Mark Huggins and Ann Huggins v. Safepoint Insurance Company

D ISTRICT C OURT OF A PPEAL O F T HE STATE OF F LORIDA
FOURTH DISTRICT
MARK HUGGINS and ANN HUGGINS,
Appellants,
v.
SAFEPOINT INSURANCE COMPANY,
Appellee.
No. 4D2024-1804
[February 18, 2026]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward 	County; 	William 	W. 	Haury, 	Jr., 	Judge; 	L.T. 	Case 	No.
062022CA010582AXXXCE.
Robin I. Bresky and Randall D. Burks of Schwartz Sladkus Reich
Greenberg Atlas LLP, Boca Raton, for appellants.
Patrick 	Michael 	Chidnese 	and 	Frieda 	C. 	Lindroth 	of 	Bickford 	&
Chidnese, LLP, Tampa, for appellee.
G ERBER , J.
The homeowners appeal from the circuit court’s final order dismissing
their breach of contract action against the insurer as a sanction for their
counsel’s failure to appear at trial. 	The homeowners argue dismissal was
not warranted because their counsel’s failure to appear was, at worst, due
to excusable neglect, and not due to any willful disobedience of the court.
We agree with the homeowners’ argument. 	Therefore, we reverse the
dismissal order, and remand for a new trial.
Relevant Procedural History
The circuit court entered an order setting calendar call for March 25,
2024, for a four-week trial period beginning on April 1, 2024. 	The order
advised that “[t]he order of trials set during this Trial Period will be
determined the day after Calendar Call,” and that “failure to appear … may
result in the dismissal of the action.”

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The parties’ counsel appeared at calendar call and announced they
were ready for trial. The circuit court set the case for trial during the week
of April 15-19, along with other cases.
On the afternoon of April 15, the homeowners’ counsel received a
telephone call from the circuit court’s judicial assistant, advising that the
circuit court had started the trial at 1:30 p.m. that afternoon. The judicial
assistant also said that she had attempted to contact the homeowners’
counsel earlier that morning, but she had not been able to reach them.
The 	following 	morning, 	the 	circuit 	court 	entered 	its 	final 	order
dismissing the homeowners’ action as a sanction due to the homeowners’
counsel’s failure to appear for trial. 	Yet the circuit court had not taken
any 	action 	to 	determine 	the 	circumstances 	of 	why 	the 	homeowners’
counsel had failed to appear for trial, nor found that their failure to appear
was due to willful disobedience of the court.
Nine days later, the homeowners filed a motion for rehearing pursuant
to Florida Rules of Civil Procedure 1.530 and 1.540(b). 	The motion
explained that the homeowners’ counsel had expected to receive notice if
the case was going to be reached for trial on April 15. 	However, the
homeowners’ counsel had not received any notice. The motion argued that
the homeowners’ counsel’s failure to appear for trial was, at worst, due to
excusable neglect, and not due to any willful disobedience of the court.
The motion requested the circuit court to vacate the dismissal order and
set a new trial date.
The insurer’s counsel filed a response notifying the court that no
supporting affidavit had been filed with the homeowners’ motion. 	The
response also detailed the steps which the insurer’s counsel had taken to
remain informed about whether the case would be reached for trial. Those
steps included requesting the circuit court’s judicial assistant to include
them in any schedule update emails. 	The insurer’s counsel added they
had received, from the judicial assistant, emails about cases ahead of
theirs having been resolved. 	The insurer’s counsel also had reached out
to counsel on cases ahead of them to determine whether those cases were
close to being resolved. 	The insurer’s counsel added that on the morning
of April 15, they had called the circuit court’s judicial assistant to request
an update, and were informed they should appear for trial at 1:30 p.m.
The circuit court later entered an order summarily stating that, based
on its review of the homeowners’ motion and the insurer’s response, the
homeowners’ motion for rehearing was denied.

