Martin v. Laidlaw Tree Service, Inc.

• Court: Florida District Court of Appeals
• Writing for the Court: PER CURIAM
• Citation: Martin v. Laidlaw Tree Service, Inc., 619 So.2d 435 (Fla. App. 1993)
• Decision Date: 04 June 1993
• Docket Number: No. 93-00009,93-00009
• Parties: 18 Fla. L. Week. D1386 John MARTIN, Petitioner, v. LAIDLAW TREE SERVICE, INC., a corporation, Respondent.

Page 435

619 So.2d 435

18 Fla. L. Week. D1386

John MARTIN, Petitioner, v. LAIDLAW TREE SERVICE, INC., a corporation, Respondent.

No. 93-00009.

District Court of Appeal of Florida Second District.

June 4, 1993.

Susan W. Fox of Macfarlane Ferguson, Tampa, and H. Guy Smith of H. Guy Smith, P.A., Lakeland, for petitioner.

D. Lee Pitisci of Law Office of Medina & Pitisci, Tampa, for respondent.

PER CURIAM.

John Martin seeks certiorari review of a circuit court order granting the motion to dismiss of Laidlaw Tree Service, Inc., (hereinafter referred to as "Laidlaw"), which specifically requires Martin to pay the sum of $7,164.00 to Laidlaw prior to the filing of an amended complaint. We grant the petition and reverse the order because the circuit court abused its discretion by imposing the sanction of dismissal and did not make specific written findings to support the dismissal as required by law.

A complete rendition of the facts in this case is necessary to understand this court's holding in this matter: On November 10, 1989, Martin was injured while mowing his lawn when he was struck on the head by tree limbs being cut by Laidlaw. Subsequently, Martin developed the following symptoms: speech impediment, personality disorders (paranoid personality and organic personality disorder), insomnia, difficulty concentrating, loss of physical dexterity, amnesia concerning events surrounding the accident, and short-term memory deficits. Martin instituted litigation on April 15, 1990, to recover damages from Laidlaw due to its actions in causing his injuries.

On January 28, 1991, pursuant to a request by Laidlaw, Martin appeared at the offices of S.W. Lipinski, M.D. for an evaluation following his injury. The events which occurred in the doctor's office are in dispute. The doctor reports that he was unable to obtain Martin's cooperation in conducting the evaluation and notes that Martin had "absolutely no memory." Martin indicates that he did submit to the examination, but contends that Dr. Lipinski was verbally abusive and twisted and pulled his legs causing him extreme pain. Shortly thereafter, Dr. Lipinski allegedly told him he could not examine him. Later that same evening, Martin was admitted to a hospital emergency room complaining of pains resulting from the exam.

Dr. Lipinski describes Martin as "one of the most hostile men I have run across" and indicates that after the evaluation, Martin pulled out all the papers from the office filing cabinet and threw them about the room. In the doctor's opinion, Martin was in need of "some psychiatric care."

On March 19, 1991, Martin was examined by Victoria Tagala, M.D. after referral by the Florida Department of Health and Rehabilitation Services for a disability evaluation. Dr. Tagala also examined Martin on three subsequent occasions and found Martin to be confused and having difficulty in comprehension as well as having physical difficulties directly related to the accident in question, including: headaches, insomnia, irritability, confusion, memory loss, ringing in the ears, blurred vision. Dr. Tagala notes that Martin was tense and irritable when she examined him, contradicted her recommendations, and angered easily. On his last visit with Dr. Tagala on May 14, 1991, Martin became loud and angry and did not return for any follow-up care.

Martin was evaluated by Dr. C.P. Weller, a psychiatrist on September 24, 1991, who indicates that he manifested symptoms of prominent paranoid attitudes, a tendency to interpret comments or statements in a negative manner, possible sleep disorder, irritability, periodic outbursts, memory problems, psychomotor difficulties and speech impairment. Dr. Weller recommended the neuropsychological evaluation which was conducted on October 10 and 18, 1991, by neuropsychologist Paul Mintz, Ph.D. In his report, Dr. Mintz reported that Martin was experiencing serious defects in cognition and severe emotional and behavioral problems which are a result of the accident in question.

All the doctors who have examined Martin are in agreement that he is suffering from severe psychological and behavioral problems. These observations should be considered when evaluating the actions of Martin during the course of this litigation.

Complications started in the litigation of this matter when Laidlaw scheduled two Independent Medical Examinations (IME) in Hillsborough and Pinellas Counties in January and February 1992. Martin's first attorney objected to conducting the IMEs outside Polk County, the county of Martin's residence, due to Martin's transportation problems. Laidlaw responded with a motion to compel attendance at the IMEs, but indicated in an amended motion that "if necessary" Laidlaw would pay for reasonable travel arrangements. The motion to compel was granted on the same day one of the out-of-county IMEs was scheduled. Allegedly, Martin did not attend the IME due to his continued transportation problems.

Immediately after the entry of the order, Martin filed a motion for clarification to request that the order granting the motion to compel include a provision that Laidlaw shall provide transportation for Martin to the out-of-county IMEs. A letter written by Martin to the court explaining his transportation problems and his willingness to attend the IMEs was filed with the court prior to the entry of the court's order denying the motion for clarification.

Martin terminated the employment of his first attorney on or about February 7, 1992. Prior to the notice of appearance being filed by his second attorney, Martin did not attend a second out-of-county IME scheduled for February 24, 1992. The order approving substitution of counsel was not entered until March 23, 1992. Thereafter, the first motion to dismiss and motion for sanctions was filed by Laidlaw which alleges that Martin was uncooperative and had failed to attend the two out-of-county IMEs.

On May 1, 1992, the trial court entered an order denying motion to dismiss and granting motion for sanctions. This order imposed the sanction of payment of all attorney's fees, costs, physician's expenses, and other expenses related to obtaining the requested discovery. Laidlaw's attorney was instructed to provide the court with an affidavit which set forth these costs, fees, and expenses. On May 7, 1992, Laidlaw filed a motion to determine attorney's fees and costs with a supporting affidavit. The record presented to this court does not indicate that this matter was set for hearing or that a hearing was conducted at any time.

On September 16, 1992, Martin's second attorney filed a motion to withdraw as counsel. There is no indication of record that Laidlaw expressed any objection to the withdrawal of Martin's second attorney. On the same day that the motion to withdraw was filed, Laidlaw filed its motion to dismiss with prejudice which is the subject of this writ of certiorari.

The motion to dismiss with prejudice specifically informs the court that the trial of the matter which had been set for September 8, 1992, had been rescheduled to January 11, 1993, due to Martin's second attorney's heavy trial schedule. Laidlaw argues that due to the withdrawal of Martin's second attorney, the trial would have to be rescheduled once again and the previously set depositions and IMEs would...