GRAPIN & CHAYKIN, M.D., P.A., AND BERTRAM GRAPIN AND LOUIS CHAYKIN, INDIVIDUALLY, APPELLANTS,
v.
TURNOFF & FOX, M.D., P.A., A FLORIDA PROFESSIONAL ASSOCIATION, AND HOWARD TURNOFF AND STEVEN FOX, INDIVIDUALLY, APPELLEES
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The court held that a discovery sanction order is void if it fails to contain findings that the contemnors have the present ability to comply with the underlying discovery orders.
Appellants sought rehearing of an order affirming discovery sanctions. They argued the affirmance conflicted with a prior case, Grapin & Chaykin v. Tu…
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PER CURIAM.
The appellants have filed a motion for rehearing of our per curiam opinion filed on May 25, 1982. Appellants urge, inter alia, that our opinion affirming the order of the trial court which imposed discovery sanctions should be vacated on the ground that our holding is in conflict with this court’s decision in Grapin & Chaykin v. Turnoff & Fox, 413 So. 2d 133 (Fla. 3d DCA 1982), in which a different panel held:
The trial court order adjudging plaintiffs in contempt of court and ordering them to pay to the defendants the sum of $250 per day for each and every day they remained in violation of orders requiring them to make discovery, is void for the failure of the order to contain findings that the alleged contemnors had the present ability to comply with the underlying discovery orders. Garo v. Garo, 347 So. 2d 418, 419 (Fla.1977); Epstein v. Epstein, 345 So. 2d 398 (Fla. 3d DCA 1977).
Reversed.
We recognize that our opinion of affirmance conflicts with the holding in Grapin & Chaykin v. Turnoff & Fox, supra, therefore, rehearing is granted and our opinion in this case is vacated. Upon rehearing we hold that the order of the trial court under review fails to find that the appellants have the present ability to comply, therefore it should be and is hereby reversed and the cause is remanded for further proceedings not inconsistent with the views expressed herein.
Reversed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Garcia Fleet Corp., Ltd. v. Martinez, 483 So. 2d 502 (Fla. 3d DCA 1986)…ive order, Rene and Nicolas Garcia were on the high seas and unavailable to be renoticed for their depositions. The Garci-as did not have the ability to comply with the discovery orders, see Grapin & Chaykin, M.D., P.A. v. Turnoff & Fox, M.D., P.A., 416 So. 2d 843 (Fla. 3d DCA 1982) (on motion for rehearing), and the appellee has not established that he was prejudiced in any way by the Garcias’ failure to comply. See Summit Chase Condominium Association v. Protean Investors, Inc., 421 So. 2d 562 (Fla. 3d DCA…
Authorities Cited
- Garo v. Garo, 347 So. 2d 418 (Fla. 1977)
- Grapin & Chaykin, M.D., P.A. v. Turnoff & FOX, M.D., P.A., 413 So. 2d 133 (Fla. 3d DCA 1982)
- Kelson Deanzel McKINNEY v. State, 345 So. 2d 398 (Fla. 3d DCA 1977)