J. Patrick Buckley v. Frank A. Rubino

• Court: District Court of Appeal of Florida
• Decided: February 19, 2025
• Docket: 3D2024-0250
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed February 19, 2025. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D24-0250 Lower Tribunal No. 19-16335 ________________

J. Patrick Buckley, Appellant,

vs.

Frank A. Rubino, Individually and Frank A. Rubino, Esquire, P.A., Appellees.

An Appeal from the Circuit Court for Miami-Dade County, Gina Beovides, Judge.

J. Patrick Buckley, in proper person.

Ronald I. Strauss, Esquire, P.A., and Ronald I. Strauss, for appellees.

Before SCALES, GORDO and GOODEN, JJ.

GORDO, J. J. Patrick Buckley (“Buckley”) appeals a final order dismissing his

complaint against Frank A. Rubino (“Rubino”) with prejudice for failure to

state a cause of action. We have jurisdiction. Fla. R. App. P. 9.030(b)(1)(A).

For the reasons that follow, we affirm.

I.

In May 2019, while incarcerated, Buckley filed the underlying civil

action against Rubino for breach of contract, fraud in the inducement and

malicious representation based on ineffective assistance of counsel in his

criminal case. In response, Rubino filed three motions to dismiss, asserting

failure to state a cause of action, failure to join an indispensable party and

lack of standing to sue.

In February 2023, the trial court conducted a hearing and orally

dismissed the complaint without prejudice for not alleging a specific breach

of contract or joining an indispensable party. 1 The court gave Buckley twenty

(20) days to amend, to which he replied, “[i]n 20 days I can take care of that.”

Buckley did not amend his complaint. In April 2023, Rubino moved to

strike Buckley’s pleadings for willfully disregarding the court’s ore tenus

order. The trial court issued a written order dismissing the complaint without

prejudice, allowing Buckley twelve (12) days to amend and explicitly stating

1 No written order was entered dismissing the complaint without prejudice.

2 “[n]o further extensions will be granted given the amount of time Plaintiff has

been aware of the court’s ruling.” The hearing on the motion to strike the

pleadings was reset and Buckley was duly notified.

Buckley never amended his complaint. In December 2023, the trial

court held a hearing on the motion to strike the pleadings. Buckley’s court

reporter was in attendance but he did not appear. The court dismissed

Buckley’s complaint with prejudice, finding him in willful disregard of the

court’s orders. This appeal followed.

II.

“While we review an order granting a motion to dismiss de novo, we

review the trial court’s granting of dismissal with prejudice versus without

prejudice under an abuse of discretion standard.” Pesce v. Morgan, 388 So.

3d 1107, 1108 (Fla. 3d DCA 2024).

III.

On appeal, Buckley argues the trial court abused its discretion in

dismissing his complaint with prejudice without providing an opportunity to

amend. 2

The record before us shows the trial court provided Buckley multiple

opportunities to amend his complaint over a period of ten months. He failed

2 We affirm the other issues raised without further discussion.

3 to comply with explicit court orders. Because Buckley was given adequate

notice of what would happen in the event he failed to timely amend his

complaint, we find no abuse of discretion in the trial court’s finding that his

noncompliance was indeed willful. See Fla. R. Civ. P. 1.420(b) (“Any party

may move for dismissal of an action or of any claim against that party for

failure of an adverse party to comply with these rules or any order of court.”);

Schindler v. Bank of N.Y. Mellon Tr. Co., 190 So. 3d 102, 103 (Fla. 4th DCA

2015) (“Although this court has recognized that dismissing a case with

prejudice is a drastic remedy which courts should employ only in extreme

situations . . . a trial court has the discretion to dismiss an action for an

egregious violation of an order requiring that an amended complaint be filed

within a certain time frame . . . prior to exercising its discretion to grant

dismissal based on failure to comply with a court order, the court must make

a finding that the failure to comply was willful or contumacious. Here, the

order of dismissal stated that it was entered because [Plaintiff] chose not to

timely file an amended complaint, thereby satisfying the requirement of an

express written finding that [Plaintiff’s] noncompliance was indeed willful.

[Plaintiff’s] argument that it was not properly notified that the order would act

as a dismissal with prejudice is without merit. A trial court cannot dismiss a

case with prejudice under rule 1.420(b) for failure to amend if it has not first

4 notified the offending party of the consequences of failing to amend. In the

instant case, it is clear from the record that [Plaintiff] was given adequate

notice of what would happen in the event that it failed to timely amend its

complaint. In its penultimate order of dismissal that gave leave to amend,

the trial court warned the parties that a failure to amend the complaint would

result in a dismissal . . . .”) (internal quotation marks and citations omitted);

Allstate Ins. Co. v. Montgomery Ward, 538 So. 2d 974, 975 (Fla. 5th DCA

1989) (“Involuntary dismissal is the defending party’s remedy for failure of

the plaintiff to further plead and may be used for any failure of the adverse

party to comply with a rule or a court order. The rule has been applied in

upholding the trial court’s discretion in dismissing for failure to amend a

pleading within the time limit set by the court. Here, the appellants clearly

did not comply with the court order requiring that an amended complaint, if

one was to be filed, be filed within 30 days from the date of the order, and

the trial court had the discretion to dismiss the action for an egregious

violation of that order.”).

Affirmed.