Objection to Msj

8/6/2019 Objection to Msj

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IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT, IN AND FOR PINELLAS COUNTY, FLORIDA

CIVIL DIVISION UNIVERSAL MORTGAGE CORPORATION, CASE NO. 08-8335-CI-07d/b/a UFG MORTGAGE,

PLAINTIFF,v.JAMES CHISHOLM AND MICHELLE CHISOLM,

DEFENDANTS.----------------------------------/DEFENDANTS' OBJECTION TO SUMMARY JUDGMENT TH E INSTANT CASE HAS ALREADY BEEN DISMISSED AND THE DOCKET HAS BEEN CLEARED PURSUANT TO FLA.R.C.PRO. 1.070 (J)

COMES NOW, the Defendants JAMES CHISHOLM and MICHELLE CHISOLM(hereinafter "Defendants"), by and through the undersigned counsel MATTHEW D. WEIDNER,and OBJECTS TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT because THE

INSTANT CASE HAS ALREADY BEEN DISMISSED in the above entitled civil action,pursuant to Fla. R. Civ. Pro. 1.0700) and precedent case law, and in support thereof states asfollows:

APPLICABLE RULE OF CIVIL PROCEDURE AND RELEVANT CASE LAW1. Fla. R. Civ. Pro. 1.0700) provides, in pertinent part, that

[i]f service of an initial process an d initial pleading is not made upon a defendantwithin 120 days after filing of the initial pleading directed to that defendant thecourt, on its own initiative after notice or on motion, shall direct that service beeffected within a specified time or shall dismiss the action without prejudice ordrop that defendant as a party; provided that if the plaintiff shows good cause orexcusable neglect for the failure, the court shall extend the time for service for anappropriate period. Bold emphasis added.

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2. The Rule, then, provides the trial court with three options and only three options when aplaintiff has not properly served a defendant within 120 days after filing the initial pleading.These options are: (1) direct that service be effected within a specified time; (2) dismiss theaction without prejudice; or (3) drop that defendant as a party. Chaffin v. Jacobson, 793 So. 2d102, 103-04 (Fla. 2d DCA 2001). See also Premier v. Davalle, 994 So. 2d 360 (Fla. 3d DCA2008); Vaught v. Mcneil, 34 Fla. L. Weekly D1503c (Fla. 1st DCA 2009); Miranda v. Young, 34Fla. L. Weekly D207a (Fla. 2d DCA 2009); Sly v. McKeithen, Case No. 1D09-089 (Fla. 1stDCA). The rule does not provide an option to "Dismiss the case as to unknown Tenants"

1. THE CLEAR INTENT OF THE RULE IS TO SOLVE THE MOST VEXINGPROBLEM FACING CIRCUIT COURTS IN DECADES- DOCKETSCLOGGED BY TOO MANY FORECLOSURE CASES3. The principle behind the rule is to allow circuit courts ability to manage its docket. See

Chaffin, 793 So. 2d at 104 ("the purpose of Rule 1.0700) is to speed the progress of cases onthe civil docket .. .") See also Skrbic v. QCRC Assocs. Corp., 761 So. 2d 349, 354 (Fla. 3d DCA2000). This important rule and the language quoted in these cases should be carefully consideredby this Court, this Circuit and in fact Courts all across the state who are struggling under theburden of an unprecedented case load. Courts not only have the power to manage their dockets,to move cases along toward conclusion, but because of the mandatory, "SHALL" language of therule, this court MUST recognize that the case and all others similarly situate have been dismissedby operation of court Order.

4. If Plaintiffs in this case and thousands of others choking courts across this state:1) Choose not to proceed with their cases;2) Ignore the notices sent by this court prior to the case's dismissal; and then,

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3) Fail to take any action on the case even after an Order of Dismissal is formallymemorialized as a Recorded Document with an Official Records Book and PageNumber, then a dismissal is absolutely what the Rule requires.

5. The Courts of this circuit and others across the state are under improper pressures to"clear their dockets" and to "solve the foreclosure crisis". Reports are generated and statistics runwhich some improperly use to infer or suggest that foreclosure cases are not proceeding becauseof inefficiencies in the courthouse or the inability or unwillingness of judges to efficientlymanage their dockets. The overwhelming majority of foreclosure cases are not defended at all,much less by any experienced foreclosure defense attorney that would significantly delay thecase's progress. The vast majority of "stalled" pre-judgment cases that currently clog the court'sdocket in this circuit and across the state are cases where the Plaintiff, presumably for its ownreasons, has failed to proceed to judgment. This court should not interpose its judgment in"reviving" those cases, but should respect the notice and dismiss provisions of the Rule andallow the Plaintiff to re-file its case when it has collected the evidence required to foreclose orwhen the Plaintiff s business model suggests that taking back the title to the property at issue isin its best interests.

II. RECOVERING HUNDREDS OF THOUSANDS OF DOLLARS IN REVENUETHAT IS DUE TO THE COURTS AND TAXPAYERS

6. The courthouse belongs not just to the foreclosure mills and lenders that have chokedthe docket with cases that they cannot prove up then take title to or that they can prove up butchoose not to take title to. The courthouses in this circuit and across the State of Florida belongto all citizens. Moreover, the Courts have an obligation to the taxpayers and citizens of thiscounty and the State of Florida and an unprecedented opportunity to recover potentially hundreds



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of thousands of dollars in filing fees by applying the clear intent of the Rule as wTitten. A simplesurvey of all the cases in which a Master Order of Dismissal has been entered over the last fiveyear period multiplied by the new foreclosure filing fee would allow this court to quicklydetermine exactly how much revenue correctly applying the rule would generate. Preciousjudicial and clerk of court judicial resources have been used to incubate or manage stalled casesover the extended period of time. They languish on court dockets and this court quite simply hasan affirmative obligation to all taxpayers to recover the resources used in such management.Morevover when local and national media report that the parties responsible for the stalledcases-the Millionaire Foreclosure Mills-are indeed making millions off the court process it isentirely inequitable to continue to use limited taxpayer resources to perpetuate these inequities.Ill.THIS COURT CANNOT ADJUDICATE THE RIGHTS OF PARTIES BEFORE THIS

COURT WITHOUT COURT PROCESS OR EVIDENCE THAT THEY ARE NOTPROPER PARTIES TO THIS ACTION7. When this foreclosure case was filed, and when all other foreclosure cases are filed, the

Plaintiff is required to formally name, "Unknown Tenants". These words are not perfunctory orsuperfluous ... the Unknown Tenants are real parties in interest in every foreclosure case untiltheir interests are formally discharged by the Plaintiff that filed the action.

8. Any interpretation of this court's Order other than a recognition that the entire case isdismissed, and not dismissed as to the "Unknown Defendants" as is incorrectly asserted to be themeaning of the Order, places the Court in the improper position of making decisions regardingdismissing parties who may very well have an interest in these proceedings, namely any"Unknown Tenants" who may be residing in the property. How does this Court (or any courthearing foreclosure cases) make the determination that "Unknown Tenants" have no interest inthe proceedings and may be dropped from the case? If in fact tenants are residing in the property

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and judgment of possession is subsequently entered have their fundamental rights not beenviolated? In the case before this court, "Unknown Tenants" were made parties to this litigationand the Plaintiffs are under an affirmative obligation to discharge those tenant's interest uponaffirmation that there are in fact no tenants. For the court to assume that there are no "UnknownTenants", based exclusively on the tolling of some unknown period of time in which no tenanthas been served and with no affidavit or evidence of any kind from the Plaintiff that there are notenants, places thousands of legitimate tenants at risk of a fundamental violation of their basicdue process rights. Moreover, what about the situation where the Plaintiff is in fact aware thatthere are indeed tenants in the property and the Plaintiff wishes for those Unknown Tenants toremain parties to the action so their interests can be properly foreclosed. If the court has suasponte dismissed those Defendants, the Plaintiff's rights to control the litigation have beenimpacted. Finally, a Writ of Possession issued by the court and effectuated by the Sheriffs ofthis state against "Unknown Tenants" who are in fact residing on the property is ineffectual as tothose tenants if they have been dropped as defendants from the proceedings. How manylegitimate tenants have had their due process rights violated and been thrown into the streetswhen the Sheriff of this county executes a Writ of Possession and that was their first notice offoreclosure proceedings? How many more tenants live in Pinellas County that are vulnerable tothis nightmarish scenario right now? No Writ of Possession should be issued by this Court orCourts of this Circuit until these questions are answered.

9. Finally the actions any actions taken against tenants must be take into account the FederalProtecting Tenants at Foreclosure Act (Title VII of S. 896, Pub. L. No. 111-22, 701 704(2009) to the extent that such actions violate this federal law, they must cease immediately.



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IV. FORECLOSURE JUDGMENTS AFTER DISMISSAL ARE VOID AND EVERYJUDGMENT ISSUED AFTER DISMISSAL EXPOSES TITLE INSURORS, NEWPURCHASERS AND OTHER PARTIES TO SIGNIFICANT LIABILITY

10. Once a case has been dismissed, it thereafter lacks jurisdiction to take any action on thatcase and any judgment entered thereafter is void, including and especially a Final Judgment ofForeclosure. After a plaintiff suffers a dismissal of his or her cause of action, the court is withoutfurther jurisdiction and has no right to render any judgment either in the plaintiff's favor oragainst him or her. See Derma Lift Salon, Inc. v. Swanko, 419 So. 2d 1180 (Fla. 3d DCA 1982);Haft-Gaines Co. v. Reddick, 350 So. 2d 818 (Fla. 4th DCA 1977).

11. A judgment of dismissal without prejudice, that is, one not involving the merits of thecase, leaves the parties as ifno suit had been instituted. Epstein v. Ferst, 35 Fla. 498, 17 So. 414(Fla. 1895). Such a judgment is not res judicata and hence is no bar to a subsequent action onthe same subject matter. Rountree v. Rountree, 72 So. 2d 794 (Fla. 1954).

12. How many judgments have been rendered in cases across this county post-dismissal andwhat is the total dollar value of policies written on those properties subsequent to Judgment?That's one level of liability. The next level of liability are those legitimate defendants who wereserved with foreclosure, whether they thereafter appeared in the case or not. Any judgmententered against them is void and they are still the equitable title owners of the property inasmuchas their title ownership has not been properly foreclosed by a valid legal judgment.

