NEIL LONDON v. JOHN TEMERIAN , 257 So. 3d 143 ( 2018 )


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  •        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
    FOURTH DISTRICT
    NEIL LONDON,
    Appellant,
    v.
    JOHN TEMERIAN,
    Appellee.
    No. 4D18-1092
    [November 7, 2018]
    Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
    Beach County; Edward A. Garrison, Judge; L.T. Case No. 50-2011-CA-
    020980-XXXX-MB.
    Troy William Klein of Law Office of Troy W. Klein, P.A., West Palm
    Beach, for appellant.
    Shai Ozery of Posada, Taddeo, Dietiker, P.A., Coral Springs, for
    appellee.
    PER CURIAM.
    Neil London appeals an order involuntarily dismissing his complaint
    and an order denying his verified motion to set aside the dismissal. We
    reverse.
    The dismissal was entered as a result of London’s counsel’s failure to
    comply with the pre-trial order and failure to appear at calendar call.
    Thereafter, counsel moved to set aside the dismissal, explaining that he
    was unaware of the pre-trial order because of the death of his staff
    person. After a hearing, the motion was denied.
    Although “[d]ismissing a complaint as a sanction for failing to appear
    is within the trial court’s discretion. . . . a dismissal is too severe a
    sanction for failure to attend a pre-trial conference ‘absent a record
    showing of willful or intentional disregard of a court order.’” Adlington v.
    Fla. Parole Com’n, 
    824 So. 2d 256
    , 257 (Fla. 4th DCA 2002) (quoting
    Garland v. Dixie Ins. Co., 
    495 So. 2d 785
    , 785 (Fla. 4th DCA 1986)).
    Accordingly, this court has long held that the trial court must expressly
    find willful noncompliance with or deliberate disregard of a court order
    before dismissing an action for noncompliance, and must include such a
    finding in the order of dismissal:
    “An order dismissing a complaint as a sanction must
    ‘contain an explicit finding of willful noncompliance.’”
    Carpenter v. McCarty, 
    810 So. 2d 1053
    , 1054 (Fla. 4th DCA
    2002) (quoting Commonwealth Fed. Sav. & Loan Ass’n v.
    Tubero, 
    569 So. 2d 1271
    , 1273 (Fla.1990)); see also
    Adlington v. Florida Parole Com’n, 
    824 So. 2d 256
    , 257 (Fla.
    4th DCA 2002) (citing Lenfestey v. U.S. Balloon Corp., 
    699 So. 2d 850
     (Fla. 4th DCA 1997)). The order granting
    dismissal with prejudice must include an explicit finding of
    willfulness, even when the lower court cites, with specificity,
    substantial facts that would support a finding of willfulness.
    Carpenter, 
    810 So. 2d at 1054
    .
    Young v. USAA Cas. Ins. Co., 
    80 So. 3d 1147
    , 1147-48 (Fla. 4th DCA
    2012).
    Because the orders on appeal do not contain a finding that appellant
    or his counsel willfully failed to comply with the court order, we reverse
    and remand for the trial court to conduct further proceedings.
    DAMOORGIAN, KLINGENSMITH, JJ., and KANNER, DANIEL J., Associate Judge,
    concur.
    *         *        *
    Not final until disposition of timely filed motion for rehearing.
    2