Case dismissed; Not.

In 2008 a California lawyer filed a complaint in Florida and associated with a Florida Lawyer. Three years later when a sustainable complaint had still not been filed the Florida lawyer moved to withdraw. The Florida attorney, the California attorney, and the defense attorney entered into a stipulation agreeing to the withdrawal, but stipulating that the Florida attorney would be replaced and a third amended complaint would be filed within thirty days of the order approving the stipulation. They also agreed that if the complaint was not timely filed, the action would be dismissed with prejudice.

The judge signed an order letting the lawyer drop out, and no complaint was filed. Then the case was dismissed. California lawyer, who claimed not to have been mailed the order filed an appeal. What do you think happened?

Well, it turns out that the client was never told that the lawyer withdrew. Seminole County Judge Alan A. Dickey overlooked the requirement of client notification. As the District Court said, “Appellant, through new Florida counsel, points out two problems with the trial court’s dismissal. First, the record does not reflect that Appellant was ever notified by either of his attorneys about the withdrawal. Second, there is no indication that the court’s order permitting the withdrawal was provided to Appellant.” The rule of law is that, cases are to be “decided on the merits whenever possible.” The client was blameless in the delay, did not know her Florida lawyer had left her and cannot lose her case due to the lawyer’s dropping her case. “Although this case has proceeded very slowly during its lengthy stay in the system, it does not appear to be the fault of Appellant. Torrey requires that the court grant the amendment and allow the parties to proceed to trial on the merits.

This was not the only interesting case this week, in Johnson v. State, Case No. 5D12-1221, the court granted an Appellant’s request for an Opinion and Judge Torpy gives us gave an interesting explanation of how, or in this case how not to, lay the foundation for the admission of reputation evidence bearing on truthfullness. After hearing testimony, the trial court, St. Johns County Circuit Court Judge Wendy W. Berger, said, “I do not believe a sufficient predicate has been laid for the reputation evidence. There’s not been any evidence in a broad section of the community, and simply talking amongst family members is not sufficient; and, therefore, I’m not going to allow the reputation testimony.” “Spot on,” is the gist of the opinion. “The trial judge was in the best position to evaluate this testimony and make a preliminary finding of fact whether the witness was truly familiar with the reputation of the victim in the “community” or among her “associates,” as the statute requires. We cannot disturb this finding under our standard of review.”

This entry was posted in Uncategorized. Bookmark the permalink.

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )


Connecting to %s