Kelley v. Schmidt

• Decision Date: 15 January 1993
• Docket Number: No. 91-2256,91-2256
• Citation: 613 So.2d 918
• Parties: 18 Fla. L. Week. D293 Jerry Jack KELLEY, Edward Norman Mathewson, Henry John Zpaitz, and Richard Edward Berard, Appellants, v. Willie SCHMIDT, Appellee.
• Court: Florida District Court of Appeals

Page 918

613 So.2d 918

18 Fla. L. Week. D293

Jerry Jack KELLEY, Edward Norman Mathewson, Henry John Zpaitz, and Richard Edward Berard, Appellants, v. Willie SCHMIDT, Appellee.

No. 91-2256.

District Court of Appeal of Florida Fifth District.

Jan. 15, 1993.

Rehearing Denied March 5, 1993.

Mark Ellis Solomon, Orlando, for appellants.

James P. Kelaher and Neva M. Kelaher of Kelaher & Wieland, P.A., Orlando, for appellee.

MUSLEH, V.J., Associate Judge.

Appellants seek reversal of the trial court's order striking their pleadings and entering a default judgment in favor of appellee (including treble damages) on appellee's counterclaim for civil theft. Appellants argue that such action by the trial court was an abuse of discretion. This court agrees with appellants.

This case arose as a dispute between the five members of a lottery pool. When the pool purchased a winning "Fantasy Five" ticket, appellants discovered that appellee had purchased a duplicate winning ticket privately and outside the pool. Appellants sued the appellee for breach of an oral contract, alleging that appellee's purchase of a duplicate lottery ticket violated their pool agreement. Appellants sought an eighty percent share of appellee's duplicate ticket. Appellee counterclaimed, alleging conversion and civil theft of his twenty percent interest in the pool's winning ticket which appellants retained.

The trial judge set the matter for jury trial by order dated April 3, 1991 which provided inter alia, for an exchange of witness lists, set a pretrial hearing for July 15, and required mediation prior to the pretrial conference. Counsel for appellants failed to attend the April 15 pretrial, was late for a rescheduled pretrial on August 26, and showed up on the trial date without the required witness list, exhibit list, or jury instructions. Upon motion of appellee's counsel, the trial judge struck appellants' pleadings, dismissed their cause of action, and entered a default judgment on appellee's counterclaim for civil theft, including an award of treble damages. This appeal ensued.

At the outset we observe that trial courts have a broad range of sanctions to enforce pretrial compliance and that a district court may not overturn a trial court's decision imposing sanctions absent an abuse of discretion. First Republic Corp. v. Hayes, 431 So.2d 624 (Fla. 3d DCA), rev. denied, 441 So.2d 632 (Fla.1983). One of the sanctions available for failure to comply with pretrial orders is the striking of pleadings. Fla.R.Civ.P. 1.200(c). However, the striking of a party's pleadings resulting in either dismissal or a default judgment is the most severe sanction. It should be used sparingly and reserved to those instances where the conduct is flagrant, willful or persistent. Morales v. Perez, 445 So.2d 393 (Fla. 3d DCA), cause dismissed, 453 So.2d 44 (Fla.1984); Masons Concrete of Crystal River, Inc. v. Corbin Well Pump & Supply, Inc., 364 So.2d 824 (Fla. 2d DCA 1978), cert. denied, 373 So.2d 457 (Fla.1979); Hart v. Weaver, 364 So.2d 524 (Fla. 2d DCA 1978).

The Florida Supreme Court's recent requirement of an express written finding of willfulness in any order striking a party's pleadings which results in a dismissal or a default judgment, and the lack of such finding in the instant case, mandates a reversal. Commonwealth Federal Savings & Loan Ass'n v. Tubero, 569 So.2d 1271 (Fla.1990). Although we are mindful of the supreme court's admonition in Tubero that no "magic words" are required, the trial court's order in this case is devoid of any finding of willfulness. Tubero, 569 So.2d at 1273. The order recited the specific failures of appellants' counsel to comply with its pretrial order. It declared that the attorney had offered "no justifiable excuse" for his defaults even though he offered explanations for his dereliction, albeit insufficient. The court concluded that counsel "exhibited a continuing and repeated failure to comply" with the pretrial order.

