Virginia Key Marina, Inc. v. Bello

District Court of Appeal of Florida

Virginia Key Marina, Inc. v. Bello

593 So. 2d 1223, 1992 Fla. App. LEXIS 1775, 1992 WL 32823

CourtDistrict Court of Appeal of Florida

DecidedFebruary 25, 1992

DocketNo. 91-1611

StatusPublished

This text of 593 So. 2d 1223 (Virginia Key Marina, Inc. v. Bello) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Virginia Key Marina, Inc. v. Bello, 593 So. 2d 1223, 1992 Fla. App. LEXIS 1775, 1992 WL 32823 (Fla. Ct. App. 1992).

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Opinion

PER CURIAM.

Virginia Key Marina appeals from a final judgment in a negligence action. For the following reasons, we reverse.

Enrique Bello sued Virginia Key Marina, alleging that his boat had suffered damages from negligent handling and vandalism while stored at the marina. The marina answered, raised the affirmative defenses of accord and satisfaction and a contractual exculpatory clause, and counterclaimed for unpaid storage fees. On February 26, 1991, Bello moved to strike the marina’s pleadings, to dismiss its counterclaim, and for judgment on the pleadings as to the issue of liability because the marina had not timely filed its pretrial catalog as ordered by the court. On March 1,1991, the marina filed its pretrial catalog. On March 14, 1991, the trial court granted Bello’s motion to strike, to dismiss the counterclaim, and for judgment on the pleadings. The marina moved to set aside that order on the ground of excusable neglect. The trial court granted that motion but in its written order noted that “judgment on the pleadings as to the issue of liability stands.” Following a non-jury trial, the trial court awarded Bello damages of $603, an expert witness fee, and costs and attorney’s fees.

The trial court abused its discretion in entering judgment on the pleadings and striking the marina’s counterclaim as a sanction for failure to timely file a pretrial catalog. Maqueira v. Almas, 409 So.2d 199 (Fla. 3d DCA 1982) (striking of pleadings and entry of default judgment and final judgment too severe a sanction for failure to file pretrial catalog in non-jury trial in absence of showing that counsel’s failure to comply was willful or in flagrant disregard of court’s authority). Accordingly, we reverse and remand for a new trial on both the claim in chief and the counterclaim. Because the record now demonstrates that Bello does not have a claim in which the matter in controversy exceeds $5,000, we direct the court on remand to transfer the action to county court. See § 34.01, Fla.Stat. (1989).

Reversed and remanded with directions.

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PER CURIAM.

Virginia Key Marina appeals from a final judgment in a negligence action. For the following reasons, we reverse.

Enrique Bello sued Virginia Key Marina, alleging that his boat had suffered damages from negligent handling and vandalism while stored at the marina. The marina answered, raised the affirmative defenses of accord and satisfaction and a contractual exculpatory clause, and counterclaimed for unpaid storage fees. On February 26, 1991, Bello moved to strike the marina’s pleadings, to dismiss its counterclaim, and for judgment on the pleadings as to the issue of liability because the marina had not timely filed its pretrial catalog as ordered by the court. On March 1,1991, the marina filed its pretrial catalog. On March 14, 1991, the trial court granted Bello’s motion to strike, to dismiss the counterclaim, and for judgment on the pleadings. The marina moved to set aside that order on the ground of excusable neglect. The trial court granted that motion but in its written order noted that “judgment on the pleadings as to the issue of liability stands.” Following a non-jury trial, the trial court awarded Bello damages of $603, an expert witness fee, and costs and attorney’s fees.

The trial court abused its discretion in entering judgment on the pleadings and striking the marina’s counterclaim as a sanction for failure to timely file a pretrial catalog. Maqueira v. Almas, 409 So.2d 199 (Fla. 3d DCA 1982) (striking of pleadings and entry of default judgment and final judgment too severe a sanction for failure to file pretrial catalog in non-jury trial in absence of showing that counsel’s failure to comply was willful or in flagrant disregard of court’s authority). Accordingly, we reverse and remand for a new trial on both the claim in chief and the counterclaim. Because the record now demonstrates that Bello does not have a claim in which the matter in controversy exceeds $5,000, we direct the court on remand to transfer the action to county court. See § 34.01, Fla.Stat. (1989).

Reversed and remanded with directions.

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593 So. 2d 1223, 1992 Fla. App. LEXIS 1775, 1992 WL 32823, Counsel Stack Legal Research, https://law.counselstack.com/opinion/virginia-key-marina-inc-v-bello-fladistctapp-1992.

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