13. A dismissal of the case operates to cancel the lis pendens which is formally associatedwith that case. Federal Tax Liens, certified judgments, municipal liens and other valid liens haveattached to property of Defendants who were a m ~ c t e d by these dismissals. In the case ofmunicipal liens, those judgments attach not just to the property subject to the instant foreclosurecase, but to all real property owned in the defendant's name in the county in which the case is

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located. These liens are attached to the subject property by operation of law right now and theycannot be ignored thereafter by any party.

FACTS PARTICULAR TO THIS CASE14. The named Plaintiff in this case is UNIVERSAL MORTGAGE CORPORATION, D/B/A

UFG MORTGAGE (hereinafter "Plaintifr'). The Plaintiff initiated this case when it filed itscomplaint on or about June 5, 2008.

15. According to the docket, on or about November 5, 2008 the Plaintiff was alerted by theClerk of the Court of the Court's intention to dismiss under Rule 1.0700) for failure to obtainservice of several certain named Defendants to this lawsuit.

16. Notwithstanding this notice from the Clerk of the Court, the Plaintiff elected to take nofurther action ~ 1 t h regard to the Defendants who had not properly been served after the filing ofthe complaint. As a result, and pursuant to the Rule, the Court issued its Master Order Dismissal(hereinafter "the Master Order"), attached hereto as Exhibit "A''' on February 12,2009. Here weare now more than one year later and while the Plaintiff has filed post-dismissal pleadings in thisaction, they have taken no action to have the Order of Dismissal set aside.

17. Although the Master Order cites Rule 1.070(1), it appears that this is a scrivener's error,and that the order was actually referring to Rule 1.0700) as the Master Order reads "i t appearingthat service has not been obtained upon the Defendant(s) in the following causes within 120 daysafter filing the initial pleading .. . "

18. The Master Order then provides as follows:ORDERED AND ADJUDGED THAT THE CASES, AS INDICATED ON THEA TT ACHED LISTING, ARE HEREBY DISMISSED WITHOUTPREJUDICE PURSUANT TO RULE 1.070(I) OF THE FLORIDA RULES OFCIVIL PROCEDURE. Bold emphasis.

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This is clear, unambiguous, operative legal language that cannot be ignored. Theimpact and effect of this language unfortunately cannot just be explained away because,as explained above, too many parties' rights are affected by the Orders. In short, theclear language ofthe Order must be given its full weight and legal effect.

19. Turning to the case before the court, the very first case listed on the attached listing is theinstant action, Case No. 08-008335-CI-007. Read carefully the specificity with which each caseis referenced, Case Number, Name of Plaintiff, Name of Primary Defendant, Unknown Tenant,Tenant 1, Tenant 2, Tenant 3, Tenant 4. Therefore, by express order of Court and with greatspecificity, the instant action has been dismissed without prejudice and any further action orhearing on this case is improper.

ARGUMENT

20. Here the Plaintiff had ample notice, as evidenced by the Clerk of the Court's letter datedNovember 5, 2008, that the Court would take action against it pursuant to Rule ] .070(j) forfailure to obtain proper service upon certain named Defendants if the Plaintiff did not take actionto correct this fatal defect.

21. Notwithstanding this notice, the Plaintiff deliberately chose to ignore the Court'sdirective and took no further action with regards to proper service upon certain namedDefendants to the instant lawsuit.

22. The Court was therefore left with no choice but to issue the Master Order dated February12, 2009. This Master Order was in direct accordance with the purpose behind Rule 1.0700),which was to allow the circuit courts the ability to manage its docket by dismissing or movingalong stalled or dormant cases. It should be again noted that we are more than one year post-

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dismissal and no affirmative action has yet been taken to set aside the Order of Dismissal thatwas properly entered.

23. When the Court issued its Master Order pursuant to Rule 1.0700), it was left with threeoptions: (1) direct that service be effected within a specified time; (2) drop the certain namedDefendants as a party to the instant lawsuit; or (3) dismiss the case without prejudice.

24. The Rule simply does not provide this court with any authority to, "Dismiss The Case asto Unknown Tenants" as this Order is currently being interpreted. In the matter of foreclosurecases, the courts should never sua sponte, "Drop The Certain Named Defendants As A Party toThe Instant Lawsuit". This court action may be an appropriate order for the court to execute inother civil matters when the effect of dropping the Defendant would prevent the Plaintiff fromrecovering from that Defendant but when, as is the case in a foreclosure action, the effect ofdropping the Defendant strips that Defendant of fundamental due process rights and exposes thatDefendant to the most severe and extreme court sanctioned power, the power to be foreiblyremoved from one's place of abode.

25. By the express terms of the Master Order, the Court chose option three and dismissed theinstant action without prejudice. Any further action or hearing on this case is therefore improperas the Court no longer holds jurisdiction over the matter and cannot render any further judgmentfor or against the Plaintiff.

26. The Master Order dismissing the case without prejudice leaves the parties as if no lawsuitwas ever filed. Should the Plaintiff desire any additional rel ief from the Court, then, it must paya new filing few and re-file its complaint under a different case number.

WHEREFORE, because the Master Order has already dismissed the instant actionwithout prejudice, the Defendants respectfully request this Court deny the Plaintiff's Motion for



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Summary Judgment, affirm that the instant action has been dismissed without prejudice pursuantto the terms of the Master Order, and any other relief that the Court may deem just and proper.

CERTIFICATE OF SERVICEI HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by

U.S. Mail on this 22nd day of April, 2010 to BRIAN HUMMEL, COURTNEY E.NICHOLSON, and ANN M. CRUZ-ALVAREZ, Florida Default Law Group, P.L., P.O. Box25018, Tampa, FL 33622-5018.

orney for Defendant229 Central A venueSt. Petersburg, FL 33705(727) 894-3159FBN: 0185957



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PINELLAS COUNTY FL OFF. BEC. BK 16522 PG 28

MASTER ORDER DISMISSALPAGE 1 CALENDAR NO. 102708-007CASE NUMBER PARTY NOTE08-008335-CI-007 ANYETCUNIVERSAL MORTGAGE

D/B/A UFG MORTGAGECHISHOLM JAMESET AL

AND ALL UNKNOWNCORPORATION

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Florida Rules ofCivil Procedure1.070 ProcessThis rule was published on October 23,20091 Case Citations(2) 1By Brian Willis,Attorney 1PrintI Share This(i) Senrice of Process by Mail. A defendant may accept service of process by maiL(1) Acceptance of service of a complaint by mail does not thereby waive any objection tothe venue or to the jurisdiction of the court over the person of the defendant.2) plaintiff may notify any defendant of the commencement of the action and requestthat the defendant waive service of a summons. The notice and request shall:(A) be in writing and be addressed directly to the defendant, if an individual, or to anofficer or managing or general agent of the defendant or other agent authorized byappointment or law to receive service of process;(B) be dispatched by certified mail, return receipt requested;(C) be accompanied by a copy of the complaint and shall identify the court in which ithas been filed;(D) inform the defendant of the consequences of compliance and of failure to complywith the request;(E) state the date on which the request is sent;(F) allow the defendant 20 days from the date on which the request is received to returnthe waiver, or, if the address of the defendant is outside of the United States, 30 daysfrom the date on which it is received to return the waiver; and(G) provide the defendant with an extra copy of the notice and request, including thewaiver, as well as a prepaid means of compliance in writing.(j) Summons; Time Limit. If service of the initial process and initial pleading is notmade upon a defendant within 120 days after filing of the initial pleading directed to thatdefendant the court, on its own initiative after notice or on motion, shall direct thatservice be effected within a specified time or shall dismiss the action without prejudice ordrop that defendant as a party; provided that if the plaintiff shows good cause orexcusable neglect for the failure, the court shall extend the time for service for anappropriate period. When a motion for leave to amend with the attached proposedamended complaint is filed, the 120-day period for service of amended complaints on thenew party or parties shall begin upon the entry of an order granting leave to amend. Adismissal under this subdivision shall not be considered a voluntary dismissal or operateas an adjudication on the merits under rule 1.420( a )(1).


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Florida Law Weekly

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34 Fla. L. Weekly D1503cCHARLES M. VAUGHT, JR., Appellant, v. WALTER A MCNEIL,SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,Appellee. 1st District. Case No. 1D08-3739. Opinion filed July 24, 2009.An appeal from the Circuit Court for Leon County. John C. Cooper,Judge. Counsel: Charles M. Vaught, Jr., pro se, Appellant. Bill McCollum,Attorney General, and Joe Belitzky, Senior Assistant Attorney General,Tallahassee, for Appellee.(PER CURIAM.) Appellant raises three issues on appeal. We affirm as totwo issues but remand to the trial court to amend its order to indicate i t iswithout prejudice to appellant's right to file an amended complaint on thedeclaratory judgment and to effectuate appropriate process pursuant toFlorida Rule ofCivil Procedure 1.0700). (WOLF, WEBSTER, andCLARK, J1., CONCUR.)

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Result #4: Florida Case Law - SKRBIC v. QCRC ASSOCIATES CO .. http://www.loislaw.com/pns/docview .htp?query=%28%28%2

Florida Case la w

SKRBIC v. QCRC ASSOCIATES CORP., 76 1 So.2d 34 9 (Fla .App. 3 Dis t . 2000)LJUBO SKRBIC, Appellant , vs . QCRC ASSOCIATES CORP. e t a l . , Appel lee.

No . 3D99-195.Dis t r i c t Court of Appeal o f Flor ida , Third D i s t r i c t .

Opinion f i l e d March 15, 2000.

An Appeal. from th e Ci rc u i t Cour t fo r Dade County, David L.Tobin, Judge, L.T. No. 97-23658.PagEl 35 0Arthur Joel Berger , fo r ap p e l l an t .Cole White & Bi l lb rough and G. Bart Bi l lb rough , fo r appel lee .Before JORGENSON, COPE, and LEVY, J J .LEVY, Judge.Appel l an t appeal s from an Order f ind ing t ha t he did n o t showgood cause fo r f a i l i ng to pe r fe c t serv ice of p rocess with in th et ime per iod prescr ibed by Flor ida Rule of Civ i l Procedure 1 .070( j )

and dismissing h is Complaint with pre jud ice . We with thet r i a l cour t ' s f ind ing t ha t appel lan t fa i l ed to good cause fo rh is f a i lu r e to serve defendan t s with in th e appropr ia te t imeper iod . However, because of th e r ecen t amendment to Rule 1 . 070( j ) ,we remand to the t r i a l cour t fo r the purpose of making a f ind ingas to whether o r not t h e r e wa s "excusable neglect " on th e p a r t o fappel lan t which would excuse h is f a i lu r e to serve p rocess with inthe 120-day per iod requ ired by th e Rule. Se e Amendment to Flo r idaRule of Civ i l Procedure 1 .070( j ) - Time LImIt fo r Serv ice , 24 Fla .L. Weekly Sl09 (Fla . March 4, 1999); Almeida v. FMC Corp . ,74QSo.2d557 (Fla. 3d DCA 1999) .

