Dedmon and Kelly v. Kelly, 4D09-3572
May 18, 2011
The Fourth District wrote to address an appeal from an order of dismissal of appellants’ complaint for failure to appear at a case management conference. A clerk’s default was entered in favor of appellants, and the appellee’s motion to set aside default was denied by the magistrate on September 3, 2008. On July 1, 2009 appellants’ new counsel filed their Motion for Approval of Stipulation for Substitution of Counsel and sent copies to appellee’s counsel and to appellants’ former counsel at an address different from the one used by former counsel in earlier pleadings. The trial court set a case management conference was set for July 30, 2009, which stated that there had been no record activity since September 3, 2008. The order was sent to appellants’ former counsel. Appellants’ new counsel failed to show up, and the trial court dismissed without prejudice pursuant to Fla. R. Civ. P. 1.200(c), which allows a court to dismiss for failure to attend a case management conference, and upon Fla. R. Civ. P. 1.420(e), which provides for dismissal for failure to prosecute an action.
On appeal, the Fourth District agreed with appellants that, under First Fairway Condominium I Ass’n v. Gulfstream Roofing, Inc., 701 So.2d 652 (Fla. 4th DCA 1997), the trial court erred in imposing the harsh sanction of dismissal without finding that the party’s conduct was “willful and contumacious.” The trial court’s order failed to include an express finding of willful and contumacious behavior. Without considering the lack of notice requirement to the appellants, the court also held that appellants’ alleged inaction for a period of time less than one year was insufficient cause for dismissal under Fla. R. Civ. P. 1.420(e). The court reversed and remanded.