MARTIN SCHAFFER AND LINDA E. SCHAFFER, PETITIONERS,
v.
FIRST BANK, A MISSOURI STATE CHARTERED BANK, AS SUCCESSOR BY MERGER TO COAST BANK OF FLORIDA, STEEPLECHASE PROPERTY OWNERS' ASSOCIATION, INC., A FLORIDA CORPORATION, JP MORGAN CHASE BANK, N.A., A NATIONAL BANKING ASSOCIATION, AND UNKNOWN TENANTS, RESPONDENTS

Fla. 4th DCA | 2011-10-26
No. 4D11-3406
GROSS, DAMOORGIAN and LEVINE, JJ., concur.
73 So. 3d 829 Florida District Court of Appeal, Fourth District (2011)

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Synopsis

Petitioners Schaffer sought a writ of certiorari to quash a trial court order reinstating a foreclosed foreclosure case after administrative dismissal for lack of prosecution. The Fourth District Court of Appeal upheld the reinstatement, holding that the trial court did not exceed its jurisdiction because the bank was not provided adequate notice and opportunity to recommence prosecution before dismissal, as required by Rule 1.420(e).


Holding

The trial court did not act in excess of its jurisdiction in reinstating the case. The court held that under the current version of Rule 1.420(e), the trial court retains jurisdiction to reinstate a dismissed case, and such jurisdiction is not limited by a thirty-day deadline. The critical requirement is that the party receive notice and an opportunity to recommence prosecution before dismissal occurs.


Headnotes

[1] A trial court has jurisdiction to reinstate a case dismissed for lack of prosecution when the dismissal occurred without prior notice to the claimant and an adequate oppo…

[2] A motion to reinstate a case dismissed for failure to prosecute is not required to be served within thirty days of the dismissal order.

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Key Quotes

“Effective October 1, 1968, the Florida Supreme Court removed the italicized sentence, which had been read to limit the trial court's subject matter jurisdiction to reinstate a case following dismissal.”

Establishes that the thirty-day requirement for reinstatement was removed from the rule in 1968, eliminating any jurisdictional deadline.

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Facts & Procedural History

A foreclosure case was administratively dismissed on April 7, 2011, for failure to prosecute. The bank moved to reinstate the case on May 26, 2011. Th…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

Martin and Linda Schaffer petition for a writ of certiorari seeking to quash the Palm Beach circuit court’s August 18, 2011, order granting the bank’s motion to reopen this foreclosure case following a dismissal for lack of prosecution. See Fla. R. Civ. P. 1.420(e) (providing a procedure for dismissal for “Failure to Prosecute”). We deny the petition.

The foreclosure case was administratively dismissed on April 7, 2011. The bank moved to reinstate on May 26, 2011. In the motion, the bank’s attorney explained that he had filed a Notice of Change of Firm Name and Address on May 1, 2009. Despite this, on July 19, 2010, the court mailed the Motion, Notice, and Order of Dismissal — which advised of the lack of record activity and that dismissal would occur if no record activity occurred within sixty days — to the incorrect address.

Petitioners argue that certiorari jurisdiction lies because the trial court acted in excess of its jurisdiction where the motion to reinstate was not served within thirty days of the dismissal. See Fla. R. Civ. P. 1.420 (Author’s Comment ¶ 9); Wilds v. Permenter, 228 So.2d 408, 409 (Fla. 4th DCA 1969) (holding that under the Rule (as drafted in 1968) a court lost subject matter jurisdiction to reinstate a case following dismissal for failure to prosecute if a motion was not served within one month of dismissal).

The original version of the rule, which was the rule applied in Wilds, provided:

(e) Failure to Prosecute. All actions in which it does not affirmatively appear from some action taken by filing of pleadings, order of court or otherwise that the same is being prosecuted for a period of one year shall be deemed abated for want of prosecution and shall be dismissed by the court on its own motion or on motion of any interested person, whether a party to the action or not, after notice to the parties; provided that actions so dismissed may be reinstated on motion for good cause, such motion to be served by any paHy within one month after such order of dismissal.

Fla. R. Civ. P. 1.420(e) (1968) (emphasis added). Effective October 1, 1968, the Florida Supreme Court removed the italicized sentence, which had been read to limit the trial court’s subject matter jurisdiction to reinstate a case following dismissal. In re Fla. R. Civ. P., 211 So.2d 206 (Fla.1968).1

*831In 2005, the Florida Supreme Court amended Subdivision 1.420(e) “to provide that an action may not be dismissed for lack of prosecution without prior notice to the claimant and adequate opportunity for the claimant to re-commence prosecution of the action to avert dismissal.” Fla. R. Civ. P. 1.420 (Committee Notes, 2005 Amendment); In re Amendments to the Fla. Rules of Civil Procedure, 917 So.2d 176, 177 (Fla.2005). Rule 1.420(e) requires notice and an opportunity to recommence prosecution before dismissal. Swait v. Swait, 958 So.2d 552, 553-54 (Fla. 4th DCA 2007).

The bank was not provided notice or an opportunity to recommence prosecution of the case before the dismissal. The trial court was not without jurisdiction to reinstate the case under these circumstances. The petition is without merit.

Petition denied.

GROSS, DAMOORGIAN and LEVINE, JJ., concur.


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