Rinconcito Latino Cafeteria, Inc., and Jose M. Moreno, Appellants,
Jose A. Ocampos, Appellee.
final until disposition of timely filed motion for rehearing.
Appeal from a non-final order from the Circuit Court for
Miami-Dade County, Lower Tribunal No. 17-5391, Maria de Jesus
Avelino J. Gonzalez, P.A. and Avelino J. Gonzalez, for
Rose (Hollywood); Eddy Marban, for appellee.
SCALES, LINDSEY and GORDO, JJ.
Latino Cafeteria, Inc. and Jose Moreno appeal the trial
court's order granting Jose Ocampos' motion to set
aside the order dismissing the case for lack of prosecution.
Because the trial court failed to conduct an evidentiary
hearing before granting the motion, we reverse and remand.
October 18, 2017, Appellee filed his First Amended Complaint
for minimum wage violation against Rinconcito Latino
Cafeteria, Inc. and individual liability against Jose Moreno.
On November 9, 2017, Appellee filed his Notice of Taking
Depositions, which was the last record filing before the case
became dormant for eleven months. On October 12, 2018, the
lower court issued a Notice of Lack of Prosecution and
ordered the parties to appear for a hearing on the
court's motion to dismiss for lack of prosecution.
Appellee failed to appear at the noticed hearing on December
6, 2018, and despite there having been record
activity in the case following service of the
Notice of Lack of Prosecution and Order to Appear, the trial
court dismissed the case for lack of prosecution.
claims he never received the Notice of Dismissal. In fact,
after the dismissal order, Appellee's counsel contacted
Appellants to extend the time to file witness and exhibit
lists. Appellants did not inform Appellee that the case was
dismissed for lack of prosecution and agreed to the extension
January 18, 2019, forty-three days after the trial court
dismissed the action, Appellee filed his Motion to Set Aside
Order Dismissing Cause for Lack of Prosecution. Appellee
asserted the court was not authorized to dismiss the action
because there was record activity within sixty days following
the service of the Notice of Lack of Prosecution and Order to
Appear, and claimed there was excusable neglect pursuant to
Florida Rule of Civil Procedure 1.540(b) due to a substantial
reduction in counsel's office staff and because he was in
a federal jury trial on December 6, 2018, with his only
January 25, 2019, Appellants filed their response to
Appellee's motion requesting that the court deny the
motion based on Appellee's failure to attend the hearing,
failure to show good cause why the action should remain
pending, and failure to establish relief based on excusable
Motion to Set Aside Order Dismissing Cause for Lack of
Prosecution was noticed on the trial court's general
motion calendar on January 31, 2019. Upon hearing only
argument by the parties, the court granted Appellee's
motion and vacated the order of dismissal.
appeal the order asserting the trial court lacked
jurisdiction to vacate the dismissal, the trial court erred
in granting Appellee's motion without first conducting an
evidentiary hearing and Appellee failed to establish
entitlement to rule 1.540 relief.
Rule of Civil Procedure 1.540(b) authorizes a trial court,
within one year of its order, to grant relief for mistake,
inadvertence, surprise, or excusable neglect. "Because a
trial court is accorded broad discretion in determining rule
1.540(b) motions, the standard of review of an order on a
rule 1.540(b) motion for relief from judgment is whether
there has been an abuse of the trial court's
discretion." Tikhomirov v. Bank of New York
Mellon, 223 So.3d 1112, ...