DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
IRIS DIXON,
Appellant,
v.
FEDNAT INSURANCE COMPANY,
Appellee.
No. 4D21-2848
[June 1, 2022]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; G. Joseph Curley, Jr., Judge; L.T. Case No.
502020CA001691.
Sommer C. Horton of Horton Law Group, P.A., Boca Raton, for
appellant (withdrew after filing initial brief).
Warren B. Kwavnick of Cooney Trybus Kwavnick Peets, Fort
Lauderdale, for appellee.
GERBER, J.
In this homeowner’s insurance dispute, the plaintiff insured appeals
from the circuit court’s final order granting the defendant insurer’s motion
to dismiss her action with prejudice. The plaintiff argues the circuit court
fundamentally erred when it dismissed her action with prejudice, based
solely on not having retained new counsel by a date certain as provided in
an earlier order granting her then-counsel’s motion to withdraw, when: (1)
the day after the defendant had filed its motion to dismiss, the circuit court
considered the motion to dismiss at a hearing previously set on a different
motion; and (2) no basis existed in the record to require the plaintiff to
have retained new counsel instead of permitting her to represent herself.
We agree with the plaintiff’s fundamental error argument, which is
apparent on the face of the record. Therefore, we reverse. We will present
the procedural history before turning to our review.
Procedural History
The record is fairly brief. The plaintiff, through her then-counsel, filed
a complaint against the defendant for breach of contract and declaratory
relief. The plaintiff also served discovery requests on the defendant.
The defendant filed a motion to compel an appraisal pursuant to the
insurance policy’s terms, and to stay the action until the appraisal was
completed. The circuit court entered an order granting the defendant’s
motion.
After completion of the appraisal, which did not result in the parties
resolving the coverage dispute, the plaintiff filed a motion to lift the stay.
The circuit court entered an order granting the motion. In the order, the
circuit court also directed the parties to complete mediation within forty-
five days of the order’s entry.
A few weeks later, the plaintiff filed a pro se motion requesting that her
counsel withdraw from representing her due to differences between them.
The plaintiff also filed a pro se motion requesting the mediation deadline
to be delayed as a result.
The plaintiff’s counsel later filed a motion to withdraw. In the motion,
the plaintiff’s counsel requested the circuit court to grant the plaintiff sixty
days to find new counsel and to stay the action for the same sixty-day
period.
On the same day that the plaintiff’s counsel filed the motion to
withdraw, the defendant filed an ex parte motion to compel the plaintiff’s
responses to a supplemental discovery request. The defendant also filed
a motion to compel the plaintiff’s compliance with the mediation order.
The defendant alleged the mediation had not occurred because the
plaintiff’s counsel had not been able to confirm the mediation date with
the plaintiff. The only remedies which the defendant sought in that motion
were compelling the plaintiff to appear for mediation, and to pay the
defendant’s costs incurred for the canceled mediation date.
The circuit court entered an order scheduling a hearing on the
plaintiff’s pro se motion for her counsel to withdraw, the plaintiff’s pro se
motion to delay the mediation, and the plaintiff’s counsel’s motion to
withdraw. The circuit court also entered an order granting the defendant’s
ex parte motion to compel the plaintiff’s supplemental discovery
responses. In the latter order, the circuit court provided the plaintiff with
an additional twenty days to respond to the supplemental discovery
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request. The latter order did not warn of any further sanctions if the
plaintiff failed to comply with the order.
After the hearing occurred, the circuit court entered an order granting
counsel’s motion to withdraw, and giving the plaintiff “45 days from this
Order[’]s execution to find new legal representation.” The order did not
warn of any possible sanctions if the plaintiff did not find new legal
representation within forty-five days of the order’s execution.
The plaintiff later filed a pro se motion “for turning over file,” in which
she asked the circuit court to “authorize” her former counsel to “turn over
[her] file to [her] … as soon as possible.” The circuit court entered an order
scheduling a hearing date on the plaintiff’s motion.
The day before the scheduled hearing on the plaintiff’s motion, the
defendant filed a motion to dismiss the plaintiff’s action with prejudice.
The defendant’s motion asserted that because the plaintiff had not
retained new counsel within forty-five days as provided in the withdrawal
order, “the [d]efendant … requests that the … [c]ourt enter an order finding
that the [p]laintiff has failed to comply with the above referenced court
order and dismissing the case with prejudice.”
The defendant did not file a notice of hearing on its motion to dismiss.
Yet, the following day – during the hearing set for only the plaintiff’s motion
for turning over her file – the circuit court also heard the defendant’s
motion to dismiss. No court reporter was at the hearing, and thus no
hearing transcript exists.
After the hearing, the circuit court entered a final order granting the
defendant’s motion to dismiss, and dismissing the action with prejudice.
The final order contains no findings of fact or conclusions of law, and
simply states:
This cause having come … to be heard on Defendant’s
Motion to Dismiss, and the Court having considered same, …
it is … ORDERED AND ADJUDGED that Defendant’s Motion
is hereby [] GRANTED. The above referenced matter is hereby
dismissed with prejudice.
This appeal followed. As stated above, the plaintiff argues the circuit
court fundamentally erred when it dismissed her action with prejudice,
based on not having retained new counsel by a date certain as provided in
the earlier order granting her then-counsel’s motion to withdraw, when:
(1) the day after the defendant had filed its motion to dismiss, the circuit
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court considered the motion to dismiss at a hearing previously set on the
plaintiff’s motion for turning over file; and (2) no basis existed in the record
to have required the plaintiff to retain new counsel instead of permitting
her to represent herself.
