AVIAD VISOLY, APPELLANT,
v.
KLUGER, PERETZ, KAPLAN & BERLIN, P.A., AND ALAN J. KLUGER, AND HOWARD D. DOBOSAR, APPELLEES
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Florida appellate court reversed dismissal with prejudice where trial court failed to make an express finding that appellant's noncompliance with a court order directing retention of new counsel was willful or deliberate, as required before imposing the extreme sanction of striking pleadings.
A trial court must make an express determination that a party's noncompliance with a court order was willful or deliberate before imposing the extreme sanction of striking pleadings; mere noncompliance is insufficient.
[1] A trial court must make an express finding of willful or deliberate noncompliance before imposing the extreme sanction of striking a party's pleadings; mere noncompliance…
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“By insisting upon a finding of willfulness, there will be the added assurance that the trial judge has made a conscious determination that the noncompliance was more than mere neglect or inadvertence.”
Commonwealth Fed. Sav. & Loan Ass'n v. Tubero, explaining the requirement for willfulness findings before imposing severe sanctions.
Appellant's prior counsel was permitted to withdraw, and the trial court ordered appellant to retain new counsel or file written notice of intent to p…
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PER CURIAM.
This is an appeal from an order dismissing a complaint with prejudice for appellant’s failure to timely comply with a court order directing appellant to retain new counsel after his prior counsel was permitted to withdraw or file a written notice of his intention to proceed pro se.
We reverse the order under review where there was no finding by the lower court or record evidence-to suggest that appellant’s failure to comply with this order was deliberate and in contumacious disregard of the court’s authority. See Commonwealth Fed. Sav. & Loan Ass’n v. Tubero, 569 So. 2d 1271, 1272 (Fla.1990); K & K World Enter., Inc. v. Union SPOL, S.R.O., 692 So. 2d 1000, 1001 (Fla. 3d-DCA 1997).
Because the striking of a parties’ pleadings is the most extreme sanction, a trial court is required to make an express determination as to whether the offending party’s actions were willful or deliberate. See Commonwealth, 569 So. 2d at 1273 (“By insisting upon a finding of willfulness, there will be the added assurance that the trial judge has made a conscious determination that the noncompliance was more than mere neglect or inadvertence.”); Onyx Fin. Group, Inc. v. International Waste Sys., Inc., 619 So. 2d 1036, 1036 (Fla. 3d DCA 1993); Carr v. Dean Steel Bldgs., Inc., 619 So. 2d 392, 394 (Fla. 1st DCA 1993); Carillon Corp. v. Devick, 554 So. 2d 630, 632 (Fla. 4th DCA 1989).
An offending party’s mere noneomplianee with a court order is insufficient in and of itself to evince wilfulness. See K & K, 692 So. 2d at 1002.
Reversed.
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Deer Valley Realty v. Beck & Lee, P.A., 260 So. 3d 413 (Fla. 3d DCA 2018)
Authorities Cited
- Commonwealth Fed. Sav. & Loan Ass'n v. Moshe Tubero, 569 So. 2d 1271 (Fla. 1990)
- Carr v. Dean Steel Bldgs., Inc., 619 So. 2d 392 (Fla. 1st DCA 1993)
- Carillon Corp. v. Seymour Devick and Florence Devick, 554 So. 2d 630 (Fla. 4th DCA 1989)
- K&K World Enter., Inc. v. Union Spol, 692 So. 2d 1000 (Fla. 3d DCA 1997)
- Onyx Fin. Grp., Inc. v. Int'l Waste Sys., Inc., 619 So. 2d 1036 (Fla. 3d DCA 1993)