Yosima Marin-Igarza and Raul Rivas v. American Sales and Management Organization LLC, D/B/A Eulen America

• Court: District Court of Appeal of Florida
• Decided: July 30, 2025
• Docket: 3D2024-1295
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed July 30, 2025. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D24-1295 Lower Tribunal No. 18-30690-CA-01 ________________

Yosima Marin-Igarza and Raul Rivas, Appellants,

vs.

American Sales and Management Organization LLC, d/b/a Eulen America, Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Charles Kenneth Johnson, Judge.

The Ticktin Law Group, and Brent Day (Deerfield Beach), for appellants.

Allen, Norton & Blue, P.A., and Liana De La Noval and Maria M. Alfaro, for appellee.

Before EMAS, MILLER and BOKOR, JJ.

PER CURIAM. Affirmed. See Fla. R. Civ. P. 1.420(e) (“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. . . the court, or

the clerk of 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. .

. the action shall be dismissed by the court on its own motion or on the motion

of any interested person, . . . after reasonable notice to the parties, unless a

party shows good cause in writing at least 5 days before the hearing on the

motion why the action should remain pending.”) (emphasis added); Metro.

Dade Cnty. v. Hall, 784 So. 2d 1087, 1090 n.4 (Fla. 2001) (standard of review

applicable to a trial court's order dismissing a case for lack of prosecution is

abuse of discretion); see also Fla. Power & Light Co. v. Gilman, 280 So. 2d

15, 16 (Fla. 3d DCA 1973) (“A change of attorneys, even when made

necessary by misfortune, is not good cause for failure to prosecute for one

year.”) (citing Gulf Appliance Distribs., Inc. v. Long, 53 So. 2d 706 (Fla.

1951)); Havens v. Chambliss, 906 So. 2d 318, 320 (Fla. 4th DCA 2005)

(affirming dismissal for failure to prosecute notwithstanding that the

expiration of the statute of limitations barred refiling of the action: “We

2 recognize the harsh result here, but just as we concluded in F.M.C. Corp. v.

Chatman, 368 So. 2d 1307, 1308 (Fla. 4th DCA 1979), where the rule

required dismissal and the statute of limitations had run, ‘[w]e have every

sympathy for such a dire happening, but we are convinced that this is not the

kind of good cause the rule envisages.’”); Pan Am. Bank, N.A. v. World

Purchasing, Inc., 507 So. 2d 1192, 1192-93 (Fla. 3d DCA 1987), overruled

on other grounds by Marsh & McLennan, Inc. v. Aerolineas Nacionales Del

Ecuador, 530 So. 2d 971 (Fla. 3d DCA 1988) (“An order which vacates an

order of dismissal for failure to prosecute is subject to the same test for abuse

of discretion. The fact that the statute of limitations has run is not good cause

for vacating the order of dismissal.”).