On October 16, 1997, appel lan t f i l ed a Complaint ag a in s tdefendants , Qual i ty Car Renta l ( the owner of the v eh ic l e ) , CarlosFidalgo an d Leyda Ferguson ( the di re c t o r s of Qual i ty Ca r Renta l )and Yusuf Yildr im ( the dr i ve r of th e vehic le) (col lec t ive ly"Appel lees"), seeking damages fo r i n ju r i es susta ined in anautomobile acciden t t ha t occur red on October 16 , 1 9 9 3 . ~ Ono r about November 25 , 1997, appel lee , Qual i ty Ca r Renta l , f i l ed a"Not ice o f Stay Pursuan t to Flor ida Law" which declared t ha t i t si n su r e r was inso lven t an d no ted t ha t , because the j u r i sd ic t ion o fFlor ida Insurance Guarantee Associa t ion (FIGA) was t r i g g e r ed , t h eac t ion i s s tayed fo r up to s ix months pursuant to sec t ion 631.67,Flor ida Statute.ffn21 Attached with thePage 351Notice, Qual i ty Car Renta l a lso f i l ed an i n so lvency order fromth e Supreme Cour t of New York dated November 20, 1997.

Appel l an t d id no t at t empt (and has to t h i s date neverat tempted) to serve th e Complaint during t h i s per iod . On October27 , 1998, appel lees moved to dismiss the Complaint fo r f a i lu r e toserve the appel lees wi th in th e l 20 -day per iod prescr ibed inFlor ida Rule o f Ci v i l Procedure 1 . 070( j ) . A hear ing on th e motionwas held on December 4, 1998. The t r i a l cour t , f ind ing t ha tappel lan t did no t show good cause fo r f a i l i ng to serve p rocesswi th in the 12 0 days, en tered an Order gran t ing the Motion toDismiss with prejUdice . This appeal ensued.

Appel l an t f i r s t argues t ha t , pursuan t to Rule 1 . 070( j ) , th eComplaint must be served wi th in the f i r s t 12 0 days immediatelyfol lowing the f i l i ng of the Complaint an d t ha t any even t t ha ti n t e r rup t s t ha t spe c i f i c per iod , an d thereby makes it impossiblefo r the p l a i n t i f f to serve defendants wi th in those 12 0 days ,i s automat ic good cause su f f i c i en t to avoid aAccordingly, ap p e l l an t argues , once the i n i t i a l l 20 -day per iod wasin te rrupted by the f i l i ng o f th e "Not ice of Stay ," making itimpossible fo r appel lan t to serve the Complaint with in the sa i di n i t i a l 120-day per iod , good cause wa s au tomat ica l ly shown. Wef ind such an i n t e rp re t a t i on of the Rule to be i l l o g i c a l , becauseit would c l e a r l y lead to r esu l t s con trary to th e i n t e n t of th eRule. See Nationsbank, N.A. v. Ziner, 72 6 So.2d 364, 366 (Fla.4th DCAl999) ("The purpose o f Rule 1 . 070 ( j ) i s to preven t ap l a i n t i f f from f i l i ng a s u i t an d then t ak ing no ac t ion whatsoeverto proceed on th e c l a i m . " ) .

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the,monthsthe FIGA "Not ice of

Result #4: Flo rida Case Law - SKRBIC v. QCRC ASSOCIATES CO .. http://www.loislaw.com/pns/docview htp?query=OIo28%28%

cannot serve thedefendants with in th e f i r s t 12 0 daysWhere, as in the i n s t an t case , th e th e f i l ing o f theComplaint , we f ind t ha t the 120-day per iod i s t o l l e d u n t i l suchtime as the case may proceed , whether bycour t Order. Accordingly , we ho ld t h a t a tsix-month s t ay , the 120-day period aga inth e i ns t a n t case , 40 days passed betweenComplaint and the f i l i ng of th e "Not ice of Stay", th e appel lan thad 80 days remaining with in which to serve the appel lees a f t e rth e was l i f t e d by opera t ion of law. Although we recogn izet ha t language o f the Rule does no t provide fo r an y t o l l i ngper iods , t r ea t ing a FIGA "Notice of Stay" as a t o l l i ng periOd i s ,fo r th e reasons expla ined above, the most l og i c a l an d sen s ib l eapproach to the quest ion . Since appel lan t d id no t serve a copy o fof the appel lees a t t ime between th eon October 16, , an d the date of th eMotion to Dismiss on December 4, 1998, a(o f which only s ix months was excused) , we f ind t ha t th e t r i a lcourt was eminent ly j u s t i f i e d in the f inding t h a t th eappel lan t d id no t show good cause fo r to serve processwith in the 12 0 days as required by Rule ( j) as it wa s inef f ec t a t t ha t t ime .

At the t ime of the December, 1998, hear ing , Rule 1 .070( j )prov ided :i n i t i a l plead ing i s no ta f t e r f i l i n g of the

behal f serv ice i sservice wa s n o t madea par ty on the cour t ' s

I f serv ice

own

an dan d the par ty onno t show gOCJ.cl..c a u s e why

the ac t ion s h a l l be dismissed wi thou tdefendan t dropped asa f t e r not ice o r on motion.

of la w o r t r i a l

Fla . R. Civ. Pro. 1 .070( j ) (1998) supp l i ed ) .1999, while t h i sRule l . 070( j ) .

Page 352 March 4, 1999) . Th e new version of the Rule provides : I f serv ice o f th e i n i t i a l process an d i n i t i a l pleading i s n o ta defendan t within 12 0 days a f t e r f i l i n g o f th e

p lead ing the cour t , on i t s own i n i t i a t i ve a f t e r not ice o r on motion, sha l l d i r ec t t ha t service be e f fe c t e d with in a spec i f ied t ime or s h a l l d i smiss the ac t ion without o r drop t ha t defendan t as a par ty;

24 Fla . L.to

"the amendmentapply to a l l c i v i l cases commenced a f t e r th e date o f t h i sand, insofar as ju s t an d to a l l c i v i l casesas of the date of t h i s " Therefore, th e i n s t an t case was" in the a t the t ime of the amendment an d th e par t i es a reto f ind ings under the amended Rule . Accordingly , weremand t h i s case to th e t r i a l cour t fo r the purpose of making af ind ing as to whether o r no t there wa s "excusab le neglect" on th ep a r t o f th e appel lan t t ha t would excuse h i s f a i lu r e to serveprocess within th e above-descr ibed 120-day per iod .

JORGENSON, J . , concurs .[fn1] We note t ha t th e Amended Complaint , upon which we a renow t rave l ing, wa s f i l ed on th e very l a s t da y permiss ib le underth e four-year s t a tu t e of l i m i t a t i ons .

[fn2] S e c t i o n ~ , Flor ida Sta tutes provides t ha t :[a]11 proceed ings in which th e inso lven t i nsure r i s a par tyor i s obl iga ted to defend a in an y cour t o r before an ybody or board in th i s s t a t e

s tayed fo r 6 months, or such a dd i t i ona l per iod fromthe date the i n so lvency i s ad jud ica ted , by a co u r t of

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competent j u r i sd i c t ion to permit p roper defense by thea s soc i a t i on o f a l l pending causes of a c t i on as to an y coveredc la ims ; provided t h a t such s tay may be ex tended fo r a per iodo f t ime than 6 months upon proper app l ica t ion to acour t competent j u r i sd i c t ion .

Fla . Sta t . (1999).

COPE, J . (concurring in p a r t an d d i s se n t i ng i n par t ) .t h a t th e order must be reversed, I would remandwith to r e in s t a t e the p l a i n t i f f ' s complaint .

I .On th e l a s t da y of the s t a t u t e o f l im i ta t ions , p l a i n t i f ff i l ed th i s s u i t . Thi r ty days l a t e r , a not ice of s tay wa s f i l ed onaccount o f the insolvency proceed ings for the l i ab i l i t y in s u re rwho would be responsible fo r th e defense of the defendan t s . Thiscrea ted an automat ic s tay o f th e case fo r s ix months . Of course ,th e s tay coul.d be extended if the i n so lvency p roceed ings l a s ted

beyond s ix months.Flor ida Rule of C iv i l Procedure 1.070( j ) requi resdefendan t s be served within 12 0 days a f t e r thecompla in t unless there is good cause no t to do so. int h i s case there was a s tay i n e f f e c t through, an d beyond, th e120th day. That being so, th e p l a i n t i f f showed good cause why thedefendan t s had n o t been served within 120 . Th e motion todismiss should have been den ied an d the cour t shou ld havese t a dead l ine fo r th e p l a i n t i f f to accomplish s e rv ice . See24 Fla . L. weekly D765 (Fla . 3d DCA!1archno So.2d 60S (Fla. 3d DCA 1998) .We should be es pec ia l ly r e luc tan t to approve a Rule 1.070( j )dismissa l under the circumstances present here . Th e en t i r e delay

in t h i s case was crea ted because someone on the defendants ' s ideof the case the l i ab i l i t y in s u re r - f i l ed a not ice of s tay . Th edefendants rece ived the benef i t o f the f a c t t ha t t he case cou ldno t proceed a ga ins t them. No on e ever f i l ed a not ice ind ica t ingt h a t the au tomat ic s tay had It i s unseemly to al low th edefendants to argue t ha t the did no t proceed quicklyenough, when it was someone on th e defendants ' s id e of the casewho caused the proceed ings to come to a h a l t .

