WORLD ON WHEELS OF MIAMI, INC., A FLORIDA CORPORATION, APPELLANT,
v.
INTERNATIONAL AUTO MOTORS, INC., A FLORIDA CORPORATION, APPELLEE
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World On Wheels appealed dismissal with prejudice of its action against International Auto Motors for counsel's failures to file a pretrial stipulation, appear at calendar call, and appear for trial. The court reversed, holding that these derelictions, while serious, did not constitute willful and flagrant disregard warranting the severe sanction of dismissal with prejudice.
Counsel's derelictions, while serious, do not reflect the willful and flagrant disregard for court authority necessary to justify dismissal with prejudice. The trial court may impose lesser sanctions, including dismissal without prejudice, in its discretion upon remand.
[1] Dismissal with prejudice is a severe sanction that requires a showing of willful and flagrant disregard for the court's authority.
[2] A certificate of service creates a presumption of mailing and receipt, but this presumption can be rebutted by evidence of non-receipt.
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Join FLexlaw to unlock all legal intelligence“counsel's derelictions do not reflect such a willful and flagrant disregard for the court's authority as to warrant the imposition of the severe sanction of dismissal with prejudice”
Establishes the core holding that the threshold for dismissal with prejudice as a sanction requires willful and flagrant disregard, which was not met here.
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Join FLexlaw to unlock all legal intelligencePlaintiff's counsel failed to file a pretrial stipulation, failed to appear at a calendar call, and failed to appear for trial—all as required by a si…
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PER CURIAM.
This is an appeal by the plaintiff World On Wheels of Miami, Inc. from a final order dismissing its action below with prejudice because plaintiff’s counsel failed to file a pretrial stipulation, failed to appear at a calendar call, and failed to appear for trial — all as required by a single court order. Although we agree that the trial court could properly find, as it did, that the order in question was mailed to and received by plaintiff’s counsel by virtue of the certificate of service on the subject order, notwithstanding the affidavits filed below denying receipt of the order by the plaintiff’s counsel, see Scott v. Johnson, 386 So. 2d 67, 69 (Fla. 3d DCA 1980),1 we conclude that counsel’s derelictions do not reflect such a willful and flagrant disregard for the court’s 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, if otherwise appropriate. See Beasley v. Girten, 61 So. 2d 179, 180-81 (Fla.1952); Aller v. Editorial Planeta, S.A., 389 So. 2d 321 (Fla. 3d DCA 1980).
We reach this result based primarily on the authority of Bernuth Marine Shipping, Inc. v. Integrated Container Serv., Inc., 369 So. 2d 424 (Fla. 3d DCA 1979), which held that it was error for the trial court to strike the defendant’s pleadings after defense counsel had failed, as here, (a) to file a pretrial catalog and (b) to timely appear for a calendar call — all as required by a single court order.
This court reversed the final judgment entered for the plaintiff after a trial on damages and concluded that “under the facts of this case, in our opinion, it was too harsh a sanction to strike appellant’s pleadings and to proceed to a jury trial without giving it notice.” Id. at 425. In the instant case, the only additional dereliction of counsel was his failure to appear at trial which, in our view, was not enough to justify the harsh sanction of a dismissal with prejudice.
Reversed and remanded.
. The certificate of service on the subject order was prima facie proof that the said order was mailed to plaintiff's counsel, and proof of such mailing created a presumption (although not an irrebuttable one) that plaintiff’s counsel received the order in the mail; on the other hand, the plaintiff's affidavits filed below constituted some evidence that the subject order was not received in the mail by plaintiff's counsel. It therefore became a question of fact as to whether plaintiffs counsel had received the subject order in the mail; the trial court resolved this issue against the plaintiff. Scott at 69.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (17 total)
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Scutieri v. Miller, 584 So. 2d 15 (Fla. 3d DCA 1991)…the subject order was not received in the mail by plaintiffs counsel. It therefore became a question of fact as to whether plaintiffs counsel had received the subject order in the mail.... World on Wheels of Miami, Inc. v. Int’l Auto Motors, Inc., 569 So. 2d 836, 837 n. 1 (Fla. 3d DCA 1990). In other words, the denial of receipt does not automatically overcome the presumption but instead creates a question of fact which must be resolved by the trial court. The order under review must be reversed and the cau…
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Lenore Migliore v. Migliore, 717 So. 2d 1077 (Fla. 4th DCA 1998)…petent evidence to the contrary. W.T. Holding, Inc. v. State Agency for Health Care Admin., 682 So. 2d 1224 (Fla. 4th DCA 1996); Scutieri v. Miller, 584 So. 2d 15 (Fla. 3d DCA 1991); World on Wheels of Miami, Inc. v. International Auto Motors, Inc., 569 So. 2d 836 (Fla. 3d DCA 1990). As we noted in Slomountz, a process server is “without a motive to misrepresent.” 429 So. 2d at 799. However, counsel who may have been negligent do not fall in that same category. Wife has not cited any authorities applying the…
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Liberty Mut. Ins. Co. v. Lyons, 622 So. 2d 621 (Fla. 5th DCA 1993)…estion of fact which indicates an eviden-tiary hearing was necessary. See Goudie v. Garcia, 584 So. 2d 100 (Fla. 3d DCA1991); Scutieri v. Miller, 584 So. 2d 15, 16 (Fla. 3d DCA1991); World on Wheels of Miami, Inc. v. International Auto Motors, Inc., 569 So. 2d 836, 837 n. 1 (Fla. 3d DCA1990). Accordingly, the order of the trial court which denied Liberty’s 1.540 motion for relief from the order imposing sanctions is reversed and the cause remanded for an evidentiary hearing. REVERSED AND REMANDED. DAUKSCH…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Beasley v. Girten, 61 So.2d 179 (Fla. 1952)
- Scott v. Johnson, 386 So. 2d 67 (Fla. 3d DCA 1980)
- Aller v. Editorial Planeta, S.A., 389 So. 2d 321 (Fla. 3d DCA 1980)
- Bernuth Marine Shipping, Inc. v. Integrated Container Serv., Inc., 369 So. 2d 424 (Fla. 3d DCA 1979)
- United States Fid. & Guar. Co. v. Herr, 539 So. 2d 542 (Fla. 3d DCA 1989)
- Alcee v. State, 561 So. 2d 1370 (Fla. 2d DCA 1990)
- Blanco v. Allstate Ins. Co., 561 So. 2d 1370 (Fla. 3d DCA 1990)