Posted by Nydia Streets of Streets Law in Florida Family Law Procedure
What is a dismissal for lack of prosecution in a Florida family law case? This means the court dismissed a case because there was no activity for a long period of time (usually around 10 months). Before a case is dismissed for lack of prosecution notice is sent to both parties indicating that if action is not taken to progress the case within a certain period of time, the case will be dismissed. Can a case be re-opened if it is dismissed for lack of prosecution. In certain circumstances, yes. This was an issue in the case Castillo v. Valbonesi, 3D24-1780 (Fla. 3d DCA July 30, 2025).
In this case, the petitioner in the trial court did not file anything for a period of 10 months. Thereafter, a notice of lack of prosecution was issued and the matter was set for hearing. The petitioner’s lawyer had a heart attack during this period and was hospitalized, causing him to miss the hearing. Because he missed the hearing, the case was dismissed. Subsequently, the petitioner moved to vacate the dismissal under Fla. R. Civ. P. 1.540. After a hearing, the trial court determined the petitioner showed good cause and vacated the dismissal. The respondents appealed.
The appellate court affirmed, holding “[The petitioner’s] motion to vacate the dismissal alleged sufficient facts to show ‘excusable neglect.’ She addressed both her counsel’s health issues and his failure to calendar the hearing and to attend. Even still, [the respondents] argue that a trial court cannot vacate a dismissal for lack of prosecution under Rule 1.540. Not so. Nothing in the text of Rule 1.540 prohibits the trial court’s actions. Instead, Rule 1.540 expressly allows a trial court to relieve a party from any ‘final judgment, decree, order, or proceeding” for “excusable neglect.’ Fla. R. Civ. P. 1.540.”
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