PAUL S. BERGER, APPELLANT,
v.
HENRY L. PENIA, APPELLEE

Fla. 2d DCA | 1992-03-13
No. 91-01056
RYDER and PATTERSON, JJ., concur.
596 So. 2d 1126 Florida District Court of Appeal, Second District (1992) Positive Treatment
Cited by 2 cases

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Synopsis

Paul Berger appealed the dismissal of his attorney's fees action for failure to prosecute after the case was transferred and consolidated with another related case. The Florida District Court of Appeal reversed the dismissal, holding that the appellant should not have been penalized for the clerk's failure to maintain proper case file records and the court's consolidation order.


Holding

The court reversed the dismissal, holding that the appellant should not be penalized for the clerk's failure to properly file documents in the 1988 case file when the cases were consolidated and all pleadings referenced both case numbers. The court ruled that the existence of record activity in the consolidated case, even if not in the separate case file, precluded dismissal for failure to prosecute.


Headnotes

[1] A case may not be dismissed for failure to prosecute when pleadings were filed and docketed in a consolidated case, even if not in the specific case file that was subsequ…

[2] A court may consolidate separate actions arising from the same facts, even if assigned to different judges.

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Key Quotes

“Although the two cases were assigned to different circuit judges, the judge that entered the order consolidating the cases had jurisdiction to enter the order.”

Establishes the validity of the consolidation order despite cases being assigned to different judges

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Facts & Procedural History

Berger filed an action for attorney's fees against Penia in Dade County in February 1986. In 1988, the case was transferred to Hillsborough County. Pe…

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Opinion of the Court
SCHOONOVER, Chief Judge.

SCHOONOVER, Chief Judge.

The appellant, Paul S. Berger, challenges a final judgment dismissing his action against the appellee, Henry L. Penia, for failure to prosecute. We reverse.

On February 12, 1986, the appellant filed an action in Dade County, Florida, seeking to recover attorney’s fees from the appel-lee. In 1988, one of the appellee’s many motions to transfer venue to Hillsborough County was granted. The case was transferred to Hillsborough County and assigned case number 88-16355. The appel-lee then filed a motion seeking to consolidate another action pending in Hillsbor-ough County, case number 85-10690, with case number 88-16355. The 1985 case arose out of an action for attorney’s fees brought against the appellee by the appellant’s co-counsel. In that action, the appel-lee filed a third party action against several attorneys, including the appellant. The judge assigned to the 1985 case granted the appellee’s motion to consolidate. From that time on every pleading filed by the appellant contained both case numbers and indicated both actions in the style of the pleadings.

Although the appellant pursued case number 88-16355, the clerk placed all pleadings into the 1985 case file and after more than a year elapsed without any pleading being filed in the 1988 case, it was dismissed for failure to prosecute. The appellant filed a motion to set aside and vacate the judgment of dismissal contending that he was not notified of the dismissal until he appeared for a hearing in the trial division handling the 1985 case. After the judge assigned to the 1988 case granted the appellant’s motion, the appellee moved to vacate the order because he did not have proper notice of the hearing to consider the motion. The appellee’s motion was granted, and the appellant filed a timely notice of appeal from the order dismissing the action for failure to prosecute.

It is apparent from the record that both of the cases mentioned herein arose from the same facts and that both the appellant and the appellee at various stages of the proceedings understood that the cases were to be treated as one. In the original Dade County case, the appellee filed a motion alleging that the case should be transferred and consolidated with the Hillsborough County case. The Dade County order transferring the case also stated that the case should be consolidated with the 1985 case pending in Hillsborough County. Once the case was in fact transferred, the appellee moved for and received an order granting a consolidation. The appellant’s pleadings indicated both actions in the style of the pleadings and referenced both case numbers.

Although the two cases were assigned to different circuit judges, the judge that entered the order consolidating the cases had jurisdiction to enter the order. Pantoja v. Reliable Trucking, Inc., 585 So. 2d 955 (Fla. 4th DCA 1991). Furthermore, the fact that case number 88-16355 did not show record activity for more than a year was not the fault of the appellant. A copy of the order granting the appellee’s motion to consolidate the cases, as well as all pleadings which contained the 1988 case number, should have been filed in the 1988 case file. The uncertainty caused by the failure to do so should not have resulted in the dismissal of the action. See Megdell v. Adeff, 296 So. 2d 596 (Fla. 3d DCA 1974).

We reject the appellee’s contention that the court did not abuse its discretion because the appellant did not show cause at least five days before the hearing on the order to show cause. The record does not reflect that there was a hearing for the purpose of considering the dismissal and the appellant contends that he did not even know the case had been dismissed until he attended a hearing in the 1985 case. Additionally, since there was record activity in the case, although not in the case file, it was not necessary to show cause why the action should not be dismissed. Del Duca v. Anthony, 587 So. 2d 1306 (Fla.1991).

We, accordingly, reverse and remand with instructions to reinstate the appellant’s cause of action originally filed in case number 88-16355.

Reversed and remanded with instructions.

RYDER and PATTERSON, JJ., concur.


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Citator

Cited By

  • Royce Glenn Harper v. State, 632 So. 2d 104 (Fla. 1st DCA 1994)
    …, 603 So. 2d 642 (Fla. 5th DCA 1992); Goodwin v. State, 600 So. 2d 1310 (Fla. 5th DCA 1992); Sanchez v. State, 600 So. 2d 1256 (Fla. 2d DCA 1992); Jones v. State, 597 So. 2d 425 (Fla. 2d DCA), review denied, 604 So. 2d 487 (Fla.1992); Jory v. State, 596 So. 2d 1126 (Fla. 5th DCA 1992); Morrison v. State, 596 So. 2d 535 (Fla. 5th DCA 1992). In so deciding, we recognize that this court apparently rejected a similar argument on a direct appeal in Perryman v. State, 608 So. 2d 528 (Fla. 1st DCA 1992), review deni…
  • Jory v. State, 699 So. 2d 820 (Fla. 5th DCA 1997)
    …nce. On appeal, this court affirmed the defendant’s conviction, but reversed his sentence based upon the then newly issued opinions in Flowers v. State, 586 So. 2d 1058 (Fla.1991) and Karchesky v. State, 591 So. 2d 930 (Fla.1992). See Jory v. State, 596 So. 2d 1126 (Fla. 5th DCA 1992). On remand, the trial court resentenced the defendant to a term of 150 years’ imprisonment. The defendant appealed this departure sentence, and we affirmed. See Jory v. State, 647 So. 2d 152 (Fla. 5th DCA 1994). However, the supr…

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