Coral Gables Imports, Inc. v. Suarez

Third District Court of Appeal
State of Florida
Opinion filed April 26, 2017.
Not final until disposition of timely filed motion for rehearing.
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No. 3D16-849
Lower Tribunal No. 04-20174
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Coral Gables Imports, Inc.,
Appellant,
vs.
Ricardo Suarez,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Norma S.
Lindsey, Judge.
Jesse Dean-Kluger, P.A., and Jesse Dean-Kluger, for appellant.
MSP Recovery Law Firm and John H. Ruiz, Christine M. Lugo, and Shayna
K. Hudson, for appellee.
Before SUAREZ, C.J., and FERNANDEZ, and SCALES, JJ.
FERNANDEZ, J.
Coral Gables Imports, Inc. appeals the trial court’s entry of an order granting
appellee Ricardo Suarez’s Amended Motion to Vacate Order of Dismissal for Lack
of Prosecution. We affirm because Suarez correctly moved to vacate the dismissal
order as void, pursuant to Florida Rule of Civil Procedure 1.540(b)(4),1 where the
trial court entered the dismissal order without notice and the record reflected
record activity.
This case arose from a Notice of Lack of Prosecution issued in accordance
with the requirements of Florida Rule of Civil Procedure 1.420(e). Suarez
initiated a class action suit against Coral Gables Imports on September 23, 2004.
On August 14, 2014, the Clerk of the Eleventh Judicial Circuit produced and
docketed its Notice of Lack of Prosecution in which it advised the trial court that
no record activity had occurred in the case for the proceeding ten months. The trial
court signed and served the Notice upon the parties on October 22, 2014.
On September 11, 2014, unbeknownst to the trial court when it signed and
served the October 22, 2014 Notice, Suarez had filed a Notice of Change of
Address. The filing of the Notice of Change of Address had a twofold effect.
Since the Notice of Lack of Prosecution had been produced on August 14, 2014,
approximately one month before Suarez changed his address, the Notice the trial
court served on October 22, 2014 would not have reached Suarez because it would
have been delivered to his old address.
1 In his Amended Motion to Vacate Order of Dismissal for Lack of Prosecution,
Suarez did not cite to rule 1.540(b)(4). His grounds for relief, however, fall
squarely under this rule.
2
Moreover, the Notice of Change of Address would have satisfied the record
activity requirement of rule 1.420(e), thereby precluding dismissal of the action for
lack of prosecution. See Chemrock Corp. v. Tampa Elec. Co., 71 So. 3d 786 (Fla.
2011)(holding that any filing of record during the applicable time frame is
sufficient to preclude dismissal).
There was no appearance at the December 4, 2014 hearing on the Notice of
Lack of Prosecution. The trial court dismissed the action without prejudice for lack
of prosecution on December 4, 2014.
Suarez moved to vacate the order of dismissal on January 27, 2016,
approximately fourteen months after dismissal of the action. On February 1, 2016,
Suarez filed an Amended Motion to Vacate Order of Dismissal for Lack of
Prosecution. Suarez argued that he did not receive the trial court’s Notice of Lack
of Prosecution and Notice of Hearing on the trial court’s Motion to Dismiss for
Lack of Prosecution. Suarez further argued that there was record activity, namely
his Notice of Change of Address, within the sixty-day period following the trial
court’s Notice. The trial court granted the amended motion on March 8, 2016.
The standard of review for an order that rules on a motion for relief from
judgment filed under Florida Rule of Civil Procedure 1.540(b) is whether there has
been an abuse of the trial court’s discretion. Foche Mort., LLC v. CitiMortgage,
Inc., 163 So. 3d 525, 526 (Fla. 3d DCA 2015). Florida Rule of Civil Procedure
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1.540(b) provides grounds for relief from a final judgment, decree, order, or
proceeding when the judgment or degree is void. Rule 1.540(b) specifically
provides:
(b) Mistakes; Inadvertence; Excusable Neglect; Newly
Discovered Evidence; Fraud; etc. On motion and upon such
terms as are just, the court may relieve a party or a party's legal
representative from a final judgment, decree, order, or proceeding
for the following reasons: (1) mistake, inadvertence, surprise, or
excusable neglect; (2) newly discovered evidence which by due
diligence could not have been discovered in time to move for a
new trial or rehearing; (3) fraud (whether heretofore denominated
intrinsic or extrinsic), misrepresentation, or other misconduct of an
adverse party; (4) that the judgment or decree is void; or (5) that
the judgment or decree has been satisfied, released, or discharged,
or a prior judgment or decree upon which it is based has been
reversed or otherwise vacated, or it is no longer equitable that the
judgment or decree should have prospective application. The
motion shall be filed within a reasonable time, and for reasons (1),
(2), and (3) not more than 1 year after the judgment, decree, order,
or proceeding was entered or taken. A motion under this
subdivision does not affect the finality of a judgment or decree or
suspend its operation. This rule does not limit the power of a court
to entertain an independent action to relieve a party from a
judgment, decree, order, or proceeding or to set aside a judgment
or decree for fraud upon the court.
Writs of coram nobis, coram vobis, audita querela, and bills of
review and bills in the nature of a bill of review are abolished, and
the procedure for obtaining any relief from a judgment or decree
shall be by motion as prescribed in these rules or by an
independent action.
(emphasis added).
Suarez correctly argues on appeal that the judgment is void and that the one-
year limitation to file a motion to vacate is inapplicable under rule 1.540(b)(4). In
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De La Osa, this Court affirmed the trial court’s order that vacated a dismissal
where the plaintiff neither received notice to appear for trial nor a copy of the
dismissal order. De La Osa v. Wells Fargo Bank, N.A., 208 So. 3d 259 (Fla. 3d
DCA 2016). We held on motion for rehearing en banc in that case that rule
1.540(b)(4) applies to final orders of dismissal and concluded that the final order
was void. Id. at 264-65. The same reasoning applies here such that the one-year
limitation to file a motion to vacate does not apply. The rule instead requires the
motion to be filed within a reasonable time. Thus, Suarez’s motion to vacate filed
approximately fourteen months after dismissal of the action was filed within a
reasonable time.
We therefore affirm the order that vacated the dismissal. Suarez correctly
moved to vacate the dismissal order as void, pursuant to Florida Rule of Civil
Procedure 1.540(b)(4), where the court entered the dismissal order without notice
and the record reflected record activity.
Affirmed.
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