IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
IN AND
APPELLATE DIVISION
MARY ELLEN VAN ROO,
Appellant,
vs.
Appeal No. 03-3582CI-88A
UCN522003**003582XXCI*P
CONDOMINIUM ASSOCIATION, INC., a
Appellee.
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Opinion filed _______________________
Appeal from Dismissal with Prejudice
Judge William B. Blackwood
Daniel B. Schuh, Esquire
Attorney for Appellant
Bonita Kneeland Brown, Esquire
Attorney for Appellee
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 (
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
___________________________________
JOHN A. SCHAEFER
Circuit Judge, Appellate Division
Copies furnished to:
Judge William B. Blackwood
Daniel B. Schuh, Esquire
Bonita Kneeland Brown, Esquire
Post Office Box 1438