       Third District Court of Appeal
                                State of Florida

                            Opinion filed April 26, 2017.
          Not final until disposition of timely filed motion for rehearing.
                                ________________

                                 No. 3D16-849
                          Lower Tribunal No. 04-20174
                              ________________

                         Coral Gables Imports, Inc.,
                                     Appellant,

                                         vs.

                                Ricardo Suarez,
                                     Appellee.

      An Appeal from the Circuit Court for Miami-Dade County, Norma S.
Lindsey, Judge.

      Jesse Dean-Kluger, P.A., and Jesse Dean-Kluger, for appellant.

     MSP Recovery Law Firm and John H. Ruiz, Christine M. Lugo, and Shayna
K. Hudson, for appellee.

Before SUAREZ, C.J., and FERNANDEZ, and SCALES, JJ.

      FERNANDEZ, J.

      Coral Gables Imports, Inc. appeals the trial court’s entry of an order granting

appellee Ricardo Suarez’s Amended Motion to Vacate Order of Dismissal for Lack

of Prosecution. We affirm because Suarez correctly moved to vacate the dismissal
order as void, pursuant to Florida Rule of Civil Procedure 1.540(b)(4),1 where the

trial court entered the dismissal order without notice and the record reflected

record activity.

      This case arose from a Notice of Lack of Prosecution issued in accordance

with the requirements of Florida Rule of Civil Procedure 1.420(e).           Suarez

initiated a class action suit against Coral Gables Imports on September 23, 2004.

On August 14, 2014, the Clerk of the Eleventh Judicial Circuit produced and

docketed its Notice of Lack of Prosecution in which it advised the trial court that

no record activity had occurred in the case for the proceeding ten months. The trial

court signed and served the Notice upon the parties on October 22, 2014.

      On September 11, 2014, unbeknownst to the trial court when it signed and

served the October 22, 2014 Notice, Suarez had filed a Notice of Change of

Address. The filing of the Notice of Change of Address had a twofold effect.

Since the Notice of Lack of Prosecution had been produced on August 14, 2014,

approximately one month before Suarez changed his address, the Notice the trial

court served on October 22, 2014 would not have reached Suarez because it would

have been delivered to his old address.




1 In his Amended Motion to Vacate Order of Dismissal for Lack of Prosecution,
Suarez did not cite to rule 1.540(b)(4). His grounds for relief, however, fall
squarely under this rule.

                                          2
      Moreover, the Notice of Change of Address would have satisfied the record

activity requirement of rule 1.420(e), thereby precluding dismissal of the action for

lack of prosecution. See Chemrock Corp. v. Tampa Elec. Co., 71 So. 3d 786 (Fla.

2011)(holding that any filing of record during the applicable time frame is

sufficient to preclude dismissal).

      There was no appearance at the December 4, 2014 hearing on the Notice of

Lack of Prosecution. The trial court dismissed the action without prejudice for lack

of prosecution on December 4, 2014.

      Suarez moved to vacate the order of dismissal on January 27, 2016,

approximately fourteen months after dismissal of the action. On February 1, 2016,

Suarez filed an Amended Motion to Vacate Order of Dismissal for Lack of

Prosecution. Suarez argued that he did not receive the trial court’s Notice of Lack

of Prosecution and Notice of Hearing on the trial court’s Motion to Dismiss for

Lack of Prosecution. Suarez further argued that there was record activity, namely

his Notice of Change of Address, within the sixty-day period following the trial

court’s Notice. The trial court granted the amended motion on March 8, 2016.

      The standard of review for an order that rules on a motion for relief from

judgment filed under Florida Rule of Civil Procedure 1.540(b) is whether there has

been an abuse of the trial court’s discretion. Foche Mort., LLC v. CitiMortgage,

Inc., 163 So. 3d 525, 526 (Fla. 3d DCA 2015). Florida Rule of Civil Procedure



                                         3
1.540(b) provides grounds for relief from a final judgment, decree, order, or

proceeding when the judgment or degree is void.            Rule 1.540(b) specifically

provides:

            (b) Mistakes; Inadvertence; Excusable Neglect; Newly
            Discovered Evidence; Fraud; etc. On motion and upon such
            terms as are just, the court may relieve a party or a party's legal
            representative from a final judgment, decree, order, or proceeding
            for the following reasons: (1) mistake, inadvertence, surprise, or
            excusable neglect; (2) newly discovered evidence which by due
            diligence could not have been discovered in time to move for a
            new trial or rehearing; (3) fraud (whether heretofore denominated
            intrinsic or extrinsic), misrepresentation, or other misconduct of an
            adverse party; (4) that the judgment or decree is void; or (5) that
            the judgment or decree has been satisfied, released, or discharged,
            or a prior judgment or decree upon which it is based has been
            reversed or otherwise vacated, or it is no longer equitable that the
            judgment or decree should have prospective application. The
            motion shall be filed within a reasonable time, and for reasons (1),
            (2), and (3) not more than 1 year after the judgment, decree, order,
            or proceeding was entered or taken. A motion under this
            subdivision does not affect the finality of a judgment or decree or
            suspend its operation. This rule does not limit the power of a court
            to entertain an independent action to relieve a party from a
            judgment, decree, order, or proceeding or to set aside a judgment
            or decree for fraud upon the court.

            Writs of coram nobis, coram vobis, audita querela, and bills of
            review and bills in the nature of a bill of review are abolished, and
            the procedure for obtaining any relief from a judgment or decree
            shall be by motion as prescribed in these rules or by an
            independent action.

(emphasis added).

      Suarez correctly argues on appeal that the judgment is void and that the one-

year limitation to file a motion to vacate is inapplicable under rule 1.540(b)(4). In


                                            4
De La Osa, this Court affirmed the trial court’s order that vacated a dismissal

where the plaintiff neither received notice to appear for trial nor a copy of the

dismissal order. De La Osa v. Wells Fargo Bank, N.A., 208 So. 3d 259 (Fla. 3d

DCA 2016). We held on motion for rehearing en banc in that case that rule

1.540(b)(4) applies to final orders of dismissal and concluded that the final order

was void. Id. at 264-65. The same reasoning applies here such that the one-year

limitation to file a motion to vacate does not apply. The rule instead requires the

motion to be filed within a reasonable time. Thus, Suarez’s motion to vacate filed

approximately fourteen months after dismissal of the action was filed within a

reasonable time.

      We therefore affirm the order that vacated the dismissal. Suarez correctly

moved to vacate the dismissal order as void, 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.

      Affirmed.




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