IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO

FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED

CARGLASS, INC., LLC A/A/O AMY BILILA,

Appellant,

v. Case No. 5D21-1595

LT Case No. 2016-SC-33720

ESURANCE INSURANCE COMPANY,

Appellee.

________________________________/

Opinion filed September 16, 2022

Appeal from the County Court 

for Volusia County,

Belle B. Schumann, Judge.

Chad A. Barr, of Chad Barr Law, 

Altamonte Springs, for Appellant.

Jay M. Walker, of Martinez Denbo, 

LLC, St. Petersburg, for Appellee.

PER CURIAM. 

Carglass, Inc., LLC a/a/o Amy Bilila (“Carglass”) appeals the trial

court’s order dismissing its case against Esurance Insurance Company

(“Esurance”) for lack of prosecution. We affirm.
2

The underlying dispute in this case concerns Esurance’s non-payment of a 

claim under the automobile insurance policy covering Bilila’s vehicle. 

Esurance issued the subject policy to Bilila, and in November 2014, her 

vehicle sustained windshield damage. Bilila assigned her insurance benefits 

to Carglass, which repaired the windshield and submitted an invoice to 

Esurance for approximately $133, but Esurance made only a partial payment 

of $62. In October 2016, Carglass filed suit against Esurance, alleging 

breach of contract and seeking recovery of full insurance benefits.

The suit was filed in Volusia County as a small claims case in county 

court, but, pursuant to Small Claims Rule 7.020, the parties agreed to invoke 

the Florida Rules of Civil Procedure.1 Importantly, however, the trial court’s 

order approving that request expressly retained the six-month timeframe for 

dismissal of a case for lack of prosecution, as reflected in Small Claims Rule 

7.110(e), although the rule itself was not cited. 

There was various record activity over the course of the next two years,

including a motion to dismiss filed by Esurance, asserting that it had invoked 

its right to appraisal and Carglass had failed to comply. Carglass sought to 

 1 Small Claims Rule 7.020, titled, “Applicability of Rules of Civil 

Procedure,” provides in relevant part: “(c) Additional Rules. In any particular 

action, the court may order that action to proceed under 1 or more additional 

Florida Rules of Civil Procedure on application of any party or the stipulation 

of all parties or on the court’s own motion.” Fla. Sm. Cl. R. 7.020(c). 
3

engage in discovery on that issue, and in response, Esurance filed a motion 

for protective order. The case then effectively sat dormant for approximately 

one year. 

In December 2019, five years after the damage to the windshield 

occurred and three years after the suit was filed, the trial court issued its first 

notice of lack of prosecution, pursuant to Small Claims Rule 7.110(e). The 

court set a hearing and indicated that the case would be dismissed unless 

Carglass established good cause in writing at least five days before the 

hearing. Thereafter, Carglass filed its good cause response, asserting that 

(1) the case was “one in a larger group of cases pending in Volusia County

. . . involving various entities falling under the Esurance insurance company 

umbrella”; (2) additional discovery had been filed; and (3) dismissal would 

cause Carglass to refile the case and incur additional costs. The trial court 

entered an order accepting Carglass’ response and the case remained 

pending.

In April 2021, the trial court entered a second notice of lack of

prosecution, set a hearing, and again ordered Carglass to show good cause 

within five days prior to the hearing. Carglass timely filed its second good 

cause response, which was identical to the first. 
4

At the hearing, counsel for Carglass explained that there were a 

number of cases pending in various Florida appellate courts concerning 

appraisal, which, according to counsel, was the central issue in the instant 

case. Counsel went on to state, “[I]f the Court would review the docket, it 

appears that the rules of civil procedure were fully invoked, and that there 

was no particular reservation for the small claims rule to be active in this 

case.” Finding that there had been no record activity within six months prior 

to the second notice of lack of prosecution and no good cause shown, the 

trial court dismissed Carglass’ suit.2 This appeal followed. 

A trial court’s construction of a rule of civil procedure is reviewed de 

novo. See Chemrock Corp. v. Tampa Elec. Co., 71 So. 3d 786, 790 (Fla. 

