BYRON HOLDING CORP., A FLORIDA CORPORATION, PETITIONER,
v.
MALVA-LYNN COHEN, RESPONDENT
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The Third District Court of Appeal quashed a trial court order striking defendant's answer for failure to attend a call of trial calendar, holding that no statute or rule authorizes such sanction for missing a calendar call rather than a pretrial conference.
The court held that no statute or rule authorizes a trial court to strike a defendant's answer for failure to attend a call of trial calendar. The ordinary consequence of missing a calendar call is setting the case for trial without opportunity to object, not striking pleadings.
[1] A trial court may not strike a defendant's answer solely for the failure of the defendant's attorney to attend a call of a trial calendar.
[2] A trial court's order striking a defendant's answer for failure to appear at a calendar call, absent statutory or rule authorization, departs from the essential requireme…
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Join FLexlaw to unlock all legal intelligence“no statute or rule authorizes or empowers a trial court to strike a defendant's answer for failure to appear at the call of a trial calendar or a part thereof”
States the core holding of the court regarding the lack of legal authority for the sanction imposed
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Join FLexlaw to unlock all legal intelligenceDefendant's attorney failed to attend a call of trial calendar for a two-week period in which the case was to receive a specific trial date. The trial…
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PER CURIAM.
We are presented with a petition for certiorari to review an order of the trial court which struck defendant’s answer upon the failure of defendant’s attorney to attend a call of a trial calendar for cases to be set during a two week period. The petitioner urges that the trial court’s order departs from the essential requirements of law in that no statute or rule authorizes or empowers a trial court to strike a defendant’s answer for failure to appear at the call of a trial calendar or a part thereof. We agree and quash the order striking defendant’s answer. Defendant was notified of the calendar call at which his case would be given a specific day’s setting by service of a copy of an order entitled “Order Setting Cause for Trial and Pretrial Order.”1
The respondent urges that the action of the trial judge is authorized by Rule 1.-200(b), RCP, 30 F.S.A., which provides that a defendant’s pleadings may be stricken upon his failure to attend a pretrial conference. This reliance is obviously mistaken because the order setting cause for trial did not provide for a pretrial conference. The order is in two parts; the first part provides for a special call of the calendar, while the second part orders that discovery and exchange of witnesses and documents must be completed by specified dates. The ordinary result of a failure to attend a special call of a trial calendar is to subject oneself to a setting of the cause for trial without opportunity to object. In the present case, nothing appears in the record which would call for special punishment of the defendant. Therefore, the order striking defendant’s answer is quashed and the cause is remanded for trial according to the rules.
It is so ordered.
. The material portions of the order are as follows:
“THIS CAUSE is specifically set for trial before a jury and the undersigned judge in a courtroom assigned to his use in the Dade County Courthouse, Miami, Florida, the two week period of JULY 2,1973.
“Call of the Trial Calendar shall be held on JUNE 27, 1973, at 12:00 NOON. FAILURE TO APPEAR AT SAID CALL SHALL BE SUBJECT TO DISMISSAL OF THE PLAINTIFF OR STRIKING OF ALL PLEADINGS OF THE DEFENDANT. ALL ATTORNEYS MUST BE PRESENT.”
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Citator
Cited By
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Bernuth Marine Shipping, Inc. v. Integrated Container Serv., Inc., 369 So. 2d 424 (Fla. 3d DCA 1979)…ing it notice. See, e. g., W. G. C., Inc. v. The Man Co., 360 So. 2d 1152 (Fla. 3d DCA 1978); Travelers Insurance Co. v. Rodriguez, 357 So. 2d 464 (Fla. 2d DCA 1978); Graber v. Gassman, 321 So. 2d 82 (Fla. 3d DCA 1975); Byron Holding Corp. v. Cohen, 284 So. 2d 412 (Fla. 3d DCA 1968); and Ortiz v. Nicolaides, 196 So. 2d 186 (Fla. 3d DCA 1967). Accordingly, the final judgment appealed is reversed and the cause is remanded to the trial court with directions to reinstate appellant’s pleadings and allow the matter…
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Sienkiewicz v. Aqua Lift, Inc., 586 So. 2d 92 (Fla. 4th DCA 1991)…stated in unequivocal fashion that failure to attend calendar call could result in the entry of a default or the striking of a party’s pleadings, then we would be compelled to affirm the trial judge’s decision. But cf. Byron Holding Corp. v. Cohen, 284 So. 2d 412 (Fla. 3d DCA 1973) (striking answer was too harsh notwithstanding order which put the defendant on notice that failure to appear at calendar call might result in imposition of such a sanction); Bernuth Marine Shipping, Inc. v. Integrated Container S…
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Hyman Graber v. Gassman, 321 So. 2d 82 (Fla. 3d DCA 1975)…nts had failed to offer evidence or reasons sufficient to defeat plaintiffs’ right to recover then plaintiffs would have been entitled to their judgment. Ortiz v. Nicolaides, Fla.App. 1967, 196 So. 2d 186; Byron Holding Corp. v. Cohen, Fla.App.1973, 284 So. 2d 412. The orders appealed are reversed and the cause remanded for trial. Reversed and remanded.…
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