final until disposition of timely filed motion for rehearing.
Appeal from the Circuit Court for Miami-Dade County, Norma S.
Lindsey, Judge. Lower Tribunal No. 04-20174
Dean-Kluger, P.A., and Jesse Dean-Kluger, for appellant.
Recovery Law Firm and John H. Ruiz, Christine M. Lugo, and
Shayna K. Hudson, for appellee.
SUAREZ, C.J., and FERNANDEZ, and SCALES, JJ.
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),  where the trial court entered the
dismissal order without notice and the record reflected
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,
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.
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).
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
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.
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 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)
(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 ...