DAVID GILLETT, INDIVIDUALLY, AND D/B/A GILLETT RENTALS, INC., APPELLANT,
v.
CHARLES CALLAWAY, APPELLEE
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The court held that the trial court did not abuse its discretion in vacating a dismissal with prejudice entered as a discovery sanction, based on counsel's excusable neglect.
[1] A trial court abuses its discretion by dismissing a complaint with prejudice as a discovery sanction when the failure to comply with discovery orders was due to counsel's…
[2] A motion to vacate an order of dismissal with prejudice may be brought under Rule 1.540(b), RCP, on the basis of excusable neglect.
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Join FLexlaw to unlock all legal intelligencePlaintiff's complaint was dismissed with prejudice for failure to comply with discovery orders, specifically for missing deposition dates. The trial c…
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OWEN, Chief Judge.
In a civil action for damages the plaintiff’s complaint was dismissed with prejudice as a sanction under Rule 1.380, RCP, 30 F.S.A., for failure to comply with certain orders relating to discovery. His timely motion to vacate was granted. It is the latter order which defendant now appeals.
Despite appellant’s contention that the motion to vacate, if proper at all, could be brought under no rule other than 1.530, RCP, 31 F.S.A., it is apparent to us that the motion was filed pursuant to Rule 1.-540(b) on the basis of counsel’s excusable neglect. The order dismissing the complaint with prejudice had been entered because on four occasions plaintiff and his counsel had failed to appear for the taking of plaintiff’s deposition, the last of which had been scheduled pursuant to order of court rather than upon mere notice. The motion to vacate, and the affidavits in support thereof, set forth the various reasons why plaintiff’s counsel had been unable to attend at the scheduled times, due either to being out of state on vacation, engaged in trial, or in the hospital for surgery. Plaintiff’s counsel also conceded that the failure of the plaintiff to attend was due solely to the fault of counsel and not to any willful refusal on the part of the plaintiff.
While the several grounds presented in support of the motion to vacate may have been marginal in substance, the issue is whether the court abused its discretion in vacating the dismissal with prejudice. Rogers v. First National Bank at Winter Park, Fla.1970, 232 So. 2d 377. Upon the rationale of such cases as Beasley v. Girten, Fla.1952, 61 So. 2d 179; Crystal Lake Golf Course, Inc. v. Kalin, Fla.App.1971, 252 So. 2d 379 and Goldman v. Tabor, Fla.App.1970, 239 So. 2d 529 (all holding that counsel’s failure to comply with the court’s order should not result in punishment to the litigant), we hold that no abuse of discretion was shown here.
Affirmed.
DOWNEY, J, and PAUL, MAURICE M., Associate Judge, concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Beasley v. Girten, 61 So.2d 179 (Fla. 1952)
- Crystal Lake Golf Course, Inc. v. Kalin, 252 So. 2d 379 (Fla. 4th DCA 1971)
- Inger Rogers v. First Nat'l Bank AT Winter Park, 232 So. 2d 377 (Fla. 1970)
- Goldman v. Tabor, 239 So. 2d 529 (Fla. 2d DCA 1970)