       Third District Court of Appeal
                               State of Florida

                          Opinion filed January 4, 2017.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D15-1436
                         Lower Tribunal No. 10-01987
                             ________________


                         Pedro Gomez, etc., et al.,
                                   Appellants,

                                        vs.

               State Farm Florida Insurance Company,
                                    Appellee.



      An Appeal from the Circuit Court for Miami-Dade County, Jorge E. Cueto,
Judge.

      Peckar & Abramson, and Ralf R. Rodriguez and K. Stefan Chin, for
appellants.

     Russo Appellate Firm, P.A., and Elizabeth Russo and Kevin D. Franz;
Chimpoulis Hunter & Lynn, P.A., and Brian Hunter (Plantation), for appellee.


Before LAGOA and LOGUE, JJ., and SHEPHERD, Senior Judge.

     LAGOA, J.
      Appellants, Pedro Gomez and Yolanda Valdes (collectively “Appellants”),

appeal from the trial court’s denial of their Motion to Vacate Order of Dismissal

for Lack of Prosecution. Because a Stay Order entered by a prior trial court judge

was in effect at the time the order of dismissal was entered, we reverse and remand

for reinstatement of Appellants’ complaint.

I.    FACTUAL AND PROCEDURAL HISTORY

      On January 13, 2010, Appellants filed a complaint against State Farm

Insurance Company (“State Farm”), Appellants’ property insurer (hereinafter, the

“Insurance Case”).    State Farm filed its answer and the case proceeded with

discovery.

      On April 18, 2011, Appellants filed in federal court a voluntary bankruptcy

petition under Chapter 7 (hereinafter, the “Bankruptcy Case”). The bankruptcy

petition schedules listed the Insurance Case against State Farm as a potential asset,

and that case became the property of the bankruptcy estate. On April 20, 2011,

Appellants filed a suggestion of bankruptcy in the Insurance Case and, on that

same day, the trial court sua sponte entered a stay order stating, “pending further

order from the Bankruptcy Court” (hereinafter, the “Stay Order”).

      On February 25, 2015, the Trustee in the Bankruptcy Case filed a Trustee’s

Verified Notice of Abandonment of the Insurance Case.               The Notice of

Abandonment is self-executing upon the expiration of the 21-day period for



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objections. Because no objections were filed, the claim was deemed abandoned

without necessity of a court order on March 17, 2015.

      Subsequently, Appellants’ counsel contacted State Farm’s counsel to discuss

ending the Stay Order and recommencing litigation in the Insurance Case. During

that conversation, State Farm’s counsel informed Appellants’ counsel that the case

had been dismissed in 2013.        Appellants’ counsel had no knowledge of the

dismissal.

      A review of the record shows that on July 9, 2013, the trial court scheduled a

case management conference in the Insurance Case for August 16, 2013 and

notified the parties via e-mail.1 The trial judge now sitting in the division where the

Insurance Case was pending was the successor to the trial judge who entered the

Stay Order in 2011. Appellants’ counsel did not attend the case management

conference and an Order of Dismissal without prejudice was entered on August 19,

2013. At the time of the entry of the Order, the trial court was unaware of the Stay

Order previously entered by the prior trial judge. At the time of the entry of the

August 19, 2013 Order of Dismissal, the Stay Order had not been dismissed or

vacated.

      Upon learning of the dismissal, Appellants’ counsel filed a Motion to Vacate

Order of Dismissal and to Reopen Case (“Motion”) based upon two grounds: (1)


1The Order Setting Case Management Conference was a notice setting a case
management conference for 81 separately listed cases. Three separate pages of
email addresses followed the notice.
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Appellants never received notice of the case management conference and/or the

Order of Dismissal and therefore their due process rights were violated; and (2) the

Order of Dismissal was inconsistent with the Stay Order.

      In support of the Motion, Appellants’ counsel filed two uncontested

affidavits, which established that Appellants’ counsel did not receive either the

order setting the case management conference or the subsequent order dismissing

the case. The undisputed record evidence also established that at the time the e-

mails were sent by the trial court, Appellants’ counsel’s firm was migrating over to

a new Unified Messaging System and the e-mails did not make it through to either

counsel’s Exchange server or Outlook files.2 The unrebutted evidence established

that counsel for Appellant “never received the e-mail from the Court regarding the

Case Management Conference set for August 16, 2013 or any subsequent e-mail

regarding the Dismissal Order, in his Outlook in-box.”

      At the hearing on the motion, the trial court acknowledged “that there was a

stay in place that I did not know about.”3 Following a hearing on the motion, the

trial court denied the motion, and this appeal ensued.



2   The Network Technician for the law firm of Appellants’ counsel testified that
he “was unable to locate any e-mails from the Court regarding the Case
Management Conference set for August 16, 2013 or the Dismissal Order in the
Exchange server, or in [Appellants’ counsel’s] Outlook files, or in any system
internal to the Network.”
3   It is unclear from the record why State Farm’s counsel, who attended the case
management conference, did not bring the Stay Order to the trial court’s attention
prior to the entry of the Order of Dismissal.
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   II. ANALYSIS

       Rule 1.420(e), Florida Rules of Civil Procedure, states in pertinent part as

follows:

             Failure to Prosecute. In all actions in which it appears
             on the face of the record that no activity by filing of
             pleadings, order of court, or otherwise has occurred for a
             period of 10 months, and no order staying the action
             has been issued nor stipulation for stay approved by the
             court . . . the court may serve notice to all parties that no
             such activity has occurred. If no such record activity has
             occurred within the 10 months immediately preceding the
             service of such notice, and no record activity occurs
             within the 60 days immediately following the service of
             such notice, and if no stay was issued or approved prior
             to the expiration of such 60-day period, the action shall
             be dismissed by the court on its own motion . . . .

(emphasis added).

      Here, it is uncontroverted that the Stay Order staying the action was entered

by the division’s prior judge, and it is further uncontroverted that the Stay Order

was in effect at the time the Order of Dismissal was entered for lack of

prosecution. The trial court’s entry of dismissal for lack of prosecution while the

Stay Order was in effect directly contravenes the express language of Rule

1.420(e). Dismissal for lack of prosecution is not permitted under Rule 1.420(e) if

a stay order has been issued by the trial court. Indeed, once the trial court entered

the Stay Order, Appellants did not have to pursue any further activity in the

Insurance Case to prevent a dismissal for lack of prosecution. See Zbin v. Parker,

647 So. 2d 886, 887 (Fla. 4th DCA 1994) (reversing final order of dismissal for

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lack of prosecution as prior order abating case constituted a stay order

contemplated by Rule 1.420(e), Fla. R. Civ. P., and plaintiff did not have to pursue

any further record activity in order to avoid dismissal for want of prosecution);

See also Bekins Van Lines v. Schaeffer, 630 So. 2d 633, 634 (Fla. 4th DCA 1994)

(finding that temporary stay was sufficient to prevent dismissal for lack of

prosecution); Dolan v. Hartford Ins. Co., 566 So. 2d 316, 317 (Fla 4th DCA 1990)

(reversing order of dismissal and finding that action stayed as to a party, whether

by court order or automatic stay, should not be dismissed for failure to prosecute).

We therefore find that the trial court dismissed a properly stayed action for lack of

prosecution in contravention of Rule 1.420(e).

      Accordingly, we reverse the Order of Dismissal and remand the cause to the

trial court for reinstatement of the complaint.

      REVERSED AND REMANDED.

      LOGUE, J., concurs.

      SHEPHERD, Senior Judge, dissents.




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