Third District Court of Appeal
State of Florida
Opinion filed December 14, 2022.
Not final until disposition of timely filed motion for rehearing.
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No. 3D22-648
Lower Tribunal No. 18-19653
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First Call 24/7, Inc.,
Appellant,
vs.
Alvaro J. Rios,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Mark
Blumstein, Judge.
Law Offices of Jason Gordon, P.A., and Jason Gordon (Hollywood),
for appellant.
No appearance, for appellee.
Before LOGUE, HENDON and GORDO, JJ.
HENDON, J.
First Call 24/7 (“First Call”) appeals from the trial court’s dismissal of
its complaint against Alvaro Rios (“Rios”)1 for lack of prosecution, entered
while the case was stayed pursuant to a suggestion of bankruptcy. We
reverse.
Facts
First Call is a Florida corporation located in Broward County, whose
business is mold, fire, and water remediation. In March 2017, Rios
contracted with First Call for construction-related service at his residential
property in Miami. First Call completed the work, but Rios failed to pay
First Call the $24,311.65 charged to him. First Call recorded a lien against
the property in June 2017, and in 2018 filed a complaint against Rios
alleging breach of contract, quantum meruit, and to foreclose the lien. Rios
was served but never responded to the complaint. First Call’s motion for
default was granted with a Clerk’s Default on September 6, 2018. The
motion for default final judgment was noticed for hearing on October 3,
2018, and then re-noticed for October 4, 2018. The docket shows that a
five-minute motion calendar occurred on October 3, 2018, but the record
does not contain any order stemming from that hearing.
1
Appellee Rios has been precluded from filing an Answer Brief and from
oral argument, and has not as of this date filed any papers with the court in
support of his position.
2
On August 19, 2019, the trial court issued a Notice of Lack of
Prosecution and Order to Appear for Hearing (“FWOP Notice”) set for
October 31, 2019, which stated that “there has been no record activity for
the last ten (10) months and no stay has been issued or approved by the
court.”2
On October 7, 2019, Rios filed a petition for bankruptcy in federal
court, and a suggestion of bankruptcy was entered on the trial court docket.
On October 10, 2019, First Call’s case against Rios was ordered stayed
and placed on inactive status as a result of the pending bankruptcy. The
order states that “the parties must return the case to active status, with
notice to all parties, within 30 days of the termination of grounds for inactive
status, and seeking an order of court returning it to active status.”
However, the Clerk did not docket the August 19, 2019 FWOP Notice
on August 19, 2019; rather, it was docketed on October 31, 2019, the date
the parties were to attend the FWOP hearing. Neither party appeared for
the hearing, and there is no indication in the record that the parties were
2
The Notice does not appear in the record on appeal – First Call includes it
in the Appendix and asks this Court to take judicial notice of it.
3
ever given notice of the August 2019 FWOP Notice prior to the October 31
hearing date. On November 1, 2019, the trial court dismissed the case. 3
On March 7, 2022, First Call, via new counsel, 4 filed its motion to
vacate the November 2019 dismissal based on the automatic bankruptcy
stay that existed at the time. In a summary order, the trial court denied the
motion to vacate and First Call appeals.
Standard of Review –
The standard of review of a trial court’s denial of a motion to vacate a
final order of dismissal for lack of prosecution is generally abuse of
discretion. See Rinconcito Latino Cafeteria, Inc. v. Ocampos, 276 So. 3d
525, 527 (Fla. 3d DCA 2019). However, where a motion to vacate
depends upon whether the underlying order is void, the determination is a
legal question that is reviewed de novo. See Nationstar Mortgage, LLC v.
Diaz, 227 So. 3d 726, 729 (Fla. 3d DCA 2017).
Discussion
3
The bankruptcy court dismissed the case without discharge on December
17, 2019, and closed the case on March 18, 2020. The state trial court
docket shows no notice by Rios’s bankruptcy counsel that the bankruptcy
case had closed.
4
First Call indicates that “Undersigned counsel did not commence
representing First Call in this matter until the Motion to Vacate was filed in
March 2022, and is thus unaware of the reasons no Order was entered on
the Motion for Default Judgment.”
4
Although First Call did not cite to rule 1.540(b)(4)5 in its motion to
vacate the November 2019 dismissal, the grounds for relief fall squarely
under this rule. First Call correctly moved to vacate the dismissal order as
void, as the trial court entered the dismissal order without notice to the
parties as a result of the Clerk’s failure to timely docket the August 19,
2019 FWOP order or notice the parties. Rogers v. First Nat’l. Bank at
Winter Park, 232 So. 2d 377, 378 (Fla. 1970) (“When viewed in its totality,
the series of events that transpired below call for a liberal application of
Rule 1.540(b), especially since it appears that the rules for notice were not
complied with. While our procedural rules provide for an orderly and
expeditious administration of justice, we must take care to administer them
in a manner conducive to the ends of justice.”); Courtney v. Catalina, Ltd.,
130 So. 3d 739, 740 (Fla. 3d DCA 2014) (reversing a trial court order that
failed to grant a motion under rule 1.540(b)(4) to set aside an order of
dismissal for lack of prosecution “because it is undisputed in the record that
he did not receive either the notice of inactivity or the final order of
dismissal.”); De La Osa v. Wells Fargo Bank, N.A., 208 So. 3d 259 (Fla. 3d
DCA 2016) (affirming the trial court's order vacating a dismissal where the
plaintiff neither received notice to appear for trial nor a copy of the
5
Florida Rule of Civil Procedure 1.540(b)(4) authorizes a court to relieve a
party from a void “judgment or decree.”
5
dismissal order). Further, there was an automatic bankruptcy stay in place,
and the record reflects record activity. See Coral Gables Imports, Inc. v.
Suarez, 219 So. 3d 101, 102 (Fla. 3d DCA 2017) (affirming the vacating of
a void dismissal order, pursuant to Florida Rule of Civil Procedure
1.540(b)(4), where the court entered the dismissal order without notice and
the record reflected record activity).
Accordingly, we reverse the order denying First Call’s Motion to
Vacate, and remand for further proceedings consistent with this opinion.
Reversed and remanded.
6