Berry v. J.C. Penney Co.

PER CURIAM. This cause is before us on appeal from a workers’ compensation order granting the employer/carrier’s motion to dismiss with prejudice the employee’s claim due to claimant’s failure to appear at two duly scheduled depositions. The record shows the motion to dismiss was served on the day of the previously scheduled hearing on the merits. Further, the record fails to indicate that there was any notice of hearing on the motion to dismiss. Claimant, proceeding pro se, attended the hearing on the merits, but the deputy converted the merits hearing into a hearing on the motion to dismiss, which motion the deputy subsequently granted. Accordingly, we must vacate the order and remand this cause since the record before us shows that claimant was not given adequate notice of the motion to dismiss or of hearing on that motion. International Brotherhood of Electrical Workers, Local 349 v. Albury, 299 So.2d 581 (Fla.1974). BOOTH, SMITH and THOMPSON, JJ., concur.