Error to Dismiss for Lack of Prosecution at Case Management Conference

After Plaintiff failed to attend a case management conference, the trial court issued an order which stated in its entirety:

Neither plaintiff nor defendant appeared at duly set status conference. Whereas this court hereby dismisses without prejudice the above styled case for lack of prosecution.

Florida Rule of Civil Procedure 1.420(e) allows the court to dismiss a suit for lack of prosecution, but the required procedures for dismissal for lack of prosecution were not met, i.e.: “no record activity for ten months followed by a notice to the parties and a sixty-day opportunity to take action.”

The 4th DCA noted that the trial court could have dismissed the suit under Florida Rule of Civil Procedure 1.200(c), which provides that the court may “dismiss the action” if a party fails to attend a case management or pretrial conference. However, the court would have had to made a finding of fact that the failure to attend the case management hearing was “willful and contumacious.”

Since the court’s order merely stated that Appellant failed to attend the conference and did not set forth any findings establishing that Appellant engaged in “willful and contumacious” behavior, the 4th DCA overturned the trial court’s dismissal.

PETERSEN & HAWTHORNE, P.A. v. EMI ENTERPRISES, INC., et. al.,  Case No. 4D11-3609 (4th DCA June 12, 2013).

Dismissal for Fraud on the Court Not Available to Resolve Jury Questions – Herman v. Silver

In this medical malpractice case, a husband sued after his wife died allegedly from kidney failure after the defendant doctor performed surgery. At the trial, the husband testified about various issues, including his wife’s active lifestyle before the surgery, and date of the onset of kidney problems. After the trial, the husband quarrelled with his daughter, who then advised defense counsel that they both had “lied” while testifiying at the trial regarding issues in the case. She also advised about the existence of a diary that the husband failed to produce in response to a discovery request; the diary, among other things, contradicted the husband’s testimony regarding the onset of the kidney problems. The trial court dismissed the case after an evidentiary hearing. The appellate court reversed, holding: “The evidentiary conflicts regarding Mrs. Herman’s activity levels presented a classic jury question, and hardly amounted to clear and convincing evidence that the plaintiff undertook a scheme calculated to interfere with the judicial system’s ability to impartially adjudicate the matter.”

Herman v. Silver, 38 Fla. L. Weekly D908a (Fla. 4th DCA Apr. 24, 2013).

Record Evidence Did Not Support Finding of Fraud on the Court – Ford v. Stimpson

In this products liability case, final judgment  was entered in favor of the defendant following a four-week jury trial.  The plaintiff alleged that the defendant had committed fraud on the court and sought to set aside the final judgment pursuant to Fla. R. Civ. P. 1.540(b)(3).

The trial court granted plaintiff’s motion finding that the defendant (1) had destroyed evidence, (2) made false representations to the National Highway Traffic Safety Administration (NHTSA), (3) improperly inquired on cross-examination about matters excluded from evidence by a motion in limine, and (4) presented false and misleading testimony through its experts.

After determining that the defendant had committed fraud on the court, the trial court struck the defendant’s answer and affirmative defenses, entered judgment on liability in favor of the plaintiff, and ordered a trial on the issue of damages.  The defendant appealed the trial court’s order.

The Fifth DCA determined that:

Fraud on the court occurs where “it can be demonstrated, clearly and convincingly, that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate a matter by improperly influencing the trier of fact or unfairly hampering the presentation of the opposing party’s claim or defense.” citing Cox v. Burke, 706 So. 2d 43, 46 (Fla. 5th DCA 1998).

Reviewing the evidence submitted to the trial court on each of the four instances of purported fraud, the Fifth DCA determined that their was insufficient record evidence to support the trial court’s findings.  The Fifth DCA overturned the trial court’s decision to grant the Rule 1.540(b)(3) motion, thereby effectively reinstating the final judgment in favor of the defendant.

Ford v. Stimpson, 5th District. Case No. 5D11-2787 (April 19, 2013).

Court May Not Strike Plaintiff’s Voluntary Dismissal Unless Plaintiff Obtained Affirmative Relief – PINO V. THE BANK OF NEW YORK

 In this contentious foreclosure case, the lender filed multiple complaints that allegedly attached an inauthentic mortgage and assignment.  After receiving a sanctions motion by defense counsel, the lender dismissed the action without prejudice.  The lender then filed a second lawsuit in which it submitted yet another purported assignment with a different date and signed by different a person.  Defense counsel then moved in the first case to strike the voluntary dismissal and request that the case be dismissed “with prejudice” as a sanction for an alleged fraud on the Court.  The trial court denied the motion and the Fourth District affirmed.  The Supreme Court accepted jurisdiction, and affirmed on the following basis:

 “[W]hen a defendant alleges fraud on the court as a basis for seeking to set aside a plaintiff’s voluntary dismissal, the trial court has jurisdiction to reinstate the dismissed action only when the fraud, if proven, resulted in the plaintiff securing affirmative relief to the detriment of the defendant and, upon obtaining that relief, voluntarily dismissing the case to prevent the trial court from remedying the effects of the fraudulent conduct.  Any affirmative relief the plaintiff obtained against the defendant as a result of the fraudulent conduct would clearly have an adverse impact on the defendant, thereby entitling the defendant to seek relief to set aside the voluntary dismissal pursuant to Florida Rule of Civil Procedure 1.540(b)(3). . . . In this case, because BNY Mellon did not obtain affirmative relief before taking the voluntary dismissal, the trial court did not have jurisdiction to reinstate the dismissed foreclosure action for the purpose of dismissing the action with prejudice.”

