SIXTH DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________
Case No. 6D2024-1525 Lower Tribunal No. 2022-CA-008858 _____________________________
WINTER PARK HOSPITALITY, LLC, d/b/a QUALITY INN & SUITES,
Appellant, v.
ON TARGET STAFFING, LLC,
Appellee. _____________________________
Appeal pursuant to Fla. R. App. P. 9.130 from the Circuit Court for Orange County. A. James Craner, Judge.
September 8, 2025
MOE, A.G., Associate Judge.
Winter Park Hospitality, LLC (“WPH”) appeals a single order, the denial of
its motion to set aside default and default judgment. Yet most of the arguments
raised in its Initial Brief address the merits of the trial court’s order entering a default
final judgment against WPH based on its failure to retain new counsel in the time
provided by the trial court’s order. Because WPH failed to timely appeal that order,
it is not properly before us. Instead, our review is limited to the trial court’s order dated June 5, 2024, which denied WPH’s motion to set aside on the grounds of
excusable neglect. Finding no error as to that order, we affirm.
I.
WPH operates a Quality Inn & Suites in Orange County, Florida. It contracted
with Appellee On Target Staffing, LLC (“On Target”) for staffing services. In 2022,
On Target sued WPH for, among other things, breach of contract based on WPH’s
alleged failure to pay On Target the amounts due under the contract.
During that litigation, WPH was defaulted twice. The first time, WPH was
defaulted by the clerk. The second time, the default was entered by the court as a
sanction for WPH’s failure to comply with an order directing WPH to retain counsel.
Context matters, so even though it is only the court’s denial of WPH’s motion to set
aside the second default and the default final judgment that is before us here, we
discuss the circumstances surrounding both defaults.
A.
The first default was entered by the clerk when WPH failed to timely respond
to the complaint. When it moved to set aside the clerk’s default, WPH represented
that its failure to respond to the complaint was attributable to excusable neglect.
WPH supported the motion with a sworn affidavit of its general manager. The
general manager took responsibility for the error, explaining that he failed to follow
certain “corporate practices and procedures” of WPH relating to the retention of
2 counsel. He explained that the corporate practices and procedures of WPH are
necessary because WPH’s owner resides in the city of Abu Dhabi in the United Arab
Emirates. The general manager was “under the mistaken understanding” that the
owner of WPH would retain counsel for WPH. He learned that his understanding
was mistaken when the owner called him to confirm whether counsel had been
retained.
The general manager explained in his affidavit that he decided to go to the
courthouse in person to obtain an extension of time. While there, he learned that he
“was unable to obtain an extension myself.”
More than a week after learning that it was his job to retain counsel, the
general manager called an attorney. In that conversation, the attorney informed him
that a clerk’s default had been entered. The general manager claimed that this “was
the first time [WPH] obtained knowledge that a clerk’s default had been entered
against [WPH].”
WPH filed a motion to set aside the default. In the motion, WPH maintained
that due to the general manager’s “inexperience, unfamiliarity, and
misunderstanding as to [WPH]’s practices and procedures with respect to retaining
counsel to represent [WPH] in Florida lawsuits,” there was a breakdown in WPH’s
procedures that led to the entry of the clerk’s default. On review of the motion and
3 supporting affidavits, the trial court granted the first motion to set aside and the case
proceeded.
B.
Nearly eighteen months1 into the case, a mediation was held. For reasons not
clear in the record, the trial had already been continued once. The mediation was set
for March 6, 2024, with a one-day non-jury trial scheduled for March 24, 2024.2
Mark Mazen, WPH’s vice president, attended the mediation along with WPH’s
counsel.
At the mediation, On Target produced for the first time certain documents that
WPH requested in discovery. 3 A disagreement emerged between WPH and its
attorneys about the impact of those documents on WPH’s trial strategy. The
mediation resulted in an impasse. Displeased with their advice about the documents,
WPH then chose to fire its lawyers.
1 Under Rule 2.250(a)(1)(B)(2), twelve months is “the presumptively reasonable time period for the completion” of non-jury civil cases in the trial courts and “most cases should be completed” within that time. See Fla. R. Gen. Prac. & Jud. Admin. 2.250(a)(1)(B). 2 The case was initially set for a non-jury trial on December 4, 2023. For reasons unclear from the record, just before the November 2023 pretrial conference the court entered an order that re-set the non-jury trial for March 25, 2024. 3 Under the trial order, discovery remained open until the day before the pretrial conference. 4 Arguing that withdrawal was now mandatory in light of the discharge, WPH’s
counsel moved to withdraw. In support of the motion, WPH’s counsel filed WPH’s
written consent to the withdrawal. Mr. Mazen signed the consent on behalf of WPH.
