Hello again...you asked:
1. Can a judge just insist that dates go forward as she pleases even though a party lives in another state and must travel by plane to get to court? Is there no requirement that a party has the right to be heard and therefore, must receive sufficient notice?
A: The judge's orders re trial are considered fundamental to the court's inherent authority to manage its affairs. You can always claim that you are being denied due process of law. But, the judge must consider due process for each party in the case, and as much as you may be looking for latitude from the court, the other party may be looking to "get the case over with as quickly as possible." Consequently, the judge generally has the authority to set dates on the calender, and only upon a showing of "good cause" (clear justification), is the court obliged to change the calendar.
I'm sounding all "legalistic" here -- the botXXXXX XXXXXne is that challenging the court's calendaring of events is sort of like challenging an umpire in baseball who yells "play ball." The umpire's announcement is first and final, and if either team fails to take the field, they will immediately forfeit the entire game. 2. No order was entered regarding the evidentiary hearing other than a standard form order setting the case for trial but stating nothing about the striking of my pleadings. Is this abnormal? I always thought there would have to be an order regarding the substance of a hearing.
A: The trial court, according to your comments about the appellate court remand, must hold a hearing to determine whether or not to strike your pleadings. Your opponent must set forth evidence to show that you willfully violated the discovery rules, and you must show that you either did not violate the rules, or that the violation was sufficient to warrant striking your pleadings. Here's the law:
The striking of a party's pleadings as a sanction for discovery misconduct is authorized pursuant to Florida Rule of Civil Procedure 1.380. The striking of pleadings, though, is "the most severe of penalties and must be employed only in extreme circumstances." Poling v. Palm Coast Abstract & Title, Inc., 882 So.2d 483, 486 (Fla. 5th DCA 2004)
(citing Mercer v. Raine, 443 So.2d 944 (Fla.1983)
). The striking of a party's pleadings is justified only where there is "`a deliberate and contumacious disregard of the court's authority.'" Barnett v. Barnett, 718 So.2d 302, 304 (Fla. 2d DCA 1998)
(quoting Mercer, 443 So.2d at 946
). In assessing whether the striking of a party's pleadings is warranted, courts are to look to the following factors:
80*80 1) whether the attorney's disobedience was willful, deliberate, or contumacious, rather than an act of neglect or inexperience; 2) whether the attorney has been previously sanctioned; 3) whether the client was personally involved in the act of disobedience; 4) whether the delay prejudiced the opposing party through undue expense, loss of evidence, or in some other fashion; 5) whether the attorney offered reasonable justification for noncompliance; and 6) whether the delay created significant problems of judicial administration.
Kozel v. Ostendorf, 629 So.2d 817, 818 (Fla.1993). The emphasis should be on the prejudice suffered by the opposing party. See Ham v. Dunmire, 891 So.2d 492, 502 (Fla.2004); Owens v. Howard, 662 So.2d 1325, 1327 (Fla. 2d DCA 1995) (stating that "[t]his court has refused to approve of the dismissal of a cause of action as a sanction for discovery violations when the appellee had not shown prejudice"). After considering these factors, if a sanction less severe than the striking of a party's pleadings is "a viable alternative," then the trial court should utilize such alternatives. Kozel, 629 So.2d at 818. "The purpose of the Florida Rules of Civil Procedure is to encourage the orderly movement of litigation" and "[t]his purpose usually can be accomplished by the imposition of a sanction that is less harsh than dismissal" or the striking of a party's pleadings. Id. 3. Subsequent to the hearing, the judge entered an order that requires conformance with pretrial procedures one of which is that all witnesses be declared 45 days before trial. The problem is that on the date that trial was set, there weren't 45 days to trial. There were only 28 days. Worse, on the date this order was entered, there were only 13 days to trial. That forecloses me from putting on witnesses. Isn't that a violation of due process? (By the time I learned of this order, it was less only 8 days to trial, so pleadings were also closed by the order and I can't file anything.)
A: What you describe seems to be a pretty clear violation of due process. I'd say you have, the right to move for a continuance of the trial date to permit you to provide the requisite witness list, or that the court must modify the prior order to permit you to provide a witness list within the remaining time available. Were I in your situation, I would offer the witness list, and let your opponent object. Then, you would make your argument, and if the judge refuses to accept the witness list, then you have grounds to appeal for a new trial -- because your due process rights were violated. 4. The case involves domestic violence which the same court previously found when it entered an injunction for protection. I have previously motioned the court to dispense with mediation. Florida Statute Section 44.1028(c) states that "upon motion or request of a party, a court shall not refer any case to mediation if it finds there has been a history of domestic violence that would compromise the mediation process." That doesn't sound discretionary to me. Am I wrong?
A: Everything provides some level of discretion to the court (except, perhaps, for informing a defendant of his or her rights in a criminal case -- which is inapplicable to your circumstances). I think you have a valid ground for asking the judge to waive mediation, again. You have to realize that the judge is busy, and probably won't remember from hearing to hearing that there is a domestic violence issue involved. If the judge makes a mistake, you must get it into the record and request the waiver -- again. Without the record of your objection, you can't appeal. 5. I filed a motion for disqualification of the trial judge. Long story, but she's done and said so many things that indicate her incredible bias against me and a couple of the lawyers here recommended I try it. According to FL Rules of Judicial Administration, she was supposed to only consider whether or not my motion was legally sufficient, NOT the merits of my motion itself. (I've seen several other orders in FL on these types of motions and they always state that the motion was legally insufficient.) Her order states nothing about the sufficiency of my motion, but merely states that "upon consideration, the motion is hereby denied." What exactly what does "upon consideration" actually mean? Does it mean that she considered the legal sufficiency or the merits? Or is there no way to tell?
A: It means that the judge is doing what family court
judges are famous for doing: ignoring the law and challenging parties to appeal. The failure to state any findings about the legal sufficiency of the motion is harmful error, if the merits of the motion would have been sufficient to disqualify the judge. So, here again, you'll have to appeal, if you want to disqualify the judge. Thank you very much.
A: You're very welcome. And, thanks for using justanwer.com!