ANTHONY BELLOMIO, INDIVIDUALLY, AND AS OWNER OF UNIVERSITY DENTAL HEALTH CENTER, A FLORIDA CORPORATION, APPELLANTS,
v.
NORMAN MALINSKI, INDIVIDUALLY, AND HERTZBERG AND MALINSKI, P.A., APPELLEES
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The court held that striking pleadings and entering judgment was an excessive sanction for a nine-day delay in retaining new counsel.
Plaintiffs in a legal malpractice suit missed the deadline to retain new counsel by nine days after their original counsel withdrew. Defendants moved …
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PER CURIAM.
Anthony Bellomio and University Dental Health Center appeal an adverse final judgment. We reverse.
Bellomio and University Dental Health Center brought a legal malpractice suit. The trial court dismissed the complaint with leave to amend within twenty days. Shortly thereafter, plaintiffs’ counsel was allowed to withdraw. Insofar as pertinent here, the trial court entered a written order allowing plaintiffs twenty days to retain new counsel. The order stayed the obligation to file the amended complaint until new counsel was retained.
Plaintiffs retained new counsel on the 29th day, instead of the 20th day. Counsel served a notice of appearance and a motion for extension of time to file the amended complaint. In the meantime, defendants moved to strike plaintiffs’ pleadings because they had not obtained counsel by the 20th day. The court struck plaintiffs’ pleadings and entered judgment in favor of defendants.
Florida’s public policy favors disposition of lawsuits on the merits. See, e.g., North Shore Hospital, Inc. v. Barber, 143 So. 2d 849 (Fla.1962); Coggin v. Barfield, 150 Fla. 551, 554, 8 So. 2d 9, 11 (1942); Sekot Laboratories, Inc. v. Gleason, 585 So. 2d 286, 289 (Fla. 3d DCA 1990); Apolaro v. Falcon, 566 So. 2d 815, 816 (Fla. 3d DCA 1990). In our view the extreme sanction of dismissal was not warranted where the parties were nine days late in obtaining substitute counsel. Defendants have not shown that they were prejudiced by reason of the delay. We reverse the order striking pleadings, and the final judgment entered thereon, and remand for further proceedings.
Reversed and remanded.
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Clemente Almeida and Juana Almeida v. FMC Corp., 740 So. 2d 557 (Fla. 3d DCA 1999)…this court that they did not suffer any prejudice from the violation of Rule 1.070®. . See Royal Caribbean Cruises, Ltd. v. Traveler, 699 So. 2d 847 (Fla. 3d DCA 1997); Hanft v. Church, 671 So. 2d 249, 250 (Fla. 3d DCA 1996); Bellomio v. Malinski, 624 So. 2d 369, 370 (Fla. 3d DCA 1993). . It now reads: "If service of the initial process ,and initial pleading is not made upon a defendant within 120 days after filing of the initial pleading, the court, on its own initiative after notice or on motion, shall…
Authorities Cited
- N. Shore Hosp., Inc. v. Barber, 143 So. 2d 849 (Fla. 1962)
- Coggin v. Barfield, 150 Fla. 551 (Fla. 1942)
- Etienne v. Irvin, 45 Fla. L. Weekly D2032 (Fla. 3d DCA 2020)
- Apolaro v. Falcon, 566 So. 2d 815 (Fla. 3d DCA 1990)
- Sekot Labs., Inc. v. Gleason, 585 So. 2d 286 (Fla. 3d DCA 1990)