bringing about a final determination” and contend that a dispositive motion is

one that, if granted, “would result either in the determination of a particular claim

on the merits or elimination of such a claim from the case.” (Answer Brief, at 23

(citing Black’s Law Dict. (8th ed. 2001); Niedermeir v. Office of Baucus, 153 F.

Supp. 2d 23, 26 (D.D.C. 2001)). Even accepting the Respondents’ narrow

definition,1 it is evident that the Petitioner’s pending Motion for Reconsideration

was such a dispositive motion.

Petitioner asked the trial court to order the substitution of the properly-

named defendants, and sought additional time in which to file an amended

complaint. (R-I-98-99.) Although Respondents complain that Petitioner sought to

clarify only one issue related to the dismissal (Answer Brief, at 23), the Motion for

Reconsideration filed by the Petitioner, a pro se incarcerated plaintiff, should be

leniently construed as a motion for rehearing on the trial court’s Order dismissing

the complaint – especially given the due process concerns that exist here. See, e.g.,

Barrett v. City of Margate, 743 So. 2d 1160, 1161 (Fla. 4th DCA 1999) (noting that

“[i]n the history of jurisprudence, pro se litigants have frequently been granted

1 Compare Niedermeir , 153 F. Supp. 2d at 26 (defining a “dispositivemotion”) with Fuster-Escalona, 781 So. 2d at 1065-66 (finding that a motion todisqualify the trial judge is a dispositive motion, for “until the matter is resolvedthe trial court cannot proceed); Patton, 2006 Fla. LEXIS 2546, at 4 (Quince, J.,dissenting) (noting that “[b]ecause there were dispositive motions [to dismiss orstrike the amended complaint] were still pending, this case should not have beendismissed for failure to prosecute”).



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leniency in technical matters”) (citing Haines v. Kerner , 404 U.S. 519 (1972));2

accord Esquivel v. McDonough, 946 So. 2d 104, 105 n.1 (Fla. 1st DCA 2007);

Griffin v. Unemployment Appeals Comm’n, 868 So. 2d 1262, 1264 (Fla. 4th DCA

2004); Register v. State, 619 So. 2d 498, 499 (Fla. 2d DCA 1993).

The trial court had jurisdiction to entertain the Petitioner’s timely Motion for

Reconsideration. See Ludovici v. McKiness, 545 So. 2d 335, 337 n.3 (Fla. 3d DCA

1989) (finding that a trial court retains jurisdiction to entertain a timely motion for

rehearing on its order dismissing a complaint without prejudice); accord Fuster-

Escalona, 781 So. 2d at 1064 n.2 (Fla. 2000).

The purpose of a motion for rehearing is to give the trial

court an opportunity to consider matters which itoverlooked or failed to consider or to correct any error if

it becomes convinced that it erred.

Cape Royal Realty, Inc. v. Kroll , 804 So. 2d 605, 607 (Fla. 5th DCA 2002) (Harris,

J., dissenting) (citing Francisco v. Victoria Marine Shipping, Inc., 486 So. 2d 1386

(Fla. 3d DCA 1986)).

The trial court could have properly granted rehearing to vacate or amend the

Order. See Ludovici, 545 So. 2d at 337 n.3 (finding that “[t]he trial court has

jurisdiction to entertain a timely motion for rehearing or to revisit the cause on the

2 Petitioner recognizes that “[s]elf-representation does not relieve the party

of the obligation to comply with the rules of court.” Pearson v. Pefkarou, 734 So.2d 551, 551 (Fla. 3d DCA 1999); Kohn v. City of Miami Beach, 611 So. 2d 538,540 (Fla. 3d DCA 1992); accord Barrett , 743 So. 2d at 1162.



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court’s own initiative within the time allowed for a rehearing motion”).

Alternatively, the trial court could have denied rehearing, upheld the Order

granting the motions to dismiss, and – upon being advised by the Petitioner that he

was “either not desirous of amending, or not able to amend, his earlier filed

[c]omplaint” – entered a final order of dismissal. Feldman v. Renault Motors, 550

So. 2d 31, 32 (Fla. 3d DCA 1989).

Depending on the trial court’s ruling on the pending Motion for

Reconsideration, Petitioner could prosecute the merits of his claims or await the

dismissal of his action. The pending Motion for Reconsideration, then, was a

dispositive motion, “a deciding factor” in the resolution of the Petitioner’s claims.

See Black’s Law Dict. 484 (7th ed. 1999) (defining “dispositive” as “[b]eing a

deciding factor; (of a fact or factor) bringing about a final determination”); see also

Webster’s New Collegiate Dict. 327 (1980 ed.) (defining “dispositive” as “directed

towards or effecting disposition”). Once Petitioner showed that the Motion for

Reconsideration remained pending before the trial court – without even an oral

ruling – he established good cause to avoid dismissal under Rule 1.420(e). Patton,

946 So. 2d at 987.

Yet according to the Respondents, the pending Motion for Reconsideration

could be a “dispositive” motion only if the duty to proceed on that Motion rested

entirely with the trial court. (Answer Brief, at 32.) Once more, Petitioner easily



8

satisfied this standard of good cause under Rule 1.420(e). (See Initial Brief of

Petitioner, at 22-26.)

Petitioner had no choice but to await the trial court’s ruling on the Motion

for Reconsideration. Indeed, whether to entertain a motion for rehearing was

within the trial court’s discretion alone. See Commercial Garden Mall v. Success

Academy, Inc. , 453 So. 2d 934, 935 (Fla. 4th DCA 1984). Consistent with

established law – and the policies and procedures of the Fifth Judicial Circuit –

Petitioner waited for the trial court to determine whether to consider and rule upon

the Motion for Reconsideration.3

Respondents’ suggestion that the Petitioner could have simply requested a

hearing on his Motion for Reconsideration ignores his status as a pro se,

incarcerated plaintiff who could not schedule even a telephone hearing without a

court order. See Fla. Admin. Code R. 33-602.205. (R-I-93-94; R-I-128-29.)

Petitioner filed a motion asking the trial court to schedule a hearing on the pending

motions before his incarceration. (R-I-45.) Once the hearing was scheduled for

March 31, 2004, the Petitioner promptly informed the trial court that he was

temporarily housed at the Central Florida Reception Center and could not appear

by telephone without a court order or authorization from the Department of

3 See Admin. Order No. H-2003-10, Fifth Judicial Circuit, in and for

Hernando County (App.-F). Petitioner’s Motion for Reconsideration was not amotion for continuance excluded by the Motion Practice Procedure, asRespondents suggest. (Answer Brief, at 33, n.7.)



9

Corrections. (R-I-84-86; see also R-I-128-29.) Nonetheless, the trial court held

the March 31, 2004 telephone hearing, as scheduled. (See R-I-101-103.) Nowhere

in the Answer Brief do the Respondents refute the Petitioner’s argument that his

inability to schedule a hearing on the pending Motion for Reconsideration

sufficiently established good cause under Rule 1.420(e). (Compare Initial Brief, at

27-29 with Answer Brief, at 22-34.)

And any assertion by the Respondents that the Motion for Reconsideration

did not preclude the Petitioner “from further prosecuting his case through

discovery or the filing of an amended complaint” ignores the nature of the pending

Motion. (See Answer Brief, at 33.) Petitioner filed the Motion for

Reconsideration in an effort to seek rehearing of the trial court’s Order dismissing

the complaint. Because the pending action had been dismissed, any discovery on

the merits certainly could have been construed as beyond the subject matter of the

pending action. See Fla. R. Civ. P. 1.280(b) (defining the scope of discovery); see

also Gleneagle Ship Mgmt. Co. v. Leondakos, 581 So. 2d 222, 223 (Fla. 2d DCA

1991) (allowing service of discovery related only to jurisdiction – not the merits –

while a motion to dismiss for lack of jurisdiction is pending), approved , 602 So. 2d

1282 (Fla. 1992). Petitioner specifically asked that the trial court substitute the

properly-named defendants and grant additional time for service of an amended

complaint in his Motion for Reconsideration. (R-I-98-99.) Thus, any delay in the



10

case resulted not from the Petitioner’s unilateral choice to wait until the conclusion

of his pending criminal appeals,4 but from the trial court’s own failure to rule on

the pending dispositive motion.

