GABRIELA CASTILLO AND SERGIO BINSAVALE

v.

VIVIANA VALBONESI

Third District Court of Appeal State of Florida Opinion filed July 30, 2025. Not final until disposition of timely filed motion for rehearing. ________________ No. 3D24-1780 Lower Tribunal No. 21-10419-CA-01 ________________ Gabriela Castillo and Sergio Binsavale, Appellants, vs. Viviana Valbonesi, Appellee. An Appeal from a non-final order from the Circuit Court for Miami-Dade County, Peter Lopez, Judge. Raule E. Espinoza, P.L., and Raul E. Espinoza, for appellants. Law Offices of Victor T. Gutierrez, and Victor T. Gutierrez, for appellee. Before LOGUE, BOKOR and GOODEN, JJ.

GOODEN, J.

2 Appellants Gabriela Castillo and Sergio Binsavale appeal an order vacating a dismissal for lack of prosecution. Because we find that the trial court did not abuse its discretion, we affirm.

I.

Appellee Viviana Valbonesi filed suit against Castillo and Binsavale. After pleadings closed and initial discovery was conducted, there was no record activity for over ten months. In accordance with its case management duties, the trial court issued a notice of lack of prosecution and set the matter for hearing. Fla. R. Civ. P. 1.420(e). During the period of no record activity, Valbonesi’s counsel—a solo practitioner with no office staff—had a severe heart attack, underwent two open heart surgeries, spent over a month in the hospital, endured months of rehabilitation, and was unable to work. Because of his health issues, he failed to place the hearing on his calendar. When he did not attend the hearing, the trial court dismissed the case. Valbonesi subsequently moved to vacate the dismissal. In support, Valbonesi submitted an affidavit from her counsel setting forth the timeline, his health issues, and the reason he did not appear at the hearing. Castillo and Binsavale opposed the motion. Focusing on Florida Rule of Civil

II.

Despite the Appellants’ arguments otherwise, this case is controlled by Florida Rule of Civil Procedure 1.540—not Rule 1.420.1 This is because the order on appeal is from a 1.540 motion and not directly from the order of dismissal. To that end, we review the order to determine whether there has been an abuse of discretion. Coral Gables Imports, Inc. v. Suarez, 219 So. 3d 101, 103 (Fla. 3d DCA 2017); Tikhomirov v. Bank of New York Mellon, 223 So. 3d 1112, 1116 (Fla. 3d DCA 2017). 1 Certainly, a major health crisis, such as this, would constitute good cause under Rule 1.420(e). See A & W Elec. of Miami, Inc. v. Abraira, 567 So. 2d 36, 36 (Fla. 3d DCA 1990) (“The plaintiff’s double bypass heart surgery and subsequent period of rehabilitation was a sufficient excuse for failure to prosecute his claim within one year.”); Schlakman v. Helliwell, Melrose & DeWolf, 519 So. 2d 14, 15 (Fla. 3d DCA 1987) (“Physical disability of a plaintiff or plaintiff’s attorney constitutes good cause, justifying a trial court’s refusal to dismiss for failure to prosecute under Rule 1.420(e), Florida Rules Civil Procedure.”); Barnes v. Ross, 386 So. 2d 812, 814–15 (Fla. 3d DCA 1980) (“We hold that a disabling injury or illness which prevents a party’s attorney from engaging in a one-person law practice for one-third of the year during which an action is pending constitutes good cause to preclude dismissal under Rule 1.420(e), Florida Rules of Civil Procedure.”).