DISMISSING A CASE SUA SPONTE WITH PREJUDICE WITHOUT PROPER NOTICE OF INTENT TO CONSIDER IMPOSING THAT SANCTION WAS ERROR
Weeks v. Universal Property and Casualty Insurance Co, 49 Fla. L. Weekly D2031 (Fla. 5th DCA Oct. 8, 2024):
The trial court entered an order to appear remotely for a case management conference. The order warned that the plaintiffs had to appear for the hearing on the date specified to avoid having the case dismissed for lack of prosecution. Their attorney failed to appear at the scheduled conference, and a day later, the court dismissed the case with prejudice.
The plaintiffs filed a motion to vacate the dismissal order and a supporting affidavit from their attorney, attesting that his failure to appear resulted from excusable neglect for failing to calendar the hearing. They also argued that the court had failed to make a required finding that their failure to appear was willful.
Before obtaining a ruling on the motion, the plaintiffs filed a notice of appeal. Subsequently, the trial court granted their motion to vacate for excusable neglect, but later vacated its previous order granting relief, finding that it was entered in error because the dismissal order from which the plaintiff sought relief was not a final judgment.
The plaintiffs raised three challenges to the dismissal order. First, they argued that the trial court failed to find their failure to appear was willful. The court acknowledged that the plaintiffs were undoubtedly correct but found that the argument was not properly preserved and did not amount to fundamental error.
Then the plaintiffs argued that the trial court violated their due process rights by failing to consider their motion to vacate. However, the trial court lacked jurisdiction to address plaintiffs’ motion once they filed the notice of appeal.
Finally, the plaintiffs asserted that the dismissal with prejudice violated their due process because the order to appear did not put them on notice that their case would be dismissed with prejudice if they failed to appear.
Although plaintiffs did not make that argument to the trial court, the court addressed the due process violation as a matter of fundamental error and reversed the dismissal with instructions for the court to reconsider the motion for relief from judgment.