WPH was notified of both the motion and the hearing on the motion, but nothing in
the record suggests that WPH chose to attend the hearing.
The record provided to us does not include a transcript of the hearing on the
motion to withdraw. Nevertheless, the necessary details are evident from the record.
The court granted the motion to withdraw, continued the trial for a second time, and
although WPH’s withdrawing counsel asked for thirty days to seek new counsel, the
court granted only ten. The court was explicit that the ten-day deadline included
both the deadline to hire new counsel and the deadline for new counsel to enter an
appearance. It warned WPH of sanctions if it failed to timely comply. Forecasting
that sanctions may include “the striking of pleadings,” the court directed the setting
of a status conference promptly after WPH’s deadline. WPH’s withdrawing counsel
prepared the written order, which listed numerous individuals designated to receive
notices on behalf of WPH, including Mr. Mazen and an individual named Sterling
Scott Willis.
The written order directed that “WPH shall retain new counsel who shall file
a Notice of Appearance within ten (10) days of the date of this Order.” It warned
that “[i]f WPH does not timely retain new counsel who makes an appearance on its
5 behalf within the time frame set forth in this Order, then the Court will assume that
WPH is no longer interested in participating in these proceedings, and the Court may
enter an appropriate sanction as a result.” Further, the written order explained that
the case management conference was necessary to address “the status of WPH’s
retaining new counsel and to set the trial in this matter.” According to the certificate
of service, a copy of the order granting the motion to withdraw was sent to eight
recipients affiliated with WPH, including Mr. Willis and Mr. Mazen.
As directed, On Target noticed a case management conference for 8:30 a.m.
on April 2, 2024. According to the certificate of service, notice of the case
management conference was sent to WPH through Mr. Willis.
When the court conducted the case management conference, no one appeared
on behalf of WPH. On review of the file, the court determined that WPH failed to
comply with the requirement to retain counsel. Consistent with its warning that it
would “assume that WPH is no longer interested in participating in these
proceedings,” the court entered a judicial default against WPH.
Though he did not attend the case management conference and later claimed
to be unaware of it, Mr. Mazen went to the courthouse after the case management
conference was over. While there, although WPH was presumably aware that the
6 company could not be heard through a non-lawyer,4 Mr. Mazen filed two documents
on behalf of WPH. The first document was a motion. Though the only matter that
had been “scheduled” was the case management conference—and WPH contended
it did not know about the case management conference—Mr. Mazen asked the court
to “reschedule the case.” Though he would later claim that “the shortened timeframe
and urgency to retain new counsel was not relayed properly” to him when WPH’s
counsel withdrew, Mr. Mazen asked the court to give WPH more time to procure
new counsel.
The second document Mr. Mazen filed was a Designation of E-Mail Address.
In it, he provided the same email address for himself as was listed in the motion to
withdraw and in the certificate of service attached to the order granting that motion.
Mr. Mazen also listed his mailing address.
Two days after the court entered the judicial default, On Target filed a motion
for default final judgment. According to its certificate of service, Mr. Mazen was
served at the same email and mailing addresses listed in his Designation of E-Mail
Address.
4 “A corporation must be represented by an attorney when it appears in the courts of the State of Florida.” Punta Gorda Pines Dev., Inc. v. Slack Excavating, Inc., 468 So. 2d 438, 439 (Fla. 2d DCA 1985) (citing Quinn v. Hous. Auth. of Orlando, 385 So. 2d 1167 (Fla. 5th DCA 1980)). A representation contained in the affidavit of WPH’s general manager filed in support of the motion to set aside the clerk’s default suggests that WPH was aware of this requirement. 7 A default final judgment was entered on April 8, 2024. Again, the certificate
of service reflects that Mr. Mazen was served with a copy at the same email and
mailing addresses he listed in his Designation of E-Mail Address.
On April 12, 2024, On Target moved for an award of attorney fees. According
to the certificate of service, Mr. Mazen was served with a copy at the same email
and mailing addresses he listed in his Designation of E-Mail Address.
