Martinez v. Collier County Public Schools

• Decision Date: 18 January 2002
• Docket Number: No. 1D01-0103.,1D01-0103.
• Citation: 804 So.2d 559
• Parties: Nora Siria MARTINEZ, Appellant, v. COLLIER COUNTY PUBLIC SCHOOLS, Appellee.
• Court: Florida District Court of Appeals

804 So.2d 559

Nora Siria MARTINEZ, Appellant, v. COLLIER COUNTY PUBLIC SCHOOLS, Appellee.

No. 1D01-0103.

District Court of Appeal of Florida, First District.

January 18, 2002.

Richard E. Zaldivar, of the law offices of Richard E. Zaldivar, P.A., Miami and Jay M. Levy of Jay M. Levy, P.A., Miami, for Appellant.

Jeffrey D. Kottkamp, of Henderson, Franklin, Starnes & Holt, Ft. Myers, for Appellee.

BROWNING, J.

Appellant appeals the Judge of Compensation Claim's (JCC) order which dismissed her complaint without prejudice because counsel failed personally to appear at a pretrial conference. Appellant argues the JCC abused his discretion by dismissing the complaint because counsel showed good cause for missing the conference and, in any event, it was counsel's first transgression and it was of a type that does not warrant the JCC's harsh action. Appellant further argues the dismissal without prejudice acts as a dismissal with prejudice because the statute of limitations would bar the claim upon refiling. Appellee argues that, because the dismissal was without prejudice, Appellant improperly appealed a non-final order. We agree with Appellant and reverse.

Dismissal without prejudice is final if its effect is to bring an end to judicial labor. See Carlton v. Wal-Mart Stores, Inc., 621 So.2d 451 (Fla. 1st DCA 1993)

; see also Walden v. Adekola, 773 So.2d 1218, 1219 (Fla. 3d DCA 2000) (holding that where the statute of limitations has run, a dismissal without prejudice operates as a dismissal with prejudice). It is uncontested that Appellant's claim would be time-barred if refiled; thus, the order is final.

The evidence shows that counsel's failure to appear was for "good cause." Counsel appeared by telephone, and his failure to appear personally was due to a misunderstanding resulting from his secretary's being unexpectedly out of the office for cancer treatment. This was his first offense in this case. This explanation constitutes "good cause," as counsel's action resulted from inadvertence or mistake, rather than from a willful disregard of the JCC's authority. See Carlton, 621 So.2d at 454,

citing Hernandez v. Page, 580 So.2d 793 (Fla. 3d DCA 1991). Notably, the JCC's order does not contain the required finding that counsel's failure to appear resulted from a willful disregard of the JCC's authority. See Leonardo v. Grimming, 740 So.2d 580, 581 (Fla. 4th DCA 1999) (reversing order of dismissal without prejudice because it did not contain an express finding of willful or deliberate refusal to obey a court order).

Furthermore, the JCC's dismissal without prejudice was too severe a sanction to impose upon Appellant, even if "good cause" did not exist. See Catogas v. Sapp, 397 So.2d 1182, 1183 (Fla. 3d DCA 1981)

(holding that where record lacks evidence of willful or flagrant disregard for court's authority, dismissing complaint without prejudice for failure of counsel to appear is too severe a sanction to impose upon a...