LIFETIME GUARANTEE ADMINISTRATORS, LLC and JOSEPH REGAN v. MITCHELL KAMINSKEY

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
LIFETIME GUARANTEE ADMINISTRATORS, LLC and JOSEPH
REGAN,
Appellants,
v.
MITCHELL KAMINSKEY, MEGAN BROWN, and PERFORMANCE
INSURANCE GROUP, INC., et al.,
Appellees.
No. 4D18-3679
[August 14, 2019]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Mily Rodriguez Powell, Judge; L.T. Case No. CACE 15-
017984 (03).
Elaine D. Walter and Yvette R. Lavelle of Boyd Richards Parker &
Colonnelli, PL, Miami, and John Richards of Boyd Richards Parker &
Colonnelli, PL, Fort Lauderdale, for appellants.
James William Beagle of James Beagle, P.A., Fort Lauderdale, for
appellees Megan Brown and Performance Insurance Group, Inc.
CONFESSION OF ERROR
PER CURIAM.
Lifetime Guarantee Administrators, LLC and Joseph Regan
(“appellants”) sued Mitchell Kaminskey, Megan Brown, Performance
Insurance Group (“Performance”) and others alleging they committed
fraud, breached fiduciary duties, converted funds, and intentionally
interfered with an advantageous business relationship. The trial court
severed the claims against Brown and Performance from those brought
against all other defendants. Subsequently, Brown and Performance
moved to dismiss the case for lack of prosecution; however, appellants
were never given the required notice that there was no record activity.
Appellants filed a response to the motion to dismiss, but the trial court
granted the motion and issued an order of dismissal.
Under Florida Rule of Civil Procedure 1.420(e), if there is no record
activity for a period of ten months, an interested person, the court, or the
clerk of the court may serve notice to the parties. See Fla. R. Civ. P.
1.420(e). If there is no record activity within sixty days immediately
following this notice, then the action shall be dismissed. See id.; accord
Swait v. Swait, 958 So. 2d 552, 554 (Fla. 4th DCA 2007).
Here, the trial court erred in entering an order of dismissal because the
appellants were not given the required notice. Rule 1.420(e) requires
serving notice to give the party a “reasonable time thereafter in which to
engage in record activity in order to preclude dismissal.” Chemrock Corp.
v. Tampa Elec. Co., 71 So. 3d 786, 792 (Fla. 2011); accord DRD Marine
Crop. v. Bryd Techs., Inc., 77 So. 3d 867, 869 (Fla. 4th DCA 2012); see also
Swait, 958 So. 2d at 553-54 (“[E]ven if the absence of record activity has
continued for more than a year, an action cannot be dismissed under the
amended rule without the required notice and opportunity to re-commence
prosecution.”). Based upon our independent review of the record and
Brown and Performance’s proper confession of error, we reverse the trial
court’s order and remand with directions to vacate the order of dismissal.
Reversed and remanded with instructions.
MAY, CIKLIN and KLINGENSMITH, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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