YVETTE EPPS, APPELLANT,
v.
DEBORAH HARTLEY AND DAVID HARTLEY, APPELLEES
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Plaintiff Epps appeals dismissal with prejudice of her complaint after she failed to appear for trial on short notice. The court affirmed the trial judge's refusal to continue the case but reversed the dismissal with prejudice as an abuse of discretion, holding that such severe sanctions were inappropriate given that trial was set on standby with only a few hours' notice.
The trial court did not abuse its discretion in refusing the continuance, but it did abuse its discretion by dismissing with prejudice. Dismissal with prejudice was an excessively severe sanction given that plaintiff was on standby status with only a few hours' notice of the definite trial time. The dismissal should have been without prejudice.
[1] A trial court does not abuse its discretion by refusing a continuance on the day of trial when the plaintiff fails to appear.
[2] Dismissal with prejudice is an abuse of discretion when imposed for a plaintiff's failure to appear on the day of trial, especially when the trial time was set only a few…
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Join FLexlaw to unlock all legal intelligence“the dismissal with prejudice was an abuse of discretion, because this was far too severe a punishment for the trial court to impose for the plaintiff's failure to be in court when the plaintiff had been on "standby" and the definite trial time had only been set a few hours earlier”
Establishes the court's holding that dismissal with prejudice was disproportionate to the circumstances
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Join FLexlaw to unlock all legal intelligenceThe trial court set the case for a two-week trial period beginning January 20, 1986, with calendar call on January 16. On January 23 at 3:00 p.m., the…
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GUNTHER, Judge.
Plaintiff appeals the final order of dismissal with prejudice of her complaint. We affirm in part and reverse in part.
On December 13, 1985, the trial judge issued an order setting the case for a two-week period beginning Monday, January 20, 1986. Calendar call was set for January 16, 1986, at 3:00 p.m.
On the afternoon of Thursday, January 23, 1986, the trial judge’s office called counsel for petitioner to advise that the court was starting another case and petitioner’s case was on standby. If the case before it settled, petitioner was told he would be called to trial. At 11:00 a.m. the next day, the court called petitioner’s counsel and advised him that the court wanted him to begin trial at 1:30 p.m. on the same day.
The trial court refused to delay the beginning of trial for the five-hour period requested, and advised petitioner’s counsel to either proceed to trial and select a jury without the presence of his client or the case would be dismissed. Petitioner’s counsel opted not to proceed to trial because he felt he would be remiss in his duty to his client if he proceeded without her. The trial court then gave petitioner’s counsel the choice of either voluntarily dismissing the case or having a ruling from the court. Counsel chose a ruling from the court, and the court dismissed the cause with prejudice.
The trial court did not abuse its discretion when it refused to grant the plaintiff’s motion for continuance on the day of trial and dismissed the complaint. However, the dismissal with prejudice was an abuse of discretion, because this was far too severe a punishment for the trial court to impose for the plaintiff’s failure to be in court when the plaintiff had been on “standby” and the definite trial time had only been set a few hours earlier. The power to dismiss a plaintiff’s complaint arises from the fact that a suitor is presumed to agree to abide by the rules when, by his or her action, the machinery of the judicial system is put in operation. Whiteside v. Whiteside, 468 So. 2d 407 (Fla. 4th DCA 1985). Even so, the power is not unbridled. It may be exercised to suspend a plaintiff’s right to proceed but not to serve as an adjudication on the merits. Whiteside, 468 So. 2d at 409.
Therefore, the dismissal with prejudice is reversed, and the matter is remanded to the trial court to exercise its discretion to enter a dismissal without prejudice.
AFFIRMED IN PART; REVERSED IN PART, AND REMANDED WITH INSTRUCTIONS.
DOWNEY and WALDEN, JJ., concur.
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