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Thirteen 	days 	later, 	the 	homeowners 	filed 	a 	renewed 	motion 	for
rehearing. 	The 	renewed 	motion 	alleged 	the 	homeowners’ 	counsel
inadvertently had not attached their supporting affidavit to the original
rehearing motion, which was now attached. 	The renewed motion added
that the homeowners’ counsel had not been included in any of the judicial
assistant’s emails which had been sent to the insurer’s counsel.
The circuit court entered an order denying the homeowners’ renewed
rehearing motion. 	The circuit court pertinently explained:
The court notes its practice at [c]alendar [c]all of informing
the parties that they may receive a blast email containing an
updated trial schedule or [“]batting order[”] whenever there is
a change in the trial docket by providing their email to the
court’s Judicial Assistant. 	…
The court notes the … multiple notifications to the parties
concerning 	the 	trial 	schedule 	and 	the 	complete 	lack 	of
response by [the homeowners’ counsel]. 	…
[The homeowners’ counsel] offers no explanation for his
failure to stay abreast of movement in the trial schedule
subsequent to the assignment of his April 15 trial date at
[c]alendar [c]all. 	…
(emphases added).
The Parties’ Arguments on Appeal
On appeal, the homeowners summarize their argument as follows:
The trial court’s dismissal of the [homeowners’] action as a
sanction for counsel’s purported failure to appear at trial was
error and must be reversed because the court failed to provide
[the homeowners’] counsel with notice of the specific date and
time of trial, violating due process. 	Thus, the Final Order of
Dismissal is void.
The trial court then compounded this error by summarily
denying [the homeowners’] motion for rehearing … despite
[the homeowners’] showing that the nonappearance was the
result of excusable neglect—namely, the judicial assistant’s
omission 	of 	counsel’s 	email 	addresses 	from 	any 	trial
notifications which the judge had told the parties to await so

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that they could be informed of the specific day and time for
commencement of the trial within the designated week.
Because a void judgment must be vacated, and because
courts must vacate a sanctions order when a failure to appear
at a trial was excusable neglect in the form of lack of notice,
and because Florida law requires courts to … consider lesser
sanctions before dismissing an action with prejudice, the trial
court’s orders constitute reversible error. The harsh sanction
of dismissal … operates as a dismissal with prejudice because
the statute of limitations had already run.
This 	drastic 	and 	harshest 	of 	sanctions 	is 	far 	out 	of
proportion to the purported failure to appear, especially where
the record shows no willful disobedience by counsel, and
where [the homeowners] have meritorious claims … and …
acted with due diligence in seeking relief.
The insurer pertinently summarizes its response as follows:
[The 	homeowners] 	received 	notice 	… 	that 	a 	failure 	to
appear [at trial] could result in dismissal. … The subsequent
dismissal order is not void for lack of due process.
Next, [the homeowners] turn to their primary argument in
the trial court that their failure to attend trial resulted from
excusable neglect. 	…
Excusable neglect evokes clerical errors, mistakes, and
systems gone awry. The concept does not extend to a knowing
failure to act or a system that does not exist. 	Both occurred
here. 	Like [the insurer’s counsel], [the homeowners’ counsel]
were aware of the trial date. 	Unlike [the insurer’s counsel],
[the 	homeowners’ 	counsel] 	failed 	to 	take 	any 	additional
available steps to stay informed about the “batting order” for
the 	cases 	that 	day. 	Most 	obviously, 	[the 	homeowners’
counsel] failed to request inclusion on the docket update
emails, despite blaming the [j]udicial [a]ssistant for their own
error. 	Nor did they call the [j]udicial [a]ssistant, like [the
insurer’s counsel did], on the day of trial. It was the trial court
that ultimately had to telephone [the homeowners’ counsel] to
remind them that the case was proceeding on the day that [the
homeowners’ counsel] knew the case was scheduled for trial.