Th e major i ty op in ion t akes the unpreceden ted s tep o fexpanding o ld Rule 1.070( j ) saying t h a t the l20-day dead l inei s t o l l ed during the per iod a s tay , an d then begins to ru n anewwhen the s tay . Th e ru le does no t say t h a t . A ll the ru leca l l s on th e to do is show good cause why he d id no tserve the defendants by the 120th day. The p l a i n t i f f has made th enecessa-ry showing.Page 35 3

By the scope of o ld Rule l . 070 ( j ) , the major i tyopinion over looked what the F lor ida Supreme Cour t i t s e l f hassa id about the old ru le :

As noted by Judge Gri f f in : "The ru le in its pr e se n t form hasbeen widely an d proper ly c r i t i c ized ."66 7 So.2d lQ24, 1026 (Fla. 5 th DCA. I t has been r e fe r r ed to as a "procedura l p i t "an d ac ts as a ca t a lys t fo r f u r t h e r l i t i g a t i o n . See,

,

58 3 So.2d 783, 78 5 (Fla. 2d DCA 1991)t h i s case , whi le perhaps upholding thepr e d i c a t e fo r a new lawsui t a ga ins t yet ano ther a t t o r ne y , inth e supposed i n t e r e s t o f e f f i c i e n t j ud i c i a la dmin i s t r a t i on . " ) .

l . 070( j )Since a s tay preven ted se r v i c e on t he defendan t s within 12 0days , we should hold t ha t good cause wa s shown under o ld Rulel . 070 ( j ) . We should remand with d i rec t ions to r e in s t a t e th ep l a i n t i f f ' s compla in t an d s e t a dead l ine fo r se r v i c e of p rocess on

defendants .II .

Th e defendants have cand id ly , an d qu i t e proper ly , conceded

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t h a t the newly amended Rule 1 .070( j ) ap p l i e s to cases t ha t pending " in the p i p e l i n e" on appea l . See Fl a . L. weekly S492, S493 (F la . Oct . 21, Corp. , 24 Fla . L. weekly a t 0766.

I f good cause was shown under th e o ld r u l e , it n ecessa r i l yhas been shown under th e ne w r u l e . There fore p l a i n t i f f i se n t i t l e d to re ins ta tement under th e ne w r u l e as wel l .

Th e major i ty opin ion remands fo r th e trial co u r t to determinewhether t h e r e wa s excusable neglect wi th in th e meaning o f t h e newr u l e . with a l l du e r e s p ec t , th e m a j o r i t y opin ion m is in t e r p r e t sth e new r u l e .

Newly amended Rule 1 .070( j ) provides in p a r t :I f s e rv i ce o f t h e i n i t i a l process and i n i t i a l plead ingi s not made upon a defendant with in 12 0 days a f t e r f i l i n g o fth e i n i t i a l plead ing , the cour t , on its ow n i n i t i a t i v e a f t e rnot ice o r on mot ion , sha l l d i r e c t t h a t serv ice be e f f ec t edwith in a sp ec i f i ed t ime or s h a l l dismiss th e ac t ion withoutp re j u d i ce o r drop t h a t defendant as a p a r ty ; provided t h a t ifth e p l a i n t i f f shows good cause o r excusable n eg l ec t f o r t h ef a i l u re , the co u r t s h a l l extend th e t ime fo r se r v i ce fo r anap p ro p r i a te p e r i o d .

Th e major i ty opin ion has ove r looked th e l anguage whichprecedes th e semicolon . Th e Flor ida Supreme Cour t has expla ined :Th e newly amended r u l e broadens a trial c o u r t ' sd i sc r e t io n to permi t an ex tens ion of t ime fo r se r v i ce o fprocess absen t a show1ng o f good cause . This amendmentbr ings ru le 1 .070( j ) in l i ne with its f ed e r a l co u n t e rp a r t ,Federa l Rule of Civ i l Procedure 4(m). The amended r u l eprovides t ha t when a p l a i n t i f f f a i l s to e f f e c t t imely serv iceof process w1thout show1ng good cause o r e x c u s a b l e neg lec t ,th e trial co u r t r e t a i ns th e d i sc r e t io n to (1 ) extend th eper iod fo r s e rv i ce , (2 ) dismiss the ac t ion without p re j u d i ce ,o r (3 ) drop t h a t defendant as a p a r ty .

Weekly a t S493 (emphasis added) ;25 Fla . L. Weekly S141, 5143

Onder th e ne w r u l e , even if t h e r e i s no showing o f good causeor excusable n eg l ec t , the trial co u r t has the d i sc r e t io n to extendth e t ime per iod fo r serv ice , dismiss wi thout p r e ju d ice , or dropthe unse rved defendant as a par ty . These o p t io n s a re addressed toth e d i sc r e t io n of the trialPage 35 4co u r t , and a trial co u r t r u l in g w i l l be r ev iewable fo r abuse oft h a t d i sc r e t io n .

In t h i s case the compla in t was f i l e d on th e l a s t s t a t u t e o f l i m i t a t i ons . While the p l a i n t i f f has , in shown good cause fo r n o t serv ing the defendants by th e 120th day, fo r purposes of discuss ion I wi l l assume t h a t th e p l a i n t i f f ' s showing does not r i s e to th e l ev e l co n s t i t u t i n g good cause o r excusable n eg l ec t .

Assuming t ha t i s th e s t a t e of a f f a i r s , the trial co u r t wouldi n my judgment be o b l i g a t ed t o p i ck t h e f i r s t opt ion extend th eper iod of t ime fo r se r v i ce . That i s so because a d i s m i s s a l int h i s case would amount to a dismissa l with p r e ju d ice . Discre t ionin these c i rcumstances must be ex e rc i s ed with th e unders tandingt h a t Fl o r i d a has a long-s tand ing po l icy in f avor o f r e s o l v i n gc i v i l dispu tes on th e m er i t s . Fur the rmore , th e purpose of Rule1 .070( j ) i s to speed the p rogress o f cases on th e c i v i l docke t ,bu t no t to give de fendants a " f r ee" d i s m i s s a l with p r e ju d ice .Thus, where t h e r e has been no showing of good cause o r excusablen eg l ec t , bu t th e s t a t u t e o f l im i t a t i o n s has run, di sc re t i on shouldnormal ly be ex e rc i s ed in f avor of g iv ing the p l a i n t i f f anextens ion of t ime to accomplish se r v i ce .

Th e major i ty opin ion focuses on th e pa r t of th e amended r u l e which comes a f t e r th e semicolon. That p a r t of the new ru le i n d i ca t e s t ha t " i f th e p l a i n t i f f shows good cause or excusable fo r th e f a i l u re , th e cour t s h a l l extend th e t ime fo r

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rule i s to sa y that i f good cause or excusable neglec t ha s beenshown, then th e court must extend th e time an d does not havediscret ion to do anything else .However, as already s ta ted , even where there i s no showing ofgood cause or excusable neglect , the court s t i l l must make adecision whether to extend the time for service - an d where th es ta tute of l imita t ions has run, that d iscret ion should beexercised in favor of extending the time for service.The substantia l problem with the majori ty opinion i s tha t iti s squarely in confl ic t with the Florida Supreme Court 's opinionin Thomas as well as th e plain words of amended Rule I .070( j ) .The majori ty opinion says tha t th e pla in t i f f ' s ent i t lement to anextension of time depends on whether excusable neglect i s shown.That in terpreta t ion is dead wrong.

I I I .Fo r th e reasons s ta ted , I would reverse the order underreview an d remand with direct ions to re ins ta te p l a i n t i f f ' scomplaint an d grant an extension of time in which to serve th edefendants .

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Result #3: Florida Case Law - CHAFFIN v. JACOBSON, 793 So.2d .. http://www.loislaw.comlpns /docview htp?query=%28%28%2

Florida Case law

CHAFFIN v . JACOBSON, 793 So.2d 102 (Fla.App. 2 Dis t . 2001)W. RONALD CHAFFIN, Appel l an t , v . ROBERT A. JACOBSON, individua l ly ,INTEGRATED CONTROL SYSTEMS, INC., a Flor ida corpora t ion, INTEGRATED

CONTROL SYSTEMS, INC., a Connec t i cu t corpora t ion; JAMES B. IRWIN,individua l ly , an d the ESTATE OF DONALD CERBONE, Appel lees .

No. 2000-4984.D i s t r i c t Court of Appeal of Flor ida , Second D i s t r i c t .

Opinion f i l ed August 17, 2001.

Appeal from the Ci rc u i t Court for Char lot te County; Sherra Winese t t ,Judge.

Kelley B. Gelb o f Krupnick, Campbell, Malone, Rose l l i , Buser, Slama,Hancock, McNelis, Liberman & McKee, P.A. , For t Lauderdale, fo rAppel l an t .Vance R. Dawson and Stephanie A. Sega1 in i o f Rissman, Weisberg,Ba r re t t , Hurt , Donahue & McLain, P.A., Orlando, fo r Appel l ee , Integra ted

Cont ro l Systems, Inc .FULMER, Judge.W. Ronald Chaff in appea l s from an order dismiss ing h is complaintwi thou t pr e jud ic e as to Integra ted Cont ro l Systems, Inc . , a Connec t i cu t

corpora t ion (here inaf te r IMPAC-CONN), fo r f a i lu r e t o pe r fe c t t imelyse r v i c e o f pr oc e ss . We reverse an d remand with d i re c t i ons to r e i n s t a t eth e compla in t .

On November 1, 1999, Chaff in f i l ed a pro se complaint naming s ixdefendan t s inc luding IMPAC-CONN. Chaff in never successful ly servedIMPAC-CONN with t ha t complaint , de sp i t e h is a t t empt on November 15,1999, to i s sue a summons fo r service on IMPAC-CONN through the Flor idaSecre ta ry of Sta te . Thereaf te r , Chaff in re ta ined a la w firm to representhi m in th e l i t i g a t i o n , and an amended complaint wa s f i l ed on February 1,2000. On May 26, 2000, Chaff in moved fo r an extension of t ime withinwhich to serve IMPAC-CONN.I!!Ul An a l i as summons wa s i s sue d on M a Y 1 G I ~ b ~ I C i t e Results [!Ii2000, and service was accomplished " f ) " ! L ~ J l . . J ; ; ; i l ; J l . . " ~ ~ " -10 1Page 10 3 Ca'cs Onlv - 10on "June 16 2000 by serving IMPAC-CONN' s r e g i s t e re d agen t in Bris Statutes C:"lv - 0Ct' , I.c'C",tlSes v ~ ! : i 0onnec leu. O t h = : D o c u m ~ n t s ~ ~ " " " __._..J

On July 10, 2000, IMPAC-CONN f i l ed a motion to dismiss based uponChaff in ' s f a i lu r e to pe r fe c t service wi thin the 120-day deadl ine underFlor ida Rule of Civi l Procedure 1.070{j) . Af te r a hear ing, the t r i a lcour t entered an order grant ing the motion to d i smiss wi thou t pre judice .Because the s t a t u t e o f l i m i t a t i ons had run on Chaff in ' s cla im aga ins tth i s defendan t , the order grant ing the motion to dismiss ac ted as adismissa l with pre judice .

