TERRENCE E. ROSENBERG, APPELLANT,
v.
ALBERT MILLER AND E. LEORA MILLER, HIS WIFE, APPELLEES
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Rosenberg appeals the trial court's order striking his answer and counterclaim for failure to timely file in response to an amended complaint. The appellate court reversed the striking order, holding that the trial court should have treated the motion as an involuntary dismissal under Florida Rule of Civil Procedure 1.420(b), which requires proper notice of hearing.
The trial court erred in striking the pleadings without following proper procedures. Because the case involved failure to comply with a court order rather than defective pleading content, the motion should have been treated as a motion for involuntary dismissal under Rule 1.420(b), which requires notice of hearing. The striking order is reversed.
[1] Striking a party's pleadings is an extreme sanction that should only be imposed in egregious circumstances.
[2] A motion to strike a pleading for failure to comply with a court-ordered deadline should be treated as a motion for involuntary dismissal.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The record in this case does not present the extreme case required to justify a sanction as severe as striking the pleadings.”
Establishes that striking pleadings requires exceptional circumstances not met here
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceThe Millers sued Rosenberg to foreclose a mortgage. The trial court denied Rosenberg's motion to dismiss and granted the Millers' motion to amend the …
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[*886] BASKIN, Judge.
This is an appeal from an order dismissing appellant Rosenberg’s answer and counterclaim, striking his answer and counterclaim, and denying his motion for judgment on the pleadings. We reverse in part.
The Millers sued Rosenberg seeking to foreclose a mortgage. Rosenberg moved to dismiss the claim. The trial court denied the motion, and the Millers amended their complaint. In an order dated October 14, 1983, the trial court granted the Millers’ motion to amend the complaint and required Rosenberg to file his answer to the amended complaint within 15 days from the date of the order, that is, by October 29, 1983. Rosenberg’s answer and counterclaim were not served until November 22, 1983, were filed December 1, 1983, and were recorded March 7, 1984. Upon motion to strike filed by the Millers, the trial court entered an order striking and dismissing the answer and counterclaim.
The record in this case does not present the extreme case required to justify a sanction as severe as striking the pleadings. J.I.Case Co. v. Steel Fabricators, Inc., 438 So. 2d 881 (Fla. 4th DCA 1983). Furthermore, because this case involves appellant’s failure to comply with a court order setting forth a specific time to file an answer rather than the existence of “redundant, immaterial or scandalous matter [in a] pleading_”, Fla.R.Civ.P. 1.140(f), the motion to strike should have been treated as a motion for involuntary dismissal pursuant to Florida Rule of Civil Procedure 1.420(b)(1981).
Rule 1.420(b) provides, in pertinent part:
Involuntary Dismissal. Any party may move for dismissal of an action or of any claim against him for failure of an adverse party to comply with these rules or any order of court. Notice of hearing on the motion shall be served as required under Rule 1.090(d). (emphasis added)
The notice required by Rule 1.420(b) was not served. See Edward L. Nezelek, Inc. v. Sunbeam Television Corp., 413 So. 2d 51 (Fla. 3d DCA), review denied, 424 So. 2d 763 (Fla.1982). We therefore reverse the portion of the order dismissing and striking Rosenberg’s answer and counterclaim. Finding no merit in the remaining points, we affirm the trial court’s denial of Rosenberg’s motion for judgment on the pleadings.
Affirmed in part; reversed in part and remanded for further proceedings.
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Evangelos v. H.H. Dachiel, 605 So. 2d 577 (Fla. 3d DCA 1992)…). Here, however, defendants had their pleadings stricken and a substantial default judgment entered against them. This case “does not present the extreme case required to justify a sanction as severe as striking the pleadings.” Rosenberg v. Miller, 453 So. 2d 885, 886 (Fla. 3d DCA 1984). See also World on Wheels, Inc. v. International Auto Motors, Inc., 569 So. 2d 836 (Fla. 3d DCA 1990). Accordingly, we reverse the final judgment and the order striking the defendants’ pleadings, and remand for further proc…
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Christel Plaza Corp. v. S. Skating, Inc., 829 So. 2d 382 (Fla. 3d DCA 2002)…nder the circumstances herein, which involved the actions of the intervener’s counsel and not his client, we reverse for reinstatement. See e.g. Town of Manalapan v. Florida Power & Light Co., 815 So. 2d 670 (Fla. 4th DCA 2002); Rosenberg v. Miller, 453 So. 2d 885 (Fla. 3d DCA 1984). Upon remand, the trial court may consider imposing a more appropriate sanction upon the attorney. Reversed and remanded with directions to reinstate the action.…
Authorities Cited
- Edward L. Nezelek, Inc. v. Sunbeam Television Corp., 413 So. 2d 51 (Fla. 3d DCA 1982)
- J.I. Case Co. v. Steel Fabricators, Inc., 438 So. 2d 881 (Fla. 4th DCA 1983)