ROSEMARIE JACKSON, APPELLANT,
v.
ROBERT M. LAYNE, JR., APPELLEE
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The court held that the trial court abused its discretion by dismissing the paternity and child support action with prejudice.
[1] Dismissal with prejudice is an inappropriate sanction for a party's failure to submit to a blood test absent a showing of willful disregard of a court order and a failure…
[2] A trial court's dismissal of a cause of action for failure to prosecute cannot be entered with prejudice.
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Join FLexlaw to unlock all legal intelligenceThe trial court dismissed the action based on the plaintiff's failure to submit to a blood test and identify a photograph. The plaintiff appealed this…
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BASKIN, Judge.
We reverse the trial court’s order dismissing with prejudice Jackson’s cause of action seeking to determine paternity and to obtain child support. The trial court based its dismissal on Jackson’s failure to submit to a blood test and upon her failure to identify appellee Layne’s photograph.
The record fails to indicate that Jackson willfully disregarded a written order requiring the parties tb submit to blood tests. Furthermore, the trial court failed to afford Jackson an additional opportunity for compliance. Thus, no logical basis for the severe sanction of dismissal with prejudice exists under either rule 1.380(b) or rule 1.420(b), Florida Rules of Civil Procedure. See Beaver Crane Service, Inc. v. National Surety Corp., 373 So. 2d 88 (Fla. 3d DCA 1979); Goldstein v. Goldstein, 284 So. 2d 225 (Fla. 3d DCA 1973); Hurley v. Werly, 203 So. 2d 530 (Fla. 2d DCA 1967). Cf. Watson v. Peskoe, 407 So. 2d 954 (Fla. 3d DCA 1981) (where court entered final judgment for appellee on finding that appel lant’s failure to comply with three prior orders instructing appellant to produce documents constituted willful disregard, imposition of sanction of dismissal not abuse of trial court’s discretion). In addition, dismissal is not warranted by Jackson’s failure to identify Layne’s photograph.
Layne argues that the trial court was correct in dismissing Jackson’s cause of action for lack of prosecution. The trial judge specified that dismissal was based on Jackson’s failure to submit to the blood test and failure to identify Layne’s photograph; the court made no mention of lack of prosecution. Even if the trial court had based its dismissal on that theory, a dismissal for failure to prosecute may not be entered with prejudice. Gold Coast Graphics, Inc. v. Rachline, 448 So. 2d 544 (Fla. 3d DCA 1984); Hamilton v. Millnul Associates, 443 So. 2d 485 (Fla. 3d DCA 1984).
Accordingly, we find that the trial court abused its discretion in dismissing the cause. We therefore reverse the order appealed, reinstate the cause, and remand for further proceedings.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Michniak v. Michniak, 601 So. 2d 1305 (Fla. 4th DCA 1992)…finding that appellant willfully failed to appear on the date of the final hearing. Dismissal with prejudice is a severe sanction, especially where there is no finding of willful failure to appear on the part of the appellant. See Jackson v. Layne, 464 So. 2d 1242 (Fla. 3d DCA1985). It does not appear warranted under these facts, especially where there were other sanctions available, if needed. Reversed and remanded to the trial court to vacate the order dismissing the cause with prejudice. No petition for r…
Authorities Cited
- Watson v. Peskoe, 407 So. 2d 954 (Fla. 3d DCA 1981)
- Cummings v. S.C. Ins. Co., 373 So. 2d 88 (Fla. 3d DCA 1979)
- Hurley v. Werly, 203 So. 2d 530 (Fla. 2d DCA 1967)
- Goldstein v. Goldstein, 284 So. 2d 225 (Fla. 3d DCA 1973)
- Hamilton v. Millnul Assocs., 443 So. 2d 485 (Fla. 2d DCA 1984)
- Gold Coast Graphics, Inc. v. Rachline, 448 So. 2d 544 (Fla. 3d DCA 1984)