The hear ing on th e motion to dismiss wa s held on October 5, 2000. Thepar t i e s presented argument to the t r i a l cour t per ta ining to whether goodcause e x i s t e d for the delay in service , bu t they did n o t discuss the 1999amendment to rule 1.070(j ) , i l ! : ! . l l which broadened th e t r i a l c o u r t ' sdiscre t ion to extend th e per iod for service wi thou t a showing of goodcause o r excusab le neglec t . Se e Amendment to Flor ida Rule o f Ci v i lProcedure 1.070{j)-Time Li m i t f o r Serv ice , 746So.2d l084 (Fla . 1999);Thomas v . Si l ve r s , 748SQ.2d263 (F la . 1999) . On appeal , Chaff in does no tasse r t , as he did below, t ha t he showed good cause fo r the delay inservice ; ra ther , he argues t ha t the t r i a l cour t abused i t s d i sc re t i on i nno t app ly ing th e new vers ion o f rule 1.070( j ) an d no t al lowing theaddi t iona l t ime fo r service . We recognize t ha t the par t i e s f a i l ed todiscuss the amended ru l e a t th e hear ing on th e motion to dismiss ;ne ve r the l e s s , we are compelled to reverse because Chaffin wa s e n t i t l e d toth e be ne f i t of the ru l e i n e f f ec t a t the t ime o f th e an d thet r i a l c o u r t ' s dismissa l wa s an abuse o f discre t ion underci rcumstances .

In p ropos ing the 1999 amendment to ru l e 1 . 070( j ) , the supreme cour t expla ined t h a t p r io r to amendment th e rule sometimes ac ted as a severe

ins tead of a case management t oo l .

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gave an example to i l l u s t r a t e the need fo r th e amendment. Th eexample given was th e i den t i ca l s i tua t ion before th i s , in which adismissa l without pre judice would preclude re f i l ing because th e s ta tu teof l imi tat ions had run. Id . Thus, the supreme cour t amended th e rule togive a t r i a l cour t broad d i sc r e t ion to extend the time for service evenwhen good cause has not been shown.

As now wri t ten, the rule presents a t r i a l cour t with three options whena p la in t i f f has not proper ly served a defendant with in 12 0 days a f te rf i l ing th e i n i t i a l pleading . Those options are : (1) d i rec t t ha t servicebe effected with in a speci f iedPage 104t ime; (2) dismiss the ac t ion without pre judice ; or (3) drop t ha tdefendant as a par ty . I f a p la in t i f f shows good cause or excusableneglect fo r fa i lure to make t imely service , th e cour t must extend th et ime fo r service an d has no d i sc r e t ion to do otherwise. However, i fne i ther good cause nor excusable neglect i s shown, th e t r i a l cour t i s nolonger required to dismiss without pre judice or drop the defendant as apar ty , but i s l e f t to exerc i se i t s d i sc r e t ion . Yet, in a case such asth i s , where th e s ta tu te of l imi t a t ions has run, we agree with Judge Copetha t :

Discre t ion in these circumstances must be exerc ised with the understanding t ha t Flor ida ha s a long-s tanding policy in favor of reso lv ing c i v i l disputes on the meri ts . Furthermore, th e purpose of Rule 1.070(j ) i s to speed the progress of cases on the c i v i l docket , but not to give defendants a "free" dismissa l with pre judice . Thus, where there has been no showing of good cause or excusable neglect , but the s ta tu te of l imi t a t ions has rUn, discret ion should normally be exerc ised in favor of giving th e p l a i n t i f f an extens ion of t ime to accomplish service .

Skrbic v. QCRC Assocs. Corp. , 761So.2d349, (Fla . 3d DCA 2000)(Cope, J . , concurring in par t an d dissent ing in p a r t ) . Thus, we concludetha t because the s ta tu te of l imi t a t ions ha d ru n an d service had beenobtained a t the t ime of the hearing on th e motion to dismiss , the t r i a lcour t abused i t s discret ion in not extending the period of t ime forservice .

Reversed and remanded for fur ther proceedings.BLUE, C.J . , an d DAVIS, J . , Concur.

[ fnl l The record does not r e f l ec t a rul ing on th i s motion.

[fnZJ Flor ida Rule of Civi l Procedure 1.070( j ) was amended again onFebruary 17, 2000, 754 So.ld 67 1 (Fla .2000), and nowSummons; Time Limit. I f service of th e i n i t i a l process an d i n i t i a l pleading i s not made upon a defendant with in 120 days a f te r f i l ing of th e i n i t i a l pleading directed to t ha t defendant th e court , on i t s own i n i t i a t i ve a f t e r not ice or on motion, sha l l d i rec t t ha t service be effected with in a speci f ied time or sha l l dismiss the act ion without pre judice or drop t ha t defendant as a par ty; provided t ha t i f the p la in t i f f shows good cause or excusable neglect for th e fa i lu re , the court sha l l extend th e t ime fo r service fo r an appropria te per iod . I f a motion for leave to amend or proposed amended complaint su f f ic ien t ly iden t i f ie s the new par ty or par t ie s and contains a shor t statement of fac t s for which r e l i e f wil l be demanded, the l20-day per iod for service of amended complaints sha l l begin upon th e ent ry of an order gran t ing leave to amend. A dismissa l under th i s subdiv is ion sha l l not be considered a voluntary d ismissa l o r opera te as an adjudica t ion on the mer i ts under r u l e 1.420(a) (1) .

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http://www.loislaw.comlpns /docview .htp?query=OIo28%28%Result #1: Florida Case Law - PREMIER v. DAVALLE, 994 So.2d 36 ..

Florida Case Law

PREMIER v. DAVALLE, 994 So.2d 36 0 (Fla .App. 3 Di s t . 2008)PREMIER CAPITAL, LLC, e t c . , Appe l lan t , v. Cather ine DAVALLE, Appel l ee .

No. 3D08-563.D i s t r i c t Cour t of Appeal of Fl o r i da , Thi rd D i s t r i c t .

September 17, 2008.Rehear ing Denied November 12, 2008.

Appeal from the C i r c u i t Court , Miami-Dade County, David C. M il ler , J . Page 361

Roths te in Rosenfe ld t Adler and Ri ley W. Ciruln ick and Richard Sto r f e r , For t Lauderdale , fo r appe l l an t . Rodham & Fine and Gary R. Fine, Fort Lauderdale , for

appel l ee . Before WELLS, SUAREZ, and CORTINAS, J J .CORTINAS, J .Appel lant , Premier Capi t a l , LLC ("Premier") seeks review of

the t r i a l co u r t ' s den i a l on the mer i t s of i t s motion fo rr econs i de r a t i on . Th e motion fo r r econs ide ra t ion ("Motion fo rRecons idera t ion" ) addressed the t r i a l co u r t ' s grant ing ofCather ine Dava l l e ' s ("Daval le") motion quash se r v i ce and itsdenia l of Premie r ' s o re t enus motion seek ing an ex tens ion o ft ime fo r se rv i ce . The t r an s c r i p t of the Motion fo rRecons idera t ion demons t r a t es tha t the trial cour t f a i l ed tocons ide r t h a t it was permi t t ed to g r an t an ex tens ion of t imefo r serv ice even wi thou t a showing of good cause . As such, wereve rse and remand.

Daval le personal ly guaran teed a promissory note entered i n to byIn t e l l i gence Systems, Inc . ( " lS I " ) . Th e promissory note and th epersona l guaranty were ass igned to Premier . lSI defaul t ed onthe promissory note and Daval le f a i l ed to make paymentspursuant to th e persona l gua ran ty . Premier sued Daval le tor ecover the monies owed.

The or ig ina l summons was i ssued on March 29, 2006. Daval le wa snot served with in the 120-day t ime l i m i t se t fo r th in Flor idaRule of Ci v i l Procedure 1 . 0 7 0 ( j ) . An a t tempt was made to se rveDaval le on August 4, 2006, a t which t ime the process se r ve r wasinformed t h a t Daval le was "unknown a t the given addr ess . " Ana l i a s summons was i ssued on August 23, 20 06. An a t tempt tose rve Daval le a t the same address as t h a t spec i f i ed on th eo r i g i n a l summons wa s made on December 29, 2006. Th e processse r ve r was informed by Dava l l e ' s daughter t h a t Daval le d id notl ive a t th e address and she re fused to any f u r t h e rinformation r e la t ing to he r mother . A p l u r i e s summons was

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i ssued on October 1, 2007. This summons was succes s fu l ly servedon Daval l e ' s husband on October 16, 2007 a t the same address aswas l i s t e d on the or ig ina l summons and th e a l i a s summons.

Rule 1.070 of the Flor ida Rules of Civ i l Procedure provides at r i a l judge with broad d isc r e t ion in grant ing an extens ion oft ime to serve process . See Fla .R.Civ .P . 1 .0700 ' ) ;Chaf f i n v. Jacobson, 793 So.2d 102, 103 (F la . 2d DCA2001). The pe r t inen t t ex t of ru le 1.0700) s ta tes the fo l lowing:

( j) Summons; Time Limit . I f serv ice of the i n i t i a l process an d i n i t i a l pleading i s not made upon a defendant within 12 0 days a f t e r f i l i ng of the i n i t i a l pleading d i r ec t ed to t h a t defendan t the cour t , on i t s own i n i t i a t i ve a f t e r not ice o r on motion, sha l l d i r ec t t h a t serv ice be ef fec ted with in a spec i f i ed t ime o r sha l l dismiss the ac t ion without pre judice or drop t h a t defendan t as a pa r ty ; provided t h a t if

Page 362the p l a i n t i f f shows good cause or excusable neglec t fo r the f a i lu re , the cour t s h a l l extend the t ime for serv ice for an appropr ia te per iod .

