12-000183TTS Florida A And M University Board Of Trustees vs. Laurence Tromly Status: Closed Recommended Order on Thursday, April 12, 2012.

Summary: Recomended dismissal of Petition for Administrative Hearing as a result of Respondent's repeated attempt to delay proceedings.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA A AND M UNIVERSITY )

BOARD OF TRUSTEES, )

)

Petitioner, )

) Case No. 1 2 - 0183TTS

vs. )

)

LAURENCE TROMLY , )

)

Respondent. )

)

RECOMMENDED ORDER OF DISMISSAL

A hearing was held pursuant to notice, on April 1 0 , 20 12 , in

Tallahassee, Flo rida, before the Division of Administrative

Hearings by its designated Administrative Law Judge , Barbara J.

Staros .

APPEARANCES

For Petitioner: Maria A. Santoro, Esquire

George, Hartz, Lundeen , Etc.

863 East Park Avenue

Tallahass ee, Florida 32301

For Respondent: No appearance

STATEMENT OF THE ISSUE S

Whether Respondent's Amended Petition for Administrative

Hearing should be dismissed and whether the Board of Trustees of

Florida A and M University should issue a final order dismissing

Respondent from employment?

PRELIMINARY STATEMENT

Because of the procedural nature of the findings in this

case, the matters normally contained in the P reliminary Statement

are reflected in the Findings of F act below.

FINDINGS OF FACT

1. By letter dated November 10 , 20 11 , Petitioner , the

Florida Agricultural and Mechanical University ( the University )

notified Respondent, Laurence Tromly , that his employm ent with the

University was terminated effective immediately. R espondent filed

a Petition for an administrative hearing through his attorney to

contest the d ismissal .

2. The University transmitted the case to the Division of

Administrative Hearings (Division) on or about January 1 7 , 20 1 2 ,

for the purpose of conducting a formal administrative hearing. A

Notice of Hearing and Order of Pre - Hearing Instructions were

issued on January 26 , 2 0 1 2 , setting the case for hearing on

April 10 through 1 3 , 20 12. The Order of Pre - Hearing Instructions

required the parties to meet no later than ten days prior to the

date of the hearing to discuss the possibility of settlement and

many pre - hearing matter s, and to file a pre - hearing stipulation a

week prior to the hearing or, if for any reason the pre - hearing

stipulation could not be executed by all parties, to file separate

proposed pre - he aring statements no later than five days before the

final hearing.

3. On March 12, 2012, c ounsel for Respondent filed a Motion

to Withdraw as Counsel. In the Motion, Respondent's attorney

stated that she had made repeated attempts to contact her client

by certified mail, numerous phone messages, e - mail correspondence,

and regular U.S. mail. Despite these attempts to communicate with

her client, she was unable to do so.

4. Pursuant to Florida Administrative Code Rules 28 - 106.103

and 106.204, the undersigned waited the requisite number of days

to rule on the motion, gi ving Respondent ample opportunity to file

an objection or any clarification as to why the motion should not

be granted. On March 27, 2012, the undersigned entered an Order

granting Motion to Withdraw as Counsel, mailing a copy to

Respondent at the last kn own address for Respondent as reflected

in his former counsel's motion.

5. On April 4, 2012, the University filed a Unilateral Pre -

hearing Stipulation and Motion to Dismiss. Counsel for the

University stated in the unilateral statement that she sent

correspondence via e - mail and U.S. Certified M ail to Petitioner

enclosing a copy of the Pre - Hearing Instructions as asserted that

the parties are expected to discuss the possibili ty of settlement

and any pre - hearing stipulations. Counsel for the University also

requested Respondent to contact their office for a mutually

convenient time to meet to comply with the O rder of Pre - Hearing

Instructions.

6. At the time of filing the Unil ateral Pre - hearing

Statement and Motion to Dismiss, counsel for the University had

not received a ny response from Respondent.