III. THE TRIAL COURT’S DISMISSAL OF THIS ACTION VIOLATED

PETITIONER’S CONSTITUTIONAL RIGHT OF ACCESS TO

COURTS.

Petitioner does not advocate a rule requiring that the duty to proceed

automatically shifts to the trial court in “all cases involving incarcerated plaintiffs,”

as Respondents suggest. (Answer Brief, at 35.) Here, it is evident that this pro se,

incarcerated plaintiff was deprived of an opportunity to seek meaningful relief in

his civil action, which arises from the same alleged criminal conduct for which he

was imprisoned. To find that the Petitioner did not meet his burden of establishing

good cause because he had not scheduled a hearing on the Motion for

Reconsideration is to ignore the primary policy underlying the constitutional right

to access to courts: “fostering resolution of cases on the merits.” Wilson v.

Salamon, 923 So. 2d 363, 367 (Fla. 2005).

The balance that Rule 1.420(e) otherwise affords has not been met in this

case. Regardless of whether the Petitioner “submitted written arguments regarding

4 Most recently, Petitioner appealed the denial of his petition for habeas

corpus under 22 U.S.C. § 2254. The United States Court of Appeals for theEleventh Circuit issued a certificate of appealability as to four issues arising fromlower tribunal cases 02-287-CF and 02-1103-CF. See Erickson v. Secretary, Dep’tof Corrections, Case No. 06-15335-JJ, United States Court of Appeals for theEleventh Circuit.



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the status of his case and incarceration” (Answer Brief, at 35), the trial court

disregarded those arguments – and the nature of the pending, dispositive Motion

for Reconsideration – when it dismissed the action for failure to prosecute.

Although Petitioner had no ability to schedule the Motion for Reconsideration for

hearing or to force the trial court to exercise its discretion to consider and rule upon

the motion for rehearing, the Fifth District nonetheless affirmed the trial court’s

dismissal for failure to prosecute, ruling that “[l]itigants have an affirmative

obligation to move their cases to resolution.” (App.-G-3.) For this reason alone,

the Fifth District’s Opinion must be quashed, and the Petitioner given an

opportunity to proceed on the merits of his civil action.

CONCLUSION

For all the foregoing reasons, Petitioner, Daniel R. Erickson, respectfully

requests that this Court, in the exercise of its discretionary jurisdiction, quash the

Opinion of the Fifth District Court of Appeal, and remand with instructions to

reverse the trial court’s dismissal for failure to prosecute under Rule 1.420(e) of

the Florida Rules of Civil Procedure.



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Respectfully submitted,MILLS & CREED, P.A.

Rebecca Bowen Creed

Florida Bar No. 0975109865 May Street

Jacksonville, Florida 32204(904) 350-0075

(904) 350-0086 facsimile

Attorneys for Petitioner

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy hereof has been furnished to Loren E.

Levy, The Levy Law Firm, 1828 Riggins Lane, Tallahassee, Florida 32308(Attorneys for Respondents); and John M. Green, Jr., 125 N.E. 1st Ave., Suite 2,

Ocala, Florida 34470 (Attorneys for Respondents); by United States Mail, this ____ day of March, 2007.

_______________________________Attorney

CERTIFICATE OF COMPLIANCE

I HEREBY CERTIFY that the foregoing brief is in Times New Roman 14- point font and complies with the font requirements of Rule 9.210(a)(2), FloridaRules of Appellate Procedure.

______________________________

Attorney

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