DONALD W. STOWE, PETITIONER,
v.
MARGARET ELIZABETH WILLIAMS SHULTS, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF GEORGE D. SHULTS, DECEASED, RESPONDENT
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The court held that striking a party's pleadings for seeking a protective order based on a tenable legal argument was an abuse of discretion.
The defendant petitioned for a writ of certiorari to review two trial court orders: one denying a motion for a protective order and another striking h…
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DANAHY, Judge.
Donald W. Stowe, defendant below, petitions for a writ of common law certiorari to review two orders of the trial court. One order denied the petitioner’s motion for a protective order. The second order struck the petitioner’s pleadings for failure to comply with an order compelling discovery. The motion for protective order was addressed to the sound discretion of the trial court and we find no abuse of that discretion on this record. Hence, there was no departure from the essential requirements of the law with respect to the disposition of that motion.
However, we-do find the trial judge abused his discretion when he struck petitioner’s pleadings. Such drastic action in this case constitutes a departure from the essential requirements of the law which requires us to quash that order. Petitioner had complied with other discovery orders to answer interrogatories and to respond to a request for admissions. He made a good faith argument that he was entitled to the requested protective order based on a tena ble point of law.1 To strike his pleadings before he could seek review of the denial of his request for a protective order was not warranted. To assert a legal right cannot constitute grounds to strike the pleadings of a litigant.
Accordingly, we quash the order striking the petitioner’s pleadings and reinstate them for further proceedings consistent with this opinion. Certiorari is otherwise denied.
GRIMES, C. J., and SCHEB, J., concur. . We are not presented with a case of flagrant or deliberate disregard of the court’s authority, nor with a case where the court made a finding of willful refusal to comply with its order. See Turner v. Anderson, 376 So. 2d 899 (Fla. 2d DCA 1979); Travelers Insurance Company v. Rodriguez, 357 So. 2d 464 (Fla. 2d DCA 1978); Swindle v. Reid, 242 So. 2d 751 (Fla. 4th DCA 1970); Hurley v. Werly, 203 So. 2d 530 (Fla. 2d DCA 1967).
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Sheik Abdul Rahman Momenah v. Ammache, 616 So. 2d 121 (Fla. 2d DCA 1993)…was to appear and was only prevented from doing so because of a congested calendar, the court erred by immediately striking his pleadings without giving him an opportunity to appear or to seek review of the denial of his motion. See Stowe v. Shults, 379 So. 2d 682 (Fla. 2d DCA1980). The filing of a motion for protective order does not act as an automatic stay in a civil action. Stables and CNA Ins. Co. v. Rivers, 559 So. 2d 440 (Fla. 1st DCA1990). But see Trawick’s Florida Practice & Procedure § 16-12 Protect…
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Rosaler v. Rosaler, 442 So. 2d 1018 (Fla. 3d DCA 1983)…f requests for discovery and the court’s ruling will not be disturbed unless an abuse of that discretion has been shown. No abuse of discretion has been made to appear in this case. Accordingly, the trial court’s ruling is affirmed. Stowe v. Shults, 379 So. 2d 682 (Fla. 2d DCA 1980); Abelson v. Bosem, 329 So. 2d 330 (Fla. 3d DCA 1976), cert. denied, 341 So. 2d 289 (Fla.1976); Crystal Springs Water Co. v. Atchison, 267 So. 2d 694 (Fla. 3d DCA 1972). Appellant’s next contention is that the trial court erred i…
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Mathews v. Kant, 427 So. 2d 369 (Fla. 2d DCA 1983)…whose order will not be overturned absent a clear showing of abuse of discretion. We cannot say as a matter of law that the court abused its discretion in finding (impliedly) that the subpoena was unreasonable and oppressive. See Stowe v. Shults, 379 So. 2d 682 (Fla. 2d DCA 1980), and Sunrise Shopping Center, Inc. v. Allied Stores Corp., 270 So. 2d 32 (Fla. 4th DCA 1972). AFFIRMED. OTT, C.J., and BOARDMAN and RYDER, JJ., concur.…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Travelers Ins. Co. & Peter Vassey v. Rodriguez, 357 So. 2d 464 (Fla. 2d DCA 1978)
- Swindle v. Reid, 242 So. 2d 751 (Fla. 4th DCA 1970)
- Hurley v. Werly, 203 So. 2d 530 (Fla. 2d DCA 1967)
- Carver v. State, 376 So. 2d 899 (Fla. 2d DCA 1979)