Clay v. City of Margate, 88-3435
Citation | 14 Fla. L. Weekly 1548,546 So.2d 434 |
Decision Date | 28 June 1989 |
Docket Number | No. 88-3435,88-3435 |
Parties | 14 Fla. L. Weekly 1548, 3 A.L.R.5th 1037 Charles CLAY, Appellant, v. CITY OF MARGATE, Appellee. |
Court | Court of Appeal of Florida (US) |
Bruce H. Little of Bruce H. Little, P.A., Fort Lauderdale, for appellant.
Gilbert E. Theissen of Walsh, Theissen & Boyd, P.A., Fort Lauderdale, for appellee.
This an appeal of a final judgment dismissing appellant's complaint for failing to timely file a more definite statement.
In October 1984, at the trial court level, appellant filed a "Petition for Writ of Certiorari and/or Mandamus." In February 1986, much file activity led appellant to file a Third Amended Complaint seeking declaratory relief and appellee responded by filing a motion to dismiss. In May 1986, the trial court treated appellee's motion as a motion for more definite statement and gave appellant ten days to respond. The parties agreed to a ten day extension. Appellant waited until September of 1986 to file a notice of clarification and more definite statement. Within a week thereof, appellee filed a motion to dismiss alleging appellant's response, almost four months late, was untimely. A week later, a second motion to dismiss alleging the same grounds was filed. Nearly two months later, an addendum to the motion to dismiss was filed. In December 1987, the trial court ruled and entered a final order of dismissal with prejudice. Appellant appealed. In October 1988, this court dismissed the appeal as not involving a final order. In December 1988, the appeal was re-noticed when a final judgment was entered.
If an order for a more definite statement is not obeyed within the time fixed by the court (or agreed between the parties), the court may strike the pleading to which the motion is directed or make such order as it deems just. Fla.R.Civ.P. 1.140(e).
To dismiss a cause of action for the failure to comply with an order of the court is the most severe of all sanctions and should be employed only in extreme circumstances. Whether to impose the sanction of dismissal is within the sound discretion of the trial court. The exercise of this discretion will not be disturbed absent a clear showing of abuse. Gomez v. Pujols, 547 So.2d 734, (Fla. 5th DCA 1989).
We reverse. This is a case where the record is devoid of any evidence reflecting willful disregard of an order of court. Crystal Lake Golf Course, Inc. v. Kalin, 252 So.2d 379 (Fla. 4th DCA 1971). There was no showing appellant's failure to respond as ordered was a deliberate and contumacious disregard of the court's authority. Nor was bad faith, gross...
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...Although sanction cases are influenced by factual issues, the majority's opinion seems to be in conflict with Clay v. City of Margate, 546 So.2d 434 (Fla. 4th DCA), review denied, 553 So.2d 1164 (Fla.1989). Perhaps the supreme court can review the conflicting body of case law in this area a......
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