Third District Court of Appeal State of Florida
Opinion filed June 26, 2024. Not final until disposition of timely filed motion for rehearing. ________________
No. 3D23-2094 Lower Tribunal No. 22-31464-SP ________________
Crown Asset Management, LLC, Appellant,
vs.
Judith Bribiesca, Appellee.
An Appeal from the County Court for Miami-Dade County, Michael Barket, Judge.
Law Offices of Andreu, Palma, Lavin & Solis, PLLC, and Carlos Cruanes, for appellant.
No appearance, for appellee.
Before LOGUE, C.J., and FERNANDEZ and LOBREE, JJ.
LOGUE, C.J.
Crown Asset Management, LLC appeals the trial court’s order
dismissing its action against Judith Bribiesca with prejudice for failure to serve Bribiesca with process. Because we conclude that the trial court
applied the incorrect law and otherwise failed to make the proper findings for
a sanction of dismissal with prejudice, we reverse.
BACKGROUND
On September 8, 2022, Crown Asset Management filed a small claims
action against Bribiesca for breach of contract relating to an unpaid retail
installment sales account. On May 2, 2023, the case was dismissed due to
the parties’ failure to appear for a pretrial conference.
On June 5, 2023, Crown Asset Management filed a Motion to Set Aside
Dismissal, arguing that “[d]ue to [a] clerical error Plaintiff failed [to] show good
cause for failure to obtain service of process on the Defendant and failed to
calendar the May 2, 2023 Pre-Trial Conference.” On June 15, 2023, the trial
court granted the motion and set aside the dismissal. The order further
provided that “Plaintiff shall have an additional 45 days to service
Defendant.” Crown Asset Management, however, failed to serve Bribiesca
within those additional 45 days.
On October 4, 2023, the trial court entered an Order of Dismissal,
dismissing the action with prejudice based on Crown Asset Management’s
“[f]ailure to effectuate service within the statutory deadline of 120 days [and]
[f]ailure to comply with Court Order entered June 15, 2023.” Crown Asset
2 Management subsequently filed a Motion for Rehearing on the Court’s Order
of Dismissal with Prejudice on October 18, 2023. The trial court denied the
Motion for Rehearing by written order dated October 31, 2023. This appeal
timely followed.
ANALYSIS
Crown Asset Management’s argument on appeal is twofold. First, it
argues the trial court applied the incorrect law when it dismissed its lawsuit
for failure to serve Bribiesca. In doing so, the trial court applied Florida Rule
of Civil Procedure 1.070(j). Crown Asset Management maintains, however,
that the Florida Small Claims Rules, and more specifically Small Claims Rule
7.110(e), govern this action. And according to Crown Asset Management,
this rule required the trial court to instead dismiss for failure to prosecute and
to provide notice of its intent to dismiss the case prior to dismissal, which it
did not do. Because the trial court did not apply the correct rule, Crown Asset
Management argues, it erred.
Second, Crown Asset Management contends it was error for the trial
court to dismiss its lawsuit with prejudice for failure to comply with the trial
court’s order granting an additional 45 days to secure service. This is
because dismissal for failing to comply with a trial court order is a sanction,
Crown Asset Management maintains, and the trial court failed to comply with
3 the requirements for imposing such a sanction as set forth in Kozel v.
Ostendorf, 629 So. 2d 817 (Fla. 1993).
A. Generally, Florida Rule of Civil Procedure 1.070(j) does not apply to small claims cases and there is no factual basis to invoke the applicable Florida Small Claims Rule 7.110(e) here. “We review de novo a trial court's . . . interpretation or application of
controlling statutes, common law rules, or other legal principles.” Giller v.
Grossman, 327 So. 3d 391, 393 (Fla. 3d DCA 2021).
Florida Rule of Civil Procedure 1.070(j) requires service of process to
be made on the defendant within 120 days of the filing of the initial pleading
and provides that failure to so serve requires the trial judge to “dismiss the
action without prejudice.” Meanwhile, Florida Small Claims Rule 7.070
provides that service of process in small claims actions “shall be effected as
provided by law or as provided by Florida Rules of Civil Procedure 1.070(a)–
(h).” Notably, however, Small Claims Rule 7.070 does not include the 120-
day requirement of Civil Procedure Rule 1.070(j). Indeed, the Florida
Supreme Court has explained that Rule 7.070 was modified to preclude
application of Florida Rule of Civil Procedure 1.070(j) “because Small Claims
Rule 7.110(e) already provides for dismissal of a claim for failure to
prosecute after six months of inactivity.” In re Amends. to the Fla. Small
Claims Rules, 682 So. 2d 1075, 1075 (Fla. 1996). Thus, the remedy for
4 failure to serve process on a defendant in small claims court is dismissal for
failure to prosecute, as provided by Rule 7.110(e).1
Rule 7.110(e), in turn, requires six months of inactivity prior to
dismissal, and further requires that a trial court provide the parties with 30
days’ notice of its intent to dismiss for failure to prosecute prior to dismissal.
Here, there was not six months of inactivity before the dismissal nor
did the trial court enter a notice of its intent to dismiss. The last record activity
before the dismissal was the trial court’s June 15, 2023 order providing an
additional 45 days to effectuate service. Prior to that, was Crown Asset
Management’s Motion to Set Aside Dismissal filed June 5, 2023. Only four
months of inactivity had elapsed when the trial court issued its order
dismissing the underlying action with prejudice. Furthermore, the trial court
failed to issue a failure to prosecute notice under Rule 7.110(e). See, e.g.,
1 Had the parties, however, requested that the trial court apply the Florida Rules of Civil Procedure then this, of course, would not be the case and Civil Procedure Rule 1.070(j)’s 120-day requirement would likely apply. See generally Fla. Sm. Cl. R. 7.020 (providing that certain rules of civil procedure apply to small claims actions as a matter of course, while the trial court may order that other rules of civil procedure also apply “on application of any party or the stipulation of all parties or on the court’s own motion”). See also Mote Wellness & Rehab, Inc. v. State Farm Mut. Auto. Ins. Co., 331 So. 3d 191, 193 (Fla. 4th DCA 2021) (holding county court erred by applying Small Claims Rule 7.110(e)’s six-month timeframe for lack of prosecution dismissal instead of Civil Procedure Rule 1.420(e)’s ten-month timeframe when the parties had previously invoked the Florida Rules of Civil Procedure).
5 Bixby v. ECP Cap. Partners, Inc., 373 So. 3d 899, 904 (Fla. 4th DCA 2023).
Thus, there was no basis for dismissal under Rule 7.110(e).
B. The trial court failed to comply with the requirements of Kozel when imposing its sanction of dismissal with prejudice.
The trial court also indicated it was dismissing Crown Asset
Management’s action with prejudice based on its failure to comply with the
trial court’s order entered June 15, 2023, which granted Crown Asset
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Third District Court of Appeal State of Florida
Opinion filed June 26, 2024. Not final until disposition of timely filed motion for rehearing. ________________
No. 3D23-2094 Lower Tribunal No. 22-31464-SP ________________
Crown Asset Management, LLC, Appellant,
vs.
Judith Bribiesca, Appellee.
An Appeal from the County Court for Miami-Dade County, Michael Barket, Judge.
Law Offices of Andreu, Palma, Lavin & Solis, PLLC, and Carlos Cruanes, for appellant.
No appearance, for appellee.
Before LOGUE, C.J., and FERNANDEZ and LOBREE, JJ.
LOGUE, C.J.
Crown Asset Management, LLC appeals the trial court’s order
dismissing its action against Judith Bribiesca with prejudice for failure to serve Bribiesca with process. Because we conclude that the trial court
applied the incorrect law and otherwise failed to make the proper findings for
a sanction of dismissal with prejudice, we reverse.
BACKGROUND
On September 8, 2022, Crown Asset Management filed a small claims
action against Bribiesca for breach of contract relating to an unpaid retail
installment sales account. On May 2, 2023, the case was dismissed due to
the parties’ failure to appear for a pretrial conference.
On June 5, 2023, Crown Asset Management filed a Motion to Set Aside
Dismissal, arguing that “[d]ue to [a] clerical error Plaintiff failed [to] show good
cause for failure to obtain service of process on the Defendant and failed to
calendar the May 2, 2023 Pre-Trial Conference.” On June 15, 2023, the trial
court granted the motion and set aside the dismissal. The order further
provided that “Plaintiff shall have an additional 45 days to service
Defendant.” Crown Asset Management, however, failed to serve Bribiesca
within those additional 45 days.
On October 4, 2023, the trial court entered an Order of Dismissal,
dismissing the action with prejudice based on Crown Asset Management’s
“[f]ailure to effectuate service within the statutory deadline of 120 days [and]
[f]ailure to comply with Court Order entered June 15, 2023.” Crown Asset
2 Management subsequently filed a Motion for Rehearing on the Court’s Order
of Dismissal with Prejudice on October 18, 2023. The trial court denied the
Motion for Rehearing by written order dated October 31, 2023. This appeal
timely followed.
ANALYSIS
Crown Asset Management’s argument on appeal is twofold. First, it
argues the trial court applied the incorrect law when it dismissed its lawsuit
for failure to serve Bribiesca. In doing so, the trial court applied Florida Rule
of Civil Procedure 1.070(j). Crown Asset Management maintains, however,
that the Florida Small Claims Rules, and more specifically Small Claims Rule
7.110(e), govern this action. And according to Crown Asset Management,
this rule required the trial court to instead dismiss for failure to prosecute and
to provide notice of its intent to dismiss the case prior to dismissal, which it
did not do. Because the trial court did not apply the correct rule, Crown Asset
Management argues, it erred.
Second, Crown Asset Management contends it was error for the trial
court to dismiss its lawsuit with prejudice for failure to comply with the trial
court’s order granting an additional 45 days to secure service. This is
because dismissal for failing to comply with a trial court order is a sanction,
Crown Asset Management maintains, and the trial court failed to comply with
3 the requirements for imposing such a sanction as set forth in Kozel v.
Ostendorf, 629 So. 2d 817 (Fla. 1993).
A. Generally, Florida Rule of Civil Procedure 1.070(j) does not apply to small claims cases and there is no factual basis to invoke the applicable Florida Small Claims Rule 7.110(e) here. “We review de novo a trial court's . . . interpretation or application of
controlling statutes, common law rules, or other legal principles.” Giller v.
Grossman, 327 So. 3d 391, 393 (Fla. 3d DCA 2021).
Florida Rule of Civil Procedure 1.070(j) requires service of process to
be made on the defendant within 120 days of the filing of the initial pleading
and provides that failure to so serve requires the trial judge to “dismiss the
action without prejudice.” Meanwhile, Florida Small Claims Rule 7.070
provides that service of process in small claims actions “shall be effected as
provided by law or as provided by Florida Rules of Civil Procedure 1.070(a)–
(h).” Notably, however, Small Claims Rule 7.070 does not include the 120-
day requirement of Civil Procedure Rule 1.070(j). Indeed, the Florida
Supreme Court has explained that Rule 7.070 was modified to preclude
application of Florida Rule of Civil Procedure 1.070(j) “because Small Claims
Rule 7.110(e) already provides for dismissal of a claim for failure to
prosecute after six months of inactivity.” In re Amends. to the Fla. Small
Claims Rules, 682 So. 2d 1075, 1075 (Fla. 1996). Thus, the remedy for
4 failure to serve process on a defendant in small claims court is dismissal for
failure to prosecute, as provided by Rule 7.110(e).1
Rule 7.110(e), in turn, requires six months of inactivity prior to
dismissal, and further requires that a trial court provide the parties with 30
days’ notice of its intent to dismiss for failure to prosecute prior to dismissal.
Here, there was not six months of inactivity before the dismissal nor
did the trial court enter a notice of its intent to dismiss. The last record activity
before the dismissal was the trial court’s June 15, 2023 order providing an
additional 45 days to effectuate service. Prior to that, was Crown Asset
Management’s Motion to Set Aside Dismissal filed June 5, 2023. Only four
months of inactivity had elapsed when the trial court issued its order
dismissing the underlying action with prejudice. Furthermore, the trial court
failed to issue a failure to prosecute notice under Rule 7.110(e). See, e.g.,
1 Had the parties, however, requested that the trial court apply the Florida Rules of Civil Procedure then this, of course, would not be the case and Civil Procedure Rule 1.070(j)’s 120-day requirement would likely apply. See generally Fla. Sm. Cl. R. 7.020 (providing that certain rules of civil procedure apply to small claims actions as a matter of course, while the trial court may order that other rules of civil procedure also apply “on application of any party or the stipulation of all parties or on the court’s own motion”). See also Mote Wellness & Rehab, Inc. v. State Farm Mut. Auto. Ins. Co., 331 So. 3d 191, 193 (Fla. 4th DCA 2021) (holding county court erred by applying Small Claims Rule 7.110(e)’s six-month timeframe for lack of prosecution dismissal instead of Civil Procedure Rule 1.420(e)’s ten-month timeframe when the parties had previously invoked the Florida Rules of Civil Procedure).
