DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

TRAUMA & REHAB ASSOCIATES a/a/o SIRIENA THOMPSON,

Appellant,

v.

ESURANCE PROPERTY AND CASUALTY INSURANCE COMPANY,

Appellee.

No. 4D21-961

[May 25, 2022]

Appeal from the County Court for the Seventeenth Judicial Circuit, 

Broward County; Ellen Feld, Judge; L.T. Case No. COWE18-12218.

Christina M. Kalin and John C. Daly of Daly & Barber, P.A., Plantation, 

for appellant.

Mark D. Tinker of Cole, Scott & Kissane, P.A., Tampa, for appellee.

PER CURIAM.

This appeal arises from an action by Trauma Rehab & Associates (the 

provider), as assignee for Siriena Thompson (the insured), to recover from 

Esurance Property & Casualty Insurance Company (the insurer) under the 

terms of the personal injury protection (PIP) provisions of the insured’s 

automobile insurance policy. The county court sua sponte dismissed the 

action without prejudice1 based on noncompliance with a pretrial order 

setting certain litigation deadlines—specifically, the directive requiring the 

parties to file a joint pretrial stipulation by a date certain. We reverse the 

order of dismissal on the authority of Comprehensive Spine Center, PLLC 

1 Like the order on appeal in Comprehensive Spine Center, the order on appeal 

in this case was final in nature, even though the county court had described the 

order as “without prejudice,” because the order brought an end all judicial labor 

in the action in which it was entered, and “without prejudice” simply referred to 

the possibility of refiling a new action in a new case. See Comprehensive Spine 

Center, 330 So. 3d at 37 n.1 (order dismissing action “without prejudice” was a 

final appealable order where “the intent of the order was clearly to bring an end 

to all judicial labor in the action” without prejudice to the refiling of a new action).
2

v. Equity Insurance Company, 330 So. 3d 35 (Fla. 4th DCA 2021), because 

entry of the order violated the provider’s procedural due process rights.

The county court in this case entered a pretrial order establishing a 

date certain for the filing of a joint pretrial stipulation. This order never 

specifically advised the provider that dismissal of the action would be 

imposed as a sanction in the event of noncompliance with its terms. While 

the order made clear that sanctions, including dismissal, could result from 

noncompliance with the deadline for filing the joint pretrial stipulation, the 

order never specifically stated that dismissal of the action would result 

without further notice to the parties in the event of noncompliance. After 

the deadline established by the pretrial order passed without the parties’

compliance with its terms, the trial court sua sponte dismissed the action 

without giving the provider either notice or an opportunity to be heard as 

to the appropriateness of the sanction of dismissal.

In Comprehensive Spine Center, we reversed a similar sua sponte 

dismissal of a PIP benefits lawsuit initiated by a medical treatment 

provider, as an assignee for an insured motorist. Id. at 37. The trial 

court’s sua sponte dismissal in that case was predicated on the provider’s 

failure “to file an amended complaint within [a] stated timeframe” set forth 

in an order granting it leave to amend. Id. However, the trial court in 

Comprehensive Spine Center never gave the provider either notice that 

dismissal would be the sanction for noncompliance with the order granting 

leave to amend, or an opportunity to be heard as to whether dismissal was 

an appropriate sanction for noncompliance with the terms of the order. 

Id. (“[C]ounty court did not provide notice or an opportunity to be heard 

prior to dismissing the action.”). As a result, we concluded that the 

medical treatment provider was denied due process such that reversal was 

required. Id.

In this case, the trial court similarly failed to give the provider either 

notice that the sanction of dismissal would be imposed, or an opportunity 

to be heard as to the appropriateness of such a sanction.

We therefore reverse the order of dismissal, as we did in Comprehensive 

Spine Center, because the provider’s due process rights were violated by 

the trial court’s sua sponte dismissal of the action. See id. (“‘Due process 

requires notice and an opportunity to be heard prior to dismissal.’”

(quoting Fed. Nat’l Mortg. Ass’;n v. Sanchez, 187 So. 3d 341, 342 (Fla. 4th 

DCA 2016))).

Reversed and remanded for further proceedings.
3

KLINGENSMITH, KUNTZ and ARTAU JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.