GLENDA SLY, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF JAMES T. SLY, JR., DECEASED, APPELLANT,
v.
FRANK MCKEITHEN, BAY COUNTY SHERIFF, BOARD OF COUNTY COMMISSIONS, BAY COUNTY, FLORIDA; CORRECTIONS CORPORATION OF AMERICA; AND MIKO DAVETTE HARRIS, APPELLEES

Fla. 1st DCA | 2009-12-22
No. 1D09-0895
BARFIELD, CLARK and ROWE, JJ., concur.
27 So. 3d 86 Florida District Court of Appeal, First District (2009) Positive Treatment
Cited by 11 cases

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Holding

The trial court abused its discretion by dismissing the complaint with prejudice for failure to timely serve process when the statute of limitations had expired.


Headnotes

[1] A trial court abuses its discretion by dismissing a complaint with prejudice for failure to timely serve process when the statute of limitations has expired.

[2] Florida Rule of Civil Procedure 1.070(j) grants trial courts discretion to direct service, drop a defendant, or dismiss an action without prejudice for failure to serve p…

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Facts & Procedural History

Appellant filed a complaint just before the statute of limitations expired and sought multiple extensions to serve process, but none were granted. App…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

Glenda Sly, as personal representative of the estate of James Sly, Jr., appeals from an order granting the motion of Corrections Corporation of America and Harris to dismiss for failure to comply with Florida Rule of Civil Procedure 1.070(j), which requires service of process to be effected within 120 days from the filing of the complaint. Because we conclude that *87it was an abuse of discretion for the trial court to dismiss the complaint with prejudice for failure to timely serve process when the statute of limitations had expired, we reverse the order dismissing Appellant’s complaint with prejudice and remand the case for further proceedings.

Appellant filed the initial complaint on April 5, 2007, just prior to the expiration of the applicable statute of limitations. On July 25, 2007, before the expiration of the 120 days within which to serve process, Appellant filed a motion for extension of time to serve process. Appellant filed two additional motions for extensions of time 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 entered by the trial court for any of the three motions, nor was a summons issued. Appellant filed an amended complaint on March 24, 2008, and Appellees were finally served on March 28, 2008, nearly a year after the filing of the initial complaint.

After Appellees filed a motion to dismiss for failure to comply with the 120-day requirement, the trial court dismissed the case with prejudice, declining to exercise discretion to permit Appellant additional time to perfect service, and finding that Appellant failed to demonstrate good cause or excusable neglect for the delay. The dismissal with prejudice precluded Appellant from refiling due to the expiration of the statute of limitations.

Under Rule of Civil Procedure 1.070(j), if the initial process and initial pleading is not served upon the defendant within 120 days after the filing of the initial pleading, and a showing of good cause or excusable neglect is not made,1 the trial court has the discretion to (1) direct that service be effected within 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 1.070(j) was amended in 1999 in order to broaden the trial court’s discretion to allow an extension 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 of Jacksonville, 874 So.2d 1196, 1197 (Fla. 1st DCA 2004)) (emphasis added). Prior to the amendments, application of Rule 1.070(j) often resulted in harsh consequences: “such as where noncompliance triggered dismissal without prejudice, but expiration of the statute of limitations would preclude refiling of the action. Thus, in such a situation, dismissal for procedural noncompliance could have the practical effect of dismissal with prejudice.” Totura & Co. v. Williams, 754 So.2d 671, 677 (Fla.2000) (citing Amendment to Florida Rule of Civil Procedure 1.070(j)-Time Limit for 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 to demonstrate good cause or excusable neglect for the delay and service. The trial court then explicitly noted that the statute of limitations had run and acknowledged that the ruling would terminate all further proceedings. In situations where the statute of limitations has run, the trial court should normally exercise discretion in favor of giving the plaintiff additional time to perfect service. Chaffin v. Jacobson, 793 So.2d 102, 104 (Fla. 2d DCA 2001) (“[T]he purpose of Rule 1.070(j) is to speed the progress of cases on the civil docket, but not to give defendants a ‘free’ dismissal *88with prejudice.”) (quoting Skrbic v. QCRC Assocs. Corp., 761 So.2d 349, 354 (Fla. 3d DCA 2000) (Cope, J., concurring in part and dissenting in part)). Where the statute of limitations has run, “[discretion in these circumstances must be exercised with the understanding that Florida has a longstanding policy in favor 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 case management 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 the motion to dismiss, we conclude that the trial court abused its discretion in granting the motion to dismiss. 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, JJ., concur.


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Cited By

  • Powell v. Madison Cnty. Sheriff's Dep't, 100 So. 3d 753 (Fla. 1st DCA 2012)
    …in cases such as Chaffin v. Jacobson, 793 So. 2d 102 (Fla. 2d DCA 2001), and Britt v. City of Jacksonville, 874 So. 2d 1196 (Fla. 1st DCA 2004). The appellant contends that the present case is controlled by this court’s decision in Sly v. McKeithen, 27 So. 3d 86 (Fla. 1st DCA 2009). In both Chaffin and Britt dismissals due to untimely service were overturned on appeal, where the statute of limitations would preclude refiling. The appellate court in Chaffin indicated that the trial court’s discretion should…
  • Fernandez v. Cohn, 54 So. 3d 1040 (Fla. 3d DCA 2011)
    …in favor of giving the plaintiff an extension of time to accomplish service. [*1043] Id. (quoting Skrbic v. QCRC Assocs. Corp., 761 So. 2d 349, 354 (Fla. 3d DCA 2000) (Cope, J., concurring in part and dissenting in part)); see also Sly v. McKeithen, 27 So. 3d 86, 87 (Fla. 1st DCA 2009) (citing Skrbic as holding that “[i]n situations where the statute of limitations has run, the trial court should normally exercise discretion in favor of giving the plaintiff additional time to perfect service”); Miranda, 19…
  • Vennila Amaran v. Aubyn Marath, M.D., 34 So. 3d 88 (Fla. 3d DCA 2010)
    …amend the complaint in our case — punctuated by a single 120-day extension of time to serve Dr. Marath, obtained on one occasion during the first few months of those years, see supra at 93 plaintiffs counsel, in the recent case of Sly v. McKeithen, 27 So. 3d 86 (Fla. 1st 2009), evidenced his intent to pursue the defendants, Miko Davette Harris and Corrections Corporation of America, during the entirety of the one-year period from the date the complaint was filed to the date the defendants were served, by f…
    1 / 2

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