Opinion
No. 4D22-870
06-28-2023
Brian FRITZ, Appellant, v. TOWER HILL SIGNATURE INSURANCE COMPANY, Appellee.
David A. Neblett, John A. Wynn and James M. Mahaffey III of Perry & Neblett, P.A., Miami, for appellant. Todd L. Wallen of Wallen | Kelley, Coral Gables, for appellee.
David A. Neblett, John A. Wynn and James M. Mahaffey III of Perry & Neblett, P.A., Miami, for appellant.
Todd L. Wallen of Wallen | Kelley, Coral Gables, for appellee.
Per Curiam. Brian Fritz appeals the circuit court's final order dismissing his case against Tower Hill Signature Insurance Company. The circuit court dismissed the case, without notice to Fritz, for failure to comply with the circuit court's trial order. We reverse.
While the parties dispute the specific authority on which the circuit court relied in dismissing the case, the court cited Binger v. King Pest Control , 401 So. 2d 1310 (Fla. 1981), and In re : Comprehensive COVID-19 Emergency Measures for Florida Trial Courts, Fla. Admin. Order No. AOSC20-23 Amendment 12 (Apr. 13, 2021), http://supremecourt.flcourts.gov/content/download/731687/file/AOSC20-23-Amendment-12.pdf.
Neither the Administrative Order nor Binger supports dismissal. In Massey v. Thomas , 342 So. 3d 680, 684 (Fla. 4th DCA 2022), we held that AOSC20-23 did not, on its own, give a circuit court the authority to sua sponte dismiss a case. And rather than supporting sua sponte dismissal, Binger provides the standard a court must follow when deciding whether to exclude the testimony of witnesses who were not disclosed according to a pretrial order.
For these reasons, the circuit court's dismissal must be reversed. On remand, should Tower Hill seek sanctions against Fritz for violating the pretrial order, the circuit court must afford Fritz notice and an opportunity to be heard. The circuit court must also comply with the requirements of Kozel v. Ostendorf , 629 So. 2d 817 (Fla. 1993), before dismissing the case as a sanction.
Reversed and remanded.
Ciklin, Gerber and Kuntz, JJ., concur.