 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Martini v. Young11/18/2005
y picked up their file to obtain new counsel.
Further, there is no record evidence to support the conclusions made by the trial judge as to the time when the Martinis picked up their file. Lagano said it was as much as three months before the hearing, but he had not been sworn when he made these self-serving statements. Similarly, there was no actual evidence which indicated the Martinis had received notice of the hearing. Rather, the court surmised they had notice because they had picked up their file and he assumed the notice of hearing was contained in the file. Lastly, the six-month delay, cited by the trial court at a hearing on April 26, 2003, when new counsel appeared and asked for reconsideration, was primarily attributable to Lagano and the court itself.
Moreover, the trial judge did not even consider the first or second Kozel factors, which deals with the malfeasance of the attorney, Lagano. Instead, he found that the first two factors "dealing with the attorneys . . . disobedience, not being relevant" because Lagano represented to the court that his clients picked up their file three months before the hearing, and he understood that he had been discharged. The judge opined "the client takes the case as the client finds it."
However, in their brief, the Martinis allege that the earliest they informed Lagano of their desire to obtain new counsel was the first week of December, 2002, and that they did not actually receive their file until after the February 4, 2003 hearing. New counsel was engaged on February 10, 2003. Additionally, it is the responsibility of counsel to withdraw from a case when he is discharged. Rules of Professional Conduct, 4-1.16(a)(3). Lagano could have also moved for a continuance in this case until the Martinis had obtained new counsel. See generally, Campbell Soup Co. v. Roberts, 676 So. 2d 435 (Fla. 2d DCA 1995).
In any event, even if Lagano's statements prove to be true, the Martinis' conduct in obtaining a new lawyer, as cited by the trial judge, is not sufficient to justify the dismissal of their cause of action. See Kozel; American Express.
A dismissal with prejudice is reviewed on an abuse of discretion standard. Rohlwing. I believe that the trial judge abused his discretion in this case by dismissing the Martinis' cause of action, and I would therefore reverse the order and remand to the lower court.
Page 1 2 3 4 5 6 Florida Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|