ALEXA ST. JOY TOWNSEND, APPELLANT,
v.
DAVID FEINBERG, AND THE HERTZ CORPORATION, APPELLEE
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Appellant Townsend appealed a dismissal of her personal injury action with prejudice, which was imposed as a sanction for failing to attend a court-ordered independent medical examination and deposition. The court reversed, finding that the trial court failed to make the required finding that appellant's non-compliance was willful or contumacious before imposing the drastic remedy of dismissal.
The court reversed the dismissal, holding that dismissal is a drastic remedy that requires the trial court to make a finding that the failure to comply with a court order was willful or contumacious. The trial court erred by failing to make this requisite finding and by not addressing whether appellant's non-compliance resulted in prejudice to appellee. The case was remanded for trial on the merits.
[1] Dismissal of a lawsuit is a drastic remedy that should be employed only in extreme situations.
[2] Before dismissing a case for failure to comply with a court order, a court must find that the noncompliance was willful or contumacious.
Previewing 2 of 4 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“It is uniformly held that dismissal is a drastic remedy which courts should employ only in extreme situations.”
Establishes the legal standard that dismissal is an extraordinary sanction reserved for extreme cases, not routine discovery violations.
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Join FLexlaw to unlock all legal intelligenceAppellant failed to attend a court-ordered independent medical examination (IME) and a scheduled deposition. The trial court granted appellees' motion…
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PER CURIAM.
This is an appeal from a final judgment dismissing appellant’s personal injury action with prejudice and awarding costs to appel-lees. We reverse and remand.
The dismissal in this ease was precipitated by appellant’s failure to attend a court-ordered independent medical examination (IME) and a scheduled deposition. The court granted appellees’ motion for sanctions by striking appellant’s pleadings, dismissing the case with prejudice, and assessing costs in the amount of $425.00 against appellant.
Appellant petitioned for a rehearing alleging that her failure to attend both the IME and the deposition was the result of inadequate communication and instructions from her attorney. She asserted in her motion that she had dismissed her previous law firm and that all of her transgressions occurred during the month when she was not represented by counsel. Appellant included an affidavit in which she stated that her attorney would not communicate with her, did not notify her of the IME or of the hearing date on the motion for sanctions, and would not transfer her file to the new law firm which she hired. She attested that her failure to comply with the court order was inadvertent. Nevertheless, the trial court denied appellant’s motion for rehearing.
It is uniformly held that dismissal is a drastic remedy which courts should employ only in extreme situations. Clay v. City of Margate, 546 So. 2d 434 (Fla. 4th DCA 1989). Prior to exercising its discretion to grant dismissal based on failure to comply with a court order, the court must make a finding that the failure to comply was willful or contumacious. In the ease at bar, there was no finding in the order of dismissal that appellant’s failure to attend her IME or her deposition was “willful or contumacious” or that appellant’s action, or non-action, resulted in prejudice to appellee. The failure to make the requisite findings in the order of dismissal constitutes reversible error. See Commonwealth Federal Savings and Loan Assn. v. Tubero, 569 So. 2d 1271 (Fla.1990); In re the Forfeiture of Twenty Thousand Nine Hundred Dollars ($20,900) U.S. Currency, 539 So. 2d 14 (Fla. 4th DCA 1989).
We do not mean to imply that the mere inclusion of the “magic words” in the order of dismissal would have cured the error in this case. To the contrary, there is nothing in the record which indicates that appellant willfully failed to comply with the court’s orders. We therefore reverse the dismissal with prejudice and direct the trial court to proceed with a trial on the merits.
GUNTHER, C.J., and KLEIN and SHAHOOD, JJ., concur.
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Bank ONE, N.A. v. Harrod, 873 So. 2d 519 (Fla. 4th DCA 2004)…record in this case. With respect to the first factor, the trial court did make a finding of willfulness. However, there is nothing in the record to support this finding; the facts are equally consistent with mere neglect. See Townsend v. Feinberg, 659 So. 2d 1218, 1219 (Fla. 4th DCA 1995) (explaining that the mere inclusion of “magic words” in the order of dismissal would not have cured the failure to make requisite findings of willful or contumacious noncompliance with a court order, as nothing in record in…
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Schindler v. The Bank OF NEW York Mellon Tr. Co., 190 So. 3d 102 (Fla. 4th DCA 2015)
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Boca Casino Cruises, Inc. v. Monte Carlo Cruise Concessions, Inc., 760 So. 2d 281 (Fla. 4th DCA 2000)…iking a party’s pleading which results in dismissal or a default judgment must be accompanied by an express written finding of willfulness. See Commonwealth Fed. Sav. & Loan Ass’n v. Tubero, 569 So. 2d 1271, 1273 (Fla.1990). In Townsend v. Feinberg, 659 So. 2d 1218, 1219 (Fla. 4th DCA 1995), this court stated: It is uniformly held that dismissal is a drastic remedy which courts should employ only in extreme situations. Prior to exercising its discretion to grant dismissal based on failure to comply with a [*2…
Previewing 3 of 15 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)
- Executive Square, Ltd. v. Delray Executive Square, Ltd., 546 So. 2d 434 (Fla. 4th DCA 1989)
- In re the Forfeiture OF Twenty Thousand Nine Hundred Dollars ($20, 539 So. 2d 14 (Fla. 4th DCA 1989)