LIFETIME GUARANTEE ADMINISTRATORS, LLC AND JOSEPH REGAN
v.
MITCHELL KAMINSKEY
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Lifetime Guarantee Administrators, LLC and Joseph Regan appealed a trial court order dismissing their fraud and related claims against Megan Brown and Performance Insurance Group for lack of prosecution. The court reversed the dismissal because the trial court failed to provide the required notice under Florida Rule of Civil Procedure 1.420(e) before dismissing the case.
A trial court cannot dismiss a case for lack of prosecution under Rule 1.420(e) without first serving the required notice to parties, which gives them a reasonable opportunity to engage in record activity to preclude dismissal. The trial court's dismissal order was therefore erroneous and must be vacated.
[1] Under Florida Rule of Civil Procedure 1.420(e), dismissal for lack of prosecution requires service of notice on the parties, giving them a reasonable time to engage in re…
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Join FLexlaw to unlock all legal intelligence“[E]ven if the absence of record activity has continued for more than a year, an action cannot be dismissed under the amended rule without the required notice and opportunity to re-commence prosecution.”
The court cited Swait v. Swait to establish that notice is mandatory regardless of how long the case has been inactive.
Appellants sued defendants for fraud, breach of fiduciary duties, conversion of funds, and intentional interference with business relations. The trial…
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PER CURIAM.
Lifetime Guarantee Administrators, LLC and Joseph Regan (“appellants”) sued Mitchell Kaminskey, Megan Brown, Performance Insurance Group (“Performance”) and others alleging they committed fraud, breached fiduciary duties, converted funds, and intentionally interfered with an advantageous business relationship. The trial court severed the claims against Brown and Performance from those brought against all other defendants. Subsequently, Brown and Performance moved to dismiss the case for lack of prosecution; however, appellants were never given the required notice that there was no record activity. Appellants filed a response to the motion to dismiss, but the trial court granted the motion and issued an order of dismissal.
Under Florida Rule of Civil Procedure 1.420(e), if there is no record activity for a period of ten months, an interested person, the court, or the clerk of the court may serve notice to the parties. See Fla. R. Civ. P. 1.420(e). If there is no record activity within sixty days immediately following this notice, then the action shall be dismissed. See id.; accord Swait v. Swait, 958 So. 2d 552, 554 (Fla. 4th DCA 2007).
Here, the trial court erred in entering an order of dismissal because the appellants were not given the required notice. Rule 1.420(e) requires serving notice to give the party a “reasonable time thereafter in which to engage in record activity in order to preclude dismissal.” Chemrock Corp. v. Tampa Elec. Co., 71 So. 3d 786, 792 (Fla. 2011); accord DRD Marine Crop. v. Bryd Techs., Inc., 77 So. 3d 867, 869 (Fla. 4th DCA 2012); see also Swait, 958 So. 2d at 553-54 (“[E]ven if the absence of record activity has continued for more than a year, an action cannot be dismissed under the amended rule without the required notice and opportunity to re-commence prosecution.”). Based upon our independent review of the record and Brown and Performance’s proper confession of error, we reverse the trial court’s order and remand with directions to vacate the order of dismissal.
Reversed and remanded with instructions. MAY, CIKLIN and KLINGENSMITH, JJ., concur. * * * Not final until disposition of timely filed motion for rehearing.
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Authorities Cited
- Chemrock Corp. v. Tampa Elec. Co., 71 So. 3d 786 (Fla. 2011)
- Swait v. Swait, 958 So. 2d 552 (Fla. 4th DCA 2007)
- DRD Marine Corp. v. Byrd Techs., Inc., 77 So. 3d 867 (Fla. 4th DCA 2012)