Lahti v. Porn, 91-2295

• Decision Date: 15 September 1993
• Docket Number: No. 91-2295,91-2295
• Citation: 624 So.2d 765
• Parties: 18 Fla. L. Weekly D2006 Tracy O. LAHTI, Appellant, v. Florence Jo PORN, Appellee.
• Court: Florida District Court of Appeals

Page 765

624 So.2d 765

18 Fla. L. Weekly D2006

Tracy O. LAHTI, Appellant, v. Florence Jo PORN, Appellee.

No. 91-2295.

District Court of Appeal of Florida Fourth District.

Sept. 15, 1993.

K. Stuart Goldberg of the Law Offices of K. Stuart Goldberg, West Palm Beach, for appellee.

ROSS, Associate Judge.

This is an appeal from the trial court's order dismissing appellant's complaint with prejudice for the failure of plaintiff's counsel to attend the docket call and to fully comply with the court's pretrial order. The trial court found appellant's counsel failed to prepare a pretrial stipulation, timely file witness and exhibit lists, and, attend the calendar call. The trial court's order setting the cause for jury trial specified: "Attendance at calendar call is mandatory. Failure to attend may result in the dismissal of this action, the entry of a default or other appropriate sanctions."

Because appellant had previously voluntarily dismissed the same claim, the trial court entered an order dismissing appellant's case with prejudice. However, the trial court failed to a make specific finding that appellant counsel's failure to comply with the pretrial order was willful or that appellant counsel's failures resulted in any prejudice to appellee. Dismissal of a case should be used sparingly and reserved to those instances where the conduct is willful. Kelley v. Schmidt, 613 So.2d 918 (Fla. 5th DCA 1993).

Appellant argues, and we agree, under the circumstances the trial court abused its discretion in dismissing this case with prejudice. Dismissal of an action is a drastic remedy which should be used only in extreme situations and upon a showing of deliberate and willful disregard for the trial court's order. World on Wheels of Miami, Inc. v. Int'l Auto Workers, Inc., 569 So.2d 836 (Fla. 3d DCA 1990).

In reviewing the trial court's order of dismissal, this court must weigh the severity and prejudicial effects of counsel's actions against the loss to appellant of her cause of action. Livingston v. Dept. of Corrections, 481 So.2d 2 (Fla. 1st DCA 1985). In the present case, the record reflects appellant's counsel provided the trial court with an explanation for his failure to appear at the scheduling conference. The trial court has many alternatives to secure proper respect for and compliance with its orders including the imposition of costs or attorney's fees. The failure of appellant's counsel to attend the scheduling conference should not serve as a basis upon which to punish the appellant. Travelers Ins. Co. v. Rodriquez, 357 So.2d 464 (Fla. 2d DCA 1978).

Appellee argues Sienkiewicz v. Aqua Lift, Inc., 586 So.2d 92 (Fla. 4th DCA 1991), compels dismissal of an action for failure to attend the calendar call where the pretrial order states in "unequivocal fashion that failure to attend calendar call could result in the entry of a default or the striking of a party's pleadings ..." Id. at 93. However, the appellant in Sienkiewicz was not represented by an attorney. Where a pro se litigant does not abide by the court's orders, it is logical that he or she should suffer the consequences.

Many trial judges, trial attorneys, as well as the writer empathize with the compelling dissenting opinion written by Judge Stone. Trial judges find it difficult to manage and dispose of their increasing caseloads. Conscientious trial attorneys are also frustrated when forced to confront an adversary who fails to devote the time and effort required to represent their client in a professional manner. Although the trial court's decision is understandable, we hold that dismissal of appellant's claim with prejudice was error.

Upon remand, if the trial court intends to impose sanctions upon appellant's counsel, appellant's counsel should be given an opportunity to appear before the court to "explain the violation or present any evidence in mitigation." Insua v. World Air, Inc., 582 So.2d 102, 104 (Fla. 2d DCA 1991).

REVERSED AND REMANDED

WARNER, J., concurring specially with opinion.

STONE, J., dissenting with opinion.

STONE, Judge, dissenting.

I would affirm the order dismissing Appellant's case with prejudice for failure to attend the docket call for trial and for otherwise failing to comply with the pretrial order. The trial court made these specific findings:

the Plaintiff has failed to comply with the Pretrial Order entered March 21, 1991, and with the Rules of Civil Procedure. More specifically, Plaintiff has failed to:

1. Draw and execute a Pretrial Stipulation, or complying Witness and Exhibit lists.

2. Attend Calendar Call. The Pretrial Order of March 21, 1991, cautions that attendance at Calendar Call is mandatory and that failure to attend may result in the dismissal of this action.

The Court further finds that Plaintiff has failed to appear, through counsel, at hearings in this matter on June 17, 1991 and July 11, 1991, and that the July 11, 1991 hearing had been requested and noticed by Plaintiff's counsel, whose failure to attend his own hearing has gone unexplained.

The Court further finds that this same claim was previously filed as Case Number CL 88-3750 AE, in this same Court, and was Voluntarily Dismissed by Plaintiff entered November 28, 1989 after the entry of an Order of Dismissal entered November 9, 1989.

The Court finds that Plaintiff's failure to comply with this Court's Pretrial Order and the Rule of Procedure justify and require the Dismissal of this civil action....

The court's order setting the cause for jury trial specified that: "ATTENDANCE AT CALENDAR CALL IS MANDATORY. FAILURE TO ATTEND MAY RESULT IN THE DISMISSAL OF THIS ACTION, THE ENTRY OF A DEFAULT OR OTHER APPROPRIATE SANCTIONS." The bold type, capitalization, and underlining appearing in this quotation have not been added here for emphasis; they appear in the original order! The pretrial order also provided that "sanctions will be imposed for noncompliance" with the required filing of a pretrial stipulation. Additionally, it warned that "noncompliance with this order may result in the striking of the case, witnesses, exhibits or such other sanctions as are just." The trial court had already entered sanctions striking late service of the Appellant's witness and exhibit lists.

The ultimate issue in this appeal is not whether sanctions may be imposed, but whether, if dismissal is the chosen sanction, may it be "with prejudice." In Sienkiewicz v. Aqua Lift, Inc., 586 So.2d 92, 93 (Fla. 4th DCA 1991), we said, albeit by dicta,:

We wish to emphasize that our holding is clearly limited to the facts in this case, and should not be interpreted as either a license for attorneys or pro se litigants to ignore pretrial orders or as an absolute prohibition against trial judges from imposing the severest of sanctions when they do. We think, for instance, that had the pretrial order stated in unequivocal fashion that failure to attend calendar call could result in the entry of a default or the striking of a party's pleadings, then we would be compelled to affirm the trial judge's decision. (emphasis added)

A dismissal without prejudice is an appropriate remedy under these circumstances. Beasley v. Girten, 61 So.2d 179, 181 (Fla.1952); Crystal Lake Golf Course, Inc. v. Kalin, 252 So.2d 379, 381 (Fla. 4th DCA 1971); World on Wheels of Miami, Inc. v. Int'l Auto Motors, Inc., 569 So.2d 836, 837 (Fla. 3d DCA 1990); Epps v. Hartley, 495 So.2d 921 (Fla. 4th DCA 1986). See also F. Food Company, Inc. v. Hart Properties, Inc., 515 So.2d 279 (Fla. 3d DCA 1987), rev. denied, 523 So.2d 577 (Fla.1988).

In Michniak v. Michniak, 601 So.2d 1305, 1306 (Fla. 4th DCA 1992), this court reversed a dismissal with prejudice in a dissolution action because there was no finding of a "willful" failure to appear. However, here, such is not the case, as although the trial court does not use the word willful in its order, it is clear that the language used by the court is the equivalent of such a finding. The trial court could certainly recognize on this record a persistent pattern in the Appellant's conduct. See F. Food Company, Inc., supra. See also Arango v. Alvarez, 585 So.2d 1131 (Fla. 3d DCA 1991). In Arango, which I acknowledge involved a party acting pro se, the Third District held:

we find that it was not an abuse of the trial court's discretion to interpret the defendants' failure to appear at the calendar call, after the defendants had already established a pattern of disobeying and/or ignoring the earlier orders entered by the Court, as being willful and intentional, thereby justifying the entry of a default.

I cannot conclude that parties, even if acting through counsel, have carte blanche to disregard clear and explicit pretrial orders, particularly those containing boldly noted warnings of the sanctions to be imposed upon failure of the parties or counsel to comply with respect to pretrial conferences, docket calls and trials.

In my judgment, the failure to attend a docket call should be treated, for all practical purposes, as the equivalent of failing to appear for trial, and there is no reason to distinguish between a docket call held on the morning of the set trial date and one held in advance of that date for convenience. Florida Rule of Civil Procedure 1.200(b) specifically provides for dismissal as an appropriate sanction for the failure of a party to attend a pretrial conference. Certainly, authority to impose such a sanction for failure to attend a conference, extends to failure to attend a trial or calendar call for a trial.

The dismissal here was imposed with prejudice because of the repeated infractions of counsel and because the case had previously been voluntarily dismissed by the Plaintiff, apparently following a court ordered dismissal, on the eve of the previously scheduled trial. The net effect in this case would be the same regardless of whether the dismissal is with or without prejudice, as it is apparent that the statute of...