OSCAR F. ALVAREZ, APPELLANT,
v.
NARCISSO ALVAREZ, LUIS EGARDO JIMENEZ, EDUARDO CUERVO, PACO GRAY, JOHN GADSEN, RICHARD PENSA, AND RAYMOND TRIGER, APPELLEES
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Appellant Oscar Alvarez challenges a final foreclosure judgment entered after the trial court struck his pleadings and defaulted him for failing to attend a status conference without notice or opportunity to be heard. The court reversed, holding that striking pleadings—the most severe sanction available—was disproportionate to a single failure to attend a pretrial conference and violated fundamental fairness requirements.
The trial court abused its discretion. Striking pleadings is the most severe sanction available under the rules and should be reserved for flagrant, persistent, willful, or otherwise aggravated violations. A single failure to attend a status conference, with no evidence of prejudice or prior violations, does not justify such extreme sanction. Upon remand, if sanctions are imposed, appellant must receive notice and an opportunity to explain the violation or present mitigating evidence.
[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.
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“when a party fails to comply with a pretrial order, the sanction imposed must be commensurate with the offense”
Establishes the foundational principle that sanctions must be proportionate to the violation; the most severe sanctions should be reserved for flagrant, persistent, willful or aggravated violations.
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Join FLexlaw to unlock all legal intelligenceAppellant's prior counsel filed a motion to withdraw, which the trial court granted by order titled 'Order Allowing Withdrawal.' The same order set a …
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DANAHY, Acting Chief Judge.
The appellant challenges a final judgment of foreclosure because it was entered after the trial court struck the appellant’s pleadings and entered a default against him. The action of the trial court was taken because the appellant failed to attend a status conference, either in person or by counsel. We reverse.
When the appellant’s prior attorney filed a motion to withdraw as counsel for the appellant, the trial court entered an order granting that motion. The order was titled “Order Allowing Withdrawal.” In addition to allowing withdrawal of the appellant’s counsel, the order set a status conference. The order recites that a conformed copy was sent to the appellant personally. When the appellant failed to appear, the trial court struck the appellant’s pleadings without prior notice to the appellant and subsequently entered a final judgment of foreclosure.
The facts of this case are very similar to the facts considered by this court in Insua v. World Wide Air, Inc., 582 So. 2d 102 (Fla. 2d DCA 1991). There this court recognized that Florida Rule of Civil Procedure 1.200(c) authorizes a trial court to impose sanctions upon a party for failure to attend a pretrial conference. Such sanctions include the striking of pleadings. In Insua, this court repeated its previous statement that when a party fails to comply with a pretrial order, the sanction imposed must be commensurate with the offense. The rule followed by this court is that the imposition of the most severe sanctions contemplated by the rules should be reserved for those occasions where the violation is flagrant, persistent, willful or otherwise aggravated. We have pointed out that there are many alternatives available to the trial court in securing proper respect for and compliance with its orders, short of imposing the most severe sanctions.
As in Insua the record in this case is devoid of any evidence that the appellees suffered prejudice, that the appellant disre garded any other court order during the progx’ess of this case, or that the failure to obey the order setting a status conference was in any way aggravated.
As in Insua, we conclude that the most severe sanction was not required in this case to secure proper respect for and compliance with the trial court’s order. Upon remand, if the trial court again intends to impose sanctions, the appellant should be given notice and an opportunity to appear before the trial court to explain the violation or present any evidence in mitigation.
The final judgment of foreclosure is reversed and the cause remanded for further proceedings consistent with this opinion.
Reversed and remanded.
HALL and QUINCE, JJ., concur.
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AD Miller Assocs., Inc. v. Glynn, 736 So. 2d 798 (Fla. 2d DCA 1999)…set it aside. A default is the most serious sanction that can be imposed on a defendant. It should be reserved for occasions where the conduct supporting the sanction is flagrant, persistent, willful or otherwise aggravated. See Alvarez v. Alvarez, 638 So. 2d 153 (Fla. 2d DCA 1994). While we do not condone counsels’ behavior, we hold that the court abused its discretion in entering a default against the defendants. As in Alvarez, the record here does not establish that Ms. Glynn suffered any prejudice from t…
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Packaging Corp. OF Am. v. DeRYCKE, 49 So. 3d 286 (Fla. 2d DCA 2010)…43 [*290] So. 2d 944, 946 (Fla.1983) (citations omitted). Yet, “the imposition of the most severe sanctions ... should be reserved for those occasions where the violation is flagrant, persistent, willful or otherwise aggravated.” Alvarez v. Alvarez, 638 So. 2d 153, 153 (Fla. 2d DCA 1994); see Carazo v. Status Shipping, Ltd., 613 So. 2d 1329, 1330 (Fla. 2d DCA 1992). “Absent evidence of a willful failure to comply or extensive prejudice to the opposition, however, the granting of such an order constitutes an a…
Authorities Cited
- Insua v. World Wide AIR, Inc., 582 So. 2d 102 (Fla. 2d DCA 1991)