The Fourth District Court of Appeal on Wednesday reversed a ruling that dismissed a plaintiff’s case as punishment for his lawyer, who’d missed a calendar call and failed to comply with a pretrial order.
The appellate panel overturned Palm Beach Circuit Judge Judge Edward A. Garrison, who had dismissed the case March 6, after West Palm Beach lawyer Henry L. Kaye was a no-show March 1.
Days later, Kaye moved to quash the dismissal, explaining that in July 2017 his office manager of 10 years, Cynthia Phillips, had died suddenly — taking her email password with her. According to Kaye’s motion, the court’s order setting a trial date had been sent to Phillips’ inbox, not his.
Kaye’s motion was denied.
Although dismissing the case was within Garrison’s discretion, the appellate court found the move too extreme. To dismiss a complaint that way, there should be explicit evidence of willful noncompliance, according to the panel, made up of Fourth DCA Judges Dorian K. Damoorgian and Mark W. Klingensmith and Broward County Court Judge Daniel J. Kanner, sitting by special designation.
Read the court order:
Kaye represented the owner of an advertising company, Neil London, in a contract and debt case brought against a customer, John Temerian. According to the 2011 complaint, Temerian owed almost $20,000 in unpaid bills and London sought $44,000 in damages, plus interest, attorney fees and costs.
At the calendar call, the case would have been set for trial sometime in March or April.
Temerian’s lawyer, Shai Ozery of Robert N. Hartsell in Pompano Beach, said he was disappointed with the decision. According to Ozery, the dismissal was based on more than just one failure.
“It wasn’t that everything had been done up until calendar call, and then he just simply missed calendar call,” Ozery said.
Ozery’s response to Kaye’s motion for rehearing pointed out that Kaye had filed a motion for trial in February 2017, so the plaintiff should have been “expecting and anticipating an action” on his own motion, and should have investigated or inquired about it.
“I don’t think there was anything done on that case since he noticed it for trial in February 2017,” Ozery said.
The pre-trial order was sent out in October 2017, months ahead of the calendar call. The way Ozery sees it, Kaye’s noncompliance was willful.
Kaye did not respond to a request for comment before deadline.
According to Kaye’s motion, he found out the case had been dismissed through London’s previous lawyer, David Mogul, who was still receiving notices. He also stated that he’d never failed to comply with a court order since being admitted to the bar in 1963.
This isn’t the first time a judge’s sanction has come into question. In 2015, one lawyer’s bathroom break resulted in a summary judgment for the opposing counsel in a premises liability case.
That attorney had thought he had enough time to go the restroom before a hearing, but Palm Beach Circuit Judge Thomas Barkdull disagreed. The decision was later reversed on appeal.
In the case of Kaye’s client, London’s appellate lawyer, Troy William Klein of the Law Office of Troy W. Klein in West Palm Beach, did not respond to requests for comment before deadline. The case will return to trial court for further proceedings.