Travelers Ins. Co. v. Rodriguez
| Decision Date | 12 April 1978 |
| Docket Number | No. 77-1968,77-1968 |
| Citation | 357 So.2d 464 |
| Parties | TRAVELERS INSURANCE COMPANY and Peter Vassey, Appellants, v. Anna RODRIGUEZ, as Administratrix of the Estate of Gilletto Rodriguez, Deceased, Appellee. |
| Court | Florida District Court of Appeals |
Benjamin H. Hill, III and Charles P. Schropp, of Shackleford, Farrior, Stallings & Evans, P. A., Tampa, for appellants.
John H. Piccin, of Pattillo, MacKay & McKeever, P. A., Ocala, for appellee.
This interlocutory appeal questions the validity of an order striking the appellants' pleadings and granting the appellee a default judgment on liability and of a subsequent order denying the appellants' motion to set aside the default judgment.
The appellee (plaintiff) filed a wrongful death action against the appellants (defendants) arising out of an automobile accident. After the case was at issue on allegations of negligence and a defense of comparative negligence, the court entered and served on counsel for all parties a pretrial order setting the case for pretrial conference and jury trial. The first page of the order included a warning in large red letters stating, "caution read carefully," and bearing the stamp of the trial judge. Paragraph 9 of the order provided that the failure of any party or counsel to strictly adhere to the order shall be grounds for the court to dismiss the case and strike the pleadings or to take such other action as justice requires. Paragraph 4 required that the parties file, and furnish a copy to opposing counsel, a pretrial statement at least six days before the pretrial conference scheduled for Monday, October 31, 1977, in Inverness, Florida. At the time of the pretrial conference, the defendants' attorney tendered a pretrial statement but announced that through inadvertence he had failed to file or to furnish the statement six days in advance as required by the order. On its own motion the court struck the defendants' pleadings and entered a default judgment against the defendants on liability.
Three days later the defendants filed a motion to set aside the default judgment accompanied by an affidavit of defendants' counsel. At the hearing defendants' counsel explained that he had first realized that he had failed to timely furnish the pretrial statement on Friday, October 28, 1977. He thereupon telephoned the plaintiff's counsel and discussed in detail the matters which he intended to include in his pretrial statement. In the course of this telephone conversation counsel for the parties were able to stipulate on certain issues with respect to the trial. Defendants' counsel explained that in Hillsborough County where he normally practices there was no requirement to submit a pretrial statement in advance, but he did not deny the fact that his office had received the order which required the pretrial statement to be submitted prior to the conference. In arguing that his clients had a meritorious defense to the action, he pointed out that the investigating patrolman had not charged the defendant driver as a result of the accident.
The judge conceded that the plaintiff had not been prejudiced by defense counsel's failure to timely file the pretrial statement but maintained that it was necessary for him to penalize the defendants in this manner in order to be able to enforce compliance with an expeditious pretrial procedure. The motion to set aside the default was denied.
The parties devote much of their argument to whether the court has the authority to strike a party's pleadings for his counsel's failure to follow an order for pretrial compliance. Fla.R.Civ.P. 1.200 dealing with pretrial procedure refers only to the striking of a party's pleadings upon the failure of his attorney to attend the pretrial conference. Nevertheless, we are unwilling to hold that the court cannot strike a party's pleadings for the wilful and flagrant failure of his attorney to comply with this or any other legitimate order. We do hold that under the facts of this case, defense counsel's failure to abide by the order for pretrial compliance did not warrant such a severe sanction.
While there are no Florida decisions directly on point, the tenor of those cases which have some applicability is that the sanction imposed must be commensurate with the offense. Thus, in Crystal Lake Golf Course, Inc. v. Kalin, 252 So.2d 379 (Fla. 4th DCA 1971), a judgment for the plaintiff was entered at a pretrial conference for the failure of the...
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Anthony v. Schmitt
...and flagrant disobedience by an attorney. Lifeguard Corp. v. U.S. Home Corp., 429 So.2d 94 (Fla. 2d DCA 1983); Travelers Ins. Co. v. Rodriguez, 357 So.2d 464 (Fla. 2d DCA 1978). Typically, it is more appropriate for the trial court to require the trial attorney to atone for his own sins rat......
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Beauchamp v. Collins
...Investors, Inc., 421 So.2d 562 (Fla. 3d DCA 1982); Beaver Crane Service v. National Surety, 373 So.2d at 89; Travelers Insurance Co. v. Rodriguez, 357 So.2d 464 (Fla. 2d DCA 1978). Here, the record is devoid of any indication that there was bad faith noncompliance with discovery or court or......
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Mercer v. Raine
...disregard of an order of court, Crystal Lake Golf Course, Inc. v. Kalin, 252 So.2d 379 (Fla. 4th DCA 1971); Travelers Insurance Co. v. Rodriguez, 357 So.2d 464 (Fla. 2d DCA 1978), or where the sanction is in effect punishing the litigant too severely for an act or failure on the part of his......
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Lahti v. Porn, 91-2295
...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......