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Is an order of "Dismiss" a dismissal with prejudice and can I refile the case?
I filed a small claims court case in Volusia County Florida against a man who admits vandalizing my property.
A trial date and time was set. I made an error in the appearance time and was 20 minutes too late. The judge entered a "dismiss" order without stating whether it was with or without prejudice. The clerk told me I could refile, which I did. AT our pretrial conference, The defendant had an attorney who says the order is with prejudice because it does not state otherwise and I cannot refile the case. The judge gave me 10 days to present case evidence of precedant where such a case was allowed to be refiled. I think she was hinting at how I can be heard. Do you know of any case law or how I can be heard? |
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Not sure if this will help but NJ rules specify that it is without prejudice unless otherwise specified. RULE 4:37. DISMISSAL OF ACTIONS |
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You would have to research Florida Law in order to find a previous case with these circumstances - and that is VERY time consuming. You could retain an Attorney to do this research for you but, again, it will be expensive. The Judge wasn't hinting at how to get the matter heard; she was telling you to give her legal proof that you CAN refile, citing specific case law. Providing case law is the only way you can be rescheduled. Here is what I find: "If you fail to appear at trial, the judge will dismiss your claim, or he may enter a judgment in favor of the defendant - you lose. If the defendant doesn't appear at trial, you win automatically. The judge will enter a judgment (called a "default judgment") awarding you the amount of your claim, plus your court costs or filing fees. In the case of a default, you still need to show the judge that your claim against the defendant is valid and that the defendant was properly served with (or given a copy of) your Civil Warrant before the trial date. Likewise, the defendant may be given a default judgment against you if he filed a counterclaim and you didn't show up at trial to defend it." http://research.lawyers.com/Virginia...ms-Trials.html Looks to me like the opposing Attorney and Judge are relying on this language - WILL DISMISS your claim. I see no provision for an appeal. |
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