World on Wheels Miami v. International Auto Motors Book Reviews

World on Wheels Miami v. International Auto Motors by Third District Court of Appeal of Florida Book Summary

This is an appeal by the plaintiff World On Wheels of Miami, Inc. from a final order dismissing its action below with prejudice
because plaintiff's counsel failed to file a pretrial stipulation, failed to appear at a calendar call, and failed to appear
for trial -- all as required by a single court order. Although we agree that the trial court could properly find, as it did,
that the order in question was mailed to and received by plaintiff's counsel by virtue of the certificate of service on the
subject order, notwithstanding the affidavits filed below denying receipt of the order by the plaintiff's counsel, see Scott
v. Johnson, 386 So.2d 67, 69 (Fla. 3d DCA 1980),1{/Cite} we conclude that counsel's derelictions do not reflect such a
willful and flagrant disregard for the court's authority as to warrant the imposition of the severe sanction of dismissal
with prejudice. See Beasley v. Girten, 61 So.2d 179 (Fla. 1952); Blanco v. Allstate Ins. Co., 561 So.2d 1370 (Fla. 3d DCA
1990); United States Fidelity & Guar. Co. v. Herr, 539 So.2d 542 (Fla. 3d DCA 1989). We, accordingly, reverse the final
order of dismissal and remand the cause for further proceedings with leave for the trial court in its discretion to impose
lesser sanctions in this case, including a dismissal without prejudice, if otherwise appropriate. See Beasley v. Girten, 61
So.2d 179, 180-81 (Fla. 1952); Aller v. Editorial Planeta, S.A., 389 So.2d 321 (Fla. 3d DCA 1980). We reach this result based primarily on the authority of Bernuth Marine Shipping, Inc. v. Integrated Container Serv., Inc.,
369 So.2d 424 (Fla. 3d DCA 1979), which held that it was error for the trial court to strike the defendant's pleadings after
defense counsel had failed, as here, (a) to file a pretrial catalog and (b) to timely appear for a calendar call -- all as
required by a single court order. This court reversed the final judgment entered for the plaintiff after a trial on damages
and concluded that "under the facts of this case, in our opinion, it was too harsh a sanction to strike appellant's pleadings
and to proceed to a jury trial without giving it notice." Id. at 425. In the instant case, the only additional dereliction
of counsel was his failure to appear at trial which, in our view, was not enough to justify the harsh sanction of a dismissal
with prejudice.

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