CITRUS COUNTY v. VAUGHN (1999)

This is the appeal of a non-final order denying Citrus County's [“County”] motion to dismiss Charles Vaughn's [“Vaughn”] lawsuit due to his failure to serve the county within 120 days after filing as required by Florida Rule of Civil Procedure 1.070(j).¹

Vaughn, a practicing attorney, acting pro se, filed a negligence action against the County on February 20, 1998.   Several months later, on behalf of Vaughn, Attorney D. Gray Thomas sent a demand letter to the County attorney.   That letter contained the following concerning service of process:

As you are probably aware, Mr. Vaughn has re-filed in Circuit Court in Citrus County, his action against the County relating to the matters that occurred in February 1994.   While we understand that the court found that our evidence did not rise to the high level of fault and policy necessary to sustain the federal claims, the proof presented at trial and the jury's critical extra-verdict note regarding the “unprofessional and ․ unethical invasion of his privacy” demonstrate that our proof is sufficient against the County to clearly prevail on a claim brought under § 768.28, Fla. Stat. That is the case under either or both of the theories of county liability for the negligence of its agents, and County liability for its agents' abuse of authority pursuant to the Florida Supreme Court's decision in McGhee v. Volusia County, a case with which I know you are familiar.

We have deferred serving process on the County in order to afford the County an opportunity to resolve this matter without the need for relitigation of this case by either party.   Absent resolution not later than June 5, 1998, we will have no choice but to proceed with service of process and litigation of the case.   As far as we are concerned, all of the discovery already has been completed and we would need nothing more than the filing of an answer to set the case for an expeditious trial.   As a result of all the foregoing, Mr. Vaughn has authorized us to settle this matter upon payment of $50,000.00.   Resolution of the matter on these terms would be fair and reasonable, and would avoid the expense of further litigation.

I look forward to the County's prompt response.

(Emphasis added.)

The 120-day time period in which to serve process as set forth in Florida Rule of Civil Procedure 1.070(j) expired on June 20, 1998.   Vaughn, however, did not obtain service of process on the County until two months later, on August 25, 1998.²  The County moved to dismiss the action for failure to make timely service.

In support of its motion to dismiss, the County argued that Vaughn had failed to show good cause as required by Rule 1.070(j) for his failure to effect timely service.   The County also pointed out that Mr. Thomas, who had sent the demand letter, was not attorney of record until the filing of Vaughn's response to the County's motion to dismiss.   The County asserted that no settlement negotiations could arguably excuse compliance with Rule 1.070(j) because it never responded to the letter.

Vaughn, relying upon Carlton v. Wal-Mart Stores, Inc., 621 So.2d 451 (Fla. 1st DCA 1993) took the position that because his demand letter solicited settlement discussions, he had good cause for his failure to timely serve the County.   Vaughn also argued that, because considerable discovery had taken place in a prior federal court case, the County had not been prejudiced by the delay in service.

This case presents two substantive issues.   First, does the amendment to Rule 1.070(j) adopted by the Florida supreme court in March 1999 apply to this case? ³  If not, did the lower court correctly rule that Vaughn showed the requisite “good cause” for failing to timely serve the complaint as required under the former version of the rule?

We have already answered the first question in the affirmative in Bacchi v. Manna of Hernando, Inc., 24 Fla. L. Weekly D962,743 So.2d 34, 1999 WL 218486 (Fla. 5th DCA Apr.16, 1999).   See also Foster v. Chung, 24 Fla. L. Weekly D1393, 738 So.2d 350 (Fla. 4th DCA 1999).   Motions for rehearing are pending before the supreme court on the so-called “retroactivity” issue.   Assuming the court does not alter the scope of application of the new rule, the lower court's decision not to dismiss must be sustained.

If the high court changes its view of the scope of the new rule and if this case were to be decided under the old rule, we would likely reverse.   Vaughn's reliance on the Carlton case is misplaced.   There, the court was faced with a settlement proposal that included a statement of intent to defer service and a request that the defendant advise the plaintiff if deferring service were not agreed to.   The Carlton court was evidently concerned about the defendant's “gotcha” tactics.   Here, on the other hand, the plaintiff did not ask for a response to his stated intention not to serve process.   Moreover, the letter indicated that process would be served before the 180 day deadline.   A bare, unilateral overture to settle is not good cause to fail to serve process timely.

AFFIRMED.

FOOTNOTES

1.   Jurisdiction is in question.   This court has taken the position that such an order is an appealable non-final order.  Meadows of Citrus County v. Jones, 704 So.2d 202, 203 n. 1 (Fla. 5th DCA 1998);  Mid-Florida Assoc., Ltd. v. Taylor, 641 So.2d 182 (Fla. 5th DCA 1994).   Other courts disagree.   See Thomas v. Silvers, 701 So.2d 389 (Fla. 3d DCA 1997).  Thomas is pending in the Supreme Court of Florida.

2.   The statute of limitations has expired and any dismissal under rule 1.070(j) effectively would be a dismissal with prejudice.

3.   Amendment to Florida Rule of Civil Procedure 1.070(j)-Time Limit for Service, 24 Fla. L. Weekly S109,--- So.2d ----, 1999 WL 106934 (Fla. Mar.4, 1999).

GRIFFIN, J.

W. SHARP and GOSHORN, JJ., concur.