ROBB R. TILLER, APPELLANT,
v.
STRAUB CAPITAL CORPORATION, APPELLEE
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The court held that a default judgment for failure to attend a status conference requires an explicit finding by the trial court that the noncompliance was willful.
The defendant failed to appear at a court-ordered status conference, leading the trial court to enter a default judgment against him. The defendant mo…
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FARMER, J.
After non jury trial began and the court found it unable to finish the trial within the time allotted, the court recessed the case with the understanding that another day would be scheduled as soon as possible. Accordingly, the court sent the parties an order for a “status” conference and warned that failure to attend would result in dismissal, default, or other sanctions. When defendant failed to appear at the conference, the court entered a default. While this appeal from the default was pending he filed a motion for rehearing, alleging a good reason for failure to appear, and we relinquished jurisdiction to hear the motion. The court conducted a hearing on the motion, heard testimony from the defendant himself, and thereupon entered an order essentially finding inconsistencies in his evidence and declining to vacate the default.
The imposition of a default for failure to attend the conference is within the discretion of the trial court, but only upon an explicit finding that the failure to attend was willful. Commonwealth Fed. Sav. & Loan Ass’n v. Tubero, 569 So. 2d 1271 (Fla.1990). As the court explained in Tubero:
“it is for the very reason that the trial judge is granted so much discretion to impose this severe sanction that we have determined that the subject order should contain an explicit finding of willful noncompliance.”
569 So. 2d at 1273. As required by Tubero, we therefore reverse for failure of the order to contain an explicit finding of willful noncompliance. On remand the trial court is free to dismiss the case for failure of plaintiff to attend the conference, if she be so advised, upon an explicit finding that the failure to attend was willful.
DELL and HAZOURI, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Bjarne Frydenlund Nielsen v. Pavlo Joannou, 835 So. 2d 1219 (Fla. 5th DCA 2003)…by which such order is reviewed is whether there was an abuse of discretion, with the caveat that the subject order must contain an express finding of willful non-compliance to warrant such extreme sanction. See also Tiller v. Straub Capital Corp., 800 So. 2d 364 (Fla. 4th DCA 2001); Kelley v. Schmidt, 613 So. 2d 918 (Fla. 5th DCA 1993). The March 4, 2002 order contains no such finding nor any facts whatsoever from which such a finding could be derived. The order is facially defective and [*1221] is patentl…
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Smith v. Wal-Mart, Inc., 835 So. 2d 353 (Fla. 1st DCA 2003)…the trial court for an explicit determination whether the plaintiffs failure to attend the mediation conference was willful. See Commonwealth Federal Savings and Loan Association v. Tubero, 569 So. 2d 1271 (Fla.1990); Tiller v. Straub Capital Corp., 800 So. 2d 364 (Fla. 4th DCA 2001); Swindle v. Reid 242 So. 2d 751 (Fla. 4th DCA 1971). BARFIELD, POLSTON and HAWKES, JJ., Concur.…
Authorities Cited
- Commonwealth Fed. Sav. & Loan Ass'n v. Moshe Tubero, 569 So. 2d 1271 (Fla. 1990)