Opinion
Nos. 77-2221, 77-2249.
July 25, 1978.
Appeal from the Circuit Court, Dade County, George Orr, J.
Daniel P. Tunick, Miami, for W.G.C. and Guardian.
Donald F. Frost, Miami, for The Man Co.
Before PEARSON, NATHAN and KEHOE, JJ.
By these consolidated appeals, both plaintiff/counter-defendants, and defendant/counter-plaintiffs, urge reversal of an order of the trial court which dismissed with prejudice, actions arising from a real estate transaction between the parties. We find that dismissal with prejudice was too harsh a remedy and therefore, we reverse.
The record reveals that both sides failed to comply with an order of the trial court which required that pre-trial catalogues be filed at least ten days prior to trial date. However, such non-compliance is not shown to have been willful nor, more importantly, does either side claim prejudice as a result. Indeed, both sides seek reversal of the order of dismissal.
While it is within the discretion of the trial court to impose sanctions for non-compliance with court orders, the court abused its discretion in dismissing these causes with prejudice where no prejudice was asserted by either side. It was error to condemn the litigants to the loss of their right to access to the courts because of their attorneys' non-willful failure to comply with a court order. Travelers Insurance Company v. Rodriguez, 357 So.2d 464 (Fla. 2d DCA 1978). The other point raised on appeal is deemed to be without merit and will not be discussed.
Reversed and remanded.