Summary
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
Summary of this case from Sienkiewicz v. Aqua Lift, Inc.Opinion
No. 73-966.
October 24, 1973.
Petition for review from the Circuit Court Dade County, David Popper, J.
Cushman Cushman, Miami for petitioner.
Lionel Barnet, North Miami Beach, for respondent.
Before PEARSON, CHARLES CARROLL and HENDRY, JJ.
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."
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."
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.