LEONARDO v. GRIMMING (1999)

District Court of Appeal of Florida,Fourth District.

Carlo LEONARDO, as Personal Representative of the Estate of Joseph Leonardo, Appellant, v. Ronald GRIMMING, Director of Florida Highway Patrol, Appellee.

No. 98-2820.

Decided: July 21, 1999

John G. George of George and Lander, P.A., Fort Lauderdale, for appellant. William M. Franz of Weiss & Handler, P.A., Fort Lauderdale, for appellee.

In this action for damages, at a case management conference, the trial court instructed the parties to “set down” a hearing in ten days. After the ten days expired, and no hearing had been “set down,” the trial court dismissed the case without prejudice, which may be the equivalent of a dismissal with prejudice because of the statute of limitations. We reverse the order because it does not contain “an express finding of a willful or deliberate refusal to obey a court order” which is a requisite for the sanction of dismissal. Commonwealth Fed. Sav. and Loan Ass'n v. Tubero, 569 So.2d 1271, 1272 (Fla.1990). Nor do we think, even if there had been such a finding, dismissal would have been justified. Reversed.

PER CURIAM.

WARNER, C.J., KLEIN and TAYLOR, JJ., concur.

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