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The Law Offices of Robin Bresky Boca Raton & West Palm Beach Appellate Attorney
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Reverses Order Dismissing Suit Entered Following Hearing Noticed Only as Status Conference

Marcline v. Florida Insurance Guaranty Association, 4D09-4948
May 25, 2011

The Fourth DCA recently reversed a trial court order dismissing the appellants’ case with prejudice entered following a status conference. The appellants had filed a claim with the Florida Insurance Guaranty Association (“FIGA”) after their insurer became insolvent. The appellants eventually sued for breach of contract and were awarded $47,616.79 following an appraisal of the loss. The appellants sought to add claims for additional living expenses and to adjudicate their claim for attorney’s fees, but the trial court dismissed these additional claims following a status conference, on the basis that the case had been directed to appraisal and the appraisal award paid.

On appeal, the Fourth District Court of Appeal found that the trial court violated the appellants’ due process rights when it dismissed their additional claims following the status conference. Citing Hagen v. Fla. Drug, Inc., 402 So. 2d 57, 57 (Fla. 4th DCA 1981), the Court stated: “Dismissal should be predicated on a properly filed and noticed motion to dismiss or other dispositive motion to protect the parties’ rights to due process.” The Court noted that the hearing had been noticed only as a status conference. The Court also pointed out that, in addition to the fact the hearing was only noticed as a status conference, FIGA’s motion for summary judgment had been filed less than the twenty days prior to the hearing required by Florida Rule of Civil Procedure 1.510 and the documentary evidence in support of the motion was not authenticated.

The Fourth District reversed and remanded based on the insufficient notice.

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