AMY GREENHILL, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF AYDEN GREENHILL, FOR THE USE AND BENEFIT OF THE ESTATE OF AYDEN GREENHILL, AMY GREENHILL AND PHILLIP GREENHILL, AS SURVIVING PARENTS OF AYDEN GREENHILL, DECEASED, APPELLANT,
v.
SHANDS TEACHING HOSPITAL & CLINICS, INC., FLORIDA BOARD OF REGENTS; CARDIOVASCULAR PERFUSIONISTS, INC. AND RENE RIVERA-SANTIAGO, APPELLEES
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Dismissal of a medical malpractice action for failure to comply with a pretrial conference order was reversed because the trial court's order lacked a required finding that the party's conduct was willful or deliberate.
A dismissal sanction for noncompliance with a pretrial conference order must be supported by a finding that the party's conduct was willful or deliberate, and absent such a finding, the dismissal order must be reversed.
[1] A trial court's dismissal of an action as a sanction for noncompliance with a pretrial conference order must be supported by an explicit finding that the party's conduct…
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Join FLexlaw to unlock all legal intelligence“dismissal is a severe sanction which should be used only in extreme circumstances”
The court explained the standard for imposing dismissal as a sanction, citing Tubero.
Appellants filed a medical malpractice action against Shands Teaching Hospital and other defendants. The trial court dismissed the action based on the…
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PER CURIAM.
The appellants challenge an order by which their medical malpractice action was dismissed, upon a finding that they failed to comply with a pretrial conference order. As indicated in cases such as Commonwealth Federal Savings & Loan Ass’n v. Tubero, 569 So. 2d 1271 (Fla.1990), dismissal is a severe sanction which should be used only in extreme circumstances. Tubero reiterated the description of such circumstances in Mercer v. Raine, 443 So. 2d 944 (Fla.1983), referring to a deliberate and contumacious disregard of the court’s authority, or bad faith, willful disregard or gross indifference, or conduct which otherwise evinces deliberate callousness. Acknowledging the court’s discretion to sanction a party in these circumstances, Tubero requires that an order sanctioning a party by dismissal contain a finding which indicates that the party’s conduct was willful or deliberate. The appealed order in the present case does not contain such a finding, and in accordance with Tubero the order must be reversed. See, e.g., First Fairway Condominium I Ass’n v. Gulfstream Roofing, Inc., 701 So. 2d 652 (Fla. 4th DCA 1997). The appealed order is therefore reversed and the case is remanded.
ALLEN, C.J., DAVIS and PADOVANO, JJ., CONCUR.
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Rohlwing v. Myakka River Real Props., Inc., 884 So. 2d 402 (Fla. 2d DCA 2004)…other areas including the failure to comply with discovery requirements, Commonwealth Fed. Sav. & Loan Ass’n v. Tubero, 569 So. 2d 1271 (Fla.1990), and the failure to comply with a pretrial order, Greenhill v. Shands Teaching Hosp. & Clinics, Inc., 834 So. 2d 896 (Fla. 1st DCA 2002). If the Rohlwings’ case is an example of the most egregious or aggravating circumstances, the order of dismissal with prejudice must so state. A successor judge imposed this extreme sanction, but his comments at that final hearin…
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Ceophia S. Perkins v. Jacksonville Hous. Auth., 175 So. 3d 948 (Fla. 1st DCA 2015)…t of all sanctions,” see Dedmon v. Kelly, 60 So. 3d 585, 587 (Fla. 4th DCA 2011), the court must explicitly find the party’s actions were willful, flagrant, deliberate, or otherwise aggravated. See Greenhill v. Shands Teaching Hasp. & Clinics, Inc., 834 So. 2d 896, 896 (Fla. 1st DCA 2002); accord Dedmon, 60 So. 3d at 587; Fugnole v. Crumbly Bros., Inc., 899 So. 2d 1262, 1263 (Fla. 2d DCA 2005). A dismissal order that does not contain such a finding must be reversed. See Greenhill, 834 So. 2d at 896 (citing Co…
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Oluwabukola Olawoye and Mulikatou Disu v. Olufisayo Arubuola, 198 So. 3d 1086 (Fla. 1st DCA 2016)…DCA 2003) (reversing order striking pleadings and entering default as sanction for failure to comply with discovery order; order lacked express written findings of willful or deliberate violation); Greenhill v. Shands Teaching Hosp. & Clinics, Inc., 834 So. 2d 896 (Fla. 1st DCA 2003) (reversing dismissal of action upon appellants’ failure to comply with pretrial conference order due to lack of finding in order that party’s conduct was willful or deliberate); Kelley v. Schmidt, 613 So. 2d 918 (Fla. 5th DCA 199…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Mercer v. J.D. Raine, Sr., 443 So. 2d 944 (Fla. 1983)
- Commonwealth Fed. Sav. & Loan Ass'n v. Moshe Tubero, 569 So. 2d 1271 (Fla. 1990)
- First Fairway Condo. I Ass'n, Inc. v. Gulfstream Roofing, Inc., 701 So. 2d 652 (Fla. 4th DCA 1997)