{"id":2232,"date":"2011-06-10T14:44:36","date_gmt":"2011-06-10T14:44:36","guid":{"rendered":"https:\/\/bresky-merger.local.com\/posts\/fourth-dca-holds-order-dismissing-action-for-failure-to-attend-case-management-conference-insufficient-without-finding-of-willful-and-contumacious-conduct\/"},"modified":"2011-06-10T14:44:36","modified_gmt":"2011-06-10T14:44:36","slug":"fourth-dca-holds-order-dismissing-action-for-failure-to-attend-case-management-conference-insufficient-without-finding-of-willful-and-contumacious-conduct","status":"publish","type":"post","link":"https:\/\/ssrga.com\/appellate\/fourth-dca-holds-order-dismissing-action-for-failure-to-attend-case-management-conference-insufficient-without-finding-of-willful-and-contumacious-conduct\/","title":{"rendered":"Fourth DCA Holds Order Dismissing Action for Failure to Attend Case Management Conference Insufficient Without Finding of \u201cWillful and Contumacious Conduct\u201d"},"content":{"rendered":"<p><em><strong>Dedmon and Kelly v. Kelly, 4D09-3572<br \/>\nMay 18, 2011<\/strong><\/em><\/p>\n<p>The Fourth District wrote to address an appeal from an order of dismissal of appellants\u2019 complaint for failure to appear at a case management conference. A clerk\u2019s default was entered in favor of appellants, and the appellee\u2019s motion to set aside default was denied by the magistrate on September 3, 2008. On July 1, 2009 appellants\u2019 new counsel filed their Motion for Approval of Stipulation for Substitution of Counsel and sent copies to appellee\u2019s counsel and to appellants\u2019 former counsel at an address different from the one used by former counsel in earlier pleadings.\u00a0 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.\u00a0 The order was sent to appellants\u2019 former counsel. Appellants\u2019 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.<\/p>\n<p>On appeal, the Fourth District agreed with appellants that, under First Fairway Condominium I Ass\u2019n 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\u2019s conduct was \u201cwillful and contumacious.\u201d\u00a0 The trial court\u2019s 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\u2019 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.<\/p>\n","protected":false},"excerpt":{"rendered":"<p>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\u2019 complaint for failure to appear at a case management conference. A clerk\u2019s default was entered in favor of appellants, and the appellee\u2019s motion to set aside default was denied by the&#8230;<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[1811,1815],"tags":[1858,1940,1941,1896,1931,1942,1943,1921,1944,1937,1945,1912,1946],"class_list":["post-2232","post","type-post","status-publish","format-standard","hentry","category-4th-dca-rulings","category-case-management-conference","tag-appeal","tag-appellants","tag-case-management-conference","tag-counsel","tag-court","tag-dismissed-without-prejudice","tag-forth-dca","tag-motion","tag-pleadings","tag-remanded","tag-reversed","tag-trial-court","tag-willful-and-contumacious-behavior"],"acf":[],"_links":{"self":[{"href":"https:\/\/ssrga.com\/appellate\/wp-json\/wp\/v2\/posts\/2232","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/ssrga.com\/appellate\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/ssrga.com\/appellate\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/ssrga.com\/appellate\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/ssrga.com\/appellate\/wp-json\/wp\/v2\/comments?post=2232"}],"version-history":[{"count":0,"href":"https:\/\/ssrga.com\/appellate\/wp-json\/wp\/v2\/posts\/2232\/revisions"}],"wp:attachment":[{"href":"https:\/\/ssrga.com\/appellate\/wp-json\/wp\/v2\/media?parent=2232"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/ssrga.com\/appellate\/wp-json\/wp\/v2\/categories?post=2232"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/ssrga.com\/appellate\/wp-json\/wp\/v2\/tags?post=2232"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}