BERNUTH MARINE SHIPPING, INC., APPELLANT,
v.
INTEGRATED CONTAINER SERVICE, INC., APPELLEE
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Bernuth Marine Shipping appealed from a judgment entered after trial despite never receiving notice that its pleadings had been struck for failure to appear at calendar call and file a pre-trial catalogue. The court reversed, holding that while trial courts may sanction counsel misconduct, striking pleadings and proceeding to trial without notice was an abuse of discretion.
The trial court abused its discretion by striking appellant's pleadings and proceeding to trial without notice. While trial courts have authority to sanction counsel misconduct, striking pleadings and proceeding to a jury trial without notice is an impermissibly harsh sanction that violates fundamental fairness. The judgment is reversed and the case is remanded with directions to reinstate appellant's pleadings and allow the matter to proceed to trial, though the trial court may impose other appropriate sanctions.
[1] Striking a defendant's pleadings and proceeding to a jury trial without notice is an excessive sanction for failing to submit a pre-trial catalogue or appear at a calenda…
[2] A trial court may impose sanctions for an attorney's failure to comply with court orders, but the severity of the sanction must be proportionate to the offense.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“There is no question about the trial court's authority to impose some sanction against appellant's counsel for failing to submit a pre-trial catalogue or to appear at calendar call. However, under the facts of this case, in our opinion, it was too harsh a sanction to strike appellant's pleadings and to proceed to a jury trial without giving it notice.”
Establishes the court's core holding: while sanctions are permissible, striking pleadings without notice is an abuse of discretion.
Previewing 1 of 2 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceAppellant was one of four defendants in a maritime shipping dispute. The trial court ordered all parties to file a pre-trial catalogue and appear at a…
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KEHOE, Judge.
Appellant, defendant below, brings this appeal from a final judgment entered pursuant to a jury verdict and from the orders denying its motions to vacate and for relief from the judgment. We reverse.
In this case, appellant’s attorney of record in the trial court, failed to file a pre-trial catalogue pursuant to the trial court’s order for all parties to do so. (Appellant was one of four defendants below).
The order also stated that “all attorneys [were] to appear for the call of the calendar the Thursday preceding the first trial week. Failure to appear may result in . the striking of the pleadings of the Defendant and entry of a default.” On the day of this calendar call, appellant’s attorney of record couldn’t attend so he sent another attorney from his office. This attorney arrived late and, although the judge was still on the bench, spoke to a person who advised him that appellant’s case was number six for trial. At that time, the substitute attorney did not learn that appellant’s pleadings had been struck for the failure of its counsel to appear at calendar call. Later, appellant’s attorney of record called the trial judge’s office to determine if he was number six on the first or second week of the trial period. He was told that the case was to be called in the first week. Thereafter, he waited for the judge’s office to notify him that it was his turn. On Wednesday of the trial period, the plaintiff and two of the other defendants 1 who had appeared were noticed that their case was up. That afternoon a jury was selected. On Thursday morning, these parties settled and the plaintiff proceeded with its case against appellant and the remaining defendant.
The trial court directed a verdict of guilty on the question of liability and submitted the damages issue to the jury.
The jury then returned a verdict against appellant in the amount of $224,000. Thereafter, appellant’s attorney of record learned through his client that the case had been tried; he then moved to vacate the verdict and judgment. The motion was denied, and a final judgment was entered by the trial court against appellant. Thereafter, appellant’s new counsel filed a motion for relief from this final judgment; this motion was also denied. From the orders denying the motions to vacate and for relief from the judgment and the final judgment, appellant appeals.
Appellant contends that (1) being late for a calendar call or failing to submit a trial catalogue does not justify proceeding to a trial and entering a judgment against it; and (2) even if some sanction was justified, the trial court erred in not giving it notice or granting a hearing on the striking of the pleadings.
There is no question about the trial court’s authority to impose some sanction against appellant’s counsel for failing to submit a pre-trial catalogue or to appear at calendar call.
However, under the facts of this case, in our opinion, it was too harsh a sanction to strike appellant’s pleadings and to proceed to a jury trial without giving it notice. See, e. g., W.
G. C., Inc. v. The Man Co., 360 So. 2d 1152 (Fla. 3d DCA 1978); Travelers Insurance Co. v. Rodriguez, 357 So. 2d 464 (Fla. 2d DCA 1978); Graber v. Gassman, 321 So. 2d 82 (Fla. 3d DCA 1975); Byron Holding Corp. v. Cohen, 284 So. 2d 412 (Fla. 3d DCA 1968); and Ortiz v. Nicolaides, 196 So. 2d 186 (Fla. 3d DCA 1967).
Accordingly, the final judgment appealed is reversed and the cause is remanded to the trial court with directions to reinstate appellant’s pleadings and allow the matter to proceed to trial.
However, the trial court may impose other appropriate sanctions in its discretion.
Reversed and remanded with directions.
. One of the other defendants also failed to file a pre-trial catalogue or appear at calendar call. His pleadings were also struck; however, he is not a party to this action.
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World ON Wheels OF Miami, Inc. v. Int'l Auto Motors, Inc., 569 So. 2d 836 (Fla. 3d DCA 1990)…e Beasley v. Girten, 61 So. 2d 179, 180-81 (Fla.1952); Aller v. Editorial Planeta, S.A., 389 So. 2d 321 (Fla. 3d DCA 1980). We reach this result based primarily on the authority of Bernuth Marine Shipping, Inc. v. Integrated Container Serv., Inc., 369 So. 2d 424 (Fla. 3d DCA 1979), which held that it was error for the trial court to strike the defendant’s pleadings after defense counsel had failed, as here, (a) to file a pretrial catalog and (b) to timely appear for a calendar call — all as required by a si…
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First Republic Corp. OF Am. v. Hayes, 431 So. 2d 624 (Fla. 3d DCA 1983)…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. 357 So. 2d at 465. See also Bernuth Marine Shipping, Inc. v. Integrated Container Service, Inc., 369 So. 2d 424 (Fla. 3d DCA 1979) (trial court has authority to impose sanction for failure to submit a pretrial catalogue or to appear at calendar call); Masons Concrete of Crystal River, Inc. v. Corbin Well Pump & Supply, Inc., 364 So. 2d 824 (Fla. 2d DCA 1978),…
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Sienkiewicz v. Aqua Lift, Inc., 586 So. 2d 92 (Fla. 4th DCA 1991)…A 1973) (striking answer was too harsh notwithstanding order which put the defendant on notice that failure to appear at calendar call might result in imposition of such a sanction); Bernuth Marine Shipping, Inc. v. Integrated Container Serv., Inc., 369 So. 2d 424 (Fla. 3d DCA 1979) (written warning that noncompliance with court’s pretrial order could result in striking of defendant’s pleadings was insufficient under the circumstances to permit so severe a sanction). Accordingly, the final judgment appealed…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Travelers Ins. Co. & Peter Vassey v. Rodriguez, 357 So. 2d 464 (Fla. 2d DCA 1978)
- Ortiz v. Nicolaides, 196 So. 2d 186 (Fla. 3d DCA 1967)
- W. G. C., Inc. v. The MAN Co., 360 So. 2d 1152 (Fla. 3d DCA 1978)
- Byron Holding Corp. v. Malva-Lynn Cohen, 284 So. 2d 412 (Fla. 3d DCA 1973)
- Associated Mortg. Invs. v. Boynton Beach Mall, Inc., 321 So. 2d 82 (Fla. 3d DCA 1975)