Ham v. Dunmire

• Decision Date: 23 December 2004
• Docket Number: No. SC03-2038.,SC03-2038.
• Parties: Suzanne S. HAM, Petitioner, v. Scott Ryan DUNMIRE, et al., Respondents.
• Court: Florida Supreme Court

891 So.2d 492

Suzanne S. HAM, Petitioner, v. Scott Ryan DUNMIRE, et al., Respondents.

No. SC03-2038.

Supreme Court of Florida.

December 23, 2004.

Richard P. Warfield, Pensacola, FL, for Petitioner.

Bruce C. Fehr of Vernis and Bowling, Pensacola, FL, for Respondent.

LEWIS, J.

We have for review the decision in Ham v. Dunmire, 855 So.2d 1238 (Fla. 1st DCA 2003), which certified conflict with the Third District Court of Appeal's decisions in Marin v. Batista, 639 So.2d 630 (Fla. 3d DCA 1994), Dave's Aluminum Siding, Inc. v. C & M Ventures, 582 So.2d 147 (Fla. 3d DCA 1991), and United States Fidelity & Guaranty Co. v. Herr, 539 So.2d 542 (Fla. 3d DCA 1989). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

BACKGROUND AND MATERIAL FACTS

The instant action arises from the decision of the First District Court of Appeal which affirmed the dismissal with prejudice entered by the trial court with regard to Ham's personal injury action against Scott Dunmire and All American Termite and Pest Control, Inc., (collectively, "All American"). See Ham, 855 So.2d at 1238. In 1999, Suzanne Ham initiated the underlying action seeking the recovery of damages for the injuries she suffered when the vehicle she was driving was rear-ended by an All American vehicle driven by Dunmire. This typical personal injury action was rendered even more basic by All American's admitted negligence in causing the accident as alleged in Ham's complaint, leaving the issues of causation and damages in contention.

After Ham initiated the action in November 1999, the defendants did not respond, and in April of 2000, Ham submitted a motion for default demonstrating that All American had failed to serve or file any document or pleading in the case as required. A default was entered and it was not until February 2001 that All American moved to vacate the default and filed two supporting affidavits asserting that the respondents' failure to file required pleadings was due to inadvertence and mistake.¹ A jury trial was set for September 30, 2002, to address the issues of causation and the extent and nature of the damages claimed by Ham. In the order setting the case for trial, the trial court also set deadlines for the exchange of witness lists and proposed exhibits, and for the close of all discovery.

Discovery proceeded between the parties. Ham produced documents upon the request of All American, answered All American's first set of interrogatories, and Ham, herself, submitted to deposition. Depositions were completed, health care providers were identified, and subpoenas for medical records were issued. However, at some point in the fall of 2002, Ham failed to comply with a single discovery order. She failed to timely respond to All American's second set of update interrogatories, did not provide a formal witness list of the witnesses already disclosed during discovery, and allegedly did not appear at a meeting scheduled with opposing counsel to review prospective trial exhibits.² As a result of these alleged discovery infractions, All American submitted a motion for sanctions to the trial court.

After a brief unrecorded telephonic hearing on All American's motion, the trial court issued a written order dismissing the action with prejudice based upon Ham's violation of two court orders: one requiring the furnishing of a witness list and the other requiring Ham to answer All American's second set of update interrogatories. Prior to dismissal of the action with prejudice, there were no previous sanctions or discovery violations and no consideration as to whether any prejudice had occurred. In a brief opinion, the district court affirmed the dismissal, despite record evidence demonstrating that Ham's counsel was wholly responsible for failure to comply with the trial court's discovery orders. Noting that "the party herself was in no way at fault" for the discovery violation, the district court certified conflict with the Third District's decisions in Marin, Dave's Aluminum Siding, and Herr.

ANALYSIS

It is well settled that determining sanctions for discovery violations is committed to the discretion of the trial court, and will not be disturbed upon appeal absent an abuse of the sound exercise of that discretion. See Mercer v. Raine, 443 So.2d 944, 946 (Fla.1983). Reviewing courts apply a "reasonableness test" to determine if the trial court has abused its discretion, which provides that if reasonable people could differ as to the propriety of the trial court's action, the action is not unreasonable, and no abuse of discretion has occurred. See id. (citing Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980)). While sanctions are within a trial court's discretion, it is also well established that dismissing an action for failure to comply with orders compelling discovery is "the most severe of all sanctions which should be employed only in extreme circumstances." Mercer, 443 So.2d at 946. In Mercer, this Court held that "[a] deliberate and contumacious disregard of the court's authority will justify application of this severest of sanctions, as will bad faith, willful disregard or gross indifference to an order of the court, or conduct which evinces deliberate callousness." Id. (citation omitted).

