MICHAEL TRUPEI, APPELLANT,
v.
THE CITY OF LIGHTHOUSE POINT, FLORIDA, AND THE CITY OF LIGHTHOUSE POINT POLICE DEPARTMENT, APPELLEES

Fla. 4th DCA | 1987-04-08
No. 85-1982
HERSEY, C.J., and WALDEN, J., concur.
506 So. 2d 19 Florida District Court of Appeal, Fourth District (1987) Negative Treatment
Cited by 18 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Appellant Trupei challenged a default judgment and forfeiture of his aircraft after the trial court struck his pleadings for failure to appear at a deposition. The court reversed, holding that striking pleadings is an overly severe sanction that requires a finding of willful or contumacious conduct, which was absent here since appellant's non-appearance resulted from the state's failure to arrange his remand from federal prison.


Holding

The judgment was reversed. Striking a party's pleadings and entering default is the most severe sanction available and should be used sparingly, requiring a prior finding that the failure to appear was willful, in bad faith, or a deliberate and contumacious disregard of court authority. No such finding was made here, and none could have been made given that appellant's non-appearance was due to the state's failure to secure his remand from federal prison.


Headnotes

[1] Striking a party's pleadings and entering a default judgment for failure to appear for a deposition is a severe sanction that should be used sparingly.

[2] Before striking a party's pleadings for failure to appear for a deposition, a trial court must find that the failure was willful, in bad faith, or a deliberate and contum…

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Key Quotes

“Striking a party's pleadings and entering a default for failure to appear for a deposition is considered the most severe of all sanctions and should be resorted to sparingly.”

Establishes the applicable legal standard that striking pleadings is an extreme remedy requiring exceptional circumstances.

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Facts & Procedural History

On October 23, 1984, the City of Lighthouse Point filed a complaint seeking forfeiture of a 1979 Cessna aircraft in which appellant claimed an interes…

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Opinion of the Court
DOWNEY, Judge.

DOWNEY, Judge.

On October 23, 1984, appellees filed a Verified Complaint for Rule to Show Cause and Final Order of Forfeiture of a 1979 Cessna 210 Centurion II aircraft in which appellant claimed an interest. Thereafter, on November 27, 1984, appellees filed a request for admissions to appellant, mailing same to his last known non-prison address. However, at the time appellant was not yet a party to the action nor did he receive the request for admissions as he had lost the addressee house to foreclosure.

In December, 1984, appellant filed a motion to dismiss the complaint, which was never ruled upon. Later, in February, 1985, appellees noticed appellant for a March deposition at appellees’ attorney’s office. However, appellant was then a prisoner in a federal prison at Maxwell Air Force Base in Montgomery, Alabama. When appellees moved for a default and sanctions for failure to appear for deposition, appellant filed an answer incorporating his previous motion to dismiss, and also filed a response to appellees’ motion for default, alleging appellees’ failure to comply with Florida Rule of Civil Procedure 1.310(a), in that appellant was in federal prison and appellees had not obtained leave of court to depose him. Appellant also filed a response to the earlier request for admissions, and a motion to allow late response to request for admissions, pointing out that, when first filed, he was not a party to the cause and the request for admissions was sent to the wrong address. The court denied appellees’ motion for default for failure to comply with Rule 1.310(a) and because the request for admissions was not properly served. Upon the representation that appellant was to be tried in Broward County on July 8, 1985, the court set his deposition there for July 9, 1985.

Appellant did not appear for trial on July 8,1985, because the state did not secure his remand from federal custody therefor. Thus, neither was he present for the scheduled deposition. Appellant’s attorney tried to arrange a new deposition date with counsel for appellees without success. Instead, appellees filed a motion for default for appellant’s failure to comply with the prior discovery order. The trial court held a hearing on July 18,1985, and thereafter, on July 22, 1985, struck appellant’s pleadings and entered final judgment of forfeiture. From that judgment appellant perfected this appeal.

Appellant has presented six points on appeal, most of which have no merit. However, appellant’s first point is dispositive of this appeal and, thus, it is not necessary to reach the other points.

The basis for reversal of the judgment is the action of the trial court in striking appellant’s pleadings when he failed to appear in Broward County for deposition as ordered by the court. As explained above, the reason that particular time had been designated was that appellant was set for a criminal trial on that date in Broward County. However, the state failed to make the necessary arrangements for appellant’s remand to Broward County from federal prison in Alabama.

Striking a party’s pleadings and entering a default for failure to appear for a deposition is considered the most severe of all sanctions and should be resorted to sparingly. Wallraff v. T.G.I. Friday’s, Inc., 490 So. 2d 50 (Fla.1986). Furthermore, before resorting to this drastic remedy the trial court must make a finding that the failure to appear and be deposed was willful or done in bad faith, or was a deliberate and contumacious disregard of the court’s authority. Wallraff; Mercer v. Raine, 443 So. 2d 944 (Fla.1983). No such finding was made here, nor could one have been made under the circumstances as presented by the record.

Accordingly, the judgment appealed from is reversed and the cause is remanded to the trial court for further appropriate proceedings.

HERSEY, C.J., and WALDEN, J., concur.


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Citator

Cited By

  • Moshe Tubero v. Chapnich, 552 So. 2d 932 (Fla. 4th DCA 1989)
    …. 4th DCA 1987); Mittleman v. Rowe International, Inc., 511 So. 2d 766 (Fla. 4th DCA 1987); Cohn v. Nostalgia Realty, Inc., 516 So. 2d 1073 (Fla. 4th DCA 1987). In fact, in Championship Wrestling as well as Trupei v. City of [*934] Lighthouse Point, 506 So. 2d 19 (Fla. 4th DCA 1987), this court imposed a requirement that the trial court make an express finding of willful disregard. In a concurring opinion in Championship Wrestling, Judge Anstead suggested that the question of whether or not a written finding…
  • Donner v. Smith, 517 So. 2d 709 (Fla. 4th DCA 1987)
    …ding that Donner’s conduct evidenced deliberate callousness on her part. Mercer v. Raine, 443 So. 2d 944, 946 (Fla.1983); Herold v. Computer Components International, Inc,, 252 So. 2d 576, 580 (Fla. 4th DCA 1971); Trupei v. City of Lighthouse Point, 506 So. 2d 19 