Thornton v. Board of County Commissioners of Dade County

District Court of Appeal of Florida

Thornton v. Board of County Commissioners of Dade County

149 So. 2d 393

District Court of Appeal of Florida·Decided February 5, 1963·No. No. 62-430·Published·Cited by 3 cases

Opinion

BARKDULL, Judge.

By this appeal, review is sought of an order of the trial judge dismissing a complaint for personal. injuries brought by a minor through his father as his next friend, and also the father’s derivative claim for medical expenses incurred because of the alleged' injuries.

It appears that the dismissal was. with prejudice because of the failure of the father to appear at the time he was noticed' for the taking of his deposition on more [394]*394than one occasion. A trial judge is possessed of the authority, under the rules,¹ to dismiss a complaint or a cause of action because of failure to comply with discovery procedures and, under certain circumstances, may be within his power in dismissing a complaint or a cause of action with prejudice. However, the record in this case fails to support a dismissal of both the minor’s and the father’s complaints or causes of action with prejudice and, there-. fore, so much of the order of dismissal as dismissed the cause with prejudice be and the same is hereby reversed, with directions to eliminate this provision from the final order of dismissal. See: Palm Shores, Inc. v. Nobles, 1941, 149 Fla. 103, 5 So.2d 52.

Affirmed in part; reversed in part.

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BARKDULL, Judge.

By this appeal, review is sought of an order of the trial judge dismissing a complaint for personal. injuries brought by a minor through his father as his next friend, and also the father’s derivative claim for medical expenses incurred because of the alleged' injuries.

It appears that the dismissal was. with prejudice because of the failure of the father to appear at the time he was noticed' for the taking of his deposition on more [394]*394than one occasion. A trial judge is possessed of the authority, under the rules,¹ to dismiss a complaint or a cause of action because of failure to comply with discovery procedures and, under certain circumstances, may be within his power in dismissing a complaint or a cause of action with prejudice. However, the record in this case fails to support a dismissal of both the minor’s and the father’s complaints or causes of action with prejudice and, there-. fore, so much of the order of dismissal as dismissed the cause with prejudice be and the same is hereby reversed, with directions to eliminate this provision from the final order of dismissal. See: Palm Shores, Inc. v. Nobles, 1941, 149 Fla. 103, 5 So.2d 52.

Affirmed in part; reversed in part.

Thornton v. Board of County Commissioners of Dade County, 149 So. 2d 393 (Fla. Ct. App. 1963).

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Opinion

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