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BRIAN GILLER v. ANITA GROSSMAN AND IRA D. GILLER

Court: District Court of Appeal of Florida
Date filed: 2020-12-23
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       Third District Court of Appeal
                              State of Florida

                       Opinion filed December 23, 2020.

                              ________________

                               No. 3D20-462
                          Lower Tribunal No. 11-942
                             ________________

                                Brian Giller,
                                  Appellant,

                                      vs.

                   Anita Grossman and Ira D. Giller,
                                  Appellees.


      An Appeal from the Circuit Court for Miami-Dade County, Rosa C. Figarola,
Judge.

     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.


Before FERNANDEZ, LOGUE and GORDO, JJ.

      PER CURIAM.
                       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.




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