Sometimes Being There is Half the Battle


Florida's Fourth District Court of Appeal rendered an interesting opinion in November 2016, Natiello v. Winn-Dixie Stores, Inc., Case number 4D15-2501. It is not a workers' compensation case, but it is interesting nonetheless, and instructive for attorneys and judges alike. 

The plaintiffs in this case sued a grocery store for damages that they alleged were caused by a slip and fall on the defendant's premises. There is nothing in the Court's decision that suggests the facts or legal issues in the case were extraordinary in any way. It is common, in such litigation, for parties to ask the trial judge to decide some issues and facts before trial. 

One common decision that often arises is whether to end the case short of trial, through a "motion to dismiss" the case on some basis, or a "motion for summary judgment." When moving for summary judgment, a party is essentially saying that there are no issues of fact (whether the traffic light was green as one party says or red as the other party says is a "fact issue"), and that the party seeking summary judgment is entitled to judgment as a matter of law. A party that is granted summary judgment wins the case, without the expense and time of trial. 

In Natiello, the defendant moved for summary judgment, and a hearing was scheduled. The "plaintiffs’ counsel arrived for the summary judgment hearing at the scheduled time." However, because he did not see the defense counsel present, the attorney "left to go to the restroom." When the plaintiff's attorney returned "a few minutes later," the summary judgment motion hearing was in progress. The Court opinion says that "the trial court and defense counsel were wrapping up the summary judgment hearing" by the time counsel returned.

Apparently, the plaintiff's attorney then wanted to restart the hearing from the beginning. The defense counsel expressed "willingness to reargue the matter." But,"the trial court refused to allow plaintiffs’ counsel to argue." The trial court noted several reasons for the denial. The judge noted that the plaintiff counsel had not sought continuance of the motion hearing, had filed no "memorandum in opposition" to the motion. The judge therefore granted the requested summary judgment. 

The plaintiff's attorney then filed a "verified motion for rehearing." A "verified motion" means that it is under oath, and is thus evidence of facts stated in the motion such as the attorney's arrival time, the trip to the bathroom, etc. As an aside, the appellate Court's decision leaves one wondering how far away that restroom was? Counsel arrived on time, defense counsel was not there. By the time counsel could use the restroom, the hearing on the summary judgment motion was "wrapping up?" Was this a 5 minute washroom stop across the hall from chambers?

The Fourth District Court concluded that the issue in this case is "whether a party has been denied procedural due process." This is a question of law, and so the Court reviewed the trial judge's decision "de novo," essentially meaning "start over." Interpretations of law are usually reviewed by appellate courts de novo, and there is no deference to the legal interpretation of the trial judge. 

The Court concluded that "plaintiffs’ counsel was only a few minutes late," and counsel "offered a patently reasonable explanation for his tardy appearance" (see above regarding how far away that bathroom might have been; "patently" means "without a doubt;" of course the appellate Court may know facts it did not include in the opinion). As I read, I could not help remembering the 1999 comedy American Pie, in which Finch could not bring himself to use the restroom at school. Perhaps the coffee shop across the street is more hygienic than the courthouse?

The Court also concluded, in what is the critical point, "there was no showing of prejudice or willful misconduct." Based on these three conclusions of minimal delay, patently reasonable explanation and lack of prejudice, the appellate Court concluded that "the trial court abused its discretion in refusing to allow plaintiffs’ counsel to present argument at the hearing."

The Court held that due process "requires that before summary judgment is entered, the non-moving party must have a full and fair opportunity to contest" the motion. Certainly, that right and virtually any right can be waived. However, in the circumstances of this case, the Court concluded there was not waiver. The Court found no relevance in the Plaintiff's failure "to file anything in opposition to the defendant’s motion for summary judgment." Despite that failure, the Court held the Plaintiff "should have been permitted to present argument.

