Hanna v. Industrial Labor Service, Inc., 92-3304

• Decision Date: 13 April 1994
• Docket Number: No. 92-3304,92-3304
• Citation: 636 So.2d 773
• Parties: 19 Fla. L. Weekly D840 Cyril HANNA, Appellant, v. INDUSTRIAL LABOR SERVICE, INC., and Fidelity Casualty Company of New York, Appellees.
• Court: Florida District Court of Appeals

Page 773

636 So.2d 773

19 Fla. L. Weekly D840

Cyril HANNA, Appellant, v. INDUSTRIAL LABOR SERVICE, INC., and Fidelity Casualty Company of New York, Appellees.

No. 92-3304.

District Court of Appeal of Florida First District.

April 13, 1994.

Jerold Feuer, Miami, for appellant.

Heskin A. Whittaker & Gary L. Stump, of Whittaker, Stump, Webster, Miller & Smith, P.A., Orlando, for appellees.

MICKLE, Judge.

Claimant, Cyril Hanna, who is incarcerated in a Florida prison, appeals from an order of the judge of compensation claims (JCC) dismissing his claim. We reverse and remand to allow the JCC to make express written findings of ultimate facts in accordance with section 440.25(3)(e), Florida Statutes (1989). Commonwealth Fed. Savings & Loan Ass'n v. Tubero, 569 So.2d 1271 (Fla.1990).

Based on an alleged industrial accident on June 20, 1990, a notice of injury and a claim for benefits were filed in July and August 1990, respectively. The claim was amended subsequently. The following is alleged to have occurred: the Employer/Carrier (E/C) filed a first notice of Claimant's deposition to be taken on September 6, 1990, Claimant's trial counsel did not know where his client was, and a certificate of non-attendance was issued when Claimant failed to appear. A pretrial conference was held on December 10, 1990, the E/C controverted the claim, and no medical treatment was authorized. A hearing date was set for June 5, 1991. A second deposition was set for January 29, 1991, and a third deposition was scheduled apparently for exactly a year later, on January 29, 1992, yet Claimant attended neither one, and the second and third certificates of non-attendance were issued.

On February 6, 1992, the E/C filed a motion to dismiss, with prejudice, the claim for benefits. The motion alleged the following grounds: 1) After the initial scheduled deposition in 1990, the E/C had moved to dismiss, and at the hearing on that motion, Claimant's trial counsel had represented that if he could not locate his client, then counsel would voluntarily dismiss the claim and would notify Claimant via a certified letter to his last known address. 2) As of January 30, 1992, Claimant's attorney had neither dismissed the claim nor notified his client. 3) Claimant's whereabouts were unknown. On March 5, 1992, the JCC issued an order and notice of pretrial hearing set for March 16, 1992. The motion to dismiss was denied, and in an order dated March 16, 1992, the JCC set a hearing date on August 14, 1992. The E/C attempted to schedule a fourth deposition sometime in March 1992, and another certificate of non-attendance was issued.

The record contains a purported fifth notice of Claimant's deposition, to be taken on June 2, 1992, "at the 33rd Street Jail, Orlando, Florida." That deposition was taken, in fact, at the jail holding facility in the presence of attorneys for both sides.

The E/C allege that another motion to dismiss was filed on August 6, 1992, and that it was to be considered in the previously scheduled August hearing. On August 13, 1992, one day before hearing, Claimant's trial counsel filed a motion for continuance alleging that Claimant's case was prejudiced due to the failure of a doctor to appear at either of two scheduled depositions or to give prior notice of intent not to appear. Alternatively, counsel requested an order allowing a post-hearing medical deposition. On that date, the JCC was first advised that Claimant was in jail. In an order dated the same day, the JCC granted the motion for continuance.