That is not, in our view, the equivalent of an express finding of willful or contumacious behavior. The record in this case reveals appellants' counsel as sloppy, inattentive and inadequate but not willful or contumacious. ¹ Moreover, when pressed by the trial judge, appellee's counsel could not represent that any irrevocable prejudice had been incurred as a result of counsel's noncompliance.

When a party fails to comply with a pretrial order, the authority to sanction is not unbridled; the sanction imposed must be commensurate with the offense. Insua v. World Wide Air, Inc., 582 So.2d 102 (Fla. 2d DCA 1991). We note that numerous, less onerous sanctions were available to the trial judge. Counsel agreed to the acceptance of appellee's witness list, his proposed jury instructions, and his exhibit list. These sanctions would have negated any prejudice to the appellee and allowed the parties their day in court. Traditionally, contempt has been the sanction used to punish counsel. Rather than using the scalpel, the trial judge has chosen the atomic bomb. We align ourselves with those rulings which hold that:

The court unquestionably has power to discipline counsel for refusal or failure to meet the requirements of [Florida Rule of Civil Procedure 1.200]. Such refusal may warrant a citation for contempt or a lesser degree of punishment, but it is our view that the major punishment for such delicts should be imposed on counsel rather than on the litigant. (emphasis added)

Beasley v. Girten, 61 So.2d 179, 180 (Fla.1952); Crystal Lake Golf Course, Inc. v. Kalin, 252 So.2d 379 (Fla. 4th DCA 1971); Goldman v. Tabor, 239 So.2d 529 (Fla. 2d DCA 1970).

We cannot condone counsel's failure to comply with the court's pretrial order but we hold that it was an abuse of the trial court's discretion to strike the appellants' pleadings, and enter default judgment against them. Accordingly, the final judgment appealed is reversed and the cause is remanded to the trial court with directions to reinstate appellants' pleadings and to allow the matter to proceed to trial. However, the trial court may impose other appropriate sanctions in its discretion.

REVERSED and REMANDED for proceedings consistent with this opinion.

W. SHARP, J., concurs.

GOSHORN, C.J., dissents with opinion.

GOSHORN, Chief Judge, dissenting.

I cannot agree that the trial court abused its discretion under the facts of this case. Further, I do not agree with the majority that "the trial court's order in this case is devoid of any finding of willfulness" as required by Commonwealth Federal Savings and Loan Association v. Tubero, 569 So.2d 1271 (Fla.1990).

In the order striking the appellants' pleadings, the trial court found the appellants had failed to comply with the court's orders:

(a) by failing to set up the Mediation, requiring counsel for Defendant/Counter-Plaintiff to do so; and

(b) by failing to file and serve upon opposing counsel prior to the pre-trial hearing of July 15, 1991, a Pre-Trial Compliance comprising of a witness list, exhibit list, statement of issues to be tried, estimated time for trial, stipulated facts or issues and a Memorandum of Law, and

(c) by failing to attend the Pre-Trial Conference scheduled for July 15, 1991; and

(d) by failing to attend the Pre-Trial Conference scheduled for August 26, 1991; and

(e) by failing to provide any jury instructions to this Court or opposing counsel prior to the first day of trial, or even at trial.

2. That this Court finds the Plaintiffs/Counter-Defendants in violation of its Order and directives further by failing to file and serve upon opposing counsel all of the above documentation even at the commencement of this trial.

3. That counsel for Plaintiffs/Counter-Defendants at the time of trial had no justifiable excuse for his disregard of this Court's Order of April 3, 1991, but admitted having received said Order and admitted having read said Order.

4. That this Court hereby finds that the Plaintiffs/Counter-Defendants have exhibited a continuing and repeated failure to comply with an Order of this Court, which justifies the severe sanctions of...