Johnson v. Landmark First Nat. Bank, 81-1971
| Decision Date | 23 June 1982 |
| Docket Number | No. 81-1971,81-1971 |
| Citation | 415 So.2d 161 |
| Parties | William J. JOHNSON and Ruth Johnson, his wife, Appellants, v. LANDMARK FIRST NATIONAL BANK and Joseph Gunther, Appellees. |
| Court | Florida District Court of Appeals |
Richard W. Smith of Johnson & Smith, Fort Lauderdale, for appellants.
Robert A. Ware of English, McCaughan & O'Bryan, Fort Lauderdale, for appellee, Landmark.
David T. Price of Price, Byrne & Tribbett, Fort Lauderdale, for appellee, Gunther.
Appellants, William and Ruth Johnson, commenced action against appellees, Joseph Gunther and The Landmark First National Bank of Fort Lauderdale, in a complaint alleging fraud and violations of the Securities Act of 1933. Some three years later, the trial court dismissed their complaint without prejudice due to their attorney's failure to appear at various hearings and to otherwise comply with the trial court's orders. Appellants assert that the trial court abused its discretion in dismissing their action.
The severity of sanctions imposed by the trial court is a matter within its sound discretion and the exercise of this discretion will not be disturbed absent a clear showing of abuse. Ferrante v. Waters, 383 So.2d 749 (Fla. 4th DCA 1980); Hart v. Weaver, 364 So.2d 524 (Fla. 2d DCA 1978). As previously noted in our decisions, the ultimate sanction of dismissal should be employed only in aggravated situations. Swindle v. Reid, 242 So.2d 751 (Fla. 4th DCA 1970). The trial court here might well have sanctioned counsel directly by contempt and a fine. Although the members of this panel would have employed this less severe alternative, we confine ourselves to our review function. In this instance, a review of the record before us does not demonstrate an abuse of discretion. Appellate counsel suggests that the dismissal without prejudice will actually terminate the case because the statute of limitations has run. This is regretful, but we note that this argument was never brought to the trial court's attention and is raised for the first time on appeal. But for the actions of counsel, appellants would still have a cause of action. Appellants' only recourse now is an action against their counsel.
AFFIRMED.
To continue reading
Request your trial
-
Kozel v. Ostendorf
...such a dismissal this court must be convinced that the trial court abused its discretion. See, e.g., Johnson v. Landmark First Nat'l Bank, 415 So.2d 161 (Fla. 4th DCA 1982); Neida's Boutique, Inc. v. Gabor & Co., 348 So.2d 1196 (Fla. 3d DCA 1977), cert. denied, 366 So.2d 883 (Fla.1978). Par......
-
Ham v. Dunmire
...action based upon an attorney's neglect. See Beasley v. Girten, 61 So.2d 179, 181 (Fla.1952); see also Johnson v. Landmark First Nat'l Bank, 415 So.2d 161 (Fla. 4th DCA 1982). In Beasley, this Court recognized that the interests of justice may support a dismissal with prejudice for a "persi......
-
Allendorfer v. Wood
...be used only in extreme situations. Lifeguard Corp. v. U.S. Home Corp., 429 So.2d 94 (Fla.2d DCA 1983); Johnson v. Landmark First Nat. Bank, 415 So.2d 161 (Fla. 4th DCA 1982); Ramos v. Sanchez. Courts have reversed orders of dismissal or the entry of default judgments where the disregard of......
-
Ramp Intern. East Coast, U.S.A. Inc. v. Oshkosh Truck Corporation/Trailer Div.
...in willful disobedience of its earlier order and to dismiss count IV of the counterclaim with prejudice. See Johnson v. Landmark First Nat'l Bank, 415 So.2d 161 (Fla. 4th DCA 1982); Clifford Ragsdale, Inc. v. Morganti, Inc., 356 So.2d 1321 (Fla. 4th DCA), cert. denied, 362 So.2d 1051 (Fla.1......
-
The "big lie".
...to comply with pretrial order requiring plaintiff to disclose the names of her expert witnesses); Johnson v. Landmark First Nat'l Bank, 415 So. 2d 161 (Fla. 4th DCA Repeated neglect or contumacious conduct by counsel also may form the basis for an order of dismissal with prejudice, so long ......
-
A serious penalty for perjury.
...Savino v. Florida Drive In Theatre Management, Inc., 637 So. 2d 1011 (Fla. 4th D.C.A. 1997). [7] Johnson v. Landmark First National Bank, 415 So. 2d 161 (Fla. 4th D.C.A. [8] O'Vahey v. Miller, 644 So. 2d 550 (Fla. 3d D.C.A. 1994), review denied, 654 So. 2d 919 (Fla. 1995). [9] Mendez v. Bla......