JOSE LUIS BRAVO,
v.
CJM PARTNERS LLC, ET AL.,
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A trial court abuses its discretion in denying a motion to set aside a dismissal for lack of prosecution when the record establishes the plaintiff was never sent notice of inactivity as required by Florida Rule of Civil Procedure 1.420(e) and the defendants provide no sufficient evidence to the contrary.
[1] A dismissal for lack of prosecution is void when the plaintiff was not provided notice of inactivity as required by Florida Rule of Civil Procedure 1.420(e), and unsworn…
Previewing 1 of 1 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“[U]nsworn representations by counsel about factual matters do not have any evidentiary weight.”
Citing Daughtrey v. Daughtrey, 944 So. 2d 1145, 1148 (Fla. 2d DCA 2006), regarding the insufficiency of counsel's unsworn statements as evidence.
Jose Luis Bravo's case was dismissed for lack of prosecution. Bravo moved to set aside the dismissal order, but the trial court denied the motion. The…
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Third District Court of Appeal State of Florida
Opinion filed August 17, 2022. Not final until disposition of timely filed motion for rehearing.
________________
No. 3D21-1517 Lower Tribunal No. 18-9979 ________________
Jose Luis Bravo, Appellant,
vs.
CJM Partners LLC, et al., Appellees.
An Appeal from a non-final order from the Circuit Court for Miami-Dade County, Carlos Guzman, Judge.
The Andres Lopez Law Firm, PA, and Andres H. Lopez (Coral Springs), for appellant.
Law Offices of Rodrigo S. Da Silva, P.A., and Rodrigo S. Da Silva, for appellees.
Before LOGUE, HENDON and GORDO, JJ.
GORDO, J.
2
Jose Luis Bravo appeals a trial court order denying his motion to set aside the order dismissing his case. We have jurisdiction. Fla. R. App. P. 9.130(a)(5). The record establishes Bravo was never sent notice of inactivity as required by Florida Rule of Civil Procedure 1.420(e) or the trial court’s order dismissing the case for lack of prosecution. Neither CJM Partners LLC nor Jesus Arancibia provided sufficient evidence to the contrary. See Daughtrey v. Daughtrey, 944 So. 2d 1145, 1148 (Fla. 2d DCA 2006) (“[U]nsworn representations by counsel about factual matters do not have any evidentiary weight.”). Accordingly, we conclude the trial court abused its discretion in denying the motion to set aside the order of dismissal. See Courtney v. Catalina, Ltd., 130 So. 3d 739, 740 (Fla. 3d DCA 2014) (reversing an order denying a motion to vacate pursuant to rule 1.540(b)(4) where there was “no evidence in the record refuting [Appellant’s] counsel’s contention that he did not receive service of the notice of inactivity or dismissal order”); Deutsche Bank Nat. Tr. Co. v. Basanta, 88 So. 3d 216, 218 (Fla. 3d DCA 2011) (reversing an order of dismissal, in part, because “[n]othing in the record conclusively refutes the [Appellant’s] assertion that it never received the FWOP Notice or the order of dismissal”); Lamoise Grp., LLC v. Edgewater S. Beach Condo. Ass’n, Inc., 278 So. 3d 796, 800 (Fla. 3d DCA 2019) (noting the “failure to furnish appellant with a copy of the final
3 disposition, in combination with the earlier deprivation of notice, rendered the [dismissal] decree void”).
Reversed and remanded.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Daughtrey v. Daughtrey, 944 So. 2d 1145 (Fla. 2d DCA 2006)
- Courtney v. Catalina, Ltd., 130 So. 3d 739 (Fla. 3d DCA 2014)
- Deutsche Bank Nat'l Tr. Co. v. Basanta, 88 So. 3d 216 (Fla. 3d DCA 2011)