Gomez-Bonilla v. Apollo Ship Chandlers, Inc.

• Decision Date: 01 February 1995
• Docket Number: Nos. 93-752,GOMEZ-BONILL,A,93-753,s. 93-752
• Parties: 20 Fla. L. Weekly D280 Abelppellant, v. APOLLO SHIP CHANDLERS, INC., Tropic Ship Services Ltd., and Compania De Vapores Fanal, S.A., Appellees.
• Court: Florida District Court of Appeals

Page 116

650 So.2d 116

20 Fla. L. Weekly D280

Abel GOMEZ-BONILLA, Appellant, v. APOLLO SHIP CHANDLERS, INC., Tropic Ship Services Ltd., and Compania De Vapores Fanal, S.A., Appellees.

Nos. 93-752, 93-753.

District Court of Appeal of Florida,

Third District.

Feb. 1, 1995.

Charles R. Lipcon, Cooper & Wolfe and Sharon L. Wolfe and David H. Pollack, Miami, for appellant.

Keller, Houck & Shinkle and Ted L. Shinkle, Miami, for appellees.

Before COPE, LEVY and GREEN, JJ.

LEVY, Judge.

These appeals emanate from two separately dismissed cases which arose from the same factual scenario, involving identical parties and claims. The first appeal, case number 93-752, is from an order dismissing the appellant, Abel Gomez-Bonilla's (hereinafter referred to as "Bonilla") complaint against the appellees, Apollo Ship Chandlers, Inc., et al. (hereinafter collectively referred to as "Apollo"). The trial court struck Bonilla's pleadings and dismissed this suit following Bonilla's failure to comply with several trial court orders requiring him to attend his deposition. The second appeal, case number 93-753, is from an order dismissing a second, identical, lawsuit filed by Bonilla against Apollo, as being barred by the doctrine of res judicata.

Bonilla is a seaman who worked as a ship crew member for Apollo. In April of 1989, Bonilla slipped and fell while working aboard one of Apollo's ships. Two years after this injury, in April of 1991, Bonilla filed a six-count complaint against Apollo alleging Jones Act negligence and several other maritime claims. In September of 1991, Bonilla failed to attend a scheduled deposition which had been set by Apollo. In October of 1991, Apollo re-noticed Bonilla's deposition, and Bonilla's attorney moved for a protective order to prevent the taking of the deposition. In the motion, Bonilla's attorney alleged that Bonilla could not attend the deposition because he was living in Colombia and could not obtain a visa to come to the United States. Additionally, Bonilla's attorney stated that Bonilla was willing to give his deposition once he reached the United States. The trial court denied the motion for protective order, and Apollo subsequently noticed Bonilla for three other depositions between January and June of 1992. Bonilla failed to appear at each of these scheduled depositions, despite three trial court orders requiring him to appear. After the second court order requiring Bonilla to appear for deposition, Bonilla's attorney filed an affidavit with the court explaining that he had spoken with Bonilla's wife in Columbia who had told him that she did not know of Bonilla's whereabouts. In addition, Bonilla's attorney stated that since Bonilla was a seaman, he most likely could not be reached because he was at sea.

Meanwhile, on March 30, 1992, in anticipation of a dismissal of the first suit, and being aware that the statute of limitations on Bonilla's claims was about to run, Bonilla filed a second lawsuit against Apollo realleging all of the claims that had been asserted in the first lawsuit. On May 26, 1992, the trial court issued its last order requiring Bonilla to appear for a deposition in the first case. In that order, the trial court directed Bonilla to appear for a deposition within thirty days and cautioned that if Bonilla did not appear within the allotted time, the case would be dismissed with prejudice upon receipt of a certificate of non-appearance. After Bonilla failed to appear for this deposition in June of 1992, Apollo submitted a certificate of non-appearance to the trial court.

On March 30, 1993, after a lengthy period of inactivity, Apollo filed a motion to dismiss Bonilla's second complaint, or in the alternative, for summary judgment. Apollo also moved for attorney's fees against Bonilla for the time expended in defending the second lawsuit. During the hearing on this motion, the trial court, upon an oral motion by Bonilla to enter a final judgment of dismissal so as to allow for an appeal, entered a final judgment striking the first complaint and dismissing the first suit with prejudice as a sanction, in accordance with the court's previous discovery order dated May 26, 1992. In addition, the trial court dismissed the second case with prejudice, on grounds of res judicata, and denied Apollo's motion for attorney's fees. Bonilla now appeals the trial court's orders dismissing both of his suits against Apollo. Apollo cross-appeals the trial court's order refusing to grant them attorney's fees for defending Bonilla's second lawsuit.

Although a trial court is clothed with the discretion to order a dismissal or default against a party who has failed to comply with the court's discovery mandates, Kozel v. Ostendorf, 629 So.2d 817, 818 (Fla.1993) (as clarified Jan. 13, 1994); Commonwealth Fed. Savs. & Loan Ass'n v. Tubero, 569 So.2d 1271, 1273 (Fla.1990); Mercer v. Raine, 443 So.2d 944, 945-46 (Fla.1983), the exercise of that discretion will be disturbed on appeal upon a clear showing that the trial court abused its discretion. Tubero, 569 So.2d at 1173; Mercer, 443 So.2d at 946; Sekot Lab., Inc. v. Gleason, 585 So.2d 286, 288 (Fla. 3d DCA 1990); Kleinschmidt v. Gator Office Supply & Furniture, 551 So.2d 515, 516 (Fla. 3d DCA 1989), review denied, 560 So.2d 233 (Fla.1990). The entry of a dismissal or default for a party's noncompliance with a court's discovery order "is the most severe of all sanctions which should be employed only in extreme circumstances," Mercer, 443 So.2d at 946 (emphasis added), and which "should be reserved for those aggravating circumstances in which a lesser sanction would fail to achieve a just result." Kozel, 629 So.2d at 818; see also Crews v. Shadburne, 637 So.2d 979, 981 (Fla. 1st DCA 1994). Before a trial court administers such a severe sanction, it should be certain that the party's conduct indicates "[a] deliberate and contumacious disregard of the court's authority[,] ... bad faith, or a willful disregard or gross indifference to an order of the court, or conduct which evinces deliberate callousness." Mercer, 443 So.2d at 946 (citations omitted). In the instant cause, the trial court dismissed Bonilla's first lawsuit with prejudice because Bonilla failed to attend several court-ordered depositions.

Contrary to the trial court's ruling, the record in this case does not contain sufficient evidence to indicate that Bonilla exhibited the sort of wilful disregard for the court's orders which would support the sanction of dismissal, either with or without prejudice. In addition, throughout the time that Bonilla was unavailable for deposition, Apollo had been able to obtain other forms of discovery from Bonilla including: a response to a request for admissions, answers to interrogatories, and a response to a request for production. Finally, in September of 1992, Bonilla's attorney filed a notice of availability with the...