         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
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                         No. 1D17-1867
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PIPELINE CONSTRUCTORS, INC.,

    Appellant,

    v.

THE TRANSITION HOUSE, INC., a
Florida Corporation,

    Appellee.
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On appeal from the Circuit Court for Bradford County.
Stanley H. Griffis, III, Judge.

                        October 18, 2018


BILBREY, J.

     Appellant Pipeline Constructors, Inc., the plaintiff at the
trial level, appeals the order dismissing the case for Pipeline’s
failure to appear at the initial case management conference set
pursuant to rule 1.200(a), Florida Rules of Civil Procedure, and
the order denying relief from the order of dismissal, pursuant to
rule 1.540(b), Florida Rules of Civil Procedure. We agree that
dismissal was improper and that relief should have been granted
as to the order of dismissal. We therefore reverse and remand.

    Pipeline, a subcontractor, filed a claim of lien on April 6,
2016, in the Official Records of Bradford County. The owner of
the real property, The Transition House, Inc., filed its notice of
contest of lien and served the notice upon Pipeline by certified
mail on November 2, 2016. The notice of contest shortened the
time limit for Pipeline to file an action to enforce its lien to 60
days, in this case expiring on January 2, 2017. See § 713.22(2),
Fla. Stat. Pipeline met the deadline by filing its complaint
against Transition House to enforce the lien, and for unjust
enrichment, in the circuit court on December 27, 2016. See §§
85.011, 713.06, Fla. Stat.

    Although Transition House had not yet been served with
process, the trial judge, by order entered March 9, 2017, ordered
a case management conference pursuant to rule 1.200(a). 1 The
court set the conference for April 10, 2017, and the order was
served via email on one of Pipeline’s attorneys. However, the
order ended up in that attorney’s email “clutter” or junk folder
and was deleted without being seen. The order was apparently
not served on the attorney’s assistant or another attorney for
Pipeline, both of whom were designated to receive service. See
Fla. R. Jud. Admin. 2.516(b)(1)(A).

    Upon the failure of Pipeline’s counsel to appear at the case
management conference on April 10, 2017, the trial judge entered
an order on April 11, 2017, dismissing the cause “without
prejudice.” Pipeline moved to vacate the order of dismissal,
under rule 1.540, Florida Rules of Civil Procedure, asserting that
its failure to appear was due to mistake, inadvertence, and
excusable neglect. The trial court denied Pipeline’s motion to
vacate on April 19, 2017, and here Pipeline appeals both orders.
Although the order dismissing the action for failure to appear
was “without prejudice,” it has the effect of a final order and we
thus have jurisdiction. 2

    1   The record reflects that Pipeline’s complaint was served on
Transition House via substitute service on April 12, 2017. See
Fla. R. Civ. P. 1.070(j) (summons must be served within 120 days
of filing of initial pleading).
    2  An order dismissing a complaint “without prejudice” to
amend is not ordinarily a final, appealable order. Hinote v. Ford
Motor Co., 958 So. 2d 1009, 1010 (Fla. 1st DCA 2007). However,
“[a]n order that dismisses an action ‘without prejudice’ may or
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     The trial court judges of Florida undoubtedly carry a heavy
workload. See Florida’s Trial Courts Statistical Reference Guide
FY       2016-17,       http://www.flcourts.org/publications-reports-
stats/statistics/trial-court-statistical-reference-guide.stml   (last
visited Sept. 27, 2018). Standards exist for timely disposition of
cases and failure to meet those standards can result in reports to
the chief justice. See Fla. R. Jud. Admin. 2.250. Canon 3B(8) of
the Code of Judicial Conduct requires a judge to “dispose of all
judicial matters promptly, efficiently, and fairly.” It is therefore
laudable that the trial judge here attempted to take control of the
case from the start. But a case management conference under
rule 1.200(a) can only be set “[a]t any time after responsive
pleadings or motions are due.”

    We need not decide whether the trial judge could sanction
Pipeline for not attending the case management conference set
contrary to rule 1.200(a) because, even if sanctions had been
available, the order dismissing the case for Pipeline’s failure to
attend the case management conference contained no findings
that such failure was willful, flagrant, deliberate, or otherwise
aggravated. See Perkins v. Jacksonville Housing Auth., 175 So.
3d 948 (Fla. 1st DCA 2015); U. S. Bank Nat. Ass’n v. Martinez,
188 So. 3d 107 (Fla. 5th DCA 2016). The “sanction must be
commensurate with the offense.” Id. at 108. The order of


may not be a final order depending upon whether it
unequivocally disposes of a case.” Id. Dismissal of an action
“without prejudice” to file another, separate action ends the
judicial labor in the first action and is thus an appealable final
order. Delgado v. J. Byrons, Inc., 877 So. 2d 822, 823 (Fla. 4th
DCA 2004); Carlton v. Wal-Mart Stores, Inc., 621 So. 2d 451, 452
(Fla. 1st DCA 1993). Additionally, where the new action would
be time-barred if refiled, dismissal without prejudice to file a new
action operates as a dismissal with prejudice and is thus
reviewable on appeal. Martinez v. Collier Cnty. Pub. Sch., 804
So. 2d 559, 560 (Fla. 1st DCA 2002). A new action by Pipeline to
enforce its lien would have to be time-barred as of January 2,
2017, by the 60-day limitation set out in section 713.22(2),
Florida Statutes.

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dismissal is therefore reversed and remanded for further
proceedings

     In Emerald Coast Utilities Authority v. Bear Marcus Pointe,
LLC, we held that an attorney’s “conscious decision to use a
defective email system without any safeguards or oversight in
order to save money” does not “constitute excusable neglect.” 227
So. 3d 752, 757 (Fla. 1st DCA 2017). However, the basis for
excusable neglect here consists of more than just an overactive
spam filter. It was reasonable for Pipeline’s attorney not to
anticipate any orders from the court while there remained time
for execution of service of process on Transition House. The fact
that service of the order was apparently attempted on only one of
the three people designated by Pipeline to receive service also
shows an oversight by the trial court.           Because Pipeline
supported its motion to vacate the order with uncontroverted
affidavits establishing facts to support its claim of mistake,
inadvertence, surprise, or excusable neglect, the order denying
relief under rule 1.540 is also reversed. See Ocwen Loan
Servicing, LLC v. Brogdon, 185 So. 3d 627 (Fla. 5th DCA 2016);
Acosta v. Deutsche Bank Nat’l Trust Co., 88 So. 3d 415 (Fla. 4th
DCA 2012).

   REVERSED and REMANDED.

WOLF and KELSEY, JJ., 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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David L. Worthy and Christopher W. Lewis of Niesen, Price,
Worthy, Campo, P.A., Gainesville, for Appellant.

Joseph R. Fitos and Joshua A. Bachman of GrayRobinson, P.A.,
Orlando, for Appellee.


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