       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT
                              July Term 2014

                        ROCHELLE GOLDBERG,
                             Appellant,

                                    v.

            LAW OFFICE OF SARA LAWRENCE, P.A., et al.,
                           Appellees.

                             No. 4D12-1736

                           [November 5, 2014]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Susan F. Greenhawt, Judge; L.T. Case No. 07-2601
(37/90).

   Mark Bain of Mark Bain, P.A., Plantation, for appellant.

   Sara Lawrence and Frank Wolland, North Miami, for appellee Law
Office of Sara Lawrence, P.A.

KLINGENSMITH, J.

   This case stems from a dissolution of marriage. Prior to the entry of
the final judgment, Sara Lawrence (“respondent”) filed a notice of
charging lien and requests for other relief against Rochelle Goldberg
(“petitioner”), pursuant to the terms and conditions of the attorney-client
retainer agreement contract she executed with petitioner. Respondent’s
motion for charging lien was referred to a general magistrate, and
petitioner timely filed her exceptions to recommendations contained in
the magistrate’s report. The trial court subsequently entered an order
denying petitioner’s exceptions, citing her failure to comply with Florida
Family Law Rule of Procedure 12.490(g)(2), which required petitioner to
provide opposing counsel with a copy of all pertinent transcripts and
records before the hearing. Fla. Fam. L. R. P. 12.490(g)(2). Petitioner
claims that her inadvertent failure to provide opposing counsel with a
copy of the transcripts prior to the hearing did not merit dismissal of her
exceptions. We agree.
    Rule 12.490(g)(2) requires the party seeking review of a general
magistrate’s order to deliver a transcript of all relevant proceedings to the
judge and all other parties no less than forty-eight hours before the
hearing on exceptions. Id. Although petitioner’s counsel filed all relevant
records and transcripts with the trial court, a copy of the record was not
delivered to opposing counsel. Petitioner’s counsel stated that he only
learned that respondent did not receive the transcripts on the day of the
hearing. While they did not possess a copy at the hearing, respondent’s
counsel was aware that the transcripts had previously been ordered, and
knew it had been filed with the court upon receiving petitioner’s notice of
filing.1

   Dismissal is an extreme sanction, and should be reserved for cases
involving flagrant violations of procedural rules. See generally Lindsey v.
King, 894 So. 2d 1058, 1059 (Fla. 1st DCA 2005) (stating that “‘[a]
sanction imposed under rule 9.410 of the Florida Rules of Appellate
Procedure must be commensurate with the violation. Dismissal is an
extreme sanction and, as such, it is reserved for the most flagrant
violations of the appellate rules’” (quoting Irvin v. Williams, 736 So. 2d
705, 705 (Fla. 1st DCA 1999)); De La Torre v. Orta ex rel. Orta, 785 So. 2d
553, 555 (Fla. 3d DCA 2001) (stating that “dismissal of claims or
defenses is an extreme sanction which should be used sparingly”); Moose
v. State, 519 So. 2d 61, 62 (Fla. 2d DCA 1988) (finding that the harsh
sanction of dismissal results in “the sins of the attorney being visited
upon the client”).

    We recognize the importance of parties complying with deadlines set
by the rules of court. See Kozel v. Ostendorf, 629 So. 2d 817, 818 (Fla.
1993) (“In the interest of an efficient judicial system and in the interest of
clients, it is essential that attorneys adhere to filing deadlines and other
procedural requirements.”). However, there was no evidence presented
that petitioner willfully or flagrantly failed to comply with rule
12.490(g)(2). It appears from the record that the failure to deliver the
transcripts to opposing counsel was an inadvertent mistake, a
conclusion that is corroborated by the totality of the circumstances.



1 Petitioner’s position implies that opposing counsel had an affirmative duty to
request the transcripts from petitioner prior to the hearing. Although
respondent’s knowledge that the transcripts were available might be relevant as
to whether respondent was prejudiced by having the hearing continued, we
emphasize that under the rule it was the petitioner who bore the burden of
providing the transcripts to all parties, and consequently it was petitioner’s
responsibility to ensure it had been timely received.

                                       2
   The trial court abused its discretion by denying petitioner’s exceptions
based solely on the inadvertent failure to provide a copy of the
transcripts to opposing counsel as required by rule 12.490(g)(2). Her
conduct was not sufficiently egregious to warrant the draconian sanction
of dismissal. Rather than dismiss the exceptions, the appropriate
remedy under these circumstances should have been to grant a
continuance of the hearing and allow petitioner the opportunity to
ensure the delivery of the transcripts to respondent. A continuance
would have allowed opposing counsel a chance to review the transcripts,
and would have preserved petitioner’s due process rights in the
underlying proceeding by allowing her to litigate this case on the merits.

   Reversed and Remanded.

GERBER and LEVINE, JJ., concur.

                           *         *        *

   Not final until disposition of timely filed motion for rehearing.




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