In e f f ec t , ru le 1.070( j ) provides the t r i a l cour t with th ree opt ions : "(1) d i rec t t ha t serv ice be ef fec ted with in a spec i f i ed t ime; (2) dismiss the ac t ion without pre jud ice ; or (3) drop t h a t defendan t as a pa r ty . " Cha f f in , 793 So;2d at 103-04. As such, even if no showing of good cause or excusable neg l ec t i s presented , the t r i a l cour t has the opt ion to exerc ise i t s d isc r e t ion to extend the t ime for se rv ic e . Id.; Car te r v. WinnDix ie Store , I n c . , 889 SOo2d 960 (Fla . 1 s t DCA 2004) .

In Cha f f i n , the t r i a l cour t gran ted a motion todismiss withou t pre judice because of the p l a i n t i f f s f a i lu re tope r f ec t serv ice with in the l20-day t ime l im i t se t f o r th in ru le1 . 070 ( j ) . Cha f f i n , 793 SOo2d at 103. Th e s t a t u t e o fl imi ta t ions had run on the claim, which ef fec t ive ly turned themotion to dismiss in to a dismissa l with pre jud ice . Id .At the hear ing on the motion to d ismiss , the t r i a l cour t f a i l edto address t h a t it could extend the per iod for se rv i ce evenwithout a showing of good cause or excusable neglec t , therebyavoiding what turned in to a dismissa l with pre jud ice .Id . As such, the Second D i s t r i c t r ever sed on the bas i stha t "because the s t a tu t e of l imi ta t ions had run and serv icehad been ob ta ined a t the t ime of the hear ing on the motion tod ismiss , the t r i a l cour t abused i t s d isc r e t ion in not extendingthe per iod of t ime fo r se r v ice . " Id . a t 10 4 (agreeingwith Judge Cope 's concurr ing opinion in Skrb i c v. QCRCAssocs . Corp . , 761 SOo2d 349, 354 (Fla . 3d DCA 2000) t h a tin a s i tua t ion where the s t a t u t e of l i m i t a t i o n s has run,d isc r e t ion must be exerc i sed in accordance with Flo r ida ' spol icy in favor of r eso lv ing c i v i l disputes on the mer i t s ) .

Here, Premier ' s Motion fo r Reconsidera t ion wa s denied on themer i t s because the t r i a l cour t determined tha t Premier made "noshowing of anything done to pe r fec t s e rv i ce with in the f i r s t12 0 days ." Th e c i r cumstances o f t h i s case , inc luding t h a t theprocess server was inco r r ec t ly to ld tha t Daval le was unknowna t the address spec i f i ed on the summons, and the f ac t tha t

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Result #1: Florida Case Law - PREMIER v. DAVALLE, 994 So.2d 36 .. http://www.loislaw.comlpns/docview .htp?query=%28%28%

Daval le was u l t ima te ly served a t t h i s same address , sugges ttha t the process server was purposely led as t ray by Daval le ' sdaughter . However, we do not address whether the t r i a l cour tabused i t s d isc r e t ion in determining t h a t no showing of goodcause was made during the l20-day serv ice per i od . We do f inde r r o r in the t r i a l cour t ' s f a i lu re to cons ider t h a t it waspermi t t ed to grant an extens ion of t ime for se rv i ce , evenwithout a showing of good cause . Winn-Dixie,889 So.2d 960 ( r ever s ing the t r i a l co u r t ' s order on the bas i s t h a t it wasunclear whether the t r i a l cour t was aware t h a t , i f thec i r cumstances o f the case warranted such extens ion , it couldextend the t ime fo r se rv i ce even without a showing of goodcause . ) We note t h a t ne i the r s ide af forded the t r i a l cour t withthe appl i cable case law. Accordingly , we r ever se and remand.

Reversed and remanded.

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GUSTAVO MIRANDA, Appellant, v. STEVEN YOUNG, JACK B .. http://www.ftoridalawweekly.comlnewsystemlshowfile.php?from

34 Fla. L. Weekly D2070aCivil procedure -- Dismissal-- Failure to perfect service within 120 days -- Circuit court abuseddiscretion in dismissing complaint with prejudice under rule 1.070(j) for failure to establishgood cause or excusable neglect for not serving process within 120 days of filing complaintwhere dismissal with prejudice was not one of options available to court under rule 1.070(j),four-year statute of limitations had run on timely filed claims when court entered its orderdismissing complaint, and plaintiff had obtained service on each defendant by time of hearing onmotion to dismiss -- Circuit court should have extended time for service -- Additional time pro seinmate took to perfect service was not extraordinaryGUSTAVO MIRANDA, Appellant, v. SlEVEN YOUNG, JACK BROCK, HILLSBOROUGHCOUNTY SHERIFF'S OFFICE, Appellees. 2nd District. Case No. 2D08-2633. Opinion filed October9,2009. Appeal from the Circuit Court for Hillsborough County; Frank Gomez, Judge. Counsel:Gustavo Miranda, pro se. Thea G. Clark of Hillsborough County Sheriffs Office, Tampa, forAppellees.(FULMER, Judge.) Gustavo Miranda, pro se, appeals the circuit court's order dismissing his complaintwith prejudice. In its order, the court found that Miranda failed to establish good cause or excusableneglect for not serving process upon Appellees within 120 days of filing the complaint as required byFlorida Rule of Civil Procedure 1.070(j). Because we conclude that the circuit court erred indismissing the complaint, we reverse and remand for further proceedings.Prior to 1999, rule 1.070(j) provided that when a party failed to perfect service of an initial pleadingwithin 120 days after filing "and the party on whose behalf service is required does not show goodcause why service was not made within that time, the action shall be dismissed without prejudice orthat defendant dropped as a party." Amendment to Fla. Rule ofCivil Procedure 1.070{j)-Time Limitfor Serv., 720 So. 2d 505,505 (Fla. 1998). However, the Florida Supreme Court amended the rule in1999 to comport with the amendment of its federal counterpart, Federal Rule of Civil Procedure 4(m).Amendment to Fla. Rule ofCivil Procedure 1.070(J}-Time Limitfor Serv., 746 So. 2d 1084 (Fla.1999); see also Totura & Co., Inc. v. Williams, 754 So. 2d 671, 676-77 (Fla. 2000) (noting same). Theintent of the amendment was to provide courts with broad discretion to extend the time for serviceeven when good cause for untimely service had not been shown. Totura, 754 So. 2d at 677; see alsoAmendment, 720 So. 2d at 505 (proposing amendment to conform to the federal rule and to providecourts with discretion to extend the time for service "even when good cause has not been shown").The amendment allowed courts to avoid the "harsh results" often exacted under the prior version ofthe rule "such as where noncompliance triggered dismissal without prejudice, but expiration of thestatute of limitations would preclude refiling of the action." Totura, 754 So. 2d at 677.The current version o rule 1.070(j) provides in pertinent part as follows:

(j) Summons; Tnne Limit. If service of the initial process and initial pleading is not madeupon a defendant within 120 days after filing of the initial pleading directed to thatdefendant the court, on its O\\TI initiative after notice or on motion, shall direct thatservice be effected within a specified time or shall dismiss the action without prejudice ordrop that defendant as a party; provided that if the plaintiff shows good cause orexcusable neglect for the failure, the court shall extend the time for service for anappropriate period.

With respect to the application of rule 1.070(j), this court observed in Chaffin v. Jacobson, 793 So. 2d

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STAVO MIRANDA, Appellant, v. STEVEN YOUNG, JACK 8. .. http://www.floridalawweeldy.comlnewsysteml showfi Ie. php?from

102, 103-04 (Fla. 2d DCA 2001), as follows:As now written, the rule presents a trial court with three options when a plaintiffhas notproperly served a defendant within 120 days after filing the initial pleading. Those optionsare: (1) direct that service be effected within a specified time; (2) dismiss the actionwithout prejudice; or (3) drop that defendant as a party. If a plainti ff shows good cause orexcusable neglect for failure to make timely service, the court must extend the time forservice and has no discretion to do otherwise. However, ifneither good cause norexcusable neglect is shown, the trial court is no longer required to dismiss withoutprejudice or drop the defendant as a party, but is left to exercise its discretion.

We further noted that when the statute of limitations has run and service has been perfected as of thedate of the hearing on the motion to dismiss, a trial court abuses its discretion by not extending thetime for service and dismissing the complaint. Id. at 104; see also Brown v. Ameri Star, Inc., 884 So.2d 1065, 1067 (Fla. 2d DC A 2004) (noting that "it ordinarily is an abuse of discretion not to allowadditional time for service of the summonses even in the absence of a showing of good cause orexcusable neglect" if the order of dismissal is entered after the statute of limitations has run); Kohlerv. Vega-Maltes, 838 So. 2d 1249, 1250 (Fla. 2d DCA 2003) ("[W]here the statute oflirnitations hasrun and there has been no showing of good cause or excusable neglect, discretion should be exercisedin favor of giving the plaintiff an extension of time to accomplish service.").We conclude in the case before us that the circuit court er red in dismissing Miranda's complaint withprejudice. First, dismissal with prejudice was not one of the options available to the court under rule1.070(j). The court could have directed that service be perfected within a certain amount of time, itcould have dismissed the action without prejudice, or it could have dismissed the defendants who hadnot been served. Chaffin, 793 So. 2d at 103-04.Further, the circuit court's fmdings in its order reflect that the four-year statute of limitations had runon Miranda's timely-flied claims when the court entered its order dismissing the complaint.! Inaddition, Miranda had obtained service on each of the defendants by the time of the hearing on themotion to dismiss. Under those circumstances, it was an abuse of discretion to dismiss the complaint,and the circuit court should have extended the time for service. Brown, 884 So. 2d at 1067; Kohler,838 So. 2d at 1250; Chaffin, 793 So. 2d at 104.Although we understand the circuit court's need to manage its docket, rule 1.070(j) was not intendedto operate as a sanction or to result in the dismissal of a claim with prejudice on technical grounds."[T]he purpose of Ru1e 1.070(j) is to speed the progress of cases on the civil docket, but not to givedefendants a 'free' dismissal with prejudice." Chaffin, 793 So. 2d at 104 (quoting Skrbic v. QCRCAssocs. Corp., 761 So. 2d 349, 354 (Fla. 3d DCA 2000) (Cope, J., concurring in part and dissenting inpart)). The dismissal of the complaint under rule 1.070(j) after the expiration of the statute oflimitations is inconsistent with Florida's long-standing policy in favor or resolving disputes on theirmerits. Brown, 884 So. 2d at 1067. In addition, Miranda is proceeding pro se and is incarcerated. Theadditional time he took to perfect service on the Appellees is, thus, not extraordinary.Accordingly, we reverse the order of dismissal with prejudice and remand for further proceedingsconsistent with this opinion. Our decision does not impact the other grounds for dismissal raised byAppellees in their motion to dismiss, which were not addressed by the circuit court in its order.Reversed and remanded. (NORTIICUIT and SILBERMAN, JJ., Concur.)

