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

v.

ESURANCE INSURANCE COMPANY

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. 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

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 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.