FRED VIERA, JR.
v.
VIVIENNE LEMUS VIERA
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Husband appeals the trial court's dismissal of a marital dissolution action for lack of prosecution. The Third District Court of Appeal reversed the dismissal because the trial court failed to serve the parties with the notice required by Florida Family Law Rule of Procedure 12.420(d) before dismissing the case, thereby violating the parties' due process rights.
The trial court violated the parties' due process rights by dismissing the case without serving the required notice under rule 12.420(d). The Dismissal Order is therefore reversed and the case must be remanded to the trial court with instructions to reopen the case.
[1] A trial court's sua sponte dismissal of a marital dissolution action for lack of prosecution violates the parties' due process rights when they are not served with the no…
[2] Florida Family Law Rule of Procedure 12.420(d) requires that parties receive notice before a case can be dismissed for failure to prosecute.
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Establishes the core holding that failure to serve required notice violates due process and mandates reversal.
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Join FLexlaw to unlock all legal intelligenceA marital dissolution action was pending in the trial court. The record shows that for more than 10 months, no activity occurred in the case by filing…
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Third District Court of Appeal State of Florida
Opinion filed May 21, 2025. Not final until disposition of timely filed motion for rehearing.
No. 3D24-2208 Lower Tribunal No. 19-9669-FC-04
Fred Viera, Jr., Appellant,
VS.
Vivienne Lemus Viera, Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Oscar Rodriguez-Fonts, Judge.
Fred Viera, Jr., in proper person. No appearance, for appellee.
Before EMAS, SCALES and LOBREE, JJ.
PER CURIAM.
Appellant Fred Viera, Jr. (“Husband”) appeals a November 8, 2024 final order that, on the trial court's own motion, dismissed the underlying marital dissolution action for lack of prosecution (“Dismissal Order"). Husband argues that, prior to entry of the Dismissal Order, the parties were not served with the notice required by Florida Family Law Rule of Procedure 12.420, the rule governing case dismissals in family matters.1
Because the record plainly reflects that the parties were not served with the notice required by rule 12.420(d) prior to the lower court's entry of
the Dismissal Order, the parties' due process rights were violated; hence, we are compelled to reverse the Dismissal Order and remand with instructions to reopen the case.2 See Reed v. Reed, 386 So. 3d 574, 574 (Fla. 4th DCA 2024) ("The court dismissed the case pursuant to Family Law Rule of Procedure 12.420. Although there is a dearth of case law construing rule 12.420, the rule is nearly identical to Florida Rule of Civil Procedure 1.420(e), making the construction of rule 1.420(e) instructive."); Gomes v. Tamiami Youth Basketball, Inc., 49 Fla. L. Weekly D1705, 2024 WL 3800625 (Fla. 3d DCA Aug. 14, 2024) (“The record plainly reflects, and [Appellee] 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. 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.") (citation omitted).
Reversed and remanded with instructions.
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