JIMMY F. WRIGHT, APPELLANT,
v.
J. JAMES ALLEN, ESQUIRE, ET AL., APPELLEES
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Wright appeals the dismissal of his civil malpractice action with prejudice. The court reversed, holding that the trial court lacked proper authority under Florida Rules of Civil Procedure 1.420(b) and 1.420(e) to enter the dismissal because it failed to make required written findings and improperly dismissed with prejudice.
The trial court erred in dismissing the action with prejudice. A dismissal under Rule 1.420(b) requires specific written findings reflecting deliberate or willful conduct, which were absent here. A dismissal under Rule 1.420(e) for failure to prosecute must be without prejudice, and the court's earlier order reinstating the case constituted sufficient record activity to preclude such dismissal.
[1] A trial court must make specific written findings reflecting the deliberate or willful nature of conduct before imposing dismissal with prejudice as a sanction for failur…
[2] Dismissal for failure to prosecute under Florida Rule of Civil Procedure 1.420(e) must be without prejudice.
Previewing 2 of 3 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 supreme court held that a trial court must make specific written findings reflecting the deliberate or willful nature of the conduct in order to impose such a sanction of dismissal.”
Establishes the legal requirement for Rule 1.420(b) dismissals as sanctions
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Join FLexlaw to unlock all legal intelligenceWright filed a civil action alleging legal malpractice related to an earlier criminal conviction, sometimes represented by counsel and sometimes proce…
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ALLEN, Judge.
The appellant challenges an order dismissing his civil action with prejudice. We conclude that in the circumstances of this case it was error to enter such a dismissal.
The appellant’s civil action was predicated on allegations of legal malpractice and other claims related to an earlier criminal conviction. In this civil action the appellant was sometimes represented by coun sel, and at other times he proceeded pro se. After counsel filed a notice of voluntary-dismissal, the pro se appellant moved to set aside the voluntary dismissal, asserting that it was filed against his interests and without his knowledge. The court granted this motion, and allowed the appellant a fixed time to obtain representation by new counsel. When this time expired without an appearance by any new counsel, motions to dismiss were filed by various opposing parties and another involved entity. The court then entered the challenged order dismissing the action with prejudice.
The challenged order did not provide any explanation for the dismissal.
On appeal the appellees contend that dismissal was appropriate pursuant to Florida Rule of Civil Procedure 1.420(b), as a sanction for the appellant’s failure to obtain new counsel within the time allowed in the court’s order. While this ultimate sanction may be appropriate in aggravated situations, see e.g., Johnson v. Landmark First National Bank, 415 So. 2d 161 (Fla. 4th DCA 1982), this generally requires a deliberate and insubordinate disregard of the court’s authority, so as to amount to a willful abuse of the process. See El Mundo Supermarket, Inc. v. Michelsa Supermarket, Inc., 388 So. 2d 324 (Fla. 3d DCA 1980); In re: Estate of Ulm, 345 So. 2d 1099 (Fla. 2d DCA 1977).
Although there may be some question as to whether the pro se appellant’s failure to obtain new counsel would constitute such willful abuse, we find it unnecessary to resolve this question in the present appeal. In Commonwealth Federal Savings & Loan Ass’n. v. Tubero, 569 So. 2d 1271 (Fla.1990), the supreme court held that a trial court must make specific written findings reflecting the deliberate or willful nature of the conduct in order to impose such a sanction of dismissal. See also, Carillon Corp. v. Devick, 554 So. 2d 630 (Fla. 4th DCA 1989).
These findings were not made in the present case, and the dismissal is thus not a proper exercise of the court’s authority under rule 1.420(b).
As an alternative justification, the appellees argue that dismissal-is appropriate pursuant to Florida Rule of Civil Procedure 1.420(e), as a sanction for the appellant’s failure to prosecute the action.
However, such a dismissal under rule 1.420(e) must be without prejudice. See e.g., Kohly v. Wallach, 580 So. 2d 880 (Fla. 3d DCA 1991); Henson v. Whorf, 466 So. 2d 23 (Fla. 5th DCA 1985); see also, Bair v. Palm Beach Newspapers, Inc., 387 So. 2d 517 (Fla. 4th DCA 1980).
Furthermore, the court’s earlier order which granted the appellant’s motion to set aside the notice of voluntary dismissal effectively reinstated the case. This order was in itself sufficient record activity within the necessary time period to preclude a dismissal for failure to prosecute. See Bair. The dismissal is thus not a proper exercise of the court’s authority under rule 1.420(e).
The challenged order of dismissal is accordingly reversed, and the cause is remanded.
WOLF, J., concurs.
WEBSTER, J., concurs in result only.
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Tramel v. Runette J. Bass, 672 So. 2d 78 (Fla. 1st DCA 1996)…yees. . When a trial court imposes sanctions, its order, as here, should contain express written findings of the actions that support the sanctions. Commonwealth Federal Savings and Loan Ass’n v. Tubero, 569 So. 2d 1271 (Fla.1990); Wright v. Allen, 611 So. 2d 23 (Fla. 1st DCA 1992). . Section 30.07 provides: “Sheriffs may appoint deputies to act under them who shall have the [*84] same power as the sheriff appointing them, and for the neglect and default of whom in the execution of their office the sheriff…
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Durie v. Hanson, 691 So. 2d 485 (Fla. 5th DCA 1997)…e raised at any time”). Accordingly, we reverse. REVERSED. PETERSON, C.J., and GRIFFIN, J., concur. . We note that dismissals for lack of prosecution under Florida Rule of Civil Procedure 1.420(e) are to be without prejudice. See Wright v. Allen, 611 So. 2d 23 (Fla. 1st DCA 1992); Henson v. Whorf, 466 So. 2d 23 (Fla. 5th DCA 1985). . Several limited exceptions to this rule have evolved that are not applicable to the instant case. See, e.g., Miller v. Fortune Ins. Co., 484 So. 2d 1221, 1222-23 (Fla.1986)…
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BLL Props., Inc. v. TRS Juniors, Inc., 679 So. 2d 365 (Fla. 4th DCA 1996)…tiffs Motion for Sanctions” was improperly entered. There was no express written finding of BLL’s willful or deliberate refusal to obey a court order. Commonwealth Federal Savings & Loan Assoc. v. Tubero, 569 So. 2d 1271 (Fla.1990); Wright v. Allen, 611 So. 2d 23 (Fla. 1st DCA 1992). Since an attorney had properly filed all of BLL’s pleadings, a default was not required within the time frames present in this case. See Richter v. Higdon Homes, Inc., 544 So. 2d 300 (Fla. 1st DCA 1989); Carillon Corp. v. Devick…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Commonwealth Fed. Sav. & Loan Ass'n v. Moshe Tubero, 569 So. 2d 1271 (Fla. 1990)
- Bair v. Palm Beach Newspapers, Inc., 387 So. 2d 517 (Fla. 4th DCA 1980)
- Carillon Corp. v. Seymour Devick and Florence Devick, 554 So. 2d 630 (Fla. 4th DCA 1989)
- In re Est. of Dorothea A. ULM, 345 So. 2d 1099 (Fla. 2d DCA 1977)
- Webber v. State, 415 So. 2d 161 (Fla. 4th DCA 1982)
- R.H. Hammond, Sr. v. Jones, 466 So. 2d 23 (Fla. 3d DCA 1985)
- Kohly v. Wallach, 580 So. 2d 880 (Fla. 3d DCA 1991)
- EL Mundo Supermarket, Inc. v. Michelsa Supermarket, Inc., 388 So. 2d 324 (Fla. 3d DCA 1980)