5 Bixby v. ECP Cap. Partners, Inc., 373 So. 3d 899, 904 (Fla. 4th DCA 2023).
Thus, there was no basis for dismissal under Rule 7.110(e).
B. The trial court failed to comply with the requirements of Kozel when imposing its sanction of dismissal with prejudice.
The trial court also indicated it was dismissing Crown Asset
Management’s action with prejudice based on its failure to comply with the
trial court’s order entered June 15, 2023, which granted Crown Asset
Management an additional 45 days to serve Bribiesca. Such dismissals for
failure to comply with a court order are generally reviewed for abuse of
discretion. See Deutsche Bank Nat'l Tr. Co. v. Sombrero Beach Rd., LLC,
260 So. 3d 424, 428 n.3 (Fla. 3d DCA 2018).
“While a trial court may, without doubt, dismiss an action as a sanction
for violation of a court order, it should do so ‘only in extreme circumstances.’”
Hastings v. Est. of Hastings, 960 So. 2d 798, 801 (Fla. 3d DCA 2007)
(quoting Clay v. City of Margate, 546 So. 2d 434, 435 (Fla. 4th DCA 1989)).
In its seminal case, Kozel, the Florida Supreme Court made clear that
while a trial court has the discretionary power to dismiss a complaint for
failure to comply with a court order, a dismissal with prejudice should not be
imposed as a sanction where missed deadlines are concerned absent
certain factors being met. 629 So. 2d at 818; see also Hastings, 960 So. 2d
at 801. In evaluating the factors set forth in Kozel, moreover, “the trial court
6 ‘must make express findings of fact concerning each of the Kozel factors.’”
Sombrero Beach Rd., LLC, 260 So. 3d at 428 (quoting Deutsche Bank Nat'l
Tr. Co. v. Cagigas, 85 So. 3d 1181, 1182 (Fla. 3d DCA 2012)).
No such findings, or indeed any evaluation of the Kozel factors, are
found in the trial court’s order of dismissal on appeal. Such noncompliance
requires us to vacate the trial court’s order of dismissal with prejudice and
remand to allow the trial court to consider the Kozel factors. See First Baptist
Church of Greater Miami v. Miami Baptist Ass'n, Inc., 373 So. 3d 1194, 1198
(Fla. 3d DCA 2023) (“We express no opinion on the nature and extent of the
alleged misconduct, nor whether such misconduct justifies the ultimate
sanction of dismissal with prejudice. Our holding here is that the trial court
failed to comply with the requirements of Kozel and its progeny, and that
absent such compliance, reversal of the order of dismissal with prejudice is
required.”); Sombrero Beach Rd., LLC, 260 So. 3d at 428 n.3 (“While
dismissal of a complaint for non-compliance with a court order is subject to
an abuse of discretion standard of review, failure to apply the standards for
the sanction of dismissal set forth in Kozel v. Ostendorf, 629 So. 2d 817 (Fla.
1993), is in itself a basis for reversal and remand for application of those
standards.” (quoting Alsina v. Gonzalez, 83 So. 3d 962, 964 (Fla. 4th DCA
2012))).
7 CONCLUSION
Accordingly, because (1) Rule 7.110(e) rather than Rule 1.070(j)
controls when a plaintiff fails to effectuate service of process on a defendant
in a small claims action; (2) six months of inactivity had not yet elapsed and
the trial court failed to issue a failure to prosecute notice as required by Rule
7.110(e); and (3) the trial court failed to make the appropriate findings under
Kozel to impose a sanction of dismissal with prejudice for failure to comply
with the trial court’s June 15, 2023 order, we reverse and remand for further
proceedings consistent herewith.
Reversed and remanded.