County Civil Court: CIVIL PROCEDURE – Dismissal – it was error for trial court to dismiss amended counterclaim filed 31 months after the trial court’s deadline had expired – trial court must make finding of willful noncompliance or deliberate disregard of trial court’s order – Dismissal with Prejudice reversed.  Van Roo v. Laurel Oaks at Countrywoods Condominium Assoc., Inc., No. 03-3582CI-88A (Fla. 6th Cir. App. Ct. March 12, 2004). 

 

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

MARY ELLEN VAN ROO,

                        Appellant,

 

vs.                                                                                            Appeal No. 03-3582CI-88A

                                                                                                UCN522003**003582XXCI*P

LAUREL OAKS AT COUNTRYWOODS

CONDOMINIUM ASSOCIATION, INC., a

Florida not for profit corporation,

                        Appellee.

________________________________________/

 

Opinion filed _______________________

 

Appeal from Dismissal with Prejudice

Pinellas County Court

Judge William B. Blackwood

 

Daniel B. Schuh, Esquire

Attorney for Appellant

 

Bonita Kneeland Brown, Esquire

Attorney for Appellee

 

 

ORDER AND OPINION

 

 

            THIS CAUSE came before the Court on appeal, filed by Mary Ellen Van Roo (Van Roo), from the Order Granting Motion to Strike (Order), entered April 4, 2003, in favor of Laurel Oaks at Countrywoods Condominium Association, Inc. (Laurel Oaks).  Upon review of the briefs, the record and being otherwise fully advised, the Court reverses the Order as provided below.

            As set forth in the trial court’s Order granting Laurel Oaks’ Motion to Strike and Dismiss Defendant’s Second Amended Counterclaim, Van Roo’s Amended Counterclaim was dismissed without prejudice on April 15, 2000, [1] and Van Roo was given twenty days within which to file a second amended counterclaim.  Van Roo filed her second amended counterclaim over thirty-one months later, on December 3, 2002.  Therefore, the trial court dismissed the amended counterclaim with prejudice. 

            The Court finds that the Order must be reversed as the trial court failed to make the requisite finding of willful noncompliance or deliberate disregard of the trial court’s April 2000 order that directed Van Roo to file her second amended complaint within twenty days.  See Matthews v. Chaffee, 849 So.2d 483 (Fla. 2d DCA 2003).  In Matthews, the trial court dismissed the plaintiff’s complaint with prejudice finding that the plaintiff failed to comply with the court’s order when the plaintiff filed his amended complaint over one year after the trial court’s ten-day deadline had expired.  See id. at 484.  The Second District reversed the trial court holding that when a court exercises its discretion to dismiss a complaint for failure to comply with a time restriction, “the trial court must make an explicit finding of willful noncompliance or deliberate disregard.”  Id.

            Accordingly, the Court finds that the Order must be reversed and this cause remanded to the trial court to reconsider Laurel Oaks’ Motion to Strike and Dismiss and, if appropriate, to make an explicit determination whether Van Roo willfully failed to comply with the April 2000 order.  In entering this Order, the Court notes, as indicated from the transcript of the hearing, that the trial court may have believed that Van Roo’s second amended complaint failed to state a cause of action.  However, the trial court’s findings are silent on this matter and the Court cannot speculate as to whether this was a factor in striking the second amended complaint and dismissing the amended complaint with prejudice. 

 

            Therefore, it is,

            ORDERED AND ADJUDGED that the Order Granting Motion to Strike is reversed and this cause is remanded for further proceedings as set forth above.         It is further

            ORDERED AND ADJUDGED that the

           DONE AND ORDERED in Chambers, at Clearwater, Pinellas County, Florida this ________ day of March 2004.

 

 

 

 

                                                            ___________________________________                         

                                                            JOHN A. SCHAEFER

                                                            Circuit Judge, Appellate Division

 

 

 

 

Copies furnished to:

 

Judge William B. Blackwood

 

Daniel B. Schuh, Esquire

248 Mirror Lake Drive North

St. Petersburg, FL  33701

 

Bonita Kneeland Brown, Esquire

Post Office Box 1438

Tampa, FL  33601



[1] The order was actually signed on April 5, 2000.  This discrepancy has no bearing on this appeal.