HERNANDO MARIN, APPELLANT,
v.
JOSE R.E. BATISTA AND DIAZ & BATISTA, P.A., APPELLEES
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The trial court abused its discretion by dismissing appellant's replevin, malpractice, and conversion suit based on counsel's alleged misconduct where the record showed no malfeasance by the appellant himself.
Dismissal of a case is an extreme sanction that should not be imposed on a client for attorney misconduct absent a showing of deliberate and contumacious disregard of court authority, and where the record reflects no malfeasance by the appellant, dismissal constitutes an abuse of discretion.
[1] Dismissal as a sanction for attorney misconduct should not be imposed on a client absent a showing of deliberate and contumacious disregard of court authority, and the tr…
Previewing 1 of 1 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“Dismissal of an action is a drastic remedy which should be used only in extreme situations and upon a showing of deliberate and contumacious disregard of the trial court's authority.”
Establishing the standard for when dismissal as a sanction is appropriate.
Appellant Marin brought a replevin, malpractice, and conversion suit against Batista and Diaz & Batista, P.A. At a combined pretrial conference and ca…
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PER CURIAM.
At the combined pretrial conference and calendar call in the appellant’s re-plevin, malpractice and conversion suit, the trial court dismissed the appellant’s suit with prejudice, based upon findings of misconduct on the part of appellant’s counsel with respect to the “speedy and fair” resolution of the litigation. “Dismissal of an action is a drastic remedy which should be used only in extreme situations and upon a showing of deliberate and contumacious disregard of the trial court’s authority.” Beauchamp v. Collins, 500 So. 2d 294, 295 (Fla. 3d DCA 1986), review denied, 511 So. 2d 297 (Fla.1987); see Mercer v. Raine, 443 So. 2d 944, 946 (Fla.1983); World on Wheels of Miami, Inc. v. International Auto Motors, Inc., 569 So. 2d 836, 837 (Fla.3d DCA 1990).
Moreover, the sanction of dismissal necessarily visits the sins of the attorney upon the client/litigant. See Kozel v. Ostendorf 629 So. 2d 817, 818 (Fla.1993); Wallraff v. T.G.I. Friday’s, Inc., 490 So. 2d 50, 52 (Fla.1986); Beasley v. Girten, 61 So. 2d 179, 180-81 (Fla.1952); Clay v. City of Margate, 546 So. 2d 434, 435 (Fla. 4th DCA), review denied, 553 So. 2d 1164 (Fla.1989).
Consequently, since the record reflects absolutely no malfeasance on the part of the appellant, we find that the trial court abused its discretion by dismissing the appellant’s case. See Dave’s Aluminum Siding, Inc. v. C & M Ventures, 582 So. 2d 147, 147 (Fla. 3d DCA 1991); United States Fidelity & Guar. Co. v. Herr, 539 So. 2d 542, 543 (Fla. 3d DCA 1989); Beauchamp, 500 So. 2d at 295.
We reverse and remand for further proceedings consistent herewith.
Reversed and remanded.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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HAM v. Dunmire, 891 So. 2d 492 (Fla. 2004)…LEWIS, J. We have for review the decision in Ham v. Dunmire, 855 So. 2d 1238 (Fla. 1st DCA 2003), which certified conflict with the Third District Court of Appeal’s decisions in Marin v. Batista, 639 So. 2d 630 (Fla. 3d DCA 1994), Dave’ s Aluminum Siding, Inc. v. C & M Ventures, 582 So. 2d 147 (Fla. 3d DCA 1991), and United States Fidelity & Guaranty Co. v. Herr, 539 So. 2d 542 (Fla. 3d DCA 1989). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. B…1 / 3
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HAM v. Dunmire, 855 So. 2d 1238 (Fla. 1st DCA 2003)…been entered, the trial court dismissed appellant’s complaint with prejudice. Although the party herself was in no way at fault, we affirm the judgment of dismissal, certifying conflict with the Third District on this point. See Marin v. Batista, 639 So. 2d 630, 630-31 (Fla. 3d DCA 1994) (“Consequently, since the record reflects absolutely no malfeasance on the part of the appellant, we find that the trial court abused its discretion by dismissing the appellant’s case.”); Dave’s Aluminum Siding, Inc. v. C…
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Isaiah Wilson v. Form Works, Inc., 894 So. 2d 1078 (Fla. 4th DCA 2005)…I find this case to be distinguishable from the cases, including Ham, in which the sanction of dismissal was imposed. See, e.g., Kozel v. Ostendorf, 629 So. 2d 817 (Fla.1993); Elder v. Norton, 711 So. 2d 586 (Fla. 2d DCA 1998); and Marin v. Batista, 639 So. 2d 630 (Fla. 3d DCA 1994). Because the trial court entered the final judgment of dismissal as a sanction for non-compliance with two court orders directing the plaintiff to comply with discovery, I find no error in the court’s dismissal of this case. Her…
Authorities Cited
- Mercer v. J.D. Raine, Sr., 443 So. 2d 944 (Fla. 1983)
- Carolann D. Kozel v. Ostendorf, 629 So. 2d 817 (Fla. 1993)
- Beasley v. Girten, 61 So.2d 179 (Fla. 1952)
- Wallraff v. T.G.I. Friday's, Inc., 490 So. 2d 50 (Fla. 1986)
- Executive Square, Ltd. v. Delray Executive Square, Ltd., 546 So. 2d 434 (Fla. 4th DCA 1989)
- Beauchamp v. Collins, 500 So. 2d 294 (Fla. 3d DCA 1986)
- World ON Wheels OF Miami, Inc. v. Int'l Auto Motors, Inc., 569 So. 2d 836 (Fla. 3d DCA 1990)
- United States Fid. & Guar. Co. v. Herr, 539 So. 2d 542 (Fla. 3d DCA 1989)
- Dave's Aluminum Siding, Inc. v. C & M Ventures, 582 So. 2d 147 (Fla. 3d DCA 1991)