The motion for attorney fees was granted by entry of an order dated May 1,
2024. According to the certificate of service, WPH received a copy of the order by
U.S. Mail through Mr. Willis.
Forty-six days after the deadline the court gave WPH to hire new counsel,
new counsel appeared for WPH on May 15, 2024. On that date, WPH moved to set
aside the default and default judgment.
In the motion to set aside, WPH claimed it was not notified of the deadline to
retain counsel. Further, WPH contended it was not notified of the case management
conference, the entry of a judicial default, or the entry of a default final judgment.
The motion alleged that Mr. Mazen was unaware of the case management
conference, but did not dispute that Mr. Willis was served with the related notice of
hearing. Without addressing the fact that Mr. Mazen is listed on the certificate of
service for the motion for judicial default and motion for default final judgment,
WPH alleged that Mr. Willis was not notified.
8 Although Mr. Mazen’s own signature on WPH’s consent to the motion to
withdraw demonstrates that Mr. Mazen (and WPH) knew of the withdrawal, WPH
alleged that because “Mr. Willis was not given any notices,” he “could not advise
Mr. Mazen on the urgency of retaining counsel.” WPH did not acknowledge that
Mr. Mazen attended the mediation at which the dispute arose between WPH and its
lawyers.
Contradicting itself, WPH alleged two different points in time when it became
aware of the entry of default. Characterizing Mr. Mazen’s trip to the courthouse on
the same day as the case management conference as purely coincidental, WPH
alleged that Mr. Mazen “misunderstood the urgency of this Court’s order and was
not relayed the shortened timeframe to retain new counsel . . . .”
In addition to the motion to set aside, on May 22, 2024, WPH filed an
emergency motion to stay. In that motion, WPH identified Mr. Mazen as its
executive vice president and Mr. Willis as its corporate counsel, explaining that “Mr.
Willis advises Mr. Mazen on legal proceedings.” WPH contended that if Mr. Willis
had known about the default and default judgment “he would have instructed [WPH]
to retain new counsel immediately.”
Seemingly arguing that Mr. Mazen’s efforts to find an attorney who would
take the case on a contingency distracted him from the urgency of the matter, WPH
alleged that Mr. Mazen “did not understand the urgency of retaining new counsel.”
9 On the one hand, WPH suggested that it was not informed that the court set a
deadline to retain counsel. On the other hand, it argued that by filing “a motion with
this Court requesting additional time to retain counsel,” Mr. Mazen “illustrat[ed]
[WPH]’s willingness to cooperate with this Court’s Order.”
On May 30, 2024, the court heard the motion to set aside and the motion to
stay. Again, the record does not include a transcript of that proceeding. Still, the
written order makes key details sufficiently clear. The court’s ruling clearly
contemplated that (1) WPH had been defaulted on two occasions in the same case,
(2) WPH’s counsel had been permitted to withdraw on the condition WPH retain
counsel within 10 days, (3) WPH failed to comply, (4) WPH claimed to have
contacted attorneys to handle the matter on a contingency fee basis but failed to
identify the attorneys or firms it contacted, (5) Mr. Mazen, who is not an attorney,
filed a motion to seek additional time to hire an attorney after the court entered the
judicial default earlier in that morning, (6) WPH’s affidavits “are not credible,” and
(7) WPH did not establish excusable neglect.
II.
In its initial brief WPH challenges the entry of two orders. First, it challenges
the trial court’s entry of the default final judgment, which it failed to timely appeal
and did not include in its notice of appeal. Next it challenges the trial court’s denial
of WPH’s motion to set aside on the basis of excusable neglect. Because WPH failed
10 to timely appeal the default final judgment, it is precluded from now challenging the
merits of that decision. Bland v. Mitchell, 245 So. 2d 47, 48 (Fla. 1970) (holding
that “a denial (or granting) of a motion to vacate a final judgment cannot on appeal
bring up for review the merits of the final judgment sought to be vacated”); Averbuch
v. Lauffer, 516 So. 2d 973, 974 (Fla. 5th DCA 1987) (“Appellant’s failure to pursue
[a direct appeal] precludes this court, on review of an order denying a motion for
relief from judgment, from reviewing questions that could have been decided on
direct appeal”); Phenion Dev. Grp., Inc. v. Love, 940 So. 2d 1179, 1183 (Fla. 5th
DCA 2006) (“Rule 1.540 was not intended as a substitute for relief from judicial
error, ‘such as a mistaken view of the law,’ that should have been corrected by direct
appeal or by motion under Florida Rule of Civil Procedure 1.530.” (quoting Curbelo
v. Ullman, 571 So. 2d 443, 445 (Fla. 1990))). Accordingly, we turn to the denial of
the motion to set aside, which we review for abuse of discretion. See Smith as Tr.
for Lovely Fam. Tr., Dated March 29, 2013 v. Healy, 372 So. 3d 750, 752 (Fla. 6th
DCA 2023) (quotations omitted).
Florida Rule of Civil Procedure 1.540(b)(1) allows a party to file a motion for
relief from judgment on the basis of “mistake, inadvertence, surprise, or excusable
neglect.” “The rule envisions an honest mistake made during the regular course of
litigation, including those that result from oversight, neglect, or accident.” Paladin
Props. v. Fam. Inv. Enters., 952 So. 2d 560, 562 (Fla. 2d DCA 2007). WPH argues
11 that the trial court abused its discretion in denying its motion to set aside on the basis
of excusable neglect.
To have the trial court set aside the default final judgment, WPH had to prove
by sworn evidence that (1) its failure to retain new counsel as ordered by the trial
court was the result of excusable neglect, (2) its affirmative defenses and
counterclaim established that it had meritorious defenses and claims warranting a
trial on the merits, and (3) it acted with due diligence from the time when it learned
of the default to the filing for relief. Lazcar Int’l, Inc. v. Caraballo, 957 So. 2d 1191,
1191 (Fla. 3d DCA 2007). WPH believes that it demonstrated excusable neglect
through the sworn affidavits of WPH’s executive vice president, Mark Mazen, which
WPH argues “informed the trial court of WPH’s efforts in engaging counsel.”
But the trial court specifically found that the sworn affidavits submitted by
WPH were not credible, the record provides ample evidence why the trial court
would make that finding, and WPH provides no transcript of the hearing that took
place before the trial court entered its order denying WPH’s motion to set aside. “In
appellate proceedings the decision of a trial court has the presumption of correctness,
and the burden is on the appellant to demonstrate error.” Applegate v. Barnett Bank
of Tallahassee, 377 So. 2d 1150, 1152 (Fla. 1979). In the order, the court rejected
WPH’s excusable neglect argument on the bases that WPH’s allegations were
unsupported and the affidavits were not credible. We decline to disturb these
12 findings on appeal. See Southwin, Inc. v. Verde, 806 So. 2d 586, 588 (Fla. 3d DCA
2002) (“Determinations regarding the weight of the evidence or the credibility of
witnesses are peculiarly within the province of the finder of fact and will not be
disturbed on appeal.” (citations omitted)).
AFFIRMED.
NARDELLA and BROWNLEE, JJ., concur.
_____________________________
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF TIMELY FILED. ANY MOTIONS FOR REHEARING ARE DUE TEN DAYS AFTER THIS OPINION’S ISSUANCE. ANY RESPONSES ARE DUE TEN DAYS LATER. _____________________________
MOE, A.G., Associate Judge, concurring specially, with opinion.
Ironically, it is WPH’s failure to properly invoke our jurisdiction that prevents
us from having a clean opportunity to reject the idea that the court lacked the
authority to vindicate its own order. Yet the fact that we did not say it does not make
it any less true. A trial court with jurisdiction over the parties and the subject matter
has the inherent authority to vindicate its own orders and “protect the court from acts
obstructing the administration of justice.” Levin, Middlebrooks, Mabie, Thomas
Mayes & Mitchell, P.A. v. U.S. Fire Ins., 639 So. 2d 606, 608 (Fla. 1994).
Under Florida Rule of Civil Procedure 1.500(b), if notice of the application
for default is given, a court may enter a default “[w]hen a party against whom 13 affirmative relief is sought has failed to plead or otherwise defend as provided by . .
. any order of court . . . .” Considered in this light, if Rule 1.500 did not permit the
entry of a default when a corporate defendant defied a court order directing the
retention of counsel by a date certain, then it would be impossible for trial courts to
carry out the work required by Rule 1.200 within the time standards established by
Rule 2.250. See Fla. R. Civ. P. 1.200 (case management); Fla. R. Gen. Prac. & Jud.
Admin. 2.250 (establishing presumptively reasonable time standards for completion
of cases). Firing defense counsel would become common sense, if not the only
logical litigation strategy, if a corporate defendant wished to avoid an otherwise-
inevitable judgment.
The trial court logically applied Rule 1.500(b) to a failure to comply with a
court order to retain counsel by a date certain. Because “[a] corporation must be
represented by an attorney when it appears in the courts of the State of Florida,”
Punta Gorda Pines Dev., Inc. v. Slack Excavating, Inc., 468 So. 2d 438, 439 (Fla.
2d DCA 1985), WPH could not “otherwise defend” the litigation without counsel.
Consequently, the withdrawal of WPH’s counsel had the effect of grinding litigation
to a halt on the eve of trial, forcing a continuance, and further complicating the
court’s effort to timely conclude the litigation.
Additionally, the trial court rightly rejected the argument that the notice given
to WPH was not “adequate.” Consideration of the adequacy of notice in this case
14 accounts for context, facts, and circumstances. WPH voluntarily discharged its
counsel on the eve of trial. Its counsel then argued that withdrawal was mandatory
under the rules. In a document signed by Mr. Mazen on behalf of WPH, WPH
consented to the withdrawal. WPH received notice of the hearing on the motion to
withdraw, which took place more than a week after WPH discharged its counsel.
Evidently, it elected not to attend. Two days after the hearing, its withdrawing
counsel prepared the order granting the motion to withdraw, which directed WPH to
secure new counsel and have new counsel appear within ten days. The written order
prepared by WPH’s withdrawing counsel identified both Mr. Willis and Mr. Mazen
as two of the eight individuals to whom notices to WPH could be sent. The written
order contained a warning that sanctions, including the striking of pleadings, may be
entered if counsel did not enter an appearance for WPH during that time.
According to the certificate of service executed by the trial judge’s judicial
assistant, a copy of the written order granting the motion to withdraw was sent to all
eight recipients designated by WPH to receive notices, including Mr. Willis and Mr.
Mazen. Mr. Willis is listed on the certificate of service for the notice of the case
management conference, which was scheduled within the time directed in the order
granting the motion to withdraw. WPH had notice of the motion for default and
motion for default judgment through Mr. Mazen.
15 WPH is correct that the various certificates of service did not consistently
notice all individuals designated to receive notice for WPH in the order granting the
motion to withdraw. Yet at every pertinent stage, certificates of service undeniably
reflect that at least one of WPH’s designees was served in the manner WPH
specified. Under the circumstances, it simply cannot be said that WPH was left
without notice of the application for default.
There is no reason for us to second-guess the trial court’s finding that WPH’s
affidavits were not credible. Here too, context matters. WPH had already been
defaulted once. Just as it did on the second occasion, WPH blamed the first default
on an employee who claimed to be ignorant of his role in retaining counsel. When
WPH was defaulted a second time, WPH argued it was not “properly” notified of
the urgency to retain new counsel even though Mr. Mazen, WPH’s executive vice
president, attended the mediation, signed the consent to withdraw, and was included
on the certificate of service for the order granting withdrawal.
In his affidavit, Mr. Willis alleged that he did not receive the notice of hearing
for the case management conference. However, he was listed on the certificate of
service for the hearing notice. He was listed on the certificate of service for the
court’s order directing that such a hearing be set. And the fact that Mr. Mazen
appeared at the courthouse and moved to “reschedule”—on the very day of the case
management conference, when nothing but the case management conference had
16 been scheduled—supports the court’s determination that Mr. Willis’s affidavit was
not credible.
Meanwhile, WPH’s own filings in connection with the motion to set aside the
first default place it beyond doubt that, even all the way in Abu Dhabi, the owner of
WPH was personally aware of this litigation and the need for WPH to be represented
by counsel. Because WPH moved twice to set aside defaults and attached different
affidavits, unexplained contradictions exist in WPH’s description of its own
corporate practices and procedures. Mr. Mazen’s affidavit offered no logical reason
why he could not have sought Mr. Willis’s advice about the significance of a filing,
whether Mr. Willis himself was served with that filing or not. Mr. Mazen was not
the first employee of WPH to swear under oath that, due to his inexperience with the
court system, he mistakenly thought that he could appear at the courthouse in person
to request an extension of time. Nor was Mr. Mazen the first employee of WPH to
testify that WPH was unaware of a default until the initial consultation with retained
counsel. And in Mr. Mazen’s case, that representation is plainly contradicted by the
certificates of service in the record.
Considered in the context the record provides, there are other reasons to be
skeptical of Mr. Mazen’s affidavit. For example, Mr. Mazen avoided saying WPH
was not notified of the deadline to retain counsel. Instead, in his affidavit he stated
that he personally was not notified “properly.” Because Mr. Mazen does not address
17 the numerous certificates of service on which he is listed, a logical reading of his
representation is that it is too clever by half. After all, the record establishes that he
(1) attended the mediation as WPH’s representative, (2) signed WPH’s consent to
the withdrawal of its attorneys, and (3) was included on the certificate of service of
the order granting the motion to withdraw.
In another example of low-hanging fruit, it is obvious why Mr. Mazen’s trip
to the courthouse would engender skepticism. Mr. Mazen claimed he personally
appeared at the courthouse on the very day that the case management conference
was noticed. Mr. Mazen claimed WPH was unaware that the hearing was scheduled,
even though Mr. Willis—who advises Mr. Mazen on legal proceedings, according
to WPH—was listed in the certificate of service. Yet, despite WPH’s allegedly being
in the dark about the only event scheduled on the court’s calendar at that time, on
behalf of WPH Mr. Mazen asked the court to “reschedule.” And, while Mr. Mazen
claimed he was unaware of any urgency in the search for counsel, he requested more
time to do that very thing. With examples like this, there is no reason to question
the trial court’s finding that Mr. Mazen’s affidavit was not credible.
Turning to the order denying WPH’s motion to set aside, there was no abuse
of discretion. See Smith as Tr. for Lovely Fam. Tr., Dated March 29, 2013 v. Healy,
372 So. 3d 750, 752 (Fla. 6th DCA 2023) (“An order denying a motion to vacate a
final judgment is reviewed for an abuse of discretion.” (quoting BoatFloat, LLC v.
18 Cent. Transp. Int’l, Inc., 941 So. 2d 1271, 1272 (Fla. 4th DCA 2006))). There is a
“strong preference for lawsuits to be determined on the merits,” Smith, 372 So. 3d
at 752, and historically, ultimate sanctions of dismissal or default have been fairly
described as severe sanctions that “should only be employed in extreme
circumstances,” Commonwealth Fed. Sav. & Loan Ass’n v. Tubero, 569 So. 2d 1271,
1272 (Fla. 1990). Yet what is “extreme” is subjective and dependent on context.
In Commonwealth, the Florida Supreme Court held that it was extreme for a
trial court to dismiss the plaintiff’s complaint based on a discovery violation after
(1) the plaintiff failed to respond to discovery served by the defense two months after
the complaint was filed, (2) the plaintiff did not request additional time, (3) the
plaintiff’s counsel moved to withdraw before the responses came due, (4) the record
contained no indication that the plaintiff’s counsel notified the plaintiff of the motion
to withdraw or the related hearing, (5) the defendant submitted a proposed order
granting a motion to compel on an ex parte basis, (6) the court granted the motion
on an ex parte basis, (7) after the plaintiff did not respond to the discovery within
ten days, the defendant moved for sanctions, and (8) the trial court made no express
finding that the plaintiff had willfully disregarded the court’s orders. 569 So. 2d at
1271–72.
While this case and Commonwealth both involve sanctions after counsel’s
withdrawal, the contrast is obvious. Here, (1) WPH fired its counsel on the eve of
19 trial, (2) because WPH fired its counsel, counsel argued that its withdrawal became
mandatory, (3) the court continued the trial at WPH’s request, (4) WPH was given
an amount of time to secure new counsel that was reasonable under the
circumstances, (5) certificates of service reflect that WPH was provided notice at
every stage of the proceedings, (6) the court advised WPH of both the potential for
sanctions and the potential severity of the sanctions, (7) the record is clear that WPH
was afforded due process, (8) the court explicitly found WPH’s affidavits not
credible, (9) the court highlighted WPH’s failure to support its arguments with facts,
(10) this was the second instance in which WPH was defaulted due to an employee’s
failure to recognize the need to retain counsel, and (11) the affidavits WPH filed in
connection with its efforts to set aside the two defaults made arguably contradictory
representations about its corporate practices, with no explanation provided for the
inconsistency.
Meanwhile, both the facts before the court and the decisional path of
reasoning in Commonwealth suggest that the holding of that case is limited to
sanctions for discovery violations. See Pedroza v. State, 291 So. 3d 541, 547 (Fla.
2020) (explaining that holding “consists of those propositions along the chosen
decisional path or paths of reasoning that (1) are actually decided, (2) are based upon
the facts of the case, and (3) lead to the judgment”). Indeed, WPH’s initial brief
cites Ham v. Dunmire, 891 So. 2d 492, 485 (Fla. 2004), but in that case the supreme
20 court’s own reference to Commonwealth suggests that the holding is limited to the
discovery context. See id. (citing Commonwealth for the proposition that “[t]he
dismissal of an action based on the violation of a discovery order will constitute an
abuse of discretion where the trial court fails to make express written findings of fact
supporting the conclusion that the failure to obey the court order demonstrated
willful or deliberate disregard” (emphasis added)).
Trial judges have a duty to afford litigants due process, but the phrase “due
process” does not imply one-size-fits-all. Due process is an adjective (due) that
modifies a noun (process). Consideration of what process is “due” necessarily
requires consideration of context and circumstances. See, e.g., Thomas M. Cooley,
A Treatise on the Constitutional Limitations 356 (1868) (“Due process of law in each
particular case means, such an exertion of the powers of government as the settled
maxims of law permit and sanction, and under such safeguards for the protection of
individual rights as those maxims prescribe for the class of cases to which the one
in question belongs.”).
Here, in addition to the circumstances visible in the record, the contextual
analysis of due process compels recognition of the Florida Supreme Court’s
authority to establish judicial policy in the state. Pursuant to that authority, the
supreme court now requires trial judges to actively manage cases, set deadlines, and
enforce them. See generally In re Amends. to Fla. R. Civ. P., 386 So. 3d 497 (Fla.
21 2024) (amending Florida Rule of Civil Procedure 1.200 “to codify active case
management” and discussing the development of the Court’s judicial policy
regarding case management, including the establishment of case management
requirements by administrative order during the COVID-19 pandemic).
The supreme court has expressed the importance of enhanced case
management “in order to deliver justice in a timely, cost-efficient, and accountable
manner while maintaining due process.” Id. at 499 (quoting In re Workgroup on
Improved Resol. of Civil Cases, Admin. Order No. AOSC19-73 (Fla. Oct. 31,
2019)). Since 2021,5 the supreme court has required trial judges to comply with
“detailed procedure[s]” for case management. Id. at 500. Deadlines “must be
strictly enforced” in that process. Id. In light of this, a trial judge’s duty to afford
litigants due process plainly does not require—or for that matter, even permit—a
trial judge to abdicate control of the case to any litigant. Nor does due process
require trial judges to grant every request, no matter how objectively unreasonable.
5 Effective April 30, 2021, every circuit court in Florida was required to actively manage civil cases in a specific manner prescribed, which included strict compliance with Florida Rule of General Practice and Judicial Administration 2.545(a), (b), and (c), “which respectively require judges to conclude litigation as soon as it is reasonably and justly possible to do so, to take charge of all cases at an early stage and to control the progress of the case thereafter until it is determined, and to apply a firm continuance policy allowing continuances only for good cause shown.” See In re: Comprehensive COVID-19 Emergency Measures for Fla. Trial Courts, Admin. Order No. AOSC 20-23, Amend. 12, § III(G) (Fla. Apr. 13, 2021). 22 A fair reading of Commonwealth is that its holding was limited to discovery
violations, but it is not necessary for us to resolve that today. Even if it applies here,
Commonwealth does not require “magic words.” 569 So. 2d at 1273 (“We hasten to
add that no ‘magic words’ are required . . . .”). What Commonwealth requires is
findings by the trial judge that are “equivalent to willfulness or deliberate disregard.”
Id. In the context of this case, the affidavits the court deemed “not credible” alleged
that “[a]ny failures to engage new counsel by the deadlines set forth by this
Honorable Court were not intentional, willful, or done with the intent not to comply
with this Court’s Order(s).” This was sufficiently “equivalent to” a finding that
WPH willfully or deliberately disregarded its order.
Robert Chapman and Richard Perez, of Brick Business Law, P.A., Tampa, for Appellant.
Richard Sierra, of Legal Counsel, P.A., Winter Garden, for Appellee.