Tomlin v. West Coast Industries

District Court of Appeal of Florida

Tomlin v. West Coast Industries

577 So. 2d 687, 1991 Fla. App. LEXIS 3065, 1991 WL 46839

CourtDistrict Court of Appeal of Florida

DecidedApril 8, 1991

DocketNo. 90-1858

StatusPublished

This text of 577 So. 2d 687 (Tomlin v. West Coast Industries) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Tomlin v. West Coast Industries, 577 So. 2d 687, 1991 Fla. App. LEXIS 3065, 1991 WL 46839 (Fla. Ct. App. 1991).

Pincite

Opinion

PER CURIAM.

Charles Tomlin appeals an order of the Judge of Compensation Claims which dismissed his claim for benefits with prejudice for his failure to attend two independent medical examinations and a deposition. [688]*688Employer/carrier made an oral motion to dismiss at the pre-trial conference, which was granted. Appellant argues that dismissal was improper because no written motion to dismiss was filed and no hearing was set on the motion and thus he did not have adequate notice and opportunity to be heard.

It was the position of employer/carrier that claimant waived notice and hearing at the pre-trial conference. That conference, however, was not recorded and counsel for appellees was not successful in obtaining approval of a statement of evidence or proceedings pursuant to Fla.R.App.P. 9.200(b)(4) that would demonstrate such waiver. Appellees accordingly confess error.

In view of the confession of error, we reverse the order on appeal and remand the cause to the Judge of Compensation Claims for further proceedings.

SHIVERS, C.J., and SMITH and BARFIELD, JJ., concur.

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PER CURIAM.

Charles Tomlin appeals an order of the Judge of Compensation Claims which dismissed his claim for benefits with prejudice for his failure to attend two independent medical examinations and a deposition. [688]*688Employer/carrier made an oral motion to dismiss at the pre-trial conference, which was granted. Appellant argues that dismissal was improper because no written motion to dismiss was filed and no hearing was set on the motion and thus he did not have adequate notice and opportunity to be heard.

It was the position of employer/carrier that claimant waived notice and hearing at the pre-trial conference. That conference, however, was not recorded and counsel for appellees was not successful in obtaining approval of a statement of evidence or proceedings pursuant to Fla.R.App.P. 9.200(b)(4) that would demonstrate such waiver. Appellees accordingly confess error.

In view of the confession of error, we reverse the order on appeal and remand the cause to the Judge of Compensation Claims for further proceedings.

SHIVERS, C.J., and SMITH and BARFIELD, JJ., concur.

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Bluebook (online)

577 So. 2d 687, 1991 Fla. App. LEXIS 3065, 1991 WL 46839, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tomlin-v-west-coast-industries-fladistctapp-1991.