Third District Court of Appeal

State of Florida 

Opinion filed August 14, 2024.

Not final until disposition of timely filed motion for rehearing.

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No. 3D23-1094

Lower Tribunal No. 17-11541

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Leonardo Gomez, et al.,

Appellants,

vs.

Tamiami Youth Basketball, Inc., et al.,

Appellees.

An Appeal from the Circuit Court for Miami-Dade County, Beatrice 

Butchko, Judge.

Property Litigation Group, PLLC, and Mario Molina (Miramar), for 

appellants.

Hershoff, Lupino & Yagel, LLP, and Robert C. Stober, for appellee

Tamiami Youth Basketball, Inc.

Before LOGUE, C.J., and EMAS and SCALES, JJ. 

SCALES, J.
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Leonardo Gomez and Maria Cristina Gonzalez, the plaintiffs below

(together “Appellants”), appeal a March 29, 2023 Order Denying Plaintiff’s 

Motion to Reopen Case (the “Final Order”) and a June 7, 2023 Order 

Denying Plaintiff’s Motion for rehearing directed toward the Final Order (the 

“Rehearing Denial Order”).

1 Because Appellants’ claim against appellee 

Tamiami Youth Basketball, Inc. (“Tamiami”) and Tamiami’s counterclaim 

against Appellants remain pending, and Appellants’ did not receive the 

notice required under Florida Rule of Civil Procedure 1.420(e), the trial court 

erred in denying Appellants’ motion to re-open the case. We reverse the 

Final Order and the Rehearing Denial Order and remand the case for further 

proceedings.

I. Relevant Background

On May 12, 2017, Appellants attended a basketball game in a league 

operated by appellee Tamiami. Appellants’ seven-year-old son, J.G., 

participated in this league. A confrontation occurred between Appellants and 

a Tamiami’s manager, Jose Inchausti, which resulted in litigation. Appellants 

1 The sole appellee is Tamiami Youth Basketball, Inc. (“Tamiami”). While

Appellants’ amended complaint named Tamiami, Miami-Dade County 

Department of Parks and Recreation, Miami-Dade County Fair & Exposition, 

Inc., Jose Inchausti, and three John Does as defendants, as explained 

below, the claims against those other defendants, as well as the claims

initially asserted by Appellants’ minor child, J.G., have been dismissed. 
3

filed an amended complaint on August 10, 2017. In their amended complaint, 

Appellants alleged, among other things, that Inchausti and three unnamed 

individuals committed (i) battery and assault on appellant Leonardo Gomez, 

(ii) assault on appellant Maria Cristina Gonzales, and (iii) assault on J.G. 

Initially, J.G. was a plaintiff in the lawsuit. On October 4, 2017, though, 

J.G. voluntarily dismissed his claim against all defendants. Inchausti was 

dismissed from the case on June 25, 2019, after Appellants and Inchausti 

filed a joint stipulation of dismissal. At several points between 2017 and 

2019, all other defendants (who had been served) were dismissed from 

Appellants’ case, except Tamiami.

2 On January 4, 2019, Tamiami filed a 

motion for judgment on the pleadings, which the trial court denied on

December 16, 2020. The circuit court docket shows no record activity from 

this point until February 22, 2023, when Appellants filed a motion to re-open 

the case in order to proceed with trial.

In this motion to re-open, Appellants stated that, notwithstanding that 

no docket entry evidenced the rendering of a dismissal of Appellants’ claim 

against Tamiami, they had been advised by Tamiami’s counsel that the 

circuit court clerk showed the file as closed, which Appellants’ counsel 

2 On January 9, 2018, Tamiami asserted a counterclaim against Appellants 

based on a release Appellants had executed. The counterclaim remains 

unadjudicated.
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confirmed from a review of the online docket. Hence, Appellants’ February 

22, 2023 motion requested that the case be re-opened and set for trial on 

the trial court’s 2023 trial calendar. Presumably, in response to this February 

22nd motion to re-open, the trial court entered a March 10, 2023 order setting 

the case for trial during the trial court’s three-week trial docket, beginning 

August 7, 2023. The online docket reflects that, also on March 10, 2023, the 

trial court set Appellants’ February 22th motion to re-open for a March 29, 

2023 hearing via the Zoom platform. 

On March 29, 2023, the trial court entered the Final Order. In pertinent 

part, the Final Order made three findings: (1) “Plaintiff filed a Voluntary 

Dismissal Without Prejudice on October 3, 2017[;]” (2) “Plaintiff filed a 

Stipulation for Dismissal on June 25, 2019, and an Order of Dismissal was 

entered on June 27, 2019[;]” and (3) “There was no record activity on the file 

between December 15, 2020, and January 11, 2023.” The Final Order states: 

“This matter shall remain CLOSED without prejudice to Plaintiff filing a new 

action.” 

Appellants timely filed a motion for rehearing on April 13, 2023. In this 

motion, Appellants explained that, as evidenced by the Final Order, the trial 

court was apparently under the mistaken belief that all claims had been 

dismissed against all defendants. The rehearing motion explained that only 
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J.G. had voluntarily dismissed all the defendants; and that Appellants had 

stipulated dismissal only of Inchausti, and therefore, Tamiami remained as a 

defendant in Appellants’ case.

It appears that, on June 6, 2023, the trial court conducted a hearing via 

the Zoom platform on Appellants’ rehearing motion, and on June 7, 2023, 

entered the Rehearing Denial Order. Appellants timely appealed both the 

Final Order and the Rehearing Denial Order. 

