IRVING A. GOLDMAN, PETITIONER,
v.
MARTIN L. TABOR, RESPONDENT
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The court held that striking a litigant's pleadings and entering a default judgment for an attorney's failure to appear at a pre-trial conference punishes the litigant, not the attorney, and is therefore improper.
The petitioner's attorney failed to appear at a pre-trial conference, leading the trial judge to sua sponte dismiss all pleadings and enter a default …
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Petitioner has filed a petition for writ of common law certiorari, asking this court to review a pre-trial conference order issued by Judge Robert A. Freeze. William Duane Wood III, counsel for the petitioner, failed to appear at a pre-trial conference held by Judge Freeze. As a result of Wood’s failure to attend, Judge Freeze dismissed, sua sponte, all pleadings of defendant and entered default judgment and set the case for trial on damages only.
Petitioner subsequently filed a motion asking the court to vacate and set aside its pre-trial order wherein all pleadings were stricken and a default judgment entered against petitioner, which motion was never set for hearing by Judge Freeze. Petitioner asks this court to hold that Judge Freeze erred in striking defendant’s pleadings and entering default judgment on the question of liability.
This court held in Bader Bros. Van Lines, Inc. v. Jay, Fla.App.1966, 183 So.2d 867, that such action as was taken here punishes the litigant rather than the attorney. This would certainly be the result in the instant case. The reason given by petitioner’s attorney for his failure to attend the pre-trial conference was that he failed to receive notice. This was not refuted by respondent, and to allow the order to stand would be a severe punishment to the litigant, but would in no way affect his attorney.
For this reason the petition is hereby granted and the order striking defendant’s pleadings and granting a default judgment is hereby quashed and the cause remanded for further proceedings.
HOBSON, C. J., and McNULTY, J., concur.
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Mercer v. J.D. Raine, Sr., 443 So. 2d 944 (Fla. 1983)…rs Insurance Co. v. Rodriguez, 357 So. 2d 464 (Fla. 2d DCA 1978), or where the sanction is in effect punishing the litigant too severely for an act or failure on the part of his counsel. Beasley v. Girten, 61 So. 2d 179 (Fla.1952); Goldman v. Tabor, 239 So. 2d 529 (Fla. 2d DCA 1970). We agree that the striking of pleadings or entering a default for noncompliance with an order compelling discovery is the most severe of all sanctions which should be employed only in extreme circumstances. Hart v. Weaver, 364 S…
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Crystal Lake Golf Course, Inc. v. Kalin, 252 So. 2d 379 (Fla. 4th DCA 1971)…tent refusal to attend might, in the interest of justice, require a dismissal without prejudice, we think for the reasons given that such dismissal upon the first infraction is too severe.” (Emphasis added.) See also Goldman v. Tabor, Fla.App.1970, 239 So. 2d 529. We cannot condone counsel’s failure to comply with an order of the court for a pretrial conference; but neither can we approve the entry of a final judgment for such failure where the record is devoid of any evidence reflecting a persistent refusa…
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Travelers Ins. Co. & Peter Vassey v. Rodriguez, 357 So. 2d 464 (Fla. 2d DCA 1978)…ion. Dismissal of an action with prejudice and entry of judgment by default are drastic remedies which should be used only in extreme situations, as the court has a wide range of lesser sanctions. . [*465] Id. at 180, 181. See also Goldman v. Tabor, 239 So. 2d 529 (Fla. 2d DCA 1970). The federal courts, which follow a pretrial procedure much like ours, have consistently taken the same position. Thus in Flaksa v. Little River Marine Construction Co., 389 F. 2d 885 (5th Cir. 1968), a case arising in Florida, t…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Bader Bros. VAN Lines, Inc. v. Sy JAY, 183 So. 2d 867 (Fla. 2d DCA 1966)