Our Review
We agree with the plaintiff’s fundamental error argument for four
reasons, all of which are apparent on the face of the record. We will
address each reason in turn.
First, no basis exists in the record for the circuit court apparently to
have ultimately required the plaintiff to have retained new counsel in order
to have avoided dismissal of her action with prejudice. The order granting
the plaintiff’s counsel’s motion to withdraw simply gave the plaintiff “45
days from this Order[’]s execution to find new legal representation.” That
order’s plain language did not require the plaintiff to find new legal
representation within forty-five days of the order’s execution, and did not
warn of any possible sanctions, such as dismissal of her action with
prejudice, if she had not found new legal representation within forty-five
days of the order’s execution.
Second, even if the circuit court’s order on counsel’s motion to
withdraw could be interpreted as having required the plaintiff to have
found new legal representation within forty-five days of the order’s
execution to avoid dismissal of her action with prejudice (which
interpretation would be unreasonable given the order’s plain language), no
basis existed in the record at that time for the circuit court to have imposed
such a requirement. As a general rule, individual parties in a civil action
are permitted to represent themselves by choice without the necessity of
court approval. See Schneider v. Schneider, 732 So. 2d 1147, 1148-49
(Fla. 4th DCA 1999) (“[T]he right to represent oneself in a civil proceeding
is on a scale of importance equal to the right of trial by jury. … In the same
way that a denial of the right to representation by counsel in a civil
proceeding is deemed inherently prejudicial, it would seem to us that the
denial of self[-]representation would be equally prejudicial in and of
itself.”). An exception to that general rule would exist if a self-represented
party was abusing court proceedings or interfering with the orderly
process of judicial administration. See, e.g., Rodriguez-Diaz v. Abate, 613
So. 2d 515, 516 (Fla. 3d DCA 1993) (“An order prohibiting a [layperson]
from representing [himself or herself] is an appropriate remedy where the
litigant, in a series of cases, has upset and interfered with the normal
procedures of the court by filing immaterial, irrelevant and impertinent
pleadings, and has failed to comply with court rules.”). Here, a few months
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before the circuit court had entered its final order of dismissal with
prejudice, the circuit court had entered only an order granting the
defendant’s ex parte motion to compel the plaintiff’s supplemental
discovery responses, and the defendant also had filed an undisposed
motion to compel the plaintiff’s compliance with the mediation order.
Neither of those motions – which often are filed in cases even where a party
is represented by counsel – would have justified the circuit court requiring
the plaintiff to have found new legal representation to avoid dismissal of
her action with prejudice. Further, neither of those motions requested
that if the plaintiff failed to comply with an order granting those motions,
the defendant would seek dismissal of the plaintiff’s action with prejudice.
Third, even if the circuit court’s order on counsel’s motion to withdraw
could be interpreted as having legitimately required the plaintiff to find
new legal representation within forty-five days of the order’s execution to
avoid dismissal of her action with prejudice, the circuit court’s later
dismissal order lacked any findings that the plaintiff’s failure to find new
legal representation within forty-five days of the order’s execution was
willful or contumacious. See Cummings v. Warren Henry Motors, Inc., 648
So. 2d 1230, 1232 (Fla. 4th DCA 1995) (“[A] dismissal of an action as a
sanction for violating an order of the court is error where the court fails to
make an express written finding of a party’s willful or deliberate refusal to
obey a court order.”); Townsend v. Feinberg, 659 So. 2d 1218, 1219 (Fla.
4th DCA 1995) (“It is uniformly held that dismissal is a drastic remedy
which courts should employ only in extreme situations. Prior to exercising
its discretion to grant dismissal based on failure to comply with a court
order, the court must make a finding that the failure to comply was willful
or contumacious.”) (internal citation omitted); Houchins v. State Farm Ins.
Co., 881 So. 2d 62, 62 (Fla. 4th DCA 2004) (“Appellants argue the trial
court’s dismissal of their complaint for failing to attend calendar call or
obtain substitute counsel as ordered by the court was error because the
court failed to make a finding that appellants’ failure to comply was willful
or contumacious. Appellee agrees and concedes error. We therefore
reverse and remand for further proceedings.”).
Fourth, the circuit court – by considering and ruling upon the
defendant’s motion to dismiss at a hearing when the motion had been filed
only one day before, and had not been set for hearing in any fashion, even
as an emergency (which the record does not indicate existed) – violated the
plaintiff’s due process rights. See Pro-Art Dental Lab, Inc. v. V-Strategic
Grp., LLC, 986 So. 2d 1244, 1252 (Fla. 2008) (“[T]o allow a court to rule on
a matter without proper pleadings and notice is violative of a party’s due
process rights.”); N.C. v. Anderson, 882 So. 2d 990, 993 (Fla. 2004)
(“Procedural due process requires both reasonable notice and a
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meaningful opportunity to be heard.”); George v. Gilbert, 268 So. 3d 780,
783 (Fla. 4th DCA 2019) (“[W]hen a court considers issues not noticed for
hearing, the court denies the litigant due process, and any ensuing order
or judgment must be reversed.”) (citation omitted); Blechman v. Dely, 138
So. 3d 1110, 1114 (Fla. 4th DCA 2014) (“The denial of due process is
fundamental error that can be raised for the first time on appeal.”).
Conclusion
Based on the foregoing, we reverse the circuit court’s final order
granting the defendant’s motion to dismiss the plaintiff’s action with
prejudice. We direct the circuit court to vacate the order and instead enter
an order denying the defendant’s motion to dismiss.
Reversed and remanded with directions.
GROSS and ARTAU, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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