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TRIAL COURT ERRED IN DISMISSING A CASE BECAUSE COUNSEL FAILED TO APPEAR FOR A CASE MANAGEMENT CONFERENCE AFTER THE DEFENDANT HAD FILED AN ANSWER AND AFFIRMATIVE DEFENSES 

Mar 21st, 2024 in by admin

Universal Property and Cas. Ins. Co. v. Andre, 49 Fla. L. Weekly D196 (Fla. 4th DCA Jan. 17, 2024):

To the extent that a court enters a default against a litigant because counsel fails to appear for a case management conference, the litigant is entitled to an opportunity to be heard as to why the non-compliance was not willful or in bad faith before the entry of the default. 

Additionally, the trial court should have granted the defendant’s amended motion to set aside the default and default judgment, because it satisfied the elements of due diligence, excusable neglect and meritorious defense.  (It was filed 5 days after the final judgment, the amended motion contained counsel’s sworn statements that the failure to attend the case management conference was due to a calendaring error, and the answer contained a facially meritorious defense.)

The court concluded by noting that the entry of the default and the default judgment in a meritoriously defended action due to counsel’s excusable neglect, is unfair punishment to a defendant when the defendant did not participate in the misstep.