Florida Nat. Organization for Women, Inc. v. State
| Decision Date | 19 December 2002 |
| Docket Number | No. 1D01-4913.,1D01-4913. |
| Citation | 832 So.2d 911 |
| Parties | FLORIDA NATIONAL ORGANIZATION FOR WOMEN, INC.; South Palm Beach Chapter, National Organization for Women, Inc.; Congregation L'Dor Vador; Reverend Matthew Anderson; and Charlotte Danciu, Esq., Appellants, v. STATE of Florida; and Fred Dickinson, in his official capacity as Executive Director of the Florida Department of Highway Safety and Motor Vehicles, Appellees. |
| Court | Florida District Court of Appeals |
Barry Silver, Boca Raton, for Appellants.
James J. Dean of Messer, Caparello & Self, P.A., Tallahassee, for Appellees.
Appellants appeal a trial court order dismissing their Second Amended Complaint with prejudice. Appellants argue that the trial court should have permitted them an opportunity to amend. We affirm the trial court's dismissal of Count II with prejudice. However, we reverse as to Counts I, III, IV, and V, and remand for the trial court to grant leave to amend.
Appellants challenge the constitutionality of one of Florida's specialty license plates, which reads "Choose Life" across the top and "Florida" across the bottom. § 320.08058(30), Fla. Stat. (1999). The law creating this plate was enacted as chapter 99-301, Laws of Florida (the Act), effective July 1, 1999. On December 6, 1999, Appellants sought a declaratory judgment and temporary and permanent injunction alleging that the Act creating the Choose Life plate is unconstitutional because it violates Article I, Section 3, otherwise known as the Establishment Clause, of the Florida Constitution.
Appellants filed an amended complaint on December 13, 1999, alleging that the Act also violates Article I, Section 23 of the Florida Constitution, which provides a right of privacy to the citizens of Florida. Appellees filed an answer without seeking dismissal but put forth four affirmative defenses, including improper venue, failure to state a cause of action, lack of ripeness, and lack of standing. Subsequently, the case was transferred to Leon County.
Appellants moved for leave to file a Second Amended Complaint the day before the injunction hearing, which was scheduled for March 1, 2001. The proposed Second Amended Complaint contained a free speech claim, among others. At the hearing, Appellants attempted to make these additional arguments as a basis for injunctive relief. The trial court denied the injunction but granted leave for Appellants to file a Second Amended Complaint. However, the court stipulated that
The Second Amended Complaint was filed and alleged violations of the Establishment Clause in Count I, the right to free speech in Count II, several challenges to the Act's funding mechanism in Count III, the right to privacy in Count IV, and the rights to equal protection and due process in Count V. As remedies, Appellants sought an injunction prohibiting further implementation of the Act and a mandatory injunction requiring the Department of Highway Safety and Motor Vehicles to recall all Choose Life plates already issued. Appellees moved to dismiss, and a hearing was held. The trial court granted the motion and dismissed the entire complaint with prejudice, finding that Counts III and V contain multiple constitutional claims in violation of the requirements listed in the trial court's order. Further, the trial court found that Counts I, II, and IV fail to state a cause of action.
The standard of review as to Counts III and V, dismissed with prejudice for failure to comply with the trial court's order, is abuse of discretion. Zaccaria v. Russell, 700 So.2d 187, 187-88 (Fla. 4th DCA 1997). We hold that the trial court abused its discretion in dismissing these counts with prejudice.
Fla. R. Civ. P. 1.420(b). This indicates that such a dismissal would be with prejudice, because the merits of the issue would have been ruled upon; older case law supports this interpretation. See, e.g., Clifford Ragsdale, Inc. v. Morganti, Inc., 356 So.2d 1321 (Fla. 4th DCA 1978)
. However, recent case law holds that a trial court should not dismiss an action with prejudice under rule 1.420(b) for failure to comply with court orders unless certain factors are met. See, e.g., Town of Manalapan v. Florida Power & Light Co., 815 So.2d 670 (Fla. 4th DCA 2002).
In Manalapan, the court explained that not every failure to comply with a court order will justify dismissal under rule 1.420. Id. at 672. The Fourth District applied factors outlined in Kozel v. Ostendorf, 629 So.2d 817 (Fla.1993), to reverse the trial court's dismissal of the plaintiff's claim. In doing so, the court distinguished cases that would support affirmance, such as Clifford Ragsdale, on the ground that they were decided before Kozel. Therefore, the Kozel factors should be applied to the trial court's exercise of discretion in the instant case.
In Kozel, the supreme court stated that trial courts should consider the following factors in determining whether dismissal with prejudice is warranted:
1) whether the attorney's disobedience was willful, deliberate, or contumacious, rather than an act of neglect or inexperience; 2) whether the attorney has been previously sanctioned; 3) whether the client was personally involved in the act of disobedience; 4) whether the delay prejudiced the opposing party through undue expense, loss of evidence, or in some other fashion; 5) whether the attorney offered reasonable justification for noncompliance; and 6) whether the delay created significant problems of judicial administration.
Id. at 818. There is no indication that the trial court in this case considered these factors, as it failed to make the required findings in its order. Further, it appears that the factors are not met in the instant case. Appellants' attorney offered a reasonable justification for their noncompliance; specifically, multiple claims were included in the counts to comply with the trial court's direction to be concise. It is apparent from the record that counsel has not been previously sanctioned and the client was not personally involved in drafting the Second Amended Complaint. There is no indication in the record that Appellees or...
To continue reading
Request your trial
-
Boca Burger, Inc. v. Forum
...second (or subsequent) amendment or an amendment requested after the answer was filed. See, e.g., Fla. Nat'l Org. for Women, Inc. v. State, 832 So.2d 911, 915 (Fla. 1st DCA 2002) (holding that the plaintiff had amended once before a responsive pleading had been served and once again after t......
-
Boca Burger, Inc. v. Forum, Case No. SC01-1830 (FL 7/7/2005)
...second (or subsequent) amendment or an amendment requested after the answer was filed. See, e.g., Fla. Nat'l Org. for Women, Inc. v. State, 832 So. 2d 911, 915 (Fla. 1st DCA 2002) (holding that where the plaintiff had amended once before a responsive pleading had been served and once again ......
-
Russ v. State, 1D01-0205.
...832 So.2d 901Glendell RUSS, Appellant, ... STATE of Florida, Appellee ... No. 1D01-0205 ... District Court of Appeal ... v. Keys Title and Abstract Co., Inc., 741 So.2d 599 (Fla. 1st DCA 1999). "All statutes are ... ...
-
Alachua County v. Scharps, 1D02-3240.
...was denied access to the referenda process or sought to have a referendum placed on the ballot. In Florida National Organization for Women, Inc. v. State, 832 So.2d 911 (Fla. 1st DCA 2002), the court held that appellants did not have standing to allege a violation of first amendment rights ......