UNITED STATES FIDELITY & GUARANTY COMPANY, APPELLANT,
v.
RICHARD W. HERR AND JEAN L. HERR, APPELLEES
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United States Fidelity & Guaranty Company appeals the dismissal of its $88,000 indemnity claim as a sanction for its attorney's failure to appear at a pretrial conference. The court reversed, finding that dismissal was too severe a sanction where the record lacked evidence of willful and contumacious disregard for court authority.
Dismissal was too severe a sanction under these circumstances. The record contains no evidentiary support for a finding of willful and contumacious disregard, and instead of dismissing a litigant's claim, the court should discipline the offending attorney by contempt or other appropriate punishment.
[1] A trial court abuses its discretion by imposing the severe sanction of dismissal when the record lacks evidentiary support for a finding of willful and contumacious disre…
[2] A litigant's indemnity claim should not be dismissed as a sanction for counsel's failure to appear at a pretrial conference absent evidence of the litigant's willful or f…
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Join FLexlaw to unlock all legal intelligence“The order dismissing plaintiff's complaint without prejudice, for failure of his counsel to appear at a pretrial conference ... was too severe a sanction to visit upon a litigant where the record is devoid of evidence reflecting his willful, or flagrant disregard for the court's authority.”
Establishes the controlling standard that dismissal is an excessive sanction without evidence of willful disregard
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Join FLexlaw to unlock all legal intelligenceA pretrial conference was originally scheduled for May 17, 1988, at 1:30 p.m. A second notice allegedly changed the time to 9:00 a.m., but appellant's…
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[*543] PER CURIAM.
United States Fidelity & Guaranty appeals an order dismissing — as a sanction— its $88,000 indemnity claim after the appellant's attorney failed to appear for a scheduled pretrial conference.
The notice of pretrial conference, scheduled for May 17, 1988, at 1:30 p.m., was changed to 9:00 a.m. by a second notice allegedly mailed on April 12, 1988. Appellant’s counsel contends that he never received a copy of the notice changing the time from 1:30 p.m. to 9:00 a.m., and that he first learned of the time change during a call to the court’s chambers at 9:15 a.m. on May 17, 1988; the call was made to confirm the 1:30 p.m. pretrial conference. It is undisputed that the court refused to permit the conference to proceed telephonically, even though the appellees’ counsel was present, or to renotice the conference.
The failure of appellant’s Miami-based attorney to appear at the pretrial conference in Marathon is the only record showing of an unexcused violation of court orders.
Review of the entire record discloses no evidentiary support for the court’s finding that the appellant’s attorney showed willful and contumacious disregard for the court’s authority.1 The delays in bringing this case to trial were occasioned by the actions, or inactions, of both parties.
In Aller v. Editorial Planeta, S.A., 389 So. 2d 321, 322 (Fla. 3d DCA 1980) we held on similar facts:
The order dismissing plaintiff’s complaint without prejudice, for failure of his counsel to appear at a pretrial conference ... was too severe a sanction to visit upon a litigant where the record is devoid of evidence reflecting his willful, or flagrant disregard for the court’s authority. For derelictions of this nature, the court is empowered to discipline the offending attorney by contempt or other appropriate punishment. Beasley v. Girten, 61 So. 2d 179 (Fla.1952); Crystal Lake Golf Course, Inc. v. Kalin, 252 So. 2d 379 (Fla. 4th DCA 1971).
The Aller holding is controlling.
REVERSED AND REMANDED.
. We do not address the question raised at oral argument whether a separate notice and an opportunity to be heard is required in every case where the court imposes the severe sanction of dismissal — based in part on prior events — for willful and contumacious disregard of its authority.
Cases With Similar Vibessemantic neighbors from the corpus
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HAM v. Dunmire, 891 So. 2d 492 (Fla. 2004)…nflict with the Third District Court of Appeal’s decisions in Marin v. Batista, 639 So. 2d 630 (Fla. 3d DCA 1994), Dave’ s Aluminum Siding, Inc. v. C & M Ventures, 582 So. 2d 147 (Fla. 3d DCA 1991), and United States Fidelity & Guaranty Co. v. Herr, 539 So. 2d 542 (Fla. 3d DCA 1989). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. BACKGROUND AND MATERIAL FACTS The instant action arises from the decision of the First District Court of Appeal which affirmed the dismissal with prejudice entered by the…1 / 2
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World ON Wheels OF Miami, Inc. v. Int'l Auto Motors, Inc., 569 So. 2d 836 (Fla. 3d DCA 1990)…authority as to warrant the imposition of the severe sanction of dismissal with prejudice. See Beasley v. Girten, 61 So. 2d 179 (Fla.1952); Blanco v. Allstate Ins. Co., 561 So. 2d 1370 (Fla. 3d DCA 1990); United States Fidelity & Guar. Co. v. Herr, 539 So. 2d 542 (Fla. 3d DCA 1989). We, accordingly, reverse the final order of dismissal and remand the cause for further proceedings with leave for the trial court in its discretion to impose lesser sanctions in this case, including a dismissal without prejudice,…
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Dave's Aluminum Siding, Inc. v. C & M Ventures, 582 So. 2d 147 (Fla. 3d DCA 1991)…e a sanction where the record is devoid of evidence showing that the failure of counsel to appear at the case management conference was a willful or [*148] flagrant disregard for the court’s authority. See United States Fidelity & Guar. Co. v. Herr, 539 So. 2d 542 (Fla. 3d DCA 1989); Bullock v. Metropolitan Dade County, 438 So. 2d 151 (Fla. 3d DCA 1983); Catogas v. Sapp, 397 So. 2d 1182 (Fla. 3d DCA 1981); Alter v. Editorial Planeta, S.A., 389 So. 2d 321 (Fla. 3d DCA 1980). Therefore, the order dismissing the…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Beasley v. Girten, 61 So.2d 179 (Fla. 1952)
- Crystal Lake Golf Course, Inc. v. Kalin, 252 So. 2d 379 (Fla. 4th DCA 1971)
- Aller v. Editorial Planeta, S.A., 389 So. 2d 321 (Fla. 3d DCA 1980)