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Martini v. Young11/18/2005
e is no reasonable justification for noncompliance when it's a simple amendment of a complaint, and there have been significant problems in judicial administration created because this case was filed back in . (emphasis added)
Lagano did advise the court that in the previous two years there had been an intervening factor, the foreclosure action, which was brought as a separate cause of action and which was turned over to the judge presiding at the hearing. He also noted there would have been two amendments of the complaint within the two-year time period.
The judge expressed his belief that the Martinis were the ones who caused the problem by relieving Lagano of "the obligation" (presumably to respond and attend the hearing) regarding the motion to dismiss, and by advising him they were going to retain new counsel. The judge thought they had to suffer the consequences of that behavior.
Dismissal of an action with prejudice is the ultimate sanction in the civil justice system, and it is reserved for only the most aggravating circumstances. Rohlwing v. Myakka River Real Properties, Inc. 884 So. 2d 402 (Fla. 2d DCA 2004)(district court reversed dismissal with prejudice where basis of dismissal was the duration of lawsuit and the length of complaint). It is a drastic remedy which courts should employ only in extreme situations. Clay v. City of Margate, 546 So. 2d 434 (Fla. 4th DCA 1989).
In 1993, the supreme court set out guidelines for our courts regarding the appropriateness of dismissal. Kozel. The supreme court explained that dismissal must be reserved for the most aggravating of circumstances, and where a lesser sanction would fail to achieve the just result. Kozel. The Kozel court, in setting out the six guiding factors, directed that if, upon consideration of these factors, a less severe sanction than dismissal with prejudice appears to be a viable alternative, the court should employ such alternative. Sanctions other than dismissal that are appropriate include; the imposition of fines, award of attorneys fees, finding counsel in contempt, or referring the matter to the Florida Bar. Kozel; American Express Co. v. Hickey, 869 So. 2d 694 (Fla. 5th DCA 2004).
It is essential tha t attorneys adhere to filing deadlines and other procedural requirements in the interest of an efficient judicial system and in the interest of their clients. Kozel. Although the trial court has the discretionary power to dismiss a complaint if a party fails to timely file an amendment or fails to meet some other filing deadline, that power must be used cautiously because dismissal of a case based solely on an attorney's neglect unduly punishes the litigant. American Express.
A party should not be made to suffer the loss of viable claims due to the malfeasance of an attorney when there is no evidence in the record to indicate that the party personally engaged in misconduct. See Jimenez v. Simon, 879 So. 2d 13 (Fla. 2d DCA 2004)(reversal of dismissal for discovery violations); American Express (reversal of dismissal with prejudice too severe a sanction for attorney missing a series of deadlines and failing to appear at scheduled hearing); Russell v. A.G. Edwards & Sons, Inc., 779 So. 2d 452 (Fla. 2d DCA 2000). See also Williams v. Udell, 690 So. 2d 732 (Fla. 4th DCA 1997)(misconduct did not justify striking party's pleadings as sanction for failing to respond to request for production or attend mediation conference).
In this case, the record does not establish that the Martinis engaged in any misconduct, much less misconduct so egregious that it would rise to the level which would warrant a dismissal of their claims. All the record shows is that the
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