2011). Small Claims Rule 7.110(e) provides:

(e) Failure to Prosecute. All actions in which it 

affirmatively appears that no action has been taken 

by filing of pleadings, order of court, or otherwise for 

a period of 6 months shall be dismissed by the court 

on its own motion or on motion of any interested 

person, whether a party to the action or not, after 30 

days’ notice to the parties, unless a stipulation 

staying the action has been filed with the court, or a 

stay order has been filed, or a party shows good 

cause in writing at least 5 days before the hearing on 

the motion why the action should remain pending.

 2 At that point, it had been seven-and-a-half years since the damage 

to the windshield occurred and over four-and-a-half years since the 

complaint had been filed.
5

Rule 1.420(e) provides:

(e) 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, 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 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.

On appeal, Carglass argues that, once the parties invoked the Florida 

Rules of Civil Procedure, rule 1.420(e) and its ten-month timeframe for 

record activity governed the case—absent the trial court specifically stating 

that Small Claims Rule 7.110(e) still controlled. Alternatively, Carglass 

asserts that Small Claims Rule 7.110(e) should be interpreted as including a 

30-day grace period for record activity, consistent with rule 1.420(e)’s 60-day 
6

grace period; and because Carglass’ good cause response was filed within 

that 30-day period, dismissal was improper. We reject both arguments.3

As to Carglass’ first argument, it relies on Mote Wellness & Rehab, Inc. 

v. State Farm Mutual Automobile Insurance Co., 331 So. 3d 191, 192 (Fla. 

4th DCA 2021). In Mote, the Fourth District reversed the county court’s 

dismissal for lack of prosecution because “there was record activity and, 

even if there was no record activity, the county court failed to give the 

Provider proper notice before dismissing the case.” 331 So. 3d at 192. 

Carglass seizes on the fact that the Fourth District also found that the county

court further erred by applying Small Claims Rule 7.110(e)’s six-month 

timeframe instead of rule 1.420(e)’s ten-month timeframe when the county

court had previously invoked the Florida Rules of Civil Procedure. Id. at 193. 

However, in the instant case, although the trial court broadly invoked the 

Florida Rules of Civil Procedure, it also stated that the “six (6) months lack 

of prosecution remains,” making it clear that Small Claims Rule 7.110(e)’s 

timeframe still governed the case. As such, the instant case is 

distinguishable from Mote.

 3 We affirm without discussion Carglass’ third argument—that the trial 

court abused its discretion in finding that good cause was not established to 

avoid dismissal. See Swait v. Swait, 958 So. 2d 552, 553 (Fla. 4th DCA 2007) 

(“The abuse of discretion standard is triggered only if the trial court must 

make a determination of good cause.” (citations omitted)). 
7

Next, we reject Carglass’ request to construe Small Claims Rule

7.110(e) as including an implicit 30-day grace period for filing record activity, 

similar to the explicit 60-day grace period found in rule 1.420(e). The plain

language of the two rules compels this result, as 1.420(e) expressly provides 

for a 60-day grace period, whereas Small Claims Rule 7.110(e) does not.

See Fla. R. Civ. P. 1.420(e); Fla. Sm. Cl. R. 7.110(e); see also Metcalfe v. 

Lee, 952 So. 2d 624, 628 (Fla. 4th DCA 2007) (noting that courts must 

interpret rules of civil procedure in accord with their “plain and ordinary 

meaning” (citing Weber v. Dobbins, 616 So. 2d 956, 958 (Fla. 1993))).

Accordingly, we find that the trial court correctly applied Small Claims Rule 

7.110(e) in dismissing Carglass’ suit for lack of prosecution. We likewise 

refrain from reading into the small claims rule a 30-day grace period for filing 

record activity to avoid dismissal.

4

AFFIRMED.

EVANDER, COHEN and EDWARDS, JJ., concur. 

 4 While it is true that Small Claims Rule 7.110(e) has been amended 

to conform to rule 1.420(e), see In re Amendments to The Florida Small 

Claims Rules, 682 So. 2d 1075, 1075, 1078 (Fla. 1996), to date, the Florida 

Supreme Court has not amended the small claims rule any further to include 

a similar grace period provision.