Pino v. The Bank of New York, 38 Fla. L. Wkly S78a (Fla. Deb. 7, 2013)

Rules Updates – New E-discovery and E-mail Service Rules Effective September 1st

Per the Florida Supreme Court’s Order amending the Florida Rules of Civil Procedure to implement service by email, the following rules have been updated:

Per the Florida Supreme Court’s Order amending the Florida Rules of Civil Procedure to facilitate electronic discovery, the following rules have been updated:

All of these amendments are effective as of September 1, 2012.

Overturning Sanctions for Failure to Make Specific Factual Findings – Cox v. Great American Insurance Co.

At issue in this appeal before the Fourth DCA was the trial court’s award of sanctions, pursuant to Florida Rule of Civil Procedure 1.730(c), for a parties violation of a mediation agreement.  The Fourth DCA determined that the imposition of sanctions per Rule 1.730(c) required specific factual findings as to the breach or failure to perform under the terms of the mediation agreement.  Instead, the trial court had merely entered an order summarily granting such fees without stating the basis for the determination of fee entitlement.

Cox v. Great American Insurance Co., 37 Fla. L. Wkly D686a (Fla. 4th DCA March 21, 2012)

Rivero v. Meister, No. 4D09-2555 (Fla. 4th DCA Nov. 3, 2010)

The Defendant and his attorney failed to appear for a properly scheduled jury trial, the Court then continued the trial and the Plaintiff moved for sanctions.

After noting that the Court could have held the trial without the Defendant’s present, the Fourth DCA found that the Defendant’s actions in failing to appear for trial constituted negligence rather than bad faith.  As such, under Moakley v. Smallwood, 826 So. 2d 221, 226 (Fla. 2002), the conduct was not sanctionable pursuant to the Court’s inherent powers.
The Fourth DCA continued, in dicta, to state that it believed, for law and economics reasons, that the burden for even negligent conduct should be able to be shifted from the innocent party to the negligent party at the discretion of the trial court and certified for the Florida Supreme Court the following question:
DOES THE DEFINITION OF “BAD FAITH CONDUCT” IN MOAKLEY V. SMALLWOOD, 826 SO.2D 221 (FLA. 2002), INCLUDE RECKLESS MISCONDUCT WHICH RESULTS IN THE UNNECESSARY INCURRENCE OF ATTORNEYS’ FEES?

Sky Development, Inc. v. Vista View Development, Inc., 35 Fla. L. Wkly D1478 (Fla. 3d DCA July 7, 2010)

In this case of modern day witness tampering, the CFO of Sky Development, Inc. first passed a witness a note during the deposition, for which he was admonished, then, at trial, during a sidebar, sent the same witness two text messages advising him on his testimony.  After discovering the text messages, the trial court immediately declared a mistrial.  Vista View then moved for dismissal, which the court granted, with prejudice.

The 3d DCA upheld the dismissal, finding that the CFO’s conduct was a “blatant showing of fraud, pretense, collusion, or other similar wrongdoing.”  See Laurore v. Miami Auto Retail, Inc., 16 So.2d 862, 864 (Fla. 3d DCA 2009).

Sky Development, Inc. v. Vista View Development, Inc., 35 Fla. L. Wkly D1478 (Fla. 3d DCA July 7, 2010)

Effective Teleservices, Inc. Et Al. v. Smith, 34 Fla. L. Weekly D1692b (Fla. 4th DCA Aug. 19, 2009)

In this case, appellee received an attorneys’ fee judgment based upon a sanction award for discovery violations by appellants.  The award, however, reflected an hourly rate that exceeded the rate actually billed to the client.  The court found this to be error and reversed.

Effective Teleservices, Inc. et al. v. Smith, 34 Fla. L. Weekly D1692b (Fla. 4th DCA Aug. 19, 2009)

1.525 Motions For Costs and Attorneys Fees

Jorge Manzano et al. v. Franco Nicoletti et al., 34 Fla. L. Wkly D1435b (Fla. 3d DCA July 15, 2009)

In this breach of contract case, plaintiffs filed a motion to take the prisoner-defendant’s deposition.  Plaintiffs tried to appear telephonically at the hearing on their motion but failed to do so.  At the hearing, the trial court reviewed the complaint and dismissed it sua sponte for failure to state a cause of action.  The appellate court accepted defendants’ confession of error and reversed, holding that where a trial court wishes sua sponte to raise the legal sufficiency of the complaint, the court must give the plaintiffs notice and a reasonable opportunity to respond in writing or at a hearing.

Jorge Manzano et al. v. Franco Nicoletti et al., 34 Fla. L. Wkly D1435b (Fla. 3d DCA July 15, 2009)

Florida Rule of Civil Procedure 1.380