The next morning, August 14, 1992, counsel for Claimant and the E/C appeared before the JCC, without Claimant, whereupon the E/C's counsel objected to the motion for continuance and asserted that Claimant's counsel had not notified him of the continuance until immediately before the hearing. Additionally, the E/C's counsel expressed his belief that the fourth motion to dismiss was scheduled to be heard at that hearing, and he asked the JCC to dismiss the claim on the following grounds: 1) Claimant's benefits ceased during any period of incarceration, pursuant to section 440.15(8), Florida Statutes. 2) Claimant was responsible for discovery deficiencies that unnecessarily prolonged the litigation and evinced a lack of diligent prosecution.

Without objection, Claimant's trial counsel relied on his letter dated March 12, 1992, notifying the E/C's counsel that Claimant had been located in jail and requesting that the deposition date be rescheduled to take place in the jail cell. As noted, the fifth attempt to depose Claimant was successful, and the deposition was taken two and one-half months prior to the hearing.

At hearing, the attorneys argued over the reasons for the cancellation of the medical deposition sought by Claimant. When asked by the JCC whether he had finished his discussion, Claimant's lawyer answered in the affirmative. At that point, the JCC announced summarily that the claim was dismissed. That decision was reduced to writing in an order that characterized the August 14, 1992, hearing as one "on the merits of the cause and Employer/Carrier's Motion to Dismiss the claim herein."

On appeal, the standard of review of orders such as the one challenged here is whether the JCC abused discretion. In re Estate of Brandt, 613 So.2d 1365 (Fla. 1st DCA 1993). On appeal, Claimant contends that the order must be reversed because the JCC dismissed the claim without explanation, possibly for Claimant's failure to appear for depositions or due to the provisions in section 440.15(8), Florida Statutes. Claimant asserts harm in that, due to the statute of limitations, the order effectively constitutes a dismissal with prejudice.

We agree that the order must be reversed, as we cannot determine either from the hearing transcript or the order what specific facts or legal grounds served as the basis of the JCC's ruling. Rodriguez v. Thermal Dynamics, Inc., 582 So.2d 805 (Fla. 3d DCA 1991); Iafornaro v. Charter Builders, 557 So.2d 898 (Fla. 1st DCA 1990); Grieco v. Lehigh Corp., 549 So.2d 748 (Fla. 1st DCA 1989) (assuming JCC's order of dismissal was a denial of the claim on the merits, the order constituted reversible error for failure to set forth findings of ultimate facts). In the interest of expediting the JCC's review on remand, we think a few comments are in order concerning the arguments raised by Claimant on appeal.

First, the dismissal may have been based on Claimant's failure to appear for scheduled depositions. "Reasonable notice" of a deposition must be given in writing to all parties. Fla.R.Civ.P. 1.310(b)(1). Broward Industrial Plating, Inc. v. Weiby, 394 So.2d 1117 (Fla. 1st DCA 1981). We find it noteworthy that at the August 14, 1992, hearing, counsel for the E/C acknowledged that the JCC's denial of the initial motion to dismiss, to afford counsel an opportunity to locate Claimant following his first non-appearance, was "reasonable." Even as to Claimant's second failure to appear, and his attorney's attempt to locate him and provide him with written notification, the E/C's counsel described this as a situation that "happens to all of us" and is "understandable from time to time." The record indicates that by the time Claimant's third deposition was scheduled, the "missing" deponent was in jail in Orlando. Once Claimant was located, his counsel promptly notified the E/C's counsel so that arrangements to take the deposition at the holding facility could be made. See Beauchamp v. Collins, 500 So.2d 294 (Fla. 3d DCA 1986) (failure to comply with discovery request did not warrant dismissal with prejudice, where plaintiffs essentially complied with requests well in advance of trial), rev. den., 511 So.2d 297 (Fla.1987).

Clearly, in appropriate circumstances, the JCC is authorized to impose sanctions for failure to comply with the provisions in the workers' compensation statutes and rules, including those provisions governing the taking of depositions. Sec. 440.30 & 440.33, Fla.Stat.; Fla.R.Work.Comp. 4.090(a) (discovery); Fla.R.Civ.P. 1.380(d). Fla.R.Work.Comp. 4.150 includes "dismissal of proceedings" among the permissible sanctions upon...