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GUSTAVO MIRANDA, Appellant, v. STEVEN YOUNG, JACK B .. http://www.floridalawweekly.com.newsystem.showfile.php?from

lAlthough the complaint is not the model of clarity, the allegations sound in negligence, battery,malicious prosecution, and excessive and unjustified use of force, with each of those claims fallingunder the four-year statute oflimitations. See 95.11(3)(a), (0), (P), 768.28(13), Fla. Stat. (2002).Miranda cited 42 U.S.C. 1983 in his brief as the basis for his complaint for a civil rights violation,but he did not cite that statute in his complaint. State limitations periods for personal injury torts applyto a section 1983 action for personal injuries, and thus the four-year statute of limitations would stillapply under a section 1983 claim. Wallace v. Kato, 549 U.S. 384, 387 (2007).

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GLENDA SLY, as Personal Representative of the Estate ofJAMES T... http://www.floridalawweekly.conVnewsystenVshowfile.php?from

34 Fla. L. Weekly D2622aCivil procedure -- Trial court abused its discretion by dismissing complaint with prejudice forfailure to effect service ofprocess within 120 days from filing of complaint where statute oflimitations had expired and service had been obtained prior to hearing on motion to dismiss -In situations where statute oflimitations has run, trial court should normally exercise discretionin favor of giving plaintiff additional time to perfect serviceGLENDA SLY, as Personal Representative of the Estate of JAMES T. SLY, JR., Deceased, Appellant,v. FRANK McKEITHEN, Bay County Sheriff, BOARD OF COUNTY COMMISSIONS, BAYCOUNTY, FLORIDA; CORRECTIONS CORPORATION OF AMERICA; and MIKO DAVETIEHARRIS, Appellees. 1st District. Case No. ID09-0895. Opinion filed December 22,2009. An appealfrom the Circuit Court for Bay County. James B. Fensom, Judge. Counsel: Roy D. Wasson andAnnabel Majewski, of Wasson & Associates, Chartered, Miami; and Sam K. Zawahry, of the ZawahryFirm, P.A., Panama City, for Appellant. Clifford C. Higby and Halley A. Stark ofBryant & Higby,Chartered, Panama City, for Appellees, Corrections Corporation ofAmerica and Miko Davette Harris.(PER CURIAM.) Glenda Sly, as personal representative of the estate of James Sly, Jr., appeals froman order granting the motion of Corrections Corporation ofAmerica and Harris to dismiss for failureto comply with Florida Rule ofCivil Procedure 1.0700), which requires service of process to beeffected within 120 days from the filing ofthe complaint. Because we conclude that it was an abuse ofdiscretion for the trial court to dismiss the complaint with prejudice for failure to timely serve processwhen the statute of limitations had expired, we reverse the order dismissing Appellant's complaint withprejudice and remand the case for further proceedings.Appellant filed the initial complaint on April 5, 2007, just prior to the expiration of the applicablestatute of limitations. On July 25, 2007, before the expiration of the 120 days within which to serveprocess, Appellant filed a motion for extension oftime to serve process. Appellant filed two additionalmotions for extensions oftime to serve process on November 20, 2007, and January 22, 2008.Appellant never set a hearing for any of these motions; no order for an extension of time was enteredby the trial court for any of the three motions, nor was a summons issued. Appellant filed an amendedcomplaint on March 24,2008, and Appellees were fmally served on March 28,2008, nearly a yearafter the filing of the initial complaint.After Appellees fIled a motion to dismiss for failure to comply with the 120-day requirement, the trialcourt dismissed the case with prejudice, declining to exercise discretion to permit Appellant additionaltime to perfect service, and fmding that Appellant failed to demonstrate good cause or excusableneglect for the delay. The dismissal with prejudice precluded Appellant from refIling due to theexpiration of the statute of limitations.Under Rule of Civil Procedure 1.0700), if the initial process and initial pleading is not served upon thedefendant within 120 days after the fIling of the initial pleading, and a showing of good cause orexcusable neglect is not made,! the trial court has the discretion to (1) direct that service be effectedwithin a specified time; (2) drop that defendant as a party; or (3) dismiss the action without prejudice.See Thomas v. Silvers, 748 So. 2d 263,264-65 (Fla. 1999).Rule 1.0700) was amended in 1999 in order to broaden the trial court's discretion to allow anextension of time for service of process"even when good cause has not been shown." Carter v.Winn-Dixie Store, Inc., 889 So. 2d 960,961 (Fla. 1st DCA 2004) (quoting Britt v. City ofJacksonville, 874 So. 2d 1196, 1197 (Fla. 1st DCA 2004) (emphasis added). Prior to the amendments,

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GLENDA SLY, as Personal Representative of the Estate ofJAMES T... http://www.floridalawweekly.cominewsystemishowtiIe.php?froms

application of Rule 1.0700) often resulted in harsh consequences: "such as where noncompliancetriggered dismissal without prejudice, but expiration of the statute of limitations would precluderefiling of the action. Thus, in such a situation, dismissal for procedural noncompliance could have thepractical effect of dismissal with prejudice." Totura & Co. v. Williams, 754 So. 2d 671, 677 (Fla.2000) (citing Amendment to Florida Rule ofCivil Procedure l.070(j)-Time Limitfor Service, 720 So.2d 505, 505 (Fla. 1998)) (internal citation omitted).In the order granting Appellees' motion to dismiss, the trial court found that Appellant had failed todemonstrate good cause or excusable neglect for the delay and service. The trial court then explicitlynoted that the statute of limitations had run and acknowledged that the ruling would terminate allfurther proceedings. In situations where the statute of limitations has run, the trial court shouldnormally exercise discretion in favor of giving the plaint iff additional time to perfect service. Chaffinv. Jacobson, 793 So. 2d 102, 104 (Fla. 2d DCA 2001) ("[T]he purpose of Rule 1.0700) is to speed theprogress of cases on the civil docket, but not to give defendants a 'free' dismissal with prejudice.")(quoting Skrbic v. QCRC Assocs. Corp., 761 So. 2d 349, 354 (Fla. 3d DCA 2000) (Cope, 1.,concurring in part and dissenting in part)). Where the statute of limitations has run, "[d]iscretion inthese circumstances must be exercised with the understanding that Florida has a longstanding policy infavor of resolving civil disputes on the merits." Id. Brown v. Ameri Star, Inc., 884 So. 2d 1065, 1067(Fla. 2d DCA 2004) (recognizing that the intent that of Rule 1.070(j) is to "serve as 'a casemanagement tool' and not as 'a severe sanction.' ") (citing Chaffin v. Jacobson, 793 So. 2d 102,103-04 (Fla. 2d DCA 2001)).Because the statute of limitations had run and service had been obtained prior to the hearing on themotion to dismiss, we conclude that the trial court abused its discretion in granting the motion todismiss. See Chaffin, 793 So. 2d at 104; see also, Kohler v. Vega-Maltes, 838 So. 2d 1249, 1250-51(Fla. 2d DCA 2003).Accordingly, we REVERSE and REMAND for further proceedings consistent with this opinion.(BARFIELD, CLARK and ROWE, 11., CONCUR.)

Ilf the plaintiff can demonstrate good cause or excusable neglect, then the trial court must grant anextension for time of service. See Fla. R. Civ. P. 1.070(j).

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District Court of Appeal of Florida, Third District. DERMA LIFT SALON, INC., a Florida corporation, B. G. Gross, M.D., and Francis Maschek, Petitioners, v.Honorable Edward SWANKO, Acting Circuit Court Judge, of the Eleventh Judicial Circuit,

Respondent. No. 82-1767. Oct. 5, 1982.

Defendants in medical malpractice action sought writ of prohibition. The District Court ofAppeal, Daniel S. Pearson, J., held that[ when trial court dismissed action without prejudice andlater denied motion for rehearing, its jurisdiction over the cause terminated and it could notthereafter vacate the order of dismissal.

Petition granted.

West Headnotesi l l tfKeyCite Citing References fo r this Headnote

Prohibition;, ,3141 Nature and Grounds 314k8 Grounds for Relief ,c>314k10 Want or Excess of Jurisdiction

, ci314k10(2) k. Particular Acts or Proceedings. Most Cited CasesWrit of prohibition was appropriate remedy for defendants who challenged jurisdiction of court

in final order in action after dismissing the action and denying rehearing.i l l EKeyCite Citing References fo r this Headnote, ~ 3 0 Appeal and Error ,,'30IlI Decisions Reviewable ,o'30IlICD) Finality of Determination

v, ~ ; 3 0 k 7 5 Final Judgments or Decrees JOk78 Nature and Scope of Decision

i "30k78(4) k. Judgment of Dismissal or Nonsuit. Most Cited Cases Appeal and Error @J KeyCite Citing References for this Headnote

(:30VII Transfer of Cause 30VII(A) Time of Taking Proceedings '," 30k343 Commencement of Period of Limitation

30k345.2 k. Petition for Rehearing or Bill of Review. Most Cited Cases(Formerly 30k345(2Trial court's order of dismissal, albe it without prejudice, was a final appealable order subject

to the further jurisdiction of the trial court only upon a timely-filed motion for rehearing or on thecourt's own initiative within the time for a rehearing motion and, when motion for rehearing wasdenied, trial court lost jurisdiction over the cause and could not later vacate its order ofdismissal. West's F.S.A. Rules Civ.Proc" Rules 1.530, 1.540.


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*1180 Harvey Richman, Miami Beach, fo r petitioners.No appearance for respondent.Before DANIEL S. PEARSON, FERGUSON and JORGENSON, JJ.

