MANUEL FUENTES, APPELLANT,
v.
EMBRO INC., AND ASSOCIATED INDUSTRIES, APPELLEES
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A workers' compensation appellate court reversed a judge's dismissal of all petitions for failure to prosecute, finding the dismissal violated statutory requirements and was an excessively harsh sanction for missing a pretrial hearing without evidence of willful disregard.
The dismissal was reversed because the JCC abused his discretion by dismissing the petitions without complying with statutory requirements under section 440.25(4)(i) and by imposing an excessively harsh sanction for missing a pretrial hearing without evidence of willful disregard for the JCC's authority.
[1] Dismissal for lack of prosecution requires a showing that no pleading or filing has occurred within the preceding 12 months, absent good cause.
[2] Dismissal is an overly severe sanction for failing to attend a pretrial hearing absent willful disregard for the court's authority.
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Join FLexlaw to unlock all legal intelligence“Dismissal for lack of prosecution is only proper where "a petition, response, motion, order, request for hearing, or notice of deposition has not been filed during the previous 12 months unless good cause is shown."”
Establishes the statutory requirement for dismissal that the JCC failed to comply with
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Join FLexlaw to unlock all legal intelligenceClaimant and Employer/Carrier were noticed for a pretrial hearing on March 7, 2008, but neither party attended or submitted a written pretrial stipula…
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In this workers’ compensation appeal, Claimant argues the Judge of Compensation Claims (JCC) abused his discretion by dismissing all of his petitions for failure to prosecute. We agree and reverse.
According to the JCC’s dismissal order, the parties failed to attend a live pretrial hearing noticed for March 7, 2008, or to timely submit a written pretrial stipulation. The JCC determined Claimant bore the burden of advancing his case and the parties’ failure to attend the pretrial hearing equated to Claimant’s failure to prosecute his claim. Without holding a hearing on the issue, the JCC concluded there was no good cause to permit further delay.
A review of the record indicates a pretrial hearing was noticed for March 7, 2008. However, a “mail in pretrial” was listed as the subject of the notice, which created confusion. Claimant filed two motions to vacate the dismissal, and a motion for an emergency hearing. In an affidavit filed by Claimant in support of the motions, Claimant’s counsel stated the parties had jointly requested an extension to complete the pretrial stipulation. They believed the extension had been granted due to communications with the JCC’s office. Claimant also averred that the Employer/Carrier’s counsel agreed the dismissal should be vacated. The JCC did not act upon Claimant’s motions, and the order dismissing all of Claimant’s petitions for failure to prosecute remained in effect.
Dismissal for lack of prosecution is only proper where “a petition, response, motion, order, request for hearing, or notice of deposition has not been filed during the previous 12 months unless good cause is shown.” § 440.25(4)(i), Fla. Stat. (2008). The JCC’s order is devoid of any findings indicating a petition, response, motion, order, request for hearing or notice of deposition had not been filed in Claimant’s case in the 12 months preceding the dismissal.
The JCC’s order may have been intended as a sanction for failing to attend the pretrial hearing. However, we have previously held that dismissal is too harsh a sanction for failing to attend a pretrial hearing, even where good cause cannot be shown, absent willful disregard for the JCC’s authority. See Martinez v. Collier County Public Sch., 804 So.2d 559, 561 (Fla. 1st DCA 2002).
The JCC abused his discretion by dismissing Claimant’s petitions without complying with the statutory requirements of section 440.25(4)(i), Florida Statutes, and by entering a sanction that is too harsh for failing to attend a pretrial hearing. The order dismissing Claimant’s petitions is REVERSED and the case REMANDED for proceedings consistent with this opinion.
WOLF, BENTON and BROWNING, JJ., concur.
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Lincoln Assocs. & Constr., Inc. v. Wentworth Constr. Co., Inc., 38 So. 3d 155 (Fla. 1st DCA 2010)…the rule and explain the basis for the sanction imposed.” This court has instructed on several occasions that it is necessary for the JCC to find a party willfully disregarded the JCC’s authority before imposing sanctions. See Fuentes v. EMBRO Inc., 8 So. 3d 389, 390 (Fla. 1st DCA 2009) (holding “dismissal is too harsh a sanction for failing to attend a pretrial hearing, even where good cause cannot be shown, absent willful disregard for the JCC’s authority”); Hadden v. Fla. Med. Ctr., 986 So. 2d 651, 652 (…
Authorities Cited
- Martinez v. Collier Cnty. Pub. Schs., 804 So. 2d 559 (Fla. 1st DCA 2002)