Summary
reversing order that dismissed action as a sanction for appellant's failure to comply with pretrial conference order because it lacked "a finding which indicates that the party's conduct was willful or deliberate" (citing Commonwealth Fed. Sav. & Loan Ass'n v. Tubero, 569 So. 2d 1271 (Fla. 1990) )
Summary of this case from Engle v. EngleOpinion
Case No. 1D01-1520.
Opinion filed December 19, 2002.
An appeal from Circuit Court for Alachua County. Chester B. Chance, Judge.
Nolan Carter and Joanna Holley of Law Office of Nolan Carter, P.A., Orlando, for Appellant.
John D. Jopling and David M. Delaney of Dell Graham, P.A., Gainesville, for Appellee Florida Board of Education.
The appellants challenge an order by which their medical malpractice action was dismissed, upon a finding that they failed to comply with a pretrial conference order. As indicated in cases such as Commonwealth Federal Savings Loan Ass'n v. Tubero, 569 So.2d 1271 (Fla. 1990), dismissal is a severe sanction which should be used only in extreme circumstances. Tubero reiterated the description of such circumstances in Mercer v. Raine, 443 So.2d 944 (Fla. 1983), referring to a deliberate and contumacious disregard of the court's authority, or bad faith, willful disregard or gross indifference, or conduct which otherwise evinces deliberate callousness. Acknowledging the court's discretion to sanction a party in these circumstances, Tubero requires that an order sanctioning a party by dismissal contain a finding which indicates that the party's conduct was willful or deliberate. The appealed order in the present case does not contain such a finding, and in accordance with Tubero the order must be reversed. See, e.g., First Fairway Condominium I Ass'n v. Gulfstream Roofing, Inc., 701 So.2d 652 (Fla. 4th DCA 1997). The appealed order is therefore reversed and the case is remanded.
ALLEN, C.J., DAVIS and PADOVANO, JJ., CONCUR.
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED