DAVE'S ALUMINUM SIDING, INC., APPELLANT,
v.
C & M VENTURES, APPELLEE
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The court held that dismissing a complaint without prejudice for failure to appear at a case management conference was too severe a sanction when the failure was not willful or flagrant.
The plaintiff's counsel was unable to attend a scheduled case management conference due to a scheduling conflict and requested a telephone appearance,…
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PER CURIAM.
The plaintiff, Dave’s Aluminum Siding, Inc., appeals from a final order dismissing its complaint against C. & M. Ventures, Inc. We reverse.
The trial court scheduled a case management conference ordering the parties to appear in court on October 17, 1990. The parties prepared and filed a written statement in compliance with the case management conference. The plaintiff contends that he had advised the trial judge’s secretary the day before the conference of his inability to be at the hearing due to a scheduling conflict and requested a telephone conference. The trial judge would not allow the plaintiff’s counsel to appear by telephone, despite the fact that the defendant had no objection to the plaintiff appearing by telephone. The trial court dismissed the plaintiff’s complaint without prejudice due to the plaintiff’s counsel failure to appear at the conference. The plaintiff appeals.
After the very professional presentation made by the attorneys on both sides and our careful review of the record, we find that the trial court abused its discretion by dismissing the plaintiff’s complaint. That action was too severe 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 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 plaintiff’s complaint without prejudice is reversed.
Reversed and remanded.
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HAM v. Dunmire, 891 So. 2d 492 (Fla. 2004)…he decision in Ham v. Dunmire, 855 So. 2d 1238 (Fla. 1st DCA 2003), which certified conflict 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 Fir…
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Martinez v. Collier Cnty. Pub. Schs., 804 So. 2d 559 (Fla. 1st DCA 2002)…s of willful disobedience by trial counsel, dismissal of complaint without prejudice for failure of plaintiffs attorney to attend status conference, was too severe a sanction to impose upon plaintiff); Dave’s Aluminum Siding, Inc. v. C & M Ventures, 582 So. 2d 147 (Fla. 3d DCA 1991) (holding dismissal of complaint without prejudice for counsel’s failure to appear at case management conference was too severe a sanction where record lacked evidence that failure to appear was willful or flagrant disregard for co…
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Fed. Nat'l Mortg. Ass'n v. Wild, 164 So. 3d 94 (Fla. 3d DCA 2015)…et and pleadings, and the continuing efforts to establish a mutually-convenient mediation date or otherwise settle the case, do not establish the extreme circumstances that would warrant dismissal. See Dave’s Aluminum Siding, Inc. v. C & M Ventures, 582 So. 2d 147 (Fla. 3d DCA 1991). The appellee’s reliance on Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150 (Fla.1979), is misplaced. The orders were not the product of an evidentiary hearing, no findings of fact were entered as required by Kozel, an…
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
- Aller v. Editorial Planeta, S.A., 389 So. 2d 321 (Fla. 3d DCA 1980)
- Cedars OF Lebanon Hosp. Corp. v. SUN Bank OF Riverside, 397 So. 2d 1182 (Fla. 3d DCA 1981)
- United States Fid. & Guar. Co. v. Herr, 539 So. 2d 542 (Fla. 3d DCA 1989)
- Indus. Waste Serv., Inc. v. McDonald's OF Homestead, Inc., 438 So. 2d 151 (Fla. 3d DCA 1983)