II. Analysis

A. Our jurisdiction

At the outset, it should be noted that we have characterized the trial 

court’s March 29, 2023 order denying Appellant’s February 22, 2023 motion 

to re-open as a reviewable “Final Order.” While the Final Order does not 

contain language dismissing Appellants’ operative complaint (or Tamiami’s 

counterclaim), it does state that it is entered “without prejudice,” and allows

Appellants to proceed only if they file a new action.3 Thus, despite there 

being no order affirmatively dismissing Appellants’ lawsuit, we treat the Final 

Order as if it had dismissed Appellants’ lawsuit and Tamiami’s counterclaim 

3 See U.S. Bank Nat’l Ass’n v. Rodriguez, 206 So. 3d 734, 736 (Fla. 3d DCA 

2016) (“If a dismissal is ‘without prejudice’ but it is clear from the context of 

the record that the plaintiff’s right to pursue the case requires the filing of a 

new case, the order is final.”)
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because we perceive no practical difference between the Final Order and a

final dismissal order.

The Final Order was plainly final in that it constituted the end of judicial 

labor on this case,

4

therefore, Appellants’ timely filed, April 13, 2023 motion 

for rehearing tolled the rendition of the Final Order. Fla. R. App. P. 

9.020(h)(1)(B). Thus, we have appellate jurisdiction to review both the Final 

Order and the Rehearing Denial Order. See Fla. R. App. P. 9.130(a)(4).

Because we reverse the Final Order, we reverse the Rehearing Denial Order

as well. 

B. Appellants’ claim against Tamiami

As mentioned above, while the record contains no order or other filing 

that explains the trial court’s “closing” of the file, it does appear that, perhaps, 

one reason the trial court entered the Final Order denying Appellants’ motion 

to re-open, is due to the trial court’s mistaken belief that all of the claims had 

been dismissed. The record reveals – and Tamiami does not dispute – that 

Appellants’ claim against Tamiami was neither voluntarily dismissed nor 

adjudicated in Tamiami’s favor. Indeed, the trial court denied Tamiami’s 

motion for judgment on the pleadings, and the pleadings plainly reflect that 

4 See Almacenes El Globo de Quito, S.A. v. Dalbeta L.C., 181 So. 3d 559, 

561 (Fla. 3d DCA 2015) (“For the purposes of appellate review, an order of 

the circuit court is ‘final’ if it ends all judicial labor in the case.”)
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Appellants’ claim against Tamiami remains pending. Hence, to the extent the 

Final Order was entered on this basis, it was error.

C. Dismissal for failure to prosecute

We next turn our attention to the other possible ground identified in the 

Final Order for denying Appellants’ motion to re-open: that the case 

warranted dismissal under rule 1.420(e) because no record activity had 

occurred between December 15, 2020, and January 11, 2023. Generally, we 

review an alleged due process violation related to the application of rule 

1.420(e) de novo. See Lifetime Guarantee Adm’rs, LLC v. Kaminskey, 276 

So. 3d 847, 848 (Fla. 4th DCA 2019); Hernandez v. Ibrahim, 305 So. 3d 661, 

662-63 (Fla. 3d DCA 2020).

To the extent the trial court’s entry of the Final Order was entered on this 

basis, Appellants were denied due process. While rule 1.420(e)5 authorizes 

5 Rule 1.420(e) provides as follows:

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, any interested person, whether a party to the action or not, 

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, and if no stay 

was issued or approved prior to the expiration of such 60-day 
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a trial court to dismiss a lawsuit for lack of prosecution, the rule contains 

mandatory notice requirements, and a failure to adhere to these notice 

requirements resulting in a due process violation, requires the reversal of 

any such dismissal. Lifetime Guarantee Adm’rs, 276 So. 3d at 848; see also

Albo v. Martell, No. 23-1379, 2024 WL 3433739, at *4 (Fla. 3d DCA July 17, 

2024).

The record plainly reflects, and Tamiami does not refute, that 

Appellants were not provided the notice required under rule 1.420(e). 

Hence, to the extent that the circuit court’s effective dismissal of this case 

was based on rule 1.420(e), a lack of notice to the parties violated Appellants’ 

right of due process. Grosso v. HSBC Bank USA, N.A., 204 So. 3d 139, 141-

42 (Fla. 4th DCA 2016) (holding that when a trial court administratively closes

a case, which amounts to a dismissal, it owes the parties procedural due 

process).

period, the action shall be dismissed by the court on its own 

motion or on the motion of any interested person, whether a party 

to the action or not, 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. 

Mere inaction for a period of less than 1 year shall not be 

sufficient cause for dismissal for failure to prosecute. 

Fla. R. Civ. P. 1.420(e) (emphases added).
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We reverse the Final Order and the Rehearing Denial Order and 

remand this case to the trial court to enter an order reopening the case and 

to conduct further proceedings not inconsistent with this opinion.

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6 To its credit, Tamiami does not argue that the trial court complied with the 

requisites of rule 1.420(e), or that the record reflects that Appellants’ claims 

against it were dismissed. Rather, Tamiami suggests in its briefing to this 

Court that we can affirm the challenged orders if we were to adjudicate its 

defenses and counterclaim in the first instance. We decline Tamiami’s 

invitation in this regard and express no opinion as to the merits of the case.