DON SMITH v. LISA MELTZER, etc.

• Court: District Court of Appeal of Florida
• Decided: January 4, 2023
• Docket: 22-0025
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed January 4, 2023. Not final until disposition of timely filed motion for rehearing.

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No. 3D22-25 Lower Tribunal No. 20-17789 ________________

Don Smith, Appellant,

vs.

Lisa Meltzer, etc., Appellee.

An appeal from the Circuit Court for Miami-Dade County, Carlos Guzman, Judge.

Golden Law, E. Scott Golden, and M. Mendel Kass (Fort Lauderdale), for appellant.

Jay M. Levy, P.A., and Jay M. Levy, for appellee.

Before LOGUE, LINDSEY, and MILLER, JJ.

MILLER, J.

UPON PARTIAL CONCESSION OF ERROR Appellant, Don Smith, challenges a final order dismissing his lawsuit

against appellee, Lisa Meltzer, as Personal Representative of the Estate of

Joan Saperstein, with prejudice and imposing attorney’s fees and costs as a

sanction for noncompliance with a court order requiring him to retain counsel

or file a notice of intent to proceed pro se. It is well-established under Florida

law that dismissing a case for noncompliance with a court order is “the most

severe of all sanctions which should be employed only in extreme

circumstances.” Mercer v. Raine, 443 So. 2d 944, 946 (Fla. 1983). Because

Smith was not afforded notice or an opportunity to be heard and the order of

dismissal was not accompanied by any finding of deliberate and

contumacious disregard of the court’s authority, bad faith, willful disregard,

gross indifference, or conduct evincing deliberate callousness, we reverse

and remand for further proceedings. Id.; see also Kozel v. Ostendorf, 629

So. 2d 817, 818 (Fla. 1993).

Reversed and remanded.