The case is instructive. Recently on this blog I have discussed cases in which compliance with rules was an issue. Compliance with rules is important. Even the Florida First District Court has sometimes stressed that time limitations should be enforced regardless of prejudice or circumstances. But, even when rules are not followed, even when pleadings are not filed, parties should be provided an opportunity to present their side of an argument.

This issue comes up periodically in conversations I have about OJCC motion practice. Someone will complaint that an order was entered without a hearing, or even without allowing the other side to respond to the motion. There is a feeling that this violates due process. Rule 60Q-6.115 says that it is appropriate for the Judge to decide a motion without a hearing. In fact, hearings are supposed to occur only in "exceptional" circumstances. 

But, there are some who perceive every disagreement as "exceptional" and every motion as an emergency. Some lawyers tell me that not only are they summoned to hearings on mundane motions, but they are summoned with little to no notice. They complain that they are not afforded the "15 days" in Rule 60Q-6.115 to file "a response in opposition." In these conversations, I often ask "did you object to hearing on such 'short notice' grounds?" Lawyers typically look at me knowingly and say something to the effect of "you've practiced law, you know what happens when a lawyer objects to what the judge wants to do." It is tragic that a lawyer would be dissuaded from voicing opposition to a judge's violation of procedural rules. 

Another aside, there was a time when a Florida JCC was accused of coercing all parties in all cases to file a "waiver of statutory time constraints" Lawyers told us they felt pressured and threatened by that judge's persistent reminders and questions about any failure to file such a waiver of rights. When I confronted the judge, I was assured that the pressure perceived by attorneys was not intended. But, that pressure was felt nonetheless. An audit of case dockets revealed almost 100% of cases had such waivers in that district, but rarely if ever appeared in other districts; curiouser and curiouser.

So, when should a judge adjudicate a motion in Florida's workers' compensation adjudication system? The Rule says to file the motion. Then, the other side(s) should normally be allowed 15 days to file  a response. That response will normally be the only "full and fair opportunity to contest" a motion. It should be filed. It should be timely. It should be complete. After that 15 days, an order should issue based upon the sufficiency and persuasiveness of the motion and the response. As the Fourth District Court reminded in Natiello, the response should be considered even if it was filed late, unless that untimeliness resulted in "actual prejudice."

If a party wants a hearing, they should say so, in the motion or the response. A party seeking a hearing, rather than a decision based on the written filings, should explain that they want a hearing, how the situation is "exceptional," and what the "good cause" for the hearing would be. And, judges should respect the time and commitments of the parties and attorneys and schedule motion hearings only "in exceptional circumstances and for good cause shown," like the rules say. This is likely what the parties and attorneys expect, since it is what is in the published rules. Should people be able to expect that the procedures in their case will be what is published in the procedural rules? Or, should they be summoned to unexpected hearings for which they have not enjoyed the time to prepare, and about which they acquiesce out of fear of the judge?

And if someone is late for such an "exceptional circumstance" hearing, because they were in traffic or the restroom, perhaps it may be best in many circumstances to just begin again? 

About the Author

 Judge David Langham
David Langham is the Deputy Chief Judge of Compensation Claims for the Florida Office of Judges of Compensation Claims and Division of Administrative Hearings. Contact him at He posts weekly at

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    About The Author

    • Judge David Langham

      David Langham is the Deputy Chief Judge of Compensation Claims for the Florida Office of Judges of Compensation Claims at the Division of Administrative Hearings. He has been involved in workers’ compensation for over 25 years as an attorney, an adjudicator, and administrator. He has delivered hundreds of professional lectures, published numerous articles on workers’ compensation in a variety of publications, and is a frequent blogger on Florida Workers’ Compensation Adjudication. David is a founding director of the National Association of Workers’ Compensation Judiciary and the Professional Mediation Institute, and is involved in the Southern Association of Workers’ Compensation Administrators (SAWCA) and the International Association of Industrial Accident Boards and Commissions (IAIABC). He is a vocal advocate of leveraging technology and modernizing the dispute resolution processes of workers’ compensation.

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