ALLINGTON TOWERS NORTH, INC., ET AL., APPELLANTS,
v.
S.A. WEISBERG AND S.A. WEISBERG, INC., APPELLEES; ALLINGTON TOWERS CONDOMINIUM NORTH, INC., APPELLANT, V. ALLINGTON TOWERS NORTH, INC., APPELLEE; ALLINGTON TOWERS NORTH, INC., ET AL., APPELLANTS, V. ALLINGTON TOWERS CONDOMINIUM NORTH, INC., APPELLEE
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Three consolidated appeals involving Allington Towers entities and related parties. The court reversed dismissal of a counterclaim for insufficient interrogatory answers, finding the trial court failed to provide adequate notice and opportunity to cure before imposing the drastic sanction of dismissal with prejudice.
A trial court must specifically point out the shortcomings in interrogatory answers and give the party an opportunity to remedy them before imposing the sanction of dismissal. A verbal warning at a hearing on an unrelated motion is insufficient notice. Only if the party then fails to file sufficient answers as ordered without good cause may the court invoke dismissal sanctions.
[1] A trial court may not dismiss a counterclaim with prejudice for insufficient answers to interrogatories without a prior motion to compel and an order specifying deficienc…
[2] A verbal warning regarding deficient interrogatory answers is insufficient to support a dismissal with prejudice as a condition precedent to such drastic action.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“in view of the drastic action of here dismissing the claim with prejudice we are of the opinion that such warning was insufficient”
The court found that a verbal warning given at an unrelated hearing was insufficient notice before dismissing a counterclaim with prejudice.
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Join FLexlaw to unlock all legal intelligenceAllington Towers Condominium North, Inc. filed a counterclaim but provided answers to interrogatories deemed insufficient by the trial court. The tria…
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PER CURIAM.
These are consolidated appeals.
Upon survey of the record and consideration of the several briefs and arguments of counsel, we determine, with the exception hereafter noted, that no reversible error has been demonstrated.
In Case No. 82-709 the counterclaim of Allington Towers Condominium North, Inc., was dismissed with prejudice for the reason that its answers to interrogatories were deemed insufficient. There was no prior motion to compel. There was no prior order specifying the deficiencies and ordering the counterclaimant to file new answers. There was a verbal warning earlier given by the trial court at a hearing upon a motion that did not involve the counter-claimant. However, in view of the drastic action of here dismissing the claim with prejudice we are of the opinion that such warning was insufficient. We feel that the trial court as a condition precedent to such a dismissal would have to specifically point out the shortcoming in the answers thereby giving the counterclaimant an opportunity to remedy. Then, if the counterclaimant failed to file sufficient answers as ordered without good cause the trial court would be in position to invoke sanctions such as dismissal. We reverse and remand upon authority of State Road Department v. Hufford, 161 So. 2d 35 (Fla. 1st DCA 1964) and Rashard v. Cappiali, 171 So. 2d 581 (Fla. 3d DCA 1965). See also Swindle v. Reid, 242 So. 2d 751 (Fla. 4th DCA 1970) and Herold v. Computer Components International, Inc., 252 So. 2d 576 (Fla. 4th DCA 1971).
We affirm as to Case Nos. 82-338 and 82-769. We reverse and remand as to Case No. 82-709.
LETTS, BERANEK and WALDEN, JJ., concur.
PER CURIAM.
Appellants in Case No. 82-338 and appellee in Case No. 82-709 correctly point out in their Motion For Rehearing that this Court’s opinion filed August 10, 1983, was in error. While we reversed in Case No. 82-709, we affirmed in Case No. 82-338, even though the facts and situations were identical in the two cases. Accordingly, we harmonize our holdings by reversing Case No. 82-338 for the reasons stated in our initial opinion.
Having here corrected our opinion the Motion For Rehearing is
DENIED.
BERANEK, LETTS and WALDEN, JJ., concur.
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Citator
Cited By
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Allington Towers N., Inc. v. S.A. Weisberg & S.A. Weisberg, Inc., 452 So. 2d 1122 (Fla. 4th DCA 1984)…PER CURIAM. The petition for rehearing is granted. Left unanswered from our prior pronouncements in this cause, 439 So. 2d 891, is a question of some poignance. Distilled to its essence, thus avoiding protracted discussion of the facts, the question is: When the apartment owners of a newly erected condominium sue the builder for defective construction and the builder seeks…
Authorities Cited
- Herold v. Computer Components Int'l, Inc., 252 So. 2d 576 (Fla. 4th DCA 1971)
- Rashard v. Cappiali, 171 So. 2d 581 (Fla. 3d DCA 1965)
- Swindle v. Reid, 242 So. 2d 751 (Fla. 4th DCA 1970)
- State Rd. Dep't of Fla. v. Hufford, 161 So. 2d 35 (Fla. 1st DCA 1964)