JOSE M. INSUA, APPELLANT,
v.
WORLD WIDE AIR, INC., APPELLEE
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Insua, a self-represented attorney, appeals a final summary judgment entered as a sanction for failing to appear at a pretrial conference. The appellate court reversed, finding the sanction of final judgment too severe for the violation and requiring the trial court to consider lesser sanctions and provide Insua with notice and an opportunity to be heard before reimposing any penalty.
The court reversed the summary judgment, holding that the most severe sanction available was not warranted because the violation was not flagrant, persistent, willful, or otherwise aggravated; World Wide suffered no demonstrated prejudice; and Insua had not disregarded other court orders. Upon remand, any sanctions must be commensurate with the offense, and Insua must be given notice and an opportunity to explain the violation before sanctions are imposed.
[1] A trial court may impose sanctions for failure to attend a pretrial conference, including dismissal, striking pleadings, or limiting proof.
[2] Sanctions imposed for failure to comply with a pretrial order must be commensurate with the offense.
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Join FLexlaw to unlock all legal intelligence“the sanction imposed must be commensurate with the offense”
Establishes the governing principle that sanctions for pretrial violations must be proportionate to the violation
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Join FLexlaw to unlock all legal intelligenceThe trial court scheduled a pretrial conference for May 21, 1990, and bench trial for June 1990. Insua, representing himself, telephoned the judge's o…
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THREADGILL, Judge.
Jose M. Insua appeals a summary final judgment entered in his absence as a sanction for failing to appear for a pretrial conference. We find that the sanction imposed was too severe for the offense committed and reverse.
The trial court entered an order on April 2, 1990, setting a pretrial conference on May 21, 1990, and a bench trial the beginning of June. The order required the attendance of the parties’ attorneys. Insua, a practicing Florida attorney who represented himself below and on this appeal, failed to appear. Earlier that day, he had telephoned the judge’s office to say that he was ready for trial but that other hearings in another venue would prevent his attendance at the pretrial conference.
In Insua’s absence at the pretrial conference, World Wide moved to strike his pleadings and for default. The trial court granted the motion. World Wide then made a motion for summary judgment to dispose of both liability and damages. The motion was accompanied by affidavits and depositions. The trial court granted final summary judgment against Insua in the amount of $1,588,829.76, which included treble damages, prejudgment interest, and attorney’s fees.
Florida Rule of Civil Procedure 1.200(c) authorizes a trial court to “dismiss the action, strike the pleadings, limit proof or witnesses or take any other appropriate action” upon failure of a party to attend a pretrial conference. This court has previously stated that when a party fails to comply with a pretrial order “the sanction imposed must be commensurate with the offense.” Travelers Insurance Company v. Rodriguez, 357 So. 2d 464, 465 (Fla. 2d DCA 1978). In Hart v. Weaver, 364 So. 2d 524, 525 (Fla. 2d DCA 1978), we stated:
The imposition of the most severe sanctions contemplated by the rules should be reserved for those occasions where the violation is flagrant, persistent or willful or otherwise aggravated. There are many alternatives available to the trial court in securing proper respect for and compliance with its orders; i.e., imposition of costs or attorney’s fees or other demonstrable damages to the opposite party.
The record is devoid of any evidence that World-Wide suffered prejudice, that Insua disregarded any other court order during the progress of this case, or that the violation was flagrant, persistent, willful, or otherwise aggravated. See Masons Concrete of Crystal River, Inc. v. Corbin Well Pump & Supply, Inc., 364 So. 2d 824 (Fla. 2d DCA 1978). We therefore conclude that the most severe sanction was not required to secure proper respect for and compliance with the court’s order. Upon remand, if the trial court again intends to impose sanctions, Insua should be given notice and an opportunity to appear before the trial court to explain the violation or present any evidence in mitigation. See Kuechenberg v. Creative Interiors, Inc., 424 So. 2d 145 (Fla. 4th DCA 1983); Owens-Illinois, Inc. v. Lewis, 260 So. 2d 221 (Fla. 1st DCA 1972).
Accordingly, the summary judgment is reversed and the cause remanded for further proceedings consistent with this opinion.
Reversed and remanded.
HALL, A.C.J., and ALTENBERND, J., concur.
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Citator
Cited By (16 total)
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Kelley v. Schmidt, 613 So. 2d 918 (Fla. 5th DCA 1993)…ice had been incurred as a result of counsel’s noncompliance. When a party fails to comply with a pretrial order, the authority to sanction is not unbridled; the sanction imposed must be commensurate with the offense. Insua v. World Wide Air, Inc., 582 So. 2d 102 (Fla. 2d DCA 1991). We note that numerous, less onerous sanctions were available to the trial judge. Counsel agreed to the acceptance of appellee’s witness list, his proposed jury instructions, and his exhibit list. These sanctions would have negate…
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ST. Mary's Hosp., Inc. v. Brinson, 685 So. 2d 33 (Fla. 4th DCA 1996)…rty fails to comply with an order, the trial court has a broad spectrum of sanctions to impose, although the sanction chosen must be commensurate with the offense. Kelley v. Schmidt, 613 So. 2d 918 (Fla. 5th DCA 1993); Insua v. World Wide Air, Inc., 582 So. 2d 102 (Fla. 2d DCA 1991). Although striking a party’s pleadings is the most severe sanction, it is appropriate where the offending conduct is flagrant, willful, or persistent. Kelley, 613 So. 2d at 919. As explained by the supreme court: A deliberate and…
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Walter H.C. Drakeford v. Barnett Bank OF Tampa, 694 So. 2d 822 (Fla. 2d DCA 1997)…of Civil Procedure 1.200(e), the sanction must be commensurate with the offense. See Clark v. Sturks, 668 So. 2d 1106, 1107 (Fla. 2d DCA 1996); Carazo v. Status Shipping, Ltd., 613 So. 2d 1329, 1330 (Fla. 2d DCA 1992); Insua v. World Wide Air, Inc., 582 So. 2d 102, 103 (Fla. 2d DCA 1991). The striking of a party’s pleadings resulting in a dismissal or a default is the most severe sanction and it should be used “sparingly and reserved to those instances where the conduct is flagrant, willful or persistent.” Ke…
Previewing 3 of 16 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Travelers Ins. Co. & Peter Vassey v. Rodriguez, 357 So. 2d 464 (Fla. 2d DCA 1978)
- Owens-Illinois, Inc. v. Lewis, 260 So. 2d 221 (Fla. 1st DCA 1972)
- Freddy Charles Green v. State, 424 So. 2d 145 (Fla. 4th DCA 1982)
- Dean v. State, 364 So. 2d 524 (Fla. 2d DCA 1978)
- Hart v. Weaver, 364 So. 2d 524 (Fla. 2d DCA 1978)
- Masons Concrete OF Crystal River, Inc. v. Corbin Well Pump & Supply, Inc., 364 So. 2d 824 (Fla. 2d DCA 1978)