JEAN-PHILIPPE SCHNEIDER

v.

CHRISTIAN TIRIKIAN, ET AL.

Third District Court of Appeal State of Florida

Opinion filed September 25, 2024. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D23-2272 Lower Tribunal No. 16-17648 ________________

Jean-Philippe Schneider, Appellant,

vs.

Christian Tirikian, et al., Appellees.

An Appeal from the Circuit Court for Miami-Dade County, William Thomas, Judge, and Lourdes Simon, Judge.

Jean-Philippe Schneider, in proper person.

Paul A. McKenna & Associates, P.A., and Paul A. McKenna, for appellees.

Before LINDSEY, LOBREE, and GOODEN, JJ.

GOODEN, J.

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Appellant Jean-Phillippe Schneider appeals the final judgment that arose after the trial court entered a default against him for failing to appear at calendar call. We reverse and remand for further proceedings consistent with this opinion.

I.

In 2016, Appellees filed suit against Schneider and others, alleging multiple causes of action for a business dispute. Schneider answered and asserted counterclaims. After several years of litigation, the case was placed on the trial docket. When it was not reached, it would be rolled to a subsequent trial docket. The following occurred on one such occasion.

On April 21, 2022, at 11:41 A.M., the trial court reset trial and entered the Uniform Order Setting Cause for Live/In-Person Jury Trial, Mediation, and Pre-Trial Instructions. The order scheduled the calendar call for that very same day at 1:00 P.M. The order advised: “Failure to appear as directed or to otherwise strictly comply with the terms of this Order may result in sanctions, including, but not limited to, the dismissal of the action, striking of pleadings, limiting of proof, striking a witness or such other actions as the Court may deem proper.” Schneider, who was pro se and resided in France, failed to appear at the calendar call. The Appellees moved ore tenus for default. The trial court

Schneider moved to vacate the default. While he noted confusion as to the legal status of the proceedings, Schneider argued that he did not receive proper notice and therefore, was not able to respond to the court. The trial court denied the motion.

The matter proceeded to a jury trial on damages. The jury awarded the Appellees $1,500,000. A final judgment was entered accordingly. Schneider filed several post-trial motions, all of which were denied by the trial court. On appeal, Schneider raises four issues—one of which has merit. He maintains that he did not receive proper notice of the calendar call and his due process rights were violated when the default was entered. We agree.

II.

While we usually review orders denying a motion to vacate a default under an abuse of discretion standard,¹ Williamson, 372 So. 3d 1275, 1276 (Fla. 5th DCA 2023); Pena v. Rodriguez, 273 So. 3d 237, 240 (Fla. 3d DCA 2019).

1 Brivis Enters,. Inc. v. Von Plinski,⁸ So. 3d 1208, 1209 (Fla. 3d DCA 2009).

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III.

While we fully recognize the trial court’s authority to sanction a party who fails to appear at the pretrial conference, the trial court must provide sufficient notice before doing so. Due process and our rules of procedure demand it.

Our due process protections are found in Article¹, Section⁹ of the Florida Constitution. Art. I, § 9, Fla. Const. (“No person shall be deprived of life, liberty or property without due process of law. . . .”). Accord U.S. Const. amend V. & XIV, § 1. “The constitutional guarantee of due process requires that judicial decisions be reached by a means that preserves both the appearance and reality of fairness.” Verizon Bus. Network Servs., Inc. v. Dep’t of Corr., 988 So. 2d 1148, 1151 (Fla. 1st DCA 2008) (citation omitted).

“Basic due process requires a party be provided notice and a meaningful opportunity to be heard, the denial of which constitutes fundamental error.” Pena, 273 So. 3d at 240. See also Baldwin v. Hale, 68 U.S. 223, 233 (1863) (“Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified.”); State ex rel. Gore v. Chillingworth, 171 So. 649, 654 (Fla. 1936) (“It contemplates that the defendant shall be given fair notice, and afforded a real opportunity to be heard and defend . . . .”) (internal citations omitted).

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In addition to the protections afforded by our Constitution, our rules of procedure often contain safeguards to provide fair notice. Florida Rules of Civil Procedure 1.200 and 1.500 are such rules. Rule 1.200 provides, (c) Notice. Reasonable notice must be given for a case management conference, and 20 days’ notice must be given for a pretrial conference. On failure of a party to attend a conference, the court may dismiss the action, strike the pleadings, limit proof or witnesses, or take any other appropriate action. Any documents that the court requires for any conference must be specified in the order. Orders setting pretrial conferences must be uniform throughout the territorial jurisdiction of the court.

Fla. R. Civ. P. 1.200(c) (2022). Rule 1.500 states, (b) By the Court. When a party against whom affirmative relief is sought has failed to plead or otherwise defend as provided by these rules or any applicable statute or any order of court, the court may enter a default against such party; provided that if such party has filed or served any document in the action, that party must be served with notice of the application for default.

Fla. R. Civ. P. 1.500(b) (2022).

The instant case does not meet these demands. The trial court only provided one hour and nineteen minutes notice of the calendar call—wellshort of the twenty-day requirement in Rule 1.200. There was no emergency that would have necessitated this short of notice. This amount of notice simply was not sufficient. Furthermore, Schneider had appeared in the case—both pro se and through counsel at various times—and had been actively litigating for six

IV.

Appellees argue that Schneider did not preserve this argument for appeal, and it cannot be considered by our Court. We disagree. While Schneider’s motion to vacate contained several arguments, he plainly argued that he did not receive proper notice and could not respond to the court. The key to preservation is whether the trial court had an opportunity to correct the purported error. Eaton v. Eaton, 293 So. 3d 567, 568 (Fla. 1st DCA 2020). This motion and argument alerted the trial court that the notice was improper and gave it an opportunity to correct.

Besides, “[a] denial of due process constitutes fundamental error that may be raised for the first time on appeal.” Chiu v. Wells Fargo Bank, N.A., 242 So. 3d 461, 464 (Fla. 3d DCA 2018). Accord Ray v. State, 403 So. 2d

2 There is no record evidence before this Court that Schneider’s failure to appear was willful and intentional, or that there was a pattern of noncompliance with court orders. See, e.g., Arango v. Alvarez, 585 So. 2d 1131 (Fla. 3d DCA 1991).

V.

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Because Schneider did not receive fair notice of the calendar call, we reverse the final judgment and remand with instructions to vacate the final judgment and order of default.

Reverse and remanded.