STEPHEN MCNAMARA AND BONNIE MCNAMARA, APPELLANTS,
v.
BRADLEY REALTY, INC., A FLORIDA CORPORATION, APPELLEE
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PER CURIAM.
We reverse the trial court’s order, striking the defendants’ pleadings and entering a final judgment against them.
The facts do not support the severest sanctions because of the absence of extreme circumstances. The defendants last nonattendance at scheduled depositions was occasioned by attendance elsewhere; namely, upon an ill parent in South Africa; and although there was evidence of frustration or delay — which would justify lesser sanctions — the case had not yet been set for trial. See Wallraff v. T.G.I. Friday’s, Inc., 490 So. 2d 50 (Fla.1986); Santuso v. McGrath & Associates, Inc., 385 So. 2d 112 (Fla. 3d DCA 1980); Anderson v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 434 So. 2d 43 (Fla. 1st DCA 1983); and United Services Automobile Association v. Strasser, 492 So. 2d 399 (Fla. 4th DCA 1986).
See also Stoner v. Verkaden, 493 So. 2d 1126, 1127 (Fla. 4th DCA 1986) (order imposing sanctions under Rule 1.380 must recite that party’s failure to submit to discovery was willful).
The order here did not contain such findings required by Stoner. GLICKSTEIN and GUNTHER, JJ., and GOLDMAN, MURRAY, Associate Judge, concur.
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Commonwealth Fed. Sav. & Loan Ass'n v. Moshe Tubero, 569 So. 2d 1271 (Fla. 1990)…So. 2d 139 (Fla. 4th DCA 1988); Donner v. Smith, 517 So. 2d 709 (Fla. 4th DCA 1987); Championship Wrestling from Florida, Inc. v. DeBlasio, 508 So. 2d 1274 (Fla. 4th DCA), review denied, 518 So. 2d 1274 (Fla.1987); McNamara v. Bradley Realty, Inc., 504 So. 2d 814 (Fla. 4th DCA 1987); Stoner v. Verkaden, 493 So. 2d 1126 (Fla. 4th DCA 1986). In a concurring opinion in Championship Wrestling, Judge Anstead suggested that the question of whether or not a written finding of willful refusal was required in cases s…
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Moshe Tubero v. Chapnich, 552 So. 2d 932 (Fla. 4th DCA 1989)…rcer v. Raine. This requirement of an express finding of willful disregard in a trial court’s order dismissing a case as a sanction for discovery violations has been followed in several later opinions by this court. McNamara v. Bradley Realty, Inc., 504 So. 2d 814 (Fla. 4th DCA 1987); Donner v. Smith, 517 So. 2d 709 (Fla. 4th DCA 1987); Arviv v. Perlow, 528 So. 2d 139 (Fla. 4th DCA 1987); Bernaad v. Hintz, 530 So. 2d 1055 (Fla. 4th DCA 1988); In Re: Forfeiture of Twenty Thousand Nine Hundred Dollars Currency,…
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Stimpson Computing Scale Co., Inc. v. The Honorable Francis X. Knuck, 508 So. 2d 482 (Fla. 3d DCA 1987)…tions, we observe that the severity of a sanction must be commensurate with the violation. Mercer v. Raine, 443 So. 2d 944 (Fla.1983); Santuoso v. McGrath & Assocs., Inc., 385 So. 2d 112 (Fla. 3d DCA 1980). See also McNamara v. Bradley Realty, Inc., 504 So. 2d 814 (Fla. 4th DCA 1987) (striking of pleadings and entry of final judgment against defendants improper in absence of willful nonattendance of scheduled depositions); Beauchamp v. Collins, 500 So. 2d 294 (Fla. 3d DCA 1986) (late and incomplete compliance…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Wallraff v. T.G.I. Friday's, Inc., 490 So. 2d 50 (Fla. 1986)
- Santuoso v. McGRATH & Assocs., Inc., 385 So. 2d 112 (Fla. 3d DCA 1980)
- Wonna Stoner v. C.H. Verkaden & Stoner Builders Corp., 493 So. 2d 1126 (Fla. 4th DCA 1986)
- United Servs. Auto. Ass'n v. Strasser, 492 So. 2d 399 (Fla. 4th DCA 1986)
- Anderson v. Merrill Lynch, 434 So. 2d 43 (Fla. 1st DCA 1983)