Opinion
No. 4D2023-0762
10-11-2023
Milan LULEY and Daniela Luley, Appellants, v. DANTO BUILDERS, LLC, Appellee.
Larry A. Karns of Shrouder, Kams & Mager, P.A., Cooper City, for appellants. Hillarie Miller and Bryan W. Black of Derrevere, Stevens, Black & Cozad, West Palm Beach, for appellee.
Appeal from the County Court for the Seventeenth Judicial Circuit, Broward County; Ellen Feld, Judge; L.T. Case No. COWE-21-011670.
Larry A. Karns of Shrouder, Kams & Mager, P.A., Cooper City, for appellants.
Hillarie Miller and Bryan W. Black of Derrevere, Stevens, Black & Cozad, West Palm Beach, for appellee.
ON CONFESSION OF ERROR
Per Curiam.
Milan Luley and Daniela Luley ("Plaintiffs") appeal the county court’s final order sua sponte dismissing their action for failure to attend a case management conference, and the subsequent denial of their motion for rehearing. Danto Builders, LLC ("Defendant") filed a confession of error on the basis that the court: (1) failed to give Plaintiffs notice or the opportunity to be heard before dismissing the action; and (2) failed to make the required findings in support of dismissal. We accept Defendant’s confession of error and reverse.
The final order of dismissal simply stated the case was dismissed for failure to attend the conference. The order did not set forth any specific findings establishing that Plaintiffs willfully and contumaciously failed to attend. This was error. See Kaufman ex rel. Yelnick v. FS Tenant Pool III Tr., 87 So. 3d 1228, 1229 (Fla. 4th DCA 2012) (reiterating that in order to dismiss an action as a sanction for failure to attend a case management conference, "the trial court must also find that the party willfully and contumaciously failed to attend the conference" and the "[f]ailure to include a finding of such willful and contumacious behavior in its order dismissing the case with prejudice is an abuse of discretion by the trial court"); see also Petersen & Hawthorne, P.A. v. EMI Enters., Inc., 115 So. 3d 1064, 1065 (Fla. 4th DCA 2013) ("The court’s order merely stated that Appellant failed to attend the conference and did not set forth any findings establishing that Appellant engaged in ‘willful and contumacious’ behavior. This was not enough."). To further compound the error, the county court failed to give Plaintiffs notice of its intention to dismiss the action as a sanction for failure to appear. See Fed. Nat’l Mortg. Ass’n v. Sanchez, 187 So. 3d 341, 342 (Fla. 4th DCA 2016) ("Due process requires notice and an opportunity to be heard prior to dismissal."); Crescenzo v. Marshall, 199 So. 3d 353, 355–56 (Fla. 2d DCA 2016) ("[A] court’s failure to provide notice of its intent to dismiss or allow for an opportunity to be heard prior to dismissal violates the plaintiff's due process rights." (citation and internal quotation marks omitted)).
Accordingly, because Plaintiffs’ due process rights were violated by the county court’s sua sponte dismissal of their action, we reverse the final order of dismissal and remand for further proceedings. See Trauma & Rehab Assocs. v. Esurance Prop. & Cas. Ins. Co., 339 So. 3d 1004, 1006 (Fla. 4th DCA 2022).
Reversed and remanded.
Klingensmith, C.J., May and Damoorgian, JJ., concur.