Kaufman v. Kubicki, Draper, Gallagher & McGrane, P.A.

• Court: Florida District Court of Appeals
• Writing for the Court: PER CURIAM
• Citation: Kaufman v. Kubicki, Draper, Gallagher & McGrane, P.A., 683 So.2d 632 (Fla. App. 1996)
• Decision Date: 27 November 1996
• Docket Number: No. 95-2447,95-2447
• Parties: 21 Fla. L. Weekly D2520 Robert S. KAUFMAN, Appellant, v. KUBICKI, DRAPER, GALLAGHER & McGRANE, P.A., a Florida Professional Association n/k/a Kubicki, Draper, a Professional Association, and Gail Kniskern n/k/a Gail Leverett, Appellees.

Page 632

683 So.2d 632

21 Fla. L. Weekly D2520

Robert S. KAUFMAN, Appellant, v. KUBICKI, DRAPER, GALLAGHER & McGRANE, P.A., a Florida Professional Association n/k/a Kubicki, Draper, a Professional Association, and Gail Kniskern n/k/a Gail Leverett, Appellees.

No. 95-2447.

District Court of Appeal of Florida Third District.

Nov. 27, 1996.

Lewis, Vegosen, Rosenbach & Silber, P.A. and Marshall J. Osofsky, West Palm Beach, for appellant.

Walton Lantaff Schroeder & Carson and G. Bart Billbrough, Miami, for appellees.

Before GERSTEN, GREEN and FLETCHER, JJ.

PER CURIAM.

This is an appeal from an order granting appellees' motion to strike appellant's complaint for failure to comply with Administrative Order No. 79-2 regarding previously dismissed and refiled cases and an order denying appellant's motion to transfer. Administrative Order No. 79-2 ¹ requires that when a case filed in the Eleventh Judicial Circuit is dismissed and subsequently refiled and the plaintiff's counsel has knowledge of the earlier filed case, the plaintiff's counsel is required to file a "Notice of Previous Filing" which sets forth the style, case number, section and date of dismissal of the prior case. Although this case was a refiled action, the appellant failed to file the required "Notice of Previous Filing" simultaneously with the refiled complaint. Prior to the hearing on appellees' motion to strike, however, the appellant did file his "Notice of Previous Filing" and requested that this action be transferred back to the circuit court division to which it was originally assigned. The trial court, however, granted appellees' motion and as a result of the complaint being stricken, appellant's motion to transfer this cause was denied. This appeal followed.

We reverse upon a finding that the trial court abused its discretion in imposing the ultimate sanction of dismissal where there was no showing that appellant's failure to comply with the court's administrative order was flagrant or willful, see, e.g., Townsend v. Feinberg, 659 So.2d 1218, 1219 (Fla. 4th DCA 1995); Wright v. Allen, 611 So.2d 23, 24 (Fla. 1st DCA 1992); World on Wheels of Miami, Inc. v. Int'l Auto Motors, Inc., 569 So.2d 836, 837 (Fla. 3d DCA 1990); Carillon Corp. v. Devick, 554 So.2d 630, 632 (Fla. 4th DCA 1989), or that appellant's failure to file the "Notice of Previous Filing" simultaneously with the refiling of the complaint below created prejudice to appellees, see, e.g., Martin v. Laidlaw Tree Serv., Inc., 619 So.2d 435, 439 (Fla. 2d DCA 1993); Wainscott v. Rindley, 610 So.2d 649, 650 (Fla. 3d DCA 1992); Bieling v. E.F. Hutton & Co., 522 So.2d 878 (Fla. 2d DCA), review denied, 531 So.2d 1352 (Fla.1988).

We therefore remand this cause with instructions...