Posted by Nydia Streets of Streets Law in Florida Family Law Procedure
What happens if an attorney misses a scheduled hearing in a Florida family law case? One of the harshest sanctions that can be imposed is dismissal of a case. If the attorney can prove mistake, inadvertence, or excusable neglect, the case should not be dismissed. This was an issue in the case Little v. Turnbow, 5D23-2441 (Fla. 5th DCA February 9, 2024).
A case management conference was set in this matter at which the parties and/or their attorneys were apparently ordered to appear. Counsel for the plaintiffs did not appear and the trial court dismissed the case. The plaintiff’s lawyer filed a motion to vacate the order of dismissal under Florida Rule of Civil Procedure 1.540(b)(1) asserting that he missed the hearing due to a clerical error - his office mistakenly did not calendar the hearing because his assistant believed the hearing was not required based on the plaintiffs filing a response to a prior court notice. The trial court denied the motion to vacate even though the defendants did not file any affidavits in response to the motion and did not contest the allegations. The plaintiffs appealed.
The appellate courts reversed holding that dismissal is the severest of sanctions which should be used sparingly because Florida law prefers resolution of cases on the merits. The court noted “This court, as well as our sister courts, have consistently recognized that an attorney’s inadvertent and unintentional failure to appear at a hearing due to a calendaring or clerical error is one of the common and well-established types of excusable neglect or mistake that warrants relief under rule 1.540(b).”
The court concluded “Under Florida Rule of Civil Procedure 1.200(c), a trial court may, among other things, dismiss an action when a party fails to attend the case management conference. However, because dismissal is recognized as ‘the harshest of all sanctions,’ a trial court, in dismissing the action, ‘must explicitly find that the party’s actions were willful, flagrant, deliberate, or otherwise aggravated.’ [internal citations omitted]. The final order of dismissal in the instant case contained no such findings. In fact, the unchallenged and uncontroverted evidence before the trial court at the hearing held on the rule 1.540(b) motion to vacate this dismissal order showed that counsel’s failure to attend the case management conference was neither willful, flagrant, deliberate, nor otherwise aggravated; rather, it was due to a clerical or calendaring error or mistake, similar to those described in the case law previously cited, where the trial courts’ denials of rule 1.540(b) motions were reversed. Under these circumstances, we conclude that the trial court abused its discretion in denying Appellants’ rule 1.540(b) motion to vacate the dismissal order.”
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