MICHAEL MYERS AND JACQUELINE MYERS, APPELLANTS,
v.
HIGHWAY 46 HOLDINGS, L.L.C., ETC. ET. AL., APPELLEES
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The court reversed the trial court's dismissal with prejudice of appellants' counterclaims for violating Rule 1.110(b), holding that the record lacked evidence of willful disobedience or prior sanctions necessary to support such dismissal.
Dismissal with prejudice under Rule 1.110(b) is improper without evidence of willful or contumacious disobedience, prior sanctions, or a court order warning of such consequences.
[1] Dismissal with prejudice under Florida Rule of Civil Procedure 1.110(b) requires evidence of willful or contumacious disobedience to a court order, prior sanctions for th…
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Join FLexlaw to unlock all legal intelligenceThe trial court dismissed appellants' Second Amended Counterclaims and Cross-claims as unnecessarily long and confusing under Rule 1.110(b). On remand…
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This case is here for the second time on this issue. The trial court originally dismissed with prejudice the appellants’ Second Amended Counterclaims and Cross-claims for violating Florida Rule of Civil Procedure 1.110(b) by being unnecessarily long and confusing. In Myers v. Highway 46 Holdings, LLC, 65 So.3d 58 (Fla. 5th DCA 2011), we remanded the case back to the trial court for a Kozel1 hearing to determine if the dismissal with prejudice was proper. On remand, the trial court found that the Kozel factors had been met and therefore dismissal was proper.
In this appeal, the appellants contend that the trial court’s findings are not supported by the record. We agree. The record is devoid of any reference that the appellants’ counsel willfully, deliberately, or contumaciously disobeyed a court order regarding rule 1.110, nor is there anything in the record to support a finding the counsel was previously sanctioned for violating rule 1.110. To the contrary, in the dismissal prior to the dismissal with prejudice, the trial court expressly declined to find a violation of rule 1.110 or to dismiss on that ground. The court did not order counsel to shorten the pleading, warn counsel that he faced dismissal with prejudice for not complying with the rule, or otherwise sanction counsel for violating the rule. Accordingly, we reverse and remand for further proceedings on the merits of the claims.
REVERSED AND REMANDED.
TORPY, C.J., PALMER, J'., and JACOBUS, B.W., Senior Judge, concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Carolann D. Kozel v. Ostendorf, 629 So. 2d 817 (Fla. 1993)
- Myers v. Hwy. 46 Holdings, L.L.C., 65 So. 3d 58 (Fla. 5th DCA 2011)