May 24, 2012

Bresky Law Obtains Reversal of Order Dismissing Nursing Home Abuse Case

Kaufman v. FS Tenant Pool III Trust
Case No. 4D10-5122

We represented an elderly plaintiff who brought suit against a nursing home, through her daughter as power of attorney. Our client alleged multiple abuses by the nursing home in violation of its duty of care pursuant to sections 400.022(1), (2)(n) and (2)(o), Florida Statutes. Our client’s trial counsel withdrew from the case sometime after filing the complaint and the case being referred to arbitration. Our client later failed to attend a mandatory case management conference set by the trial court. The trial court dismissed her case as a sanction.

On appeal, we argued that the trial court could not dismiss our client’s case as a sanction for failing to attend the case management conference without making a finding that our client’s failure to attend was willful. We relied upon previous Florida cases from the Fourth DCA and other courts holding that a finding of willful and contumacious conduct was required before a trial court could dismiss a case as a sanction, and that the failure to make such a finding constitutes an abuse of discretion. Dedmon v. Kelly, 60 So. 3d 585, 587 (Fla. 4th DCA 2011); First Fairway Condo. I Ass’n v. Gulfstream Roofing, Inc., 701 So. 2d 652, 653 (Fla. 4th DCA 1997); Zeigler v. Huston, 626 So. 2d 1046, 1047 (Fla. 4th DCA 1993).

The Fourth DCA agreed with our position and reversed the order dismissing the case. The court remanded, and noted that dismissal might still be appropriate if the trial court could make a finding of willful noncompliance. This result provides our client an attempt to avoid dismissal and have the case to proceed on its merits.

** [Note: At the time of this posting, the Fourth DCA mandate has not issued. The decision will not be final until disposition of any timely filed motion for rehearing.] **