THE LIFEGUARD CORPORATION, APPELLANT,
v.
U.S. HOME CORPORATION, APPELLEE
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Lifeguard Corporation appeals the dismissal of its case against U.S. Home Corporation for failure to prosecute. The appellate court reverses, holding that dismissal is an extreme sanction that should not be imposed where the plaintiff's failure to appear resulted from a misunderstanding rather than willful neglect and the opposing party was not prejudiced.
The court reversed the dismissal, holding that while trial courts have the power to dismiss cases as sanctions for failure to comply with court orders, dismissal is a drastic remedy that should be used only in extreme situations. Here, reversal was warranted because counsel's failure to appear resulted from a misunderstanding rather than willful neglect, the opposing party was not prejudiced, and the case was similar to Travelers Insurance Co. v. Rodriguez, where the court previously found that dismissal was too severe a sanction.
[1] Dismissal of a case is a drastic remedy that should be employed only in extreme situations.
[2] A trial court has the power to dismiss a case as a sanction for a party's failure to comply with a court order.
Previewing 2 of 3 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 is a drastic remedy which should be used only in extreme situations”
Establishes the standard that dismissal as a sanction should be reserved for extreme circumstances, not routine non-compliance
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Join FLexlaw to unlock all legal intelligenceLifeguard's complaint was filed December 8, 1981. After a motion to dismiss was partially granted on February 10, 1982, U.S. Home filed its answer. On…
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BOARDMAN, Acting Chief Judge.
Plaintiff Lifeguard Corporation appeals an order dismissing its ease against defendant/appellee U.S. Home Corporation “for failure to prosecute, without prejudice however, to the Plaintiff’s right to refile its cause of action.” We reverse.
Appellant’s complaint was filed on December 8, 1981. On December 21, 1981, appellee filed a motion to dismiss, which was granted in part and denied in part on February 10, 1982. On February 11, 1982, appellee filed its answer and affirmative defense. On April 5,1982, appellant filed a motion to set the case for trial.
On April 15, the trial judge, Judge Federico, entered an order setting the case for trial the week of June 21,1982, and setting pretrial conference for June 7,1982, at 9:30 a.m. On June 10, 1982, the trial court’s pretrial conference order was entered, and the parties’ pretrial compliances were filed.
On June 23, the case “having come before the Court for trial, on Monday, June 21, 1982 at 9:00 A.M., in accordance with the Pretrial Conference Order dated June 9, 1982, and the Plaintiff and its counsel having failed to appear to prosecute said cause,” the successor judge, Judge Driver, dismissed the ease.
Appellant filed a motion for rehearing, asserting that at the pretrial conference the parties and Judge Federico had agreed that trial of the instant case would not begin until after disposition of another civil case that plaintiff’s counsel was also scheduled to try the week of June 21, 1982; that trial of that other case was expected to begin on the morning of June 21, 1982, and to take two to three days; and that appellant’s counsel’s failure to appear before Judge Driver at 9:00 a.m. on June 21, 1982, was due to counsel’s lack of awareness that Judge Driver expected counsel to appear in his courtroom at the time indicated in the pretrial conference order. Rehearing was denied, and this appeal followed timely.
While a trial court clearly has the power to dismiss a case as a sanction for the plaintiff’s failure to comply with a court order, e.g., Surrency v. Winn & Lovett Grocery Co., 160 Fla. 294, 34 So. 2d 564 (1948); Ramos v. Sanchez, 375 So. 2d 51 (Fla. 2d DCA 1979), dismissal is a drastic remedy which should be used only in extreme situations. Flaksa v. Little River Marine Construction Co., 389 F. 2d 885, 888 (5th Cir.), cert. denied, 392 U.S. 928, 88 S.Ct. 2287, 20 L.Ed.2d 1387 (1968), quoted in Travelers Insurance Co. v. Rodriguez, 357 So. 2d 464 (Fla. 2d DCA 1978).
The Travelers case is similar to the instant case. There a default judgment against the defendants was granted due to defense counsel’s negligent failure to file his pretrial statement at least six days before the pretrial conference. There, as here, the omission was unintentional, and the other side was not prejudiced. In Travelers we held that the facts did not warrant such a severe sanction. We hold the same here, particularly since counsel’s failure to appear here was the result of a misunderstanding, whereas, in Travelers, counsel conceded that he had been duly warned of the deadline he had missed and of the fact that failure to strictly comply with the pretrial order would be grounds for having his pleadings stricken.
Accordingly, the trial court’s order dismissing appellant’s case against appellee is REVERSED and the cause REMANDED for further proceedings consistent with this opinion.
SCHEB and RYDER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Anthony v. Schmitt, 557 So. 2d 656 (Fla. 2d DCA 1990)…court reviews such severe sanctions with great care, this court has been and remains unwilling to hold that such severe sanctions are never appropriate in cases of wilful 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 rather than visit them upon the attorney’s unfortun…
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Carolann D. Kozel v. Ostendorf, 603 So. 2d 602 (Fla. 2d DCA 1992)…982). There are also many cases in which appellate courts have reversed trial courts for imposing the ultimate sanction of dismissal with prejudice when that penalty was not commensurate with the offense. Beasley; Lifeguard Corp. v. U.S. Home Corp., 429 So. 2d 94 (Fla. 2d DCA 1983); Tri Star Invs., Inc. v. Miele, 407 So. 2d 292 (Fla. 2d DCA 1981); Turner v. Anderson, 376 So. 2d 899 (Fla. 2d DCA 1979); Ramos v. Sanchez, 375 So. 2d 51 (Fla. 2d DCA 1979); In re Ulm’s Estate, 345 So. 2d 1099 (Fla. 2d DCA 1977);…
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Livingston v. State, 481 So. 2d 2 (Fla. 1st DCA 1985)…pecifically permitted only for failure to attend the pretrial conference, Rule 1.200(c), an offense not alleged herein, but a court may dismiss a case as a sanction for failure to comply with any legitimate order. Lifeguard Corp. v. U.S. Home Corp., 429 So. 2d 94 (Fla.2d DCA 1983). While the exercise of this authority is discretionary, it must be kept in mind that dismissal is a drastic remedy which should be used only in extreme situations. Lifeguard, supra, citing Flaska v. Little River Marine Construction…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Flaksa v. Little River Marine Constr. Co., Inc., 389 F.2d 885 (5th Cir. 1968)
- Colorado v. Franc, 392 U.S. 928 (U.S. 1968)
- Am. Acceptance Corp. v. Schoenthaler, 392 U.S. 928 (U.S. 1968)
- Travelers Ins. Co. & Peter Vassey v. Rodriguez, 357 So. 2d 464 (Fla. 2d DCA 1978)
- Surrency v. Winn & Lovett Grocery Co., 160 Fla. 294 (Fla. 1948)
- Savarino Ramos, Sr. v. Sanchez, 375 So. 2d 51 (Fla. 2d DCA 1979)