LAURA WEBBER, APPELLANT,
v.
JOHN C. BRICKLEY AND MARGARET BRICKLEY, APPELLEES
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Appellant Webber appealed dismissals of her civil suit for failure to comply with discovery orders. The court affirmed both dismissals, holding that Webber failed to make a good faith attempt to comply with court-ordered discovery and that the dismissal with prejudice was proper because it resulted from violation of a court order, thereby barring any subsequent suit on the same cause of action.
The court held that dismissal was proper because Webber failed to make a good faith attempt to comply with the discovery order, the absence of notice on the ex parte order was not fatal given the grant of a rehearing, and a dismissal with prejudice for violation of a court order (not mere procedural non-compliance) constitutes an adjudication on the merits that bars subsequent suits on the same cause of action.
[1] A trial court may dismiss a cause of action for failure to comply with a discovery order, provided the plaintiff fails to comply within the specified time and offers no r…
[2] A trial court does not abuse its discretion by dismissing a cause of action for non-compliance with a discovery order when the plaintiff has not made a good faith attempt…
Previewing 2 of 5 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“We hold that a reasonable interpretation of the two rules concerned [Florida Rules of Civil Procedure 1.31 (d), and 1.35(b)] is that where dismissal is to be with prejudice and thus act as an adjudication on the merits it must be for the violation of an order of the court and not for a mere failure to abide by a notice of a procedural step.”
Establishes the key distinction between dismissals with prejudice for court order violations versus mere procedural non-compliance, determining when dismissal acts as adjudication on the merits.
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Join FLexlaw to unlock all legal intelligenceWebber was ordered by the trial court on October 15, 1969, to complete discovery by October 23, 1969. She failed to comply with this deadline and prov…
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These appeals arise out of the same set of facts. Appeal No. 69-1041 is from an order dismissing plaintiff-appellant’s cause of action for “the failure of the Plaintiff to comply with the order of the Court entered the 15th day of October 1969”. The order of October 15th found appellant had failed to comply with a previous order requiring discovery and directed that the cause would be dismissed if discovery were not made on or before October 23, 1969. The record reveals that appellant did not comply within the time set nor did appellant set forth any reason for non-compliance. We hold that appellant has failed to demonstrate error. Compare Southeastern Mobile Homes, Inc. v. Transit Homes, Inc., Fla.App.1966, 192 So.2d 53, 58, with State v. Fattorusso, Fla.App.1969, 228 So.2d 630.
Appellant urges that because she made some attempt to comply with the October 15th order requiring discovery, the court abused its discretion by dismissing the cause upon an ex parte order. See Hyman v. Schwartz, Fla.App.1965, 177 So.2d 750. We think this record reveals that appellant did not make a good faith attempt to comply with the discovery order. The absence of notice upon the application for the final judgment was not fatal under these circumstances. This decision is reinforced by the fact that appellant moved for and received á rehearing upon the final judgment. By granting a rehearing the trial court gave appellant an opportunity to present any valid reason for vacating the final judgment, thereby fulfilling the purpose of the notice provision of Rule 1.420(b), Florida Rules of Civil Procedure, 30 F.S.A. See Voss v. Voss, Fla.App.1964, 169 So.2d 351. The record fails to show, through the petition for rehearing or other means, an explanation for appellant’s failure to make the discovery ordered. Accordingly the judgment in 69-1041 is affirmed.
Appeal No. 70-246 presents the question whether the final judgment of dismissal for failure to make discovery barred a second suit upon the same cause of action. Immediately after the first dismissal appellant refiled the cause but suffered a second judgment of dismissal. Appellant relies upon Rashard v. Cappiali, Fla.App.1965, 171 So.2d 581, for a holding that a failure to make discovery authorizes a dismissal without prejudice but not a dismissal with prejudice. In that case we directed that the final judgment be amended so as to provide for dismissal without prejudice because the record did not reflect a violation or disregard of an order of the trial court. We also said:
“[5] When a plaintiff is given time by order of the court within which to abide by the rule or suffer a dismissal with prejudice, the only question for review by an appellate court upon an appeal from an order dismissing the cause with prejudice would be upon the question of an abuse of discretion by the trial court in the making of the order directing the performance of the act within the time limit.
“[6] We hold that a reasonable interpretation of the two rules concerned [Florida Rules of Civil Procedure 1.31 (d), and 1.35(b)] is that where dismissal is to be with prejudice and thus act as an adjudication on the merits it must be for the violation of an order of the court and not for a mere failure to abide by a notice of a procedural step.” 171 So.2d at 583.
A review of the circumstances of the first dismissal as above set out affirmatively shows that the dismissal was for the violation of an order of the court. Therefore the dismissal was properly with prejudice1 *635and as such it barred appellant’s second suit upon the same cause of action. See Hinchee v. Fisher, Fla.1957, 93 So.2d 351; Drady v. Hillsborough County Aviation Authority, Fla.App.1967, 193 So.2d 201, 205.
The appeals in 69-1042 and 70-246 are affirmed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Schade v. Brown, 375 So. 2d 16 (Fla. 3d DCA 1979)…d not be imposed. The order of dismissal without prejudice is fully authorized by Fla.R.Civ.P. 1.380(b), and we find no abuse of discretion under the facts of this case. See Rashard v. Cappiali, 171 So. 2d 581 (Fla. 3d DCA 1965); Webber v. Brickley, 239 So. 2d 633 (Fla. 3d DCA 1970). The second issue is whether the trial judge abused his discretion in providing that the costs of the instant cause must be paid before the plaintiff can refile his cause of action. It should be noted that appellant does not ques…
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Malicoat v. LaCHAPPELLE, 390 So. 2d 481 (Fla. 4th DCA 1980)…Procedure 1.530(g)) and was never heard, so that motion is of no avail to appellees. In our judgment the issues raised in the motion of April 19,1979, were settled by the February 19, 1979, order and could not be relitigated. Cf. Webber v. Brickley, 239 So. 2d 633 (Fla. 3rd DCA 1970). Therefore, we reluctantly conclude that the trial judge was without jurisdiction to entertain the second motion to vacate on the grounds alleged therein or to enter the order of August 3, 1979. Said order is accordingly reverse…
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Noto v. Greenbrook Jacaranda Assocs., III, Ltd., 458 So. 2d 773 (Fla. 4th DCA 1984)…default judgment against it having been rendered pursuant to an ex parte hearing without notice, the order was invalid and cannot form a proper basis for the judgment appealed. I completely agree with that holding. The second, Webber v. Brickley, 239 So. 2d 633 (Fla. 3d DCA 1970), upon which appellee relies, adds an element which exists in the present case; namely, given the inappropriateness of an ex parte order, is due process fulfilled when the trial court entertains a motion for rehearing which asserts…1 / 2
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Warren D. Hinchee et ux. v. Charles E. Fisher et ux., 93 So. 2d 351 (Fla. 1957)
- Rashard v. Cappiali, 171 So. 2d 581 (Fla. 3d DCA 1965)
- Drady v. Hillsborough Cnty. Aviation Auth., 193 So. 2d 201 (Fla. 2d DCA 1966)
- Headley v. Baron, 228 So. 2d 630 (Fla. 3d DCA 1969)
- Voss v. Voss, 169 So. 2d 351 (Fla. 3d DCA 1964)
- DeMERRITT v. State, 192 So. 2d 53 (Fla. 3d DCA 1966)
- Hyman v. Schwartz, 177 So. 2d 750 (Fla. 3d DCA 1965)