FIFTH DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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Case No. 5D23-2441

LT Case No. 2019-CA-000200

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DANITY LITTLE, as Trustee of the 

Danity M. Little Declaration of 

Trust dated June 1, 2005 and 

DANITY LITTLE,

Appellants,

v.

MARK TURNBOW and CONNIE 

GRZEMBSKI,

Appellees.

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On Appeal from the Circuit Court for Flagler County.

Christopher France, Judge.

Douglas N. Burnett and Shaun C. Saliba, of St. Johns Law 

Group, St. Augustine, for Appellants.

Ronald A. Hertel, of Hertel Legal PLLC, Ormond Beach, for 

Appellees.

February 9, 2024

LAMBERT, J.

Appellants, who were the plaintiffs below, appeal the trial 

court’s order denying their Florida Rule of Civil Procedure 
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1.540(b)(1) verified motion to vacate the order previously entered 

dismissing the case. For the following reasons, we reverse this 

order and direct that the final order of dismissal be vacated.

The underlying case was dismissed by unelaborated order as 

a result of Appellants’ counsel not attending a scheduled case 

management conference. The next day, Appellants’ counsel filed 

the aforementioned motion under rule 1.540(b)(1) to vacate the 

dismissal order. This rule, which has historically been liberally 

construed in favor of deciding cases on the merits, J.J.K. Int’l, Inc. 

v. Shivbaran, 985 So. 2d 66, 68–69 (Fla. 4th DCA 2008),1 provides, 

in pertinent part, that a court may relieve a party from a final 

judgment, decree, or order based upon mistake, inadvertence, 

surprise, or excusable neglect. 

Counsel’s motion explained, in some detail, that his failure to 

attend the case management conference was due to a clerical error 

on his calendar committed by his assistant. The assistant 

mistakenly believed that the case management conference had 

been cancelled once Appellants filed a response within the time 

parameters of the trial court’s notice of lack of prosecution issued 

under Florida Rule of Civil Procedure 1.420(e). As a result, the 

case management conference was not on counsel’s calendar; and 

he did not attend the conference. Counsel averred in his motion 

that, to his knowledge, he had never missed a scheduled court 

hearing during his years of practicing law. 

Notably, Appellees did not file a response to or submit 

evidence or affidavits in opposition to Appellants’ motion, nor did 

they contest the factual allegations of clerical error set forth in 

Appellants’ motion and affidavit. After a brief hearing, the trial 

court entered the order now under review, denying the motion 

without making any findings.

1 See also Fla. Aviation Acad., Dewkat Aviation, Inc. v. Charter 

Air Ctr., Inc., 449 So. 2d 350, 353 (Fla. 1st DCA 1984) (“Rule 

1.540(b) is a rule providing for equitable relief which should be 

liberally construed.”).
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Our standard of review of a trial court’s ruling on a rule 

1.540(b) motion is abuse of discretion. Ocwen Loan Servicing, LLC 

v. Brogdon, 185 So. 3d 627, 629 (Fla. 5th DCA 2016) (citing Wells 

Fargo Bank, N.A., v. Michaels, 166 So. 3d 226, 227 (Fla. 5th DCA 

2015)). 

This court, as well as our sister courts, have consistently 

recognized that an attorney’s inadvertent and unintentional 

failure to appear at a hearing due to a calendaring or clerical error 

is one of the common and well-established types of excusable 

neglect or mistake that warrants relief under rule 1.540(b). See id.

at 629–30 (finding that the trial court abused its discretion by not 

vacating its order dismissing the case when the appellants’

attorney failed to appear at a case management conference due to 

an inadvertent mishandling by the law firm’s clerk in not placing 

in counsel’s mailbox a copy of the order setting the conference);

Pipeline Constructors, Inc. v. Transition House, Inc., 257 So. 3d 

606, 608–09 (Fla. 1st DCA 2018) (reversing order denying the

appellant’s rule 1.540(b) motion to vacate dismissal order entered 

as a result of the attorney’s non-attendance at a case management 

conference where the uncontroverted affidavits established that 

counsel’s failure to attend was due to mistake, inadvertence, or 

excusable neglect involving an email junk folder); Shivbaran, 985 

So. 2d at 68–69 (concluding that trial court abused its discretion in

denying the appellants’ rule 1.540(b)(1) motion to set aside a final 

order dismissing the complaint when the attorney’s failure to 

appear at a specially set hearing was due to an innocent secretarial 

error of marking the hearing as “CANCELLED” on the attorney’s 

calendar); State of Fla. Dep’t of Envtl. Reg. v. Chemairspray Inc., 

520 So. 2d 96, 96, 98 (Fla. 4th DCA 1988) (“We conclude that the 

lower court abused its discretion in failing to set aside its dismissal 

of DER’s complaint, where its findings of dilatory tactics are not 

supported in the available record and the sworn affidavits 

submitted by DER [explaining counsel’s unavoidable failure to 

attend the case management conference] were unopposed.”).

To be clear, consequences can result from an attorney’s failure 

to attend a court-ordered case management conference. Under 

Florida Rule of Civil Procedure 1.200(c), a trial court may, among 

other things, dismiss an action when a party fails to attend the 

case management conference. However, because dismissal is 
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recognized as “the harshest of all sanctions,” a trial court, in 

dismissing the action, “must explicitly find that the party’s actions 

were willful, flagrant, deliberate, or otherwise aggravated.” U.S. 

Bank Nat’l Ass’n v. Martinez, 188 So. 3d 107, 108 (Fla. 2010) 

(quoting Perkins v. Jacksonville Hous. Auth., 175 So. 3d 948, 948 

(Fla. 1st DCA 2015)).

The final order of dismissal in the instant case contained no 

such findings. In fact, the unchallenged and uncontroverted 

evidence before the trial court at the hearing held on the rule 

1.540(b) motion to vacate this dismissal order showed that 

counsel’s failure to attend the case management conference was 

neither willful, flagrant, deliberate, nor otherwise aggravated; 

rather, it was due to a clerical or calendaring error or mistake,

similar to those described in the case law previously cited, where 

the trial courts’ denials of rule 1.540(b) motions were reversed. 

Under these circumstances, we conclude that the trial court 

abused its discretion in denying Appellants’ rule 1.540(b) motion 

to vacate the dismissal order. 

Accordingly, the order denying Appellants’ motion to vacate is 

reversed; and we remand with instructions to the trial court to also 

vacate its final order of dismissal. 

REVERSED and REMANDED, with instructions.

EDWARDS, C.J., and MACIVER, J., concur. 

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Not final until disposition of any timely and 

authorized motion under Fla. R. App. P. 9.330 or 

9.331.

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