SEE WILLIAMS
v.
UDELL

9th Cir. Ct. App. Div. | 2009-08-19
No. 2007-CV-91
1 FLCA 1275 Ninth Judicial Circuit Court, Appellate Division (2009)

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Synopsis

The Ninth Judicial Circuit Court reversed a trial court's entry of final default judgment against a pro se defendant for failure to attend a court-ordered mediation conference, finding the sanction an abuse of discretion and holding that lesser sanctions would have been appropriate.

Holding

The trial court abused its discretion. Final default judgment is an ultimate sanction reserved for the most aggravated circumstances where no lesser sanction would be appropriate. Here, less severe sanctions such as admonishment or award of mediator's and attorney's fees would have sufficed.

Headnotes

[1] Entry of a final default judgment is an ultimate sanction, reserved for the most aggravated circumstances where no lesser sanction would be appropriate.

[2] A trial court abuses its discretion by entering a final default judgment for failure to attend a court-ordered mediation conference when the party had filed a verified an…

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Key Quotes

“Dismissal of a plaintiff's claim or entry of final default judgment against a defendant is an ultimate sanction, reserved for the most aggravated circumstances where no lesser sanction would be appropriate.”

Establishes the legal standard that default judgment is the most severe sanction and should only be used in extreme circumstances.

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Facts & Procedural History

Defendant Kernberger, representing herself, filed a verified answer and affirmative defenses. Six days before a scheduled mediation conference, she fi…

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Topics
Lesser Sanctions Sanctions Default Judgment Abuse Of Discretion

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Opinion of the Court

Before POWELL, BLACKWELL, T. SMITH, J.J.

PER CURIAM.

FINAL ORDER REVERSING LOWER COURT

Under the facts of this case, we find that the trial court abused its discretion in entering a final default judgment against defendant/appellant Kernberger for her failure to attend a courtordered mediation conference. Especially is this so where she had filed a verified answer and affirmative defenses, and, six days prior to the mediation conference, had filed a petition to stay mediation and supporting brief before the conference was to take place.1 If Kernberger should

DONE AND ORDERED in Chambers, at Orlando, Orange County, Florida this

___18____day of ______August_______________, 2009.

___________/s/_________________ ROM W. POWELL Senior Judge

______/s/______________________

___________/s/_________________ ALICE L. BLACKWELL

THOMAS B. SMITH Circuit Judge

Circuit Judge CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Order has been furnished via U.S. mail to: Marlene Kernberger, 3287 Amaca Circle, Orlando, Florida 32837 and Philip Orsi, Esquire, JPMorgan Chase-Legal Department, 1191 East Newport Center Drive, Suite 101, Deerfield Beach, Florida 33442 on the ___19______ day of ___August_______________, 2009.

_________/s/___________________

Judicial Assistant

Footnotes
1 In retrospect, had Kernberger had an attorney, the attorney would have contacted the Judge’s legal assistant, scheduled the petition to stay for hearing prior to the mediation conference, and served a copy with the notice of hearing on opposing counsel. Or, in the alternative, Kernberger and her attorney could have simply attended the mediation conference where she could have stuck by her position that she would not settle but wanted a trial. Unfortunately, due to her representing herself and her lack of experience, she did neither. have been sanctioned at all, a less severe sanction of admonishment or award of mediator’s and attorney’s fees would have sufficed. See Williams v. Udell, 690 So. 2d 732 (Fla. 4th DCA 1997) (striking appellant’s pleadings for failure to attend a mediation conference and failure to properly respond to a discovery request too severe a sanction); Corbino v. Ward, 801 So. 2d 1028 (Fla. 5th DCA 2001)(Fla. R. Civ. P. 1.720 mandated imposition of mediator’s costs and attorney’s fees against party who failed to appear at mediation conference without good cause); Segui v. Margrill, 844 So. 2d 820 (Fla. 5th DCA 2003)(granting appellant’s motion for sanctions and imposing mediator’s costs and appellate attorney’s fees where party failed to appear at courtordered appellate mediation conference). Dismissal of a plaintiff’s claim or entry of final default judgment against a defendant is an ultimate sanction, reserved for the most aggravated circumstances where no lesser sanction would be appropriate. See Kozel v. Ostendorf, 629 So. 2d 817 (Fla. 1993). Application of the Kozel factors resolve in Kernberger’s favor. Consequently, the final default judgment is REVERSED and this case is REMANDED for further proceedings. On remand the case should be heard by a different county judge, who is directed to schedule and notice a hearing on appellant’s petition to stay mediation before proceeding further. We dispense with oral argument pursuant to Florida Rule of Appellate Procedure 9.320.

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