ARTHUR LIVINGSTON, JR., APPELLANT,
v.
STATE OF FLORIDA, DEPARTMENT OF CORRECTIONS, ROBERTO MIQUEL, M.D., AND DR. PHOUNG VINH, APPELLEES
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Livingston appealed the dismissal with prejudice of his negligence action against the Department of Corrections and prison physicians. The trial court imposed dismissal as a sanction for his counsel's repeated failures to comply with pretrial order deadlines. The appellate court reversed, holding that dismissal is too drastic a remedy when the litigant himself is not at fault and the opposing party shows no substantial prejudice.
Dismissal is a drastic remedy that should be used only in extreme situations. While courts have discretion to dismiss for failure to comply with legitimate orders, that discretion must be exercised carefully, and the burden of sanctions should ordinarily fall on counsel rather than the innocent litigant. Here, the trial court abused its discretion because although Livingston's counsel was late with each deadline, full compliance was achieved by the pretrial conference date and the Department of Corrections demonstrated no substantial prejudice.
[1] Dismissal of a cause of action is a drastic remedy that should be used only in extreme situations.
[2] A trial court may dismiss a case as a sanction for failure to comply with a legitimate pretrial order.
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Join FLexlaw to unlock all legal intelligence“dismissal is a drastic remedy which should be used only in extreme situations”
Establishes the strict standard for when dismissal sanctions are appropriate
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Join FLexlaw to unlock all legal intelligenceLivingston filed suit in December 1980 for negligent treatment of a hand injury by Department of Corrections physicians. A pretrial conference order i…
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MILLS, Judge.
Livingston appeals from the dismissal with prejudice of his negligence action, which was imposed as a sanction for his counsel’s failure to comply with the terms of the trial court’s pretrial order. We reverse and remand for further proceedings.
In December 1980, Livingston sued the Department of Corrections and two of its physicians for the alleged negligent treatment of an injury to his right hand. The order for pretrial conference was issued on 4 June 1984. It required Livingston to serve his witness and documents lists on 17 July; they were not served until 3 August, and complete addresses were not forthcoming until 20 September. Livingston’s counsel failed to attend the 28 September attorney’s conference, requiring it to be rescheduled to 2 October. The proposed jury instructions and verdict form, due 18 September, were not received until 28 Septem ber. The pretrial stipulation, due 10 October, was hand-delivered on 15 October, the date of the pretrial conference.
On 28 September, the Department of Corrections filed a motion for dismissal and sanctions, alleging counsel’s failure to appear at the attorney’s conference or to provide the proposed instructions. The other derelictions of Livingston’s counsel were aired at a hearing on the motion held on 15 October. The motion was granted on 13 December dismissing Livingston’s suit with prejudice.
Pretrial procedure is governed by Fla.R.Civ.P. 1.200. The use of dismissal as a sanction is specifically 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 Co., 389 F. 2d 885 (5th Cir.1968), cert. den. 392 U.S. 928, 885 S.Ct. 2287, 20 L.Ed.2d 1387 (1968).
In Travelers Insurance Co. v. Rodriguez, 357 So. 2d 464 (Fla.2d DCA 1978), a default judgment was granted based on the defendant’s failure to timely furnish a pretrial statement pursuant to the pretrial order. The appellate court reversed holding that while counsel’s failure subjected him to sanctions, it should not “serve as a predicate upon which to punish the litigant.” Travelers, supra, citing Crystal Lake Golf Course, Inc. v. Kalin, 252 So. 2d 379, 381 (Fla. 4th DCA 1971). The Travelers court also relied on Beasley v. Girten, 61 So. 2d 179 (Fla.1952), wherein the Supreme Court stated:
The court unquestionably has power to discipline counsel for ... failure to meet the requirements of the [pretrial procedure] rule. [It] may warrant a citation for contempt or a lesser degree of punishment, but it is our view that the major punishment for such delicts should ordinarily be imposed on counsel rather than on the litigant. Dismissal “with prejudice” in effect disposes of the case, not for any dereliction on the part of the litigant, but on the part of his counsel.
Beasley at 180-181.
Therefore, a determination that a trial court has abused its discretion in dismissing a cause of action based on counsel’s procedural failures requires weighing the severity and prejudicial effect of counsel’s actions against the loss to the innocent litigant of his cause of action. Here, it is not disputed that, although late in complying with every date set by the pretrial order, Livingston’s counsel was in compliance therewith by the date of the pretrial conference. Further, the Department of Corrections has shown no substantial prejudice resulting to it from counsel’s derelictions. Under the circumstances of this case, the trial court abused its discretion in dismissing Livingston’s cause of action with prejudice.
Reversed and remanded for further proceedings.
SMITH and THOMPSON, JJ., concur.
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Carr v. Dean Steel Bldgs., Inc., 619 So. 2d 392 (Fla. 1st DCA 1993)…dale, Inc. v. Morganti, Inc., 356 So. 2d 1321, 1323 (Fla. 4th DCA), cert, denied, 362 So. 2d 1051 (Fla.1978). Nevertheless, dismissal is a drastic remedy which should be used only in extreme situations. Livingston v. State Department of Corrections, 481 So. 2d 2, 3 (Fla. 1st DCA 1985). Generally, courts have been reluctant to uphold a dismissal where there has been no finding of willful non-compliance or bad faith. An express written finding of willful disregard of an order of the court is essential to just…
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Carillon Corp. v. Seymour Devick and Florence Devick, 554 So. 2d 630 (Fla. 4th DCA 1989)…uch discretion is abused in cases where compliance with the order, albeit late, occurs prior to the order dismissing the complaint, and there is no finding of willful disregard of the court’s order. Cf. Livingston v. State Department of Corrections, 481 So. 2d 2 (Fla. 1st DCA 1985); United Services Automobile Ass’n v. Strasser, 492 So. 2d 399 (Fla. 4th DCA 1986). In this case, the appellant did secure counsel prior to the hearing granting the dismissal, and the trial court made no finding that appellant had…
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Carolann D. Kozel v. Ostendorf, 603 So. 2d 602 (Fla. 2d DCA 1992)…e, 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); Clay; Livingston v. State, Dep’t of Corrections, 481 So. 2d 2 (Fla. 1st DCA 1985); Stresscon Int’l, Inc. v. Ralph Merritt Dev. Corp., 368 So. 2d 384 (Fla. 3d DCA), cert. denied, 378 So. 2d 347 (Fla.1979). Especially in this era of “time standards,” 3 I fully empathize with the trial court’s frustration when a…
Previewing 3 of 9 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)
- Beasley v. Girten, 61 So.2d 179 (Fla. 1952)
- Crystal Lake Golf Course, Inc. v. Kalin, 252 So. 2d 379 (Fla. 4th DCA 1971)
- 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)
- The Lifeguard Corp. v. U.S. Home Corp., 429 So. 2d 94 (Fla. 2d DCA 1983)