JUSTINE G. GORDON, Appellant,
GATLIN COMMONS PROPERTY OWNERS ASSOCIATION, INC. and NORTHSIDE NURSERY, INC., Appellees.
final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Nineteenth Judicial Circuit,
St. Lucie County; Janet Croom, Judge; L.T. Case No.
M. Katzman and Craig A. Rubinstein of Katzman, Wasserman,
Bennardini & Rubinstein, P.A., Boca Raton, and Lauri J.
Goldstein of A Law Firm of Lauri J. Goldstein &
Associates, PLLC, Stuart, for appellant.
Sandridge of Buchanan Ingersoll & Rooney PC, Tampa, for
Appellee Northside Nursery, Inc.
second time, the plaintiff, Justine Gordon, appeals an order
dismissing her personal injury complaint as a sanction for
her attorneys' failure to comply with court orders.
the prior appeal, we reversed the trial court's order of
dismissal and remanded the case for the trial court to make
express findings under Kozel v. Ostendorf, 629 So.2d
817 (Fla. 1993). See Gordon v. Gatlin Commons Prop.
Owners Ass'n, Inc., 199 So.3d 1120 (Fla. 4th DCA
2016). On remand, the trial court held an evidentiary hearing
and entered an order of dismissal that considered the
Kozel factors. We again reverse, concluding that
dismissal was too harsh a sanction.
2012, the plaintiff filed her personal injury complaint
against various defendants. After fifteen months of
discovery, she amended the complaint in September 2013 to add
Northside Nursery as a defendant. The plaintiff alleged that
Northside owned, leased, operated, possessed, controlled,
and/or maintained the premises where she had slipped and
fallen into a hole.
December 9, 2014, the plaintiff filed a notice for jury
trial, indicating that the case was at issue and ready for
trial. On January 29, 2015, the trial court entered a
pre-trial procedure order and set calendar call for non-jury
trial on the March 24, 2015 - May 15, 2015 trial docket. On
February 6, 2015, the trial court entered an amended order,
which, among other things:
• instructed the Parties: "if Plaintiff's
counsel fails to appear for calendar call, the complaint may
be dismissed by the court";
•required the plaintiff's expert disclosures no less
than forty-five days before calendar call;
•required all potential fact witnesses to be disclosed
no less than thirty days before calendar call;
• required all discovery to be completed five days
before calendar call, absent an agreement;
•warned that failure to comply with the pre-trial order
must be reported by filing a "Suggestion of
Noncompliance with Pre-Trial Order";
•warned that failure to appear at calendar call and
failure to comply with the order may result in sanctions such
as striking of pleadings, default, or case dismissal; and
• required that any motion to continue comply with
Florida Rule of Civil Procedure 1.460 and include the
requesting party's signature.
February 23, 2015, Northside filed an ex parte motion to
compel the plaintiff to answer interrogatories that were
served on November 24, 2014. Northside also filed a
suggestion of non-compliance with the pre-trial order, a
motion to strike, or in the alternative, a motion to
continue. Northside alleged that the plaintiff had not
disclosed any potential expert witnesses, as required, by
February 9, 2015. It noted that the pre-trial order required
discovery to be concluded by March 16, 2015, that the
plaintiff's failure to disclose any experts rendered
Northside unable to ...