TRAUMA & REHAB ASSOCIATES a/a/o SIRIENA THOMPSON v. ESURANCE PROPERTY AND CASUALTY INSURANCE COMPANY

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT

TRAUMA & REHAB ASSOCIATES a/a/o SIRIENA THOMPSON,
Appellant,

v.

ESURANCE PROPERTY AND CASUALTY INSURANCE COMPANY,
Appellee.

No. 4D21-961

[May 25, 2022]

Appeal from the County Court for the Seventeenth Judicial Circuit,
Broward County; Ellen Feld, Judge; L.T. Case No. COWE18-12218.

Christina M. Kalin and John C. Daly of Daly & Barber, P.A., Plantation,
for appellant.

Mark D. Tinker of Cole, Scott & Kissane, P.A., Tampa, for appellee.

PER CURIAM.

This appeal arises from an action by Trauma Rehab & Associates (the
provider), as assignee for Siriena Thompson (the insured), to recover from
Esurance Property & Casualty Insurance Company (the insurer) under the
terms of the personal injury protection (PIP) provisions of the insured’s
automobile insurance policy. The county court sua sponte dismissed the
action without prejudice 1 based on noncompliance with a pretrial order
setting certain litigation deadlines—specifically, the directive requiring the
parties to file a joint pretrial stipulation by a date certain. We reverse the
order of dismissal on the authority of Comprehensive Spine Center, PLLC

1 Like the order on appeal in Comprehensive Spine Center, the order on appeal
in this case was final in nature, even though the county court had described the
order as “without prejudice,” because the order brought an end all judicial labor
in the action in which it was entered, and “without prejudice” simply referred to
the possibility of refiling a new action in a new case. See Comprehensive Spine
Center, 330 So. 3d at 37 n.1 (order dismissing action “without prejudice” was a
final appealable order where “the intent of the order was clearly to bring an end
to all judicial labor in the action” without prejudice to the refiling of a new action).
v. Equity Insurance Company, 330 So. 3d 35 (Fla. 4th DCA 2021), because
entry of the order violated the provider’s procedural due process rights.

The county court in this case entered a pretrial order establishing a
date certain for the filing of a joint pretrial stipulation. This order never
specifically advised the provider that dismissal of the action would be
imposed as a sanction in the event of noncompliance with its terms. While
the order made clear that sanctions, including dismissal, could result from
noncompliance with the deadline for filing the joint pretrial stipulation, the
order never specifically stated that dismissal of the action would result
without further notice to the parties in the event of noncompliance. After
the deadline established by the pretrial order passed without the parties’
compliance with its terms, the trial court sua sponte dismissed the action
without giving the provider either notice or an opportunity to be heard as
to the appropriateness of the sanction of dismissal.

In Comprehensive Spine Center, we reversed a similar sua sponte
dismissal of a PIP benefits lawsuit initiated by a medical treatment
provider, as an assignee for an insured motorist. Id. at 37. The trial
court’s sua sponte dismissal in that case was predicated on the provider’s
failure “to file an amended complaint within [a] stated timeframe” set forth
in an order granting it leave to amend. Id. However, the trial court in
Comprehensive Spine Center never gave the provider either notice that
dismissal would be the sanction for noncompliance with the order granting
leave to amend, or an opportunity to be heard as to whether dismissal was
an appropriate sanction for noncompliance with the terms of the order.
Id. (“[C]ounty court did not provide notice or an opportunity to be heard
prior to dismissing the action.”). As a result, we concluded that the
medical treatment provider was denied due process such that reversal was
required. Id.

In this case, the trial court similarly failed to give the provider either
notice that the sanction of dismissal would be imposed, or an opportunity
to be heard as to the appropriateness of such a sanction.

We therefore reverse the order of dismissal, as we did in Comprehensive
Spine Center, because the provider’s due process rights were violated by
the trial court’s sua sponte dismissal of the action. See id. (“‘Due process
requires notice and an opportunity to be heard prior to dismissal.’”
(quoting Fed. Nat’l Mortg. Ass’;n v. Sanchez, 187 So. 3d 341, 342 (Fla. 4th
DCA 2016))).

Reversed and remanded for further proceedings.

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KLINGENSMITH, KUNTZ and ARTAU JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

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