BRIAN GILLER
v.
ANITA GROSSMAN AND IRA D. GILLER
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A trial court cannot dismiss a plaintiff's action as a sanction for a personal representative's failure to comply with a case progression order when the plaintiff is not the personal representative.
[1] A trial court may not impose dismissal as a sanction against a plaintiff for the failure of a personal representative to comply with a case progression order when the pla…
[2] An order of dismissal must comply with the procedural requirements of Florida Rule of Civil Procedure 1.420(e), and failure to do so requires reversal.
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Join FLexlaw to unlock all legal intelligenceBrian Giller challenged an order dismissing his action to remove his brother and sister as personal representatives of their father's estate. The lowe…
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Appellant, Brian Giller, challenges the lower court’s order dismissing with prejudice his action for the removal of Appellees, his brother and sister, as personal representatives of his father’s estate. The adversarial proceeding was one of several suits relating to the administration of the Estate of Norman M. Giller. The lower court issued an order to progress case in the adversary proceeding, which stated the personal representatives must take some action in furtherance of the case. Appellees did nothing in furtherance of the order. Thereafter, the lower court entered an order of dismissal as a sanction based on the personal representatives’ failure to prosecute the adversary proceeding in violation of the order, despite that Giller was not the personal representative. Appellees then moved for entry of a corrected order of dismissal noting numerous clerical errors and alleging that Giller had been ordered to progress the case. The court granted the Appellees’ motion and issued a corrected order of dismissal.
Upon the Appellees’ proper confession of error, along with our independent review of the record, we find there was no legal or factual basis in the record to support the dismissal as a sanction and the corrected order of dismissal was not entered in compliance with Florida Rule of Civil Procedure 1.420(e).
Reversed and remanded for further proceedings.