The dismissal of an action based on the violation of a discovery order will constitute an abuse of discretion where the trial court fails to make express written findings of fact supporting the conclusion that the failure to obey the court order demonstrated willful or deliberate disregard. See Commonwealth Fed. Savings & Loan Ass'n v. Tubero, 569 So.2d 1271 (Fla.1990). Express findings are required to ensure that the trial judge has consciously determined that the failure was more than a mistake, neglect, or inadvertence, and to assist the reviewing court to the extent the record is susceptible to more than one interpretation. See id. at 1273. While no "magic words" are required, the trial court must make a "finding that the conduct upon which the order is based was equivalent to willfulness or deliberate disregard." Id.

Moreover, to ensure that a litigant is not unduly punished for failures of counsel, the trial court must consider whether dismissal with prejudice is warranted. In 1994, this Court issued Kozel v. Ostendorf, 629 So.2d 817 (Fla.1993) (as clarified Jan. 13, 1994), in which we stated that a dismissal "based solely on the attorney's neglect" in a manner that unduly punishes the litigant "espouses a policy that this Court does not wish to promote." Id. at 818. We articulated a test identifying six factors pertinent in the determination of whether a dismissal with prejudice is a warranted response to an attorney's behavior. These factors require a trial court to consider:

1) whether the attorney's disobedience was willful, deliberate, or contumacious, rather than an act of neglect or inexperience; 2) whether the attorney has been previously sanctioned; 3) whether the client was personally involved in the act of disobedience; 4) whether the delay prejudiced the opposing party through undue expense, loss of evidence, or in some other fashion; 5) whether the attorney offered reasonable justification for noncompliance; and 6) whether the delay created significant problems of judicial administration.

Id."Upon consideration of these factors, if a sanction less severe than dismissal with prejudice appears to be a viable alternative, the trial court should employ such an alternative." Id. The Kozel Court acknowledged that the purpose of the Florida Rules of Civil Procedure is to encourage the orderly movement of litigation, and that such purpose "usually can be accomplished by the imposition of a sanction that is less harsh than dismissal and that is directed toward the person responsible." Id.

Ham supports her position with the decisions of several district courts of appeal that have interpreted Kozel as rendering misconduct on the part of the litigant himself or herself a prerequisite for dismissal. Indeed, courts in at least three appellate districts have interpreted Kozel as requiring a litigant's personal involvement to justify dismissal. In Schlitt v. Currier, 763 So.2d 491 (Fla. 4th DCA 2000), the Fourth District Court of Appeal reversed an order of dismissal resulting from the plaintiff's numerous discovery violations and failures to file responsive pleadings. See id. at 492. The district court relayed that the conduct of plaintiff's counsel resulted in thirteen motions to compel (which were consistently granted), the imposition of monetary sanctions on three occasions, and several court orders threatening dismissal or default prior to the final order dismissing the complaint and entering a default judgment on the counterclaim. See id. After obtaining new counsel, the plaintiff moved to set aside the trial court's orders and submitted an affidavit stating that he had no knowledge of the attorney's handling of the matter, the trial court's orders, and the imposition of sanctions. See id. Acknowledging that courts in the district had interpreted Kozel as precluding dismissal or default absent a showing of client participation in the misconduct, the district court remanded the case for an evidentiary hearing to determine whether the plaintiff knew of the attorney's conduct, and if so, whether the actions were willful and deliberate. See id. at 493. The facts in Schlitt were far more egregious than those we consider here.

The Second District Court of Appeal has reached the same conclusion as that of the Fourth District. In Elder v. Norton, 711 So.2d 586 (Fla. 2d DCA 1998), the district court reversed an order of dismissal emanating from a four-year history of discovery abuses on the part of plaintiff's counsel. See id. at 587. The district court determined that the sanction of dismissal was far too drastic in the absence of evidence "demonstrat[ing] that Elder ha[d] played an active role in abusing the discovery process." Id. The...