MICHAEL J. QUEEN, APPELLANT,
v.
ADAMS MARK HOTEL AND GALLAGHER BASSET SERVICES, INC., APPELLEES
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A workers' compensation claimant appeals the dismissal with prejudice of his petition for benefits after failing to appear for depositions. The court reverses, holding that dismissal with prejudice requires a specific finding that the claimant's conduct was willful, deliberate, or contumacious—a finding the judge failed to make.
Dismissal with prejudice is a harsh sanction that should be used sparingly and only when a party's failure to comply with court orders results from conduct that is willful, deliberate, or contumacious. Here, because the judge failed to make any finding regarding the willfulness, deliberateness, or contumacious nature of the claimant's conduct, the dismissal cannot stand.
[1] Dismissal with prejudice is a severe sanction that should be imposed sparingly.
[2] A party's failure to appear for a deposition or comply with a court order may result in dismissal with prejudice only if the conduct is willful, deliberate, or contumacio…
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Join FLexlaw to unlock all legal intelligence“Dismissal with prejudice is a harsh sanction which should be used sparingly.”
Establishes the general principle that dismissal with prejudice is a severe remedy requiring careful consideration
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Join FLexlaw to unlock all legal intelligenceMichael Queen sustained alleged work-related injuries on June 27, 1995. He filed a petition for benefits on December 5, 1995, and an amended petition …
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PER CURIAM.
Michael J. Queen, the claimant, appeals an order of the judge of compensation claims dismissing his petition for benefits with prejudice. Because the judge failed to find that the claimant’s conduct was willful, deliberate or contumacious, we reverse.
The claimant sustained injuries in an alleged work-related accident on June 27, 1995. On December 5, 1995, he filed a petition for benefits and on April 1, 1996, he filed an amended petition. Because the claimant failed to appear for two depositions and failed to make himself available for a deposition as the judge had ordered, the employer/earrier filed a motion to dismiss the claimant’s petitions. The judge granted this motion on January 23, 1997.
Subsequently, the claimant filed two more petitions for benefits. The first was dismissed without prejudice because the claimant failed to sign it. The second was filed on June 3, 1997 and contained substantially the same claims as those contained in the petitions dismissed on January 23, 1997. This petition was referred to a judge of compensation claims.
The employer/carrier filed a motion for clarification alleging that the claimant’s petition had previously been dismissed with prejudice, and thus, the present petition should also be dismissed. After a hearing at which no testimony was taken, the judge dismissed with prejudice the claimant’s latest petition.
Dismissal with prejudice is a harsh sanction which should be used sparingly. See e.g. Hanna v. Industrial Labor Serv., Inc., 636 So. 2d 773 (Fla. 1st DCA 1994); Kelley v. Schmidt, 613 So. 2d 918 (Fla. 5th DCA 1993). A party’s failure to appear at a deposition or to comply with a court order should result in a dismissal with prejudice of his or her claim only if that party’s conduct was willful, deliberate or contumacious. See Commonwealth Fed. Sav. and Loan Ass’n v. Tubero, 569 So. 2d 1271, 1273 (Fla.1990)(holding that a trial judge must make a specific finding of willfulness before imposing the sanction of dismissal or default); Hanna; Wheeler v. Hajianpour, 688 So. 2d 423, 424 (Fla. 4th DCA 1997)(holding that “[dismissal of a litigant’s action with prejudice as a sanction for failing to comply with a court order has generally been frowned upon by the courts, except in the most egregious circumstances of intentional defiance and contumacious disregard for the court’s authority”).
Although hearings were held on both of the employer/carrier’s motions to dismiss, no testimony was allowed. Thus, the record is devoid of any findings that the claimant’s failure to attend the depositions or make himself available for a deposition was willful, deliberate or contumacious. Without such a finding, we must reverse. See Tubero; Hanna.
BENTON, VAN NORTWICK and PADOVANO, JJ., CONCUR.
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J P Morgan Chase Bank v. Combee, 883 So. 2d 330 (Fla. 1st DCA 2004)…2d 661, 662 (Fla. 1st DCA 2003). Thus, we review a trial court’s imposition of sanctions for an abuse of discretion. See id. Because dismissal with prejudice is a harsh sanction, it should be used only sparingly. See e.g., Queen v. Adams Mark Hotel, 728 So. 2d 804, 805 (Fla. 1st DCA 1999). However, a trial court’s findings and judgment come to a reviewing court with a presumption of correctness, and cannot be disturbed absent a record demonstrating reversible error. See e.g., Applegate v. Barnett Bank of Tal…
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Verkruysse v. Fla. Carpenters Reg'l Council & Ulico Cas. Co., 27 So. 3d 157 (Fla. 1st DCA 2010)…(Fla.1980). This Court will not reverse a dismissal with prejudice if the dismissal is supported by a specific, written finding that the offending party willfully or deliberately acted in violation of the JCC’s order. See Queen v. Adams Mark Hotel, 728 So. 2d 804, 805 (Fla. 1st DCA 1999). Here, the JCC had before him two certificates of non-appearance verifying Claimant’s failure to appear for two depositions; and a judicially noticed March 13 order granting the E/C’s motion to compel. Although Claimant att…
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Jones v. Royalty Foods, Inc., 82 So. 3d 1162 (Fla. 1st DCA 2012)…based on counsel’s failure to personally appear at pretrial conference, noting “JCC’s order does not contain the required finding that counsel’s failure to appear resulted from a willful disregard of the JCC’s authority”); Queen v. Adams Mark Hotel, 728 So. 2d 804, 805 (Fla. 1st DCA 1999) (reversing dismissal based on claimant’s failure to appear at two depositions and failure to comply with order to make himself available for deposition because “record is devoid of any findings that the claimant’s failure to…
Authorities Cited
- Commonwealth Fed. Sav. & Loan Ass'n v. Moshe Tubero, 569 So. 2d 1271 (Fla. 1990)
- Kelley v. Schmidt, 613 So. 2d 918 (Fla. 5th DCA 1993)
- Cyril Hanna v. Indus. Labor Serv., Inc., 636 So. 2d 773 (Fla. 1st DCA 1994)
- Wheeler v. Mohammad Ali Hajianpour, M.D., 688 So. 2d 423 (Fla. 4th DCA 1997)