Opinion
No. 3D19-1621
05-06-2020
Maria Mayte HERNANDEZ, Appellant, v. Hanan IBRAHIM, et al., Appellees.
Louis Thaler, P.A., Coral Gables, and Louis Thaler, for appellant. No appearance for appellees.
Louis Thaler, P.A., Coral Gables, and Louis Thaler, for appellant.
Appellees were precluded from filing an answer brief after failing to heed this court's order directing them to file same within a specified period of time.
Before LOGUE, LINDSEY, and MILLER, JJ.
PER CURIAM.
Appellant, Maria Mayte Hernandez, the plaintiff below, appeals from an order dismissing her negligence action. Hernandez contends the lower tribunal erroneously dismissed her case because she was not furnished with any notice of record inactivity pursuant to Florida Rule of Civil Procedure 1.420(e) and further juridical labor remains in the case. We agree, thus reverse and remand for further proceedings.
In early 2014, Hernandez filed suit against two individuals and three entities, seeking compensation for injuries she allegedly sustained in a fall within a rented condominium hotel unit. Her claims against all defendants, save two, appellees, Hanan Ibrahim and Beachfront Realty, Inc., were resolved by way of either adverse final summary judgment or dismissal. In the latter part of 2018, Hernandez noticed the deposition of the remaining individual defendant.
Approximately nine months later, the lower tribunal conducted an in-chambers review of the court file. Notwithstanding the existence of record activity within the preceding ten months, the court dismissed the case in its entirety, without conducting a hearing. The instant appeal ensued.
The record before us reflects that Hernandez was afforded neither notice nor an opportunity to be heard prior to the rendition of the order under review. As there was indeed record activity in the case, as required under Florida Rule of Civil Procedure 1.420(e), and judicial labor has yet to be performed, we are constrained to reverse. See Fla. R. Civ. P. 1.420(e) ("In all actions in which it appears on the face of the record that no activity ... has occurred for a period of [ten] months, ... any interested person, whether a party to the action or not, the court, or the clerk of the court may serve notice to all parties that no such activity has occurred."); Citibank, N.A. v. Konigsberg, 149 So. 3d 1185, 1186 (Fla. 2d DCA 2014) ("The test for record activity during the ten-month period and during the sixty-day grace period is a bright-line rule ‘under which any filing of record is sufficient to preclude dismissal.’ ") (quoting Chemrock Corp. v. Tampa Elec. Co., 71 So. 3d 786, 792 (Fla. 2011) ); see also Zuppardo v. Dunlap & Moran, P.A., 186 So. 3d 1067, 1068 (Fla. 2d DCA 2016) ("[D]ismissal is precluded if there has been record activity within the past year.") (citation omitted); Fed. Nat'l Mortg. Ass'n v. Sanchez, 187 So. 3d 341, 342 (Fla. 4th DCA 2016) ("Due process requires notice and an opportunity to be heard prior to dismissal.") (citation omitted).
Florida Rule of Civil Procedure 1.420 requires "a notice of lack of prosecution," followed "by a sixty-day grace period." Chemrock Corp. v. Tampa Elec. Co., 71 So. 3d 786, 792 (Fla. 2011). The intent, is to "provid[e] notice to a party that the action [is] at risk of being dismissed for lack of prosecution, and afford[ ] the party a reasonable time thereafter in which to engage in record activity in order to preclude dismissal." Id.
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Reversed and remanded.