DANIEL S. PEARSON, Judge.i l l fir The petitioners, who are defendants below in a medical malpractice action, contendthat the trial court, having entered a final order dismissing the action and denied rehearing

thereon, lost jurisdiction over the action and should be prohibited from the further exercise ofjurisdiction. The remedy they seek is appropriate. City of St. Petersburg, Florida v. The CircuitCourt of the S ixth Judicial Circuit, -- - So.2d ---- (Fla. 2d DCA 1982) (Case No. 82-1372, opinionfiled July 14, 1982); State v. Gooding, 149 So.2d 55 (Fla. 1st DCA 1963).

On May 11, 1982, the trial court entered an order dismissing without prejudice an actionbrought by the plaintiff, Maria Oshiro, as personal representative of the estate of Jose Oshiro.The basis of the dismissal was that the plaintiff had persistently and continuously failed tocomply with rules of discovery and orders of the court to enforce discovery. Plaintiff's timelymotion fo r rehearing of this order of dismissal was denied on July 19, 1982. On July 20, 1982,the plaintiff filed a motion to set aside the order denying rehearing. On August 18, 1982, the trialcourt vacated the order denying rehearing and, sub silentio, vacated the order of dismissal byordering that the "litigation is reinstated and reopened and Plaintiff may go forward with thiscause of action."

i l l @The trial court's order of dismissal entered May 11, 1982, albeit "without prejudice,"was a final appealable order, Gries Investment Company v. Chelton, 388 SO.2d 1281 (Fla. 3dDCA 1980), subject to the *1181 further jurisdiction of the trial court only upon a timely filedmotion fo r rehearing under Florida Rule of Civil Procedure 1.530, see Snyder v. Gulf AmericanCorporation, 224 So.2d 405 (Fla. 2d DCA 1969), or on its own initiative within the time allowedfo r a rehearing motion. When the plaintiff's motion fo r rehearing was denied by the trial court onJuly 19, 1982, the trial court's jurisdiction over the cause terminated.m1City of St. Petersburg,Florida v. The Circuit Court of the Sixth Judicial Circuit, supra. See Nahoom v. Nahoom, 341.So.2d 257 (Fla. 3d DCA 1977); State v. Gooding, supra.FN1. The plaintiff's motion to set aside the order denying rehearing contained no allegationswhich could arguably bring it within Florida Rule ofCivil Procedure 1.540.

Accordingly, the petition for writ of prohibition is granted. The trial court is directed to quashits order of August 18, 1982, and to reinstate the order of dismissal. We assume it will not benecessary to issue the writ.Fla.App. 3 Dist.,1982.Derma Lift Salon, Inc. v. Swanko419 So.2d 1180
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District Court of Appeal of Florida, Fourth District. HAFT-GAINES COMPANY, a Delaware Corporation, Relator, v.The Honorable Thomas J. REDDICK, Judge of the Seventeenth Judicial Circuit, in and fo r Broward

County, Florida, Respondent.No. 77-844. Oct. 12, 1977.

After the parties to a civil action filed a stipulation fo r dismissal of that action and the CircuitCourt, Broward County, Thomas J. Reddick, J., dismissed the action with prejudice, the courtheld that it retained equity jurisdiction to entertain a motion to enforce a settlement agreementbetween the parties. On an application fo r a writ of prohibition, the District Court of Appeal,Letts, J., held that the trial court's jurisdiction terminated after the final order of dismissal.Writ of prohibition granted.

West HeadnotesYl KeyCite Citing References fo r this Headnote

,307A Pretrial Procedure ." 307AlII Dism ssa I 307AIII(A) Voluntary Dismissal . 307Ak517 Effect

i,'307Ak517.1 k. In General. Most Cited Cases (Formerly 307Ak517)

Trial court's jurisdiction over civil action terminated when it dismissed such action withprejudice on parties' motion, and court could not thereafter entertain motion to enforcesettlement agreement under which dismissal had been obtained. 30 West's F.S.A. Rules of CivilProcedure, rule 1.420.*818 Frank E. Maloney, Jr. of Fleming, O'Bryan & Fleming, Fort Lauderdale, fo r relator.Robert L. Shevin, Atty. Gen., Tallahassee, and Harry M. Hipler, Asst. Atty. Gen., West PalmBeach, fo r respondent.Howard I. Weiss of Levine & Fieldstone, P. A., Miami, fo r Steve Weil.LETTS, Judge.

The Writ of Prohibition is Granted.The facts are that the plaintiff and the defendant entered into an ou t of court settlement ofthis cause confirmed by letter.LEN1l In accordance with this settlement, attorneys fo r both sidesexecuted and entered into a "Stipulation fo r Dismissal" filed with the court which read in toto:

FN1. The terms and contents of this letter are disputed.

COME NOW the parties Steve Weil and Haft-Gaines Company by and through theirundersigned attorneys and stipulate that this action may be dismissed in accordance with FloridaRule of Civil Procedure 1.420 with prejudice to both parties.


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The disputed letter of settlement is not, and never was, a part of the record below, nor willwe permit it to become so on appeal. Pursuant to the stipulation set forth above, the court thenentered a final order on the basis thereof which simply said, "This action is dismissed ... withprejudice to both parties."No further pleadings were attempted until twenty-four days later when the plaintiff below fileda motion in the same cause to "compel return of property." As grounds, this motion set forth

that the defendant below had failed to give over certain property pursuant to the out of courtletter of settlement already referred to. Surprisingly, the prayer, at the conclusion of this motion,sought compensatory and punitive damages, costs and attorneys fees.Predictably, a motion to dismiss was filed in opposition and the trial court correctly grantedthe motion to dismiss noting that it was without jurisdiction but that its ruling was withoutprejudice to the plaintiff below "to file a new law suit."Four months after the original order of dismissal pursuant to the written stipulations therefor,the plaintiff below next filed in the same cause a "motion to enforce settlement agreement"which once again sought, in the prayer, compensatory and *819 punitive damages, fees and

costs. There then ensued a hearing relative to a further motion to dismiss whereat the courtconcluded that it had all along retained equity jurisdiction. An order was then entered setting thecause for jury trial.We hold that the trial court's jurisdiction terminated after the final order of dismissal,pursuant to the joint stipulation, both as to subject matter and person. Shelby Mutual InsuranceCompany v. Pearson, 236 So.2d 1 (Fla.1970). See also Cannon Sand a n g R Q ~ k Company v.Maule Industries, 203 So.2d 636 (Fla. 3rd DCA 1967).The Writ of Prohibition is hereby granted. The trial court has no jurisdiction and the scheduledjury trial may not take place.

ALDERMAN, C. J. , and DOWNEY, J. , concur.

Fla.App. 1977.Haft-Gaines Co. v. Reddick,350 So.2d 818END OF DOCUMENT

Supreme Court of Florida.


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EPSTEIN et al.v.

FERST et al.April 30, 1895.

Appeal from circuit court, Madison county, John F. White, Judge.Bill by Epstein & Bro. and Eckstein & Co. against M. Ferst & Co., F. R. Sweat, and T. T. Ellison.From the decree rendered, plaintiffs appeal. Affirmed.

West Headnotesj KeyCite Citing References fo r this Headnote.,,228 Judgment ;22811 By Confession

228k53 k. Confession After Action Brought in General. Most Cited Cases A clerk of a circuit court has no authority to enter judgment on confession, made withoutservice of process, when no suit was pending, without appearance by defendant, and without

proof of the execution of the confession of judgment.:2r KeyCite Citing References for this Headnote

;228 Judgment .,228XIII Merger and Bar of Causes of Action and Defenses ; ~ " ; 2 2 8 X I I I ( A ) Judgments Operative as Bar

;.-228k565 k. Judgment Without Prejudice. Most Cited Cases A decree stating that the same is without prejudice to a party will not support a plea of resjudicata as to such party.KeyCite Citing References for this Headnote186 Fraudulent Conveyances

.. 186I1I Remedies of Creditors and Purchasers,"18611I(C) Right of Action to Set Aside Transfer, and Defenses

186k241 Conditions Precedentl,:186k241(2) k. Necessity of Judgment. Most Cited Cases

Holders of void judgments are not judgment creditors and cannot attack conveyances madeby their debtors as fraudulent.

Syllabus by the Court1. A decree of a court of chancery stating that the same is without prejudice to a party is, as

to such party, the same as no decree, and will no t support a plea of res adjudicata, and thesame matters in issue in the original suit can be again heard and determined.


36/43

2. A plaintiff on November 2, 1885, filed a declaration with common counts, but no bill ofparticulars. No praecipe had been filed or process issued in the case, the declaration being thefirst paper filed. Together with such declaration was a paper which, after stating venue and titleof the cause, was in the following form: 'And now comes Farley R. Sweat, defendant in thiscause, and waiving process of summons, or other notice, and says that he acknowledges that heis indebted to the plaintiff [naming him] in the sum of five hundred and twenty-three 09-100dollars, with interest at seven per centum per annum from the first day of October, A. D. 1885,as alleged in his declarationi that he consents that the plaintiff have judgment for said sum, tobe entered on the first Monday in November, A. D. 1885. Oct. 31st, 1885. F. R. Sweat.' Theclerk, upon this paper, without proof of the execution of the same, or appearance of defendant,entered a judgment for the amount named in the paper. Held, that such judgment was withoutauthority of law, and was void.

3. Clerks of the circuit court in this state have no authority to enter judgments upon such aconfession as is set forth in the preceding headnote, made without service of process, when nosuit is pending, no appearance of defendant, and there is no proof of the execution of theconfession of judgment.

4. Parties having void judgments are not judgment creditors, so that they can attackfraudulent conveyances made by their debtors.*499 **414 J. N. Stripling, for appellants.*505 S. Pasco and C. W. Stevens, for appellees.*508 LIDDON, J.

Appellants filed their bill of complaint in the circuit court against the appellees. The respectivefirms of complainants alleged that they were judgment and execution creditors of the defendantF. R. Sweat, and the purpose of the bill was to set aside, as fraudulent against creditors, amortgage upon a stock of merchandise made by said Sweat to his codefendants Ferst & Co. Thedefendant T. T. Ellison was made a party because he had been appOinted a receiver inproceedings by Ferst & Co. to foreclose the said mortgage, and had, by virtue of an order of thecourt, taken possession of the mortgaged property. The complainants in the present case, upontheir own application, had been made parties defendant in the foreclosure proceedings of Ferst &Co. against Sweat, and had sought, as prior lienors and judgment creditors, to defeat themortgage upon substantially the same allegations of fraud as are contained in their bill ofcomplaint in the present case. In such proceedings they had filed an answer and a cross bill.Their answer, be

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