RONALD SIENKIEWICZ, APPELLANT,
v.
AQUA LIFT, INC., APPELLEE
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The Fourth District Court of Appeal reversed a trial court's entry of final judgment against a pro se litigant who failed to attend a calendar call, holding that striking his pleadings as a sanction was an abuse of discretion under the circumstances.
The appellate court held that striking the pleadings and entering judgment was an abuse of discretion under these circumstances. While the court order was sufficient to place the appellant on notice, the ultimate sanction was too harsh given his unfamiliarity with the legal system, lack of willful disregard for the order, and prior compliance when specifically warned of severe sanctions.
[1] Striking a party's pleadings and entering a final judgment for failure to attend calendar call may constitute an abuse of discretion when the order is not unequivocally c…
[2] A trial court's imposition of the ultimate sanction of a judgment for a pro se litigant's failure to attend calendar call may be deemed too harsh if the conduct does not…
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“While appellant's behavior is inexcusable and the trial judge's frustration understandable, we do not find the facts as described above egregious enough to warrant so severe a penalty.”
Establishes the court's holding that striking pleadings was an abuse of discretion despite the appellant's noncompliance.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceRonald Sienkiewicz, appearing pro se, failed to attend a mandatory calendar call for a non-jury trial. He testified he did not interpret the court's o…
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PER CURIAM.
Appellant, Ronald Sienkiewicz, argues that the trial court erred by striking his pleadings and in entering a final judgment against him for failing to attend calendar call. We agree.
The order setting this case for the two-week non-jury calendar stated:
The parties shall be available for calendar call at 9:15 A.M. Tuesday, November 20, 1990. (Special note: Copies of the trial docket will be furnished at calendar call.)
Appellant, who at the time was appearing pro se, failed to attend, explaining that he did not interpret the order as requiring his attendance at the calendar call. Instead, he testified that inasmuch as the order listed his phone number, it was his understanding that the court would notify him of the trial date. While we agree that the order could have been more clearly drafted, it was sufficient to place him on notice that his attendance at calendar call was mandatory. The issue then becomes whether under these circumstances the imposition of the ultimate sanction of a judgment was so harsh as to constitute an abuse of discretion. Mercer v. Raine, 443 So. 2d 944, 946 (Fla.1983).
Appellee points out that this was not the first instance where the appellant had run afoul of prior orders or rules of procedure. After having twice failed to appear for deposition as scheduled, the trial court was forced to enter an order compelling his appearance at the next regularly noticed deposition or suffer the entry of a default and judgment against him. Only then did he appear. In addition, it appears that appellant failed to comply fully with the trial court’s pretrial instructions by neglecting to submit a witness and exhibit list to opposing counsel.
While appellant’s behavior is inexcusable and the trial judge's frustration understandable, we do not find the facts as described above egregious enough to warrant so severe a penalty. Given the appellant’s obvious unfamiliarity with the legal system it cannot be said that his conduct evinced an intentional or wilful disregard of the court’s order. Indeed, no such finding was ever made by the trial judge. See Mercer v. Raine, 443 So. 2d 944 (Fla.1983); Morales v. Perez, 445 So. 2d 393 (Fla. 3d DCA), cause dismissed, 453 So. 2d 44 (Fla.1984). On the one occasion where appellant was warned that noncompliance would subject him to severe sanctions, he complied. For his failure to list witnesses or exhibits as required by the pretrial order, the court could have limited appellant to the plaintiff’s witnesses and exhibits. This does not seem to be a case where a party has repeatedly and consistently failed to obey court orders. See F. Food Co., Inc. v. Hart Props., Inc., 515 So. 2d 279 (Fla. 3d DCA 1987), rev. denied, 523 So. 2d 577 (Fla.1988).
We wish to emphasize that our holding is clearly limited to the facts in this case, and should not be interpreted as either a license for attorneys or pro se litigants to ignore pretrial orders or as an absolute prohibition against trial judges from imposing the severest of sanctions when they do. We think, for instance, that had the pretrial order stated in unequivocal fashion that failure to attend calendar call could result in the entry of a default or the striking of a party’s pleadings, then we would be compelled to affirm the trial judge’s decision. But cf. Byron Holding Corp. v. Cohen, 284 So. 2d 412 (Fla. 3d DCA 1973) (striking answer was too harsh notwithstanding order which put the defendant on notice that failure to appear at calendar call might result in imposition of such a sanction); Bernuth Marine Shipping, Inc. v. Integrated Container Serv., Inc., 369 So. 2d 424 (Fla. 3d DCA 1979) (written warning that noncompliance with court’s pretrial order could result in striking of defendant’s pleadings was insufficient under the circumstances to permit so severe a sanction).
Accordingly, the final judgment appealed is reversed and the cause remanded to the trial court with directions to reinstate appellant’s pleadings and allow the matter to proceed to trial. However, the trial court may impose other appropriate sanctions in its discretion.
GLICKSTEIN, C.J., ANSTEAD, J„ and OFTEDAL, RICHARD L., Associate Judge, concur.
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Cited By
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Lahti v. Porn, 624 So. 2d 765 (Fla. 4th DCA 1993)…g late service of the Appellant’s witness and exhibit lists. The ultimate issue in this appeal is not whether sanctions may be imposed, but whether, if dismissal is the chosen sanction, may it be “with prejudice.” In Sienkiewicz v. Aqua Lift, Inc., 586 So. 2d 92, 93 (Fla. 4th DCA 1991), we said, albeit by dicta,: We wish to emphasize that our holding is clearly limited to the facts in this case, and should not be interpreted as either a license for attorneys or pro se litigants to ignore pretrial orders or…1 / 2
Authorities Cited
- Mercer v. J.D. Raine, Sr., 443 So. 2d 944 (Fla. 1983)
- Waldemar Morales v. Edelma Perez, 445 So. 2d 393 (Fla. 3d DCA 1984)
- Bernuth Marine Shipping, Inc. v. Integrated Container Serv., Inc., 369 So. 2d 424 (Fla. 3d DCA 1979)
- Byron Holding Corp. v. Malva-Lynn Cohen, 284 So. 2d 412 (Fla. 3d DCA 1973)
- F. Food Co., Inc. v. Hart Props., Inc., 515 So. 2d 279 (Fla. 3d DCA 1987)