STRESSCON INTERNATIONAL, INC., A FLORIDA CORPORATION, APPELLANT,
v.
RALPH MERRITT DEVELOPMENT CORPORATION, LEO MARTIN AND GLORIA MARTIN, APPELLEES
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Stresscon International appealed the trial court's dismissal with prejudice for failing to timely elect between two counts in its complaint. The Florida appellate court held that dismissal was an abuse of discretion because the election order was susceptible to misinterpretation and the plaintiff lacked clear notice of the deadline consequences.
The dismissal with prejudice was an abuse of discretion. The order requiring election was susceptible to misinterpretation because it did not clearly state a deadline from receipt of the court's mandate, and the plaintiff lacked adequate notice that failure to timely file the election would result in dismissal with prejudice.
[1] A trial court may properly dismiss a cause with prejudice for a plaintiff's failure to comply timely with a court order.
[2] Dismissal with prejudice is an abuse of discretion when an order requiring an election between counts is susceptible to misunderstanding by the plaintiff.
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“a trial judge may properly dismiss a cause with prejudice for failure of a plaintiff to comply timely with an order of the court”
Establishes the general rule that dismissal is available as a sanction, but subject to limitations
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Join FLexlaw to unlock all legal intelligenceThe trial court ordered plaintiff to elect in writing within twenty days between count one and count two of its complaint. Plaintiff sought interlocut…
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PEARSON, Judge.
The issue presented by this appeal is whether the trial court’s action of dismissing a cause with prejudice after plaintiff’s failure to elect between two counts of his complaint was an abuse of discretion. We hold that under the peculiar circumstances of this case, the dismissal with prejudice was an abuse of discretion.
It should first be made clear that a trial judge may properly dismiss a cause with prejudice for failure of a plaintiff to comply timely with an order of the court. See Clifford Ragsdale, Inc. v. Morganti, Inc., 356 So. 2d 1321 (Fla. 4th DCA 1978). The circumstances of this case, which call into question the exercise of discretion by the trial court, are that the order requiring election within a stated time was susceptible to a misunderstanding by the plaintiff.
The court entered an order requiring the plaintiff to elect in writing within twenty days between count one and count two of his complaint. The plaintiff sought review of the order by interlocutory appeal. The trial court granted an order which postponed the plaintiff’s duty to elect “until after the appeal of that Order has been concluded.” This court affirmed without opinion. The plaintiff sought review of this court’s decision by petition for writ of certiorari in the Supreme Court of Florida. The petition was denied. The plaintiff filed a motion for rehearing in the Supreme Court.1 Finally, the plaintiff filed his notice of election twenty-eight days after the denial of his motion by the Supreme Court.
We hold that in the absence of an order of the trial court requiring election within a stated time from the receipt of the court’s mandate, the order requiring election was susceptible to misinterpretation. In the absence of notice to the plaintiff that his election must be filed at a definite time or suffer dismissal, it was an abuse of discretion to impose the drastic sanction of dismissal with prejudice. Cf. Edwards v. City of Fort Walton Beach, 271 So. 2d 136 (Fla.1972), and Espinosa v. Racki, 324 So. 2d 105 (Fla. 3d DCA 1975).
Thereupon, the order striking notice of election and dismissing the cause is reversed, the order awarding attorney’s fees is reversed and the cause is remanded for further proceedings in accordance with the views herein expressed.
Reversed and remanded.
. This opinion does not turn on tne question of the propriety of the appellate proceedings.
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Carolann D. Kozel v. Ostendorf, 603 So. 2d 602 (Fla. 2d DCA 1992)…1979); Ramos v. Sanchez, 375 So. 2d 51 (Fla. 2d DCA 1979); In re Ulm’s Estate, 345 So. 2d 1099 (Fla. 2d DCA 1977); Clay; Livingston v. State, Dep’t of Corrections, 481 So. 2d 2 (Fla. 1st DCA 1985); Stresscon Int’l, Inc. v. Ralph Merritt Dev. Corp., 368 So. 2d 384 (Fla. 3d DCA), cert. denied, 378 So. 2d 347 (Fla.1979). Especially in this era of “time standards,” 3 I fully empathize with the trial court’s frustration when a lawyer allows a case to languish. This problem, however, can be controlled in most ins…
Authorities Cited
- Kit C. Edwards v. City OF Fort Walton Beach, 271 So. 2d 136 (Fla. 1972)
- Clifford Ragsdale, Inc. v. Morganti, Inc., 356 So. 2d 1321 (Fla. 4th DCA 1978)
- Espinosa v. Racki, 324 So. 2d 105 (Fla. 3d DCA 1975)