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Martini v. Young11/18/2005
Law Weekly D1123 (Fla. 4th DCA May 4, 2005); Hicks v. Hicks, 715 So. 2d 304 (Fla. 5th DCA 1998); G.B.B. Investments, Inc. v. Hinterkopf, 343 So. 2d 899 (Fla. 3d DCA 1977); Lehman v. Cloniger, 294 So. 2d 344 (Fla. 1st DCA 1974)(statutes and rules should be liberally construed to favor right of access to the courts under Florida Constitution).
Merits
The record in this case discloses that the genesis for this dispute arose on December 19, 2001, when the Martinis purchased a home from the Youngs, which is located at 617 Tortoise Way, Satellite Beach, Florida, for a purchase price of $261,000. The listing broker was Pastermack. The mortgage holder was Ivanhoe Financial Services, which assigned the mortgage to Union Planters. Union Planters continues to hold the first mortgage on the home, and the mortgage balance is in the neighborhood of $235,000. Prior to purchasing the home, the Martinis engaged a home inspector to inspect the premises. No defects were discovered, save for a spa which was not operational.
The Martinis alleged that almost immediately after closing on the home, they discovered serious latent defects in the property. There was a leaking roof and residual water, with evidence of defective repairs. The residual water in the walls produced toxic mold and caused health problems for Mrs. Martini and her children. The rear of the home around the swimming pool appeared to have sunk and was structurally unsound. The swimming pool cracked in numerous places and had other defects.
The Martinis retained the services of a structural engineer, who determined that the home could not be repaired at a reasonable cost and that the defects were too numerous and extensive to correct. Due to the health problems the family experienced, they were forced to move out of the home and incur dual living expenses. The home also went into foreclosure.
The Martinis hired an attorney, Albert Lagano, who filed suit against the appellees. However, the case did not move forward, at least in part because of Lagano's failure to file the amended counts and complaint as previously set forth.
At the February 4, 2003 hearing, Lagano appeared by telephone and represented to the court that he had been dismissed and that the Martinis intended to engage new counsel. He also said that the Martinis had picked up their file "about two -- even longer than that -- probably three months ago," and that he thought new counsel had been retained. He told the judge " t this point in time, I think they [defendants] are entitled to dismissal because we haven't amended." The only conclusion one may draw from the transcript of this hearing is that the Martinis were, de facto , unrepresented at the hearing, despite the trial court's finding that Lagano appeared on their behalf.
During the course of the hearing, the court discussed the six factors set out in Kozel v. Ostendorf, 629 So. 2d 817 (Fla. 1993), which may justify a dismissal of a cause of action for failure to prosecute the case. The court said it could go through the six factors "quickly" and found that the first two factors dealing with an attorney's disobedience was not relevant because of Lagano's representation that the Martinis had picked up their file and had discharged him. The judge also opined:
I understand Mr. Lagano has not technically been relieved, but on the other hand, I find that it's the client being personally involved in the act of disobedience rather than the act of the attorney that last precipitated this problem. I think the delay is indeed prejudicial because of the lengthy period of time that has transpired which is now approaching six months.
I find that ther
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