7. On the morning of the scheduled hearing, the undersigned

attempted to convene the heari ng as scheduled. However, the c ourt

re p orter had not arrived yet. Shortly after 9:30 a.m. , the

undersigned's assistant entered the hearing room to inform that

Respondent had called and told her that he was on the i nterstate

and that his car was broken down. This was the first

communication t his office received from Respondent. The

undersigned informed counsel for the University , who were present

in the hearing room and prepared for hearing, that the hearing

would convene at 10:30 a.m. , and that Respondent would be

c onnected to the room by sp eaker phone . The undersigned then left

the hearing room , to return at 10:30 .

8. Immediately after leaving the hearing room, the

undersigned instructed her assistant to call Respondent at the

phone number provided to her by Respondent. Upon calling the

nu mber at approximately 9:45 a.m. , she reached Respondent's voice

mail and left a message for Respondent to call her. Not having

received a return call from Respondent, the undersigned's

assistant again called Respondent at approximately 10:25 a.m. and

left another voice mail message to call her immediately.

9. The hearing commenced at 10:30 a.m . Counsel for the

University renewed the Motion to Dismiss. 1/ Counsel for the

U niversity also stated that Respondent did call her the week prior

to hearing, apparently in response to her correspondence to him,

and that she (the attorney for the University) stressed to

Respondent the importance of compl y ing with the Order of Pre -

Hearing Instructions and o f his appearance at the hearing. No

request for a continuance of the hearing was ever made by

Respondent.

10. Due to Respondent's repeated actions of avoidance and

delay , including avoiding all communications with his attorney,

failure to respond timely to the University's attorney, failure to

make any attempt to comply with the Order of P re - Hearing

Instructions, failure to contact the undersigned's office prior to

the date of the hearing regarding any request for a continuance ,

and failure to appear at t he final hearing, the Motion to Dismiss

was granted and the hearing adjourned.

11. Shortly after the hearing was adjourned, Respondent

called the undersigned's assistant at approximately 10:50 a.m. He

was informed that the hearing had adjourned and that the

undersigned would enter an order.

CONCLUSIONS OF LAW

12 . The Division of Administrative Hearings has jurisdiction

over the parties and subject matter of this proceeding.

§§ 120.569 and 120.57, Fla . Stat .

1 3 . Respondent requested an administrative hearing to

contest his dismissal from employment. Respondent failed to

cooperate with his attorney, placing that attorney in a position

to be unable to prepare for hearing. Respondent repeatedly

avoided any effort to enable his case to move forward, including

failing to cooperate with counsel for the University in complying

with the Order of Pre - Hearing Instructions and failing to contact

the undersigned's office prior to the date and time of the

hearing. No request for a continuance was ever made by

Respondent. A party may not request a hearing and then do nothing

to move toward its resolution.

RECOMMENDATION

Based upon the foregoing Findings of Fact and the Conclusions

of Law, it is

RECOMMENDED:

That Florida A and M University Board of Trustees enter a

final order d ismiss ing Petitioner's Petition for Administrative

Hearing and Dismissing Petitioner from employment .

DONE AND ENTERED this 12 th day of April , 20 12 , in

Tallahassee , Leon County, Florida.

S

___________________________________

BARBARA J. STAROS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 12 th day of April , 20 12 .

ENDNOTE

1/ Counsel for the University also made an ore tenus motion for

attorney's fees and costs. The motion was noted and may be

entertained at a later time following the entry of a Final Order

when a prevailing party has been determined and the statutory

basis for the m otion has been clarified.

COPIES FURNISHED :

Laurence Tromly

1619 Lake Ella Drive

Tallahassee, Florida 32303

Maria A. Santoro, Esquire

George, Hartz, Lundeen, Etc.

863 Lake Ella Drive

Tallahassee , Florida 32 303

Avery McKnight , Esquire

Florida A&M University

300 Lee Hall

1601 Martin Luther King Jr. Boulevard

Tallahassee, Florida 3230 3

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

days from the date of this Recommended Order. Any except ions to

this Recommended Order should be filed with the agency that will

issue th e final order in this case.