SAVARINO RAMOS, SR., APPELLANT,
v.
JEAN CASTLEBERRY SANCHEZ, APPELLEE
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Appellant sought review of a trial court's order dismissing with prejudice a negligence complaint as a sanction for appellant's attorney's failure to produce a tape recording ordered by the court. The appellate court reversed, holding that dismissal with prejudice was too severe a sanction where the attorney's noncompliance was not proven to be willful.
Dismissal with prejudice was too severe a sanction under these circumstances. The trial court did not find that the attorney's noncompliance was willful, and where noncompliance is due to an attorney's conduct rather than the litigant's conduct, a lesser sanction should be imposed.
[1] Dismissal of a cause of action with prejudice is an extreme sanction that should be resorted to only when a lesser sanction would not suffice.
[2] Dismissal of a cause of action as a sanction for noncompliance is particularly inappropriate when the failure is entirely the result of the attorney's conduct and not the…
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“dismissal of a cause in the preliminary stages of the proceedings is both a harsh and extreme sanction and consequently should be resorted to only when a lesser sanction would not suffice”
Establishes the principle that dismissal should be a last resort in preliminary proceedings
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Join FLexlaw to unlock all legal intelligenceAppellant's attorney, John R. Snow, telephoned the defendant and misrepresented his identity. The attorney also taped the telephone conversation. The …
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BOARDMAN, Judge.
By this appeal appellant seeks review of an order of the trial court dismissing with prejudice an amended complaint for negligence because appellant was unable to provide certain information to appellee within the time ordered by the trial judge. We reverse.
The trial court in its order dismissing the cause made the following findings of fact:
1. The Plaintiff’s Attorney, John R. Snow, telephoned the Defendant, JEAN CASTLEBERRY SANCHEZ, prior to filing suit.
2. The Plaintiff’s Attorney, John R. Snow, misrepresented his identity to the Defendant at the time of instituting this telephone conversation.
3. The Plaintiff’s Attorney taped his telephone conversation with the Defendant. This Court ordered the Plaintiff’s Attorney to produce his tape recording on or before January 15, 1979. The plaintiff’s Attorney has not produced this tape and cannot adequately account for its whereabouts.
We are well aware that the trial court does have the authority to dismiss a cause as a sanction for failure to comply with a court order or for violation of a discovery rule. Fla.R.Civ.P. 1.380(b)(2)(C); Wariner v. Ferraro, 177 So. 2d 723 (Fla. 3d DCA 1965), cert. denied, 188 So. 2d 319 (Fla. 1966), cert. denied, 385 U.S. 995, 87 S.Ct. 610, 17 L.Ed.2d 454 (1966). Obviously, dismissal of a cause in the preliminary stages of the proceedings is both a harsh and extreme sanction and consequently should be resorted to only when a lesser sanction would not suffice. This is particularly so when the noncompliance or failure is entire- • ly the result of the attorney’s conduct, as here, and not the result of any conduct on the part of the litigant. Travelers Ins. Co. v. Rodriguez, 357 So. 2d 464 (Fla. 2d DCA 1978); W. G. C., Inc. v. The Man Co., 360 So. 2d 1152 (Fla. 3d DCA 1978).
We hold that under the circumstances of this case the dismissal of the cause with prejudice was too severe a sanction to impose against appellant and that a less severe sanction would more appropriately serve the ends of justice. True, the attorney for appellant failed to produce the tape in question claiming he was unable to locate it. However, the court did not find that the attorney was in willful noncompliance. In the case of Swindle v. Reid, 242 So. 2d 751 (Fla. 4th DCA 1971), the Fourth District Court of Appeal held:
We deem it important to note that the order of dismissal in this case did not contain any finding by the trial court that the plaintiff’s failure to fully comply with the order to produce was due to a refusal to do so. Instead, the court merely found that the plaintiff had shown an insufficient excuse for her failure to comply a distinction which we feel to be significant . . . . Since the trial court did not expressly find, and the record does not conclusively reveal, that the plaintiff’s failure to produce was a refusal to obey, we hold that the court abused its discretion in dismissing the complaint with prejudice.
242 So. 2d at 753.
We reverse, but leave for the trial court’s decision the question of what lesser sanction should be imposed which would accomplish the desired result. Likewise, we do not address what disciplinary action, if any, should be initiated against appellant’s attorney for the alleged misconduct in connection with the telephone conversation with appellee. Finally, our decision should not be regarded as precluding the trial court from reconsidering appellee’s motion to dismiss for failure to state a cause of action, which it originally ruled was moot.
REVERSED and REMANDED for further proceedings consistent with this opinion.
GRIMES, C. J., and SCHEB, J., concur.
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Santuoso v. McGRATH & Assocs., Inc., 385 So. 2d 112 (Fla. 3d DCA 1980)…ormer attorney of record attempted to be reinstated on his behalf at the time the default was entered. The order entering the default against the defendants did not recite that Santuoso’s failure to submit to discovery was willful. Ramos v. Sanchez, 375 So. 2d 51 (Fla.2d DCA 1979). Under the circumstances presented, we hold the sanction consisting of the entry of default as to liability against Santuoso was excessive and amounted to an abuse of discretion. The order appealed from is reversed. This reversal…
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Johnson v. Allstate Ins. Co., 410 So. 2d 978 (Fla. 5th DCA 1982)…n impose sanctions, one of which is dismissal of the action. Fla.R. Civ.P. 1.380(b)(2)(c) and 1.380(d). Appellant says that the penalty here is too harsh [*980] because there is no showing that the refusal to comply was wilful. See Ramos v. Sanchez, 375 So. 2d 51 (Fla.2d DCA 1979). Appellant did not respond to the second order, and despite a motion for sanctions by appel-lee, the court gave appellant another opportunity, and entered a third order requiring a response within thirty days, or else the complaint…
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A. H. Robins Co., Inc. v. Devereaux, 415 So. 2d 30 (Fla. 3d DCA 1982)…n order compelling discovery is the most severe of all sanctions and should be employed only in extreme circumstances. Watson v. Peskoe, 407 So. 2d 954 (Fla. 3d DCA 1982); Hart v. Weaver, 364 So. 2d 524 (Fla. 2d DCA 1978). See also Ramos v. Sanchez, 375 So. 2d 51 (Fla. 2d DCA 1979), where it was held that dismissal as a sanction for failure to comply with a court order for discovery is both harsh and extreme and should not be resorted to where a lesser sanction would suffice, particularly when non-compliance…
Previewing 3 of 10 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)
- Swindle v. Reid, 242 So. 2d 751 (Fla. 4th DCA 1970)
- Warriner v. Ferraro, 177 So. 2d 723 (Fla. 3d DCA 1965)
- Childs v. Nehi Bottling Co., 188 So. 2d 319 (Fla. 1966)
- W. G. C., Inc. v. The MAN Co., 360 So. 2d 1152 (Fla. 3d DCA 1978)
- Lee v. Wilson, 385 U.S. 995 (U.S. 1966)
- Mathis v. Wainwright, 385 U.S. 995 (U.S. 1966)