GILLER v. GROSSMAN (2020)

District Court of Appeal of Florida, Third District.

Brian GILLER, Appellant, v. Anita GROSSMAN and Ira D. Giller, Appellees.

No. 3D20-462

Decided: December 23, 2020

Before FERNANDEZ, LOGUE and GORDO, JJ.

Law Offices of Andrew B. Peretz, P.A., and Andrew B. Peretz (Fort Lauderdale), for appellant. Berger Singerman, LLP, James D. Gassenheimer and Christina Perry, for appellee Anita Grossman; Harper Meyer Perez Hagen Albert Dribin & DeLuca LLP, Roselvin S. Edelman and Michael A. Dribin, for appellee Ira D. Giller.

ON CONFESSION OF ERROR

Appellant, Brian Giller, challenges the lower court's order dismissing with prejudice his action for the removal of Appellees, his brother and sister, as personal representatives of his father's estate. The adversarial proceeding was one of several suits relating to the administration of the Estate of Norman M. Giller. The lower court issued an order to progress case in the adversary proceeding, which stated the personal representatives must take some action in furtherance of the case. Appellees did nothing in furtherance of the order. Thereafter, the lower court entered an order of dismissal as a sanction based on the personal representatives’ failure to prosecute the adversary proceeding in violation of the order, despite that Giller was not the personal representative. Appellees then moved for entry of a corrected order of dismissal noting numerous clerical errors and alleging that Giller had been ordered to progress the case. The court granted the Appellees’ motion and issued a corrected order of dismissal.

Upon the Appellees’ proper confession of error, along with our independent review of the record, we find there was no legal or factual basis in the record to support the dismissal as a sanction and the corrected order of dismissal was not entered in compliance with Florida Rule of Civil Procedure 1.420(e).

Reversed and remanded for further proceedings.

PER CURIAM.

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