final until disposition of timely filed motion for rehearing.
Appeal from the Circuit Court for Miami-Dade County, Lower
Tribunal No. 06-4138 Reemberto Diaz Judge.
Alvarez ǀ Gonzalez ǀ Menezes, LLP, and Ignacio M.
Alvarez and Carlos F. Gonzalez, for appellant.
Abigail Price-Williams, Miami-Dade County Attorney, and Eric
A. Rodriguez, Assistant County Attorney, for appellee.
LINDSEY, HENDON, and GORDO, JJ.
Perez Mesa appeals the trial court's decision to deny her
Motion to Vacate the Order of Dismissal brought pursuant to
Florida Rule of Civil Procedure 1.540 following the dismissal
of her lawsuit for lack of prosecution. We conclude the trial
court did not abuse its discretion and affirm.
& PROCEDURAL HISTORY
Mesa, a former Miami-Dade County firefighter, filed suit in
2006 against the County seeking damages for sexual
discrimination and retaliation. From 2012 to 2017 there was
no record activity in the case, which gave rise to the lower
court issuing a Notice of Lack of Prosecution and ordering
Mrs. Mesa to appear for a hearing. On December 13, 2017, the
trial court dismissed the action for lack of prosecution
finding there had been no record activity following the
notice, no stay had been issued by the court and no party had
shown good cause why the action should remain pending.
April 18, 2018, Mrs. Mesa filed a timely motion to vacate the
order of dismissal asserting she was entitled to rule
1.540(b) relief because her attorney's conduct amounted
to excusable neglect. In her supporting affidavit, Mrs. Mesa
declared that between 2011 and 2016 she and her attorney, W.
Aramis Hernandez, had regular meetings and discussions about
the status of the litigation. Mr. Hernandez stopped returning
her calls toward the end of 2016. Mrs. Mesa asserted it was
not until the lower court issued notice that she learned Mr.
Hernandez had stopped prosecuting her case. Nonetheless,
after receiving notice, Mrs. Mesa acknowledged she did not
take any action prior to the scheduled hearing. She asserted
instead that Mr. Hernandez advised he would file a notice of
withdrawal as her attorney.
trial court held an evidentiary hearing on Mrs. Mesa's
motion to vacate the order of dismissal on June 18, 2018.
During the hearing, Mrs. Mesa did not testify. Her counsel
argued that she believed her case was being litigated and the
dismissal was punishment for trusting her attorney. However,
Mr. Hernandez testified that Mrs. Mesa was "very well
aware" he could not represent her or file any documents
on her behalf to keep the litigation moving forward. He
advised that he had made her aware he had no intention of
filing any documents because doing so would mislead the
court. The trial court denied the motion to vacate dismissal.
Mesa appeals asserting that the trial court abused its
discretion in denying her motion because the failure of her
attorney to litigate her case was due to excusable neglect.
denial of a motion for relief from final judgment under
Florida Rule of Civil Procedure 1.540(b) is reviewed for an
abuse of discretion." Noel v. James B. Nutter &
Co., 232 So.3d 1112, 1115 (Fla. 3d DCA 2017). "The
trial court's discretion is abused 'only where no
reasonable [person] would take the view adopted by the trial
court.'" Marques v. Garcia, 245 So.3d 900,