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Our Review
Our standard of review is mixed. 	See Strems Law Firm, P.A. v. Avatar
Prop. & Cas. Ins. Co., 297 So. 3d 592, 593 (Fla. 4th DCA 2020) (“A trial
court’s sanctions order is reviewed for abuse of discretion. 	Additionally,
the denial of due process is reviewed for fundamental error.”) (internal
citation omitted); VMD Fin. Servs., Inc. v. CB Loan Purchase Assocs., LLC,
68 So. 3d 997, 999 (Fla. 4th DCA 2011) (“Whether the trial court has
complied with the guarantees of due process is subject to de novo review.”);
Fast Funds, Inc. v. Aventura Orthopedic Care Ctr., 279 So. 3d 168, 171 (Fla.
4th DCA 2019) (“A trial court’s denial of relief from judgment upon a
showing of excusable neglect, including relief pursuant to Florida Rule of
Civil Procedure 1.530, is reviewed for an abuse of discretion.”); Acosta v.
Deutsche Bank Nat’l Tr. Co., 88 So. 3d 415, 417 (Fla. 4th DCA 2012) (“A
trial 	court’s 	denial 	of 	1.540(b) 	relief 	is 	reviewed 	for 	an 	abuse 	of
discretion.”).
According to the order denying the homeowners’ rehearing motion, the
circuit 	court 	apparently 	has 	self-created 	a 	process 	whereby 	multiple
counsel whose cases are set for trial on the same date “may receive a blast
email containing an updated trial schedule or [‘]batting order[’] whenever
there is a change in the trial docket by providing their email to the court’s
Judicial Assistant.” 	While this process appears well-intended, its flaw is
that when a case is ultimately reached for trial, if the party inadvertently
has not provided their email to the court’s judicial assistant, that party
will not receive notice that their case has been reached for trial. Thus, any
dismissal order which results from this lack of notice violates due process
and is void. See Shiver v. Wharton, 9 So. 3d 687, 690 (Fla. 4th DCA 2009)
(“A judgment is void if, in the proceedings leading up to the judgment,
there is [a] violation of the due process guarantee of notice and an
opportunity to be heard.”) (citation and internal quotation marks omitted);
Bank of Am., N.A. v. Fogel, 192 So. 3d 573, 575 (Fla. 4th DCA 2016) (“If a
party’s due process rights are violated, the underlying final order is void.”).
Even if we were to consider the failure of notice to have fallen upon the
homeowners’ counsel due to not having provided their email to the circuit
court’s judicial assistant, the record indicates that failure was due, at
worst, to excusable neglect, warranting relief under rule 1.530. 	See Fast
Funds, Inc., 279 So. 3d at 171 (“[E]xcusable neglect causing a party to fail
to appear for a final hearing has been grounds for granting relief under
rule 1.530.”).
Further, nothing in the record indicates the homeowners themselves
were culpable in this failure, thus not warranting the severe sanction of

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dismissing their facially viable action. 	See Walicki v. Waste Mgmt., Inc.,
703 So. 2d 1095, 1096 (Fla. 2d DCA 1997) (“[A party] should not be made
to suffer the loss of viable claims due to [its] attorney’s malfeasance where
there is no evidence in the record to indicate that [the party] personally
engaged in misconduct.”); King v. Macaleer, 774 So. 2d 68, 69 (Fla. 2d DCA
2000) (“Of particular importance to our decision [to reverse an order of
dismissal as too harsh a sanction] is the lack of any record indication that
[the client] was personally involved in the act of disobedience or was even
aware that her lawsuit was in danger of being dismissed.”).
Based on the foregoing, we reverse the dismissal order and remand for
a new trial.
Reversed and remanded for new trial.1
KUNTZ , C.J., and GROSS, J., concur.
* 	* 	*
Not final until disposition of timely-filed motion for rehearing.
1 	We note that Florida Rule of Civil Procedure 1.080(a) and Florida Rule of
General Practice and Judicial Administration 2.516 do not appear applicable to
the judicial assistant’s trial update emails, which are not “pleading[s],” “orders,”
or “document[s] filed or required by statute or rule to be served in the action.”
See Fla. R. Civ. P. 1.080(a) (“Every pleading after the initial pleading, all orders,
and every other document filed or required by statute or rule to be served in the
action must be served in conformity with the requirements of Florida Rule of
General Practice and Judicial Administration 2.516.”); see generally Fla. R. Gen.
Prac. & Jud. Admin. 2.516 (describing the procedures for service of “[f]iled
[d]ocuments,” including using the portal’s e-service function).
Yet, if the circuit court had asked its judicial assistant to use the portal’s e-
service function to notify the parties that their case had been reached for trial—
instead 	of 	using 	the 	circuit 	court’s 	self-created 	“opt-in” 	email 	notification
system—then the homeowners’ counsel, like the insurer’s counsel, would have
been notified that their case had been reached for trial, because all counsel were
already included in the portal’s e-service for the instant case. 	For this reason,
we strongly encourage the circuit court, going forward, to either use the portal’s
e-service to notify parties when their case has been reached for trial, or modify
the circuit court’s email notification system to ensure that all parties included in
the portal’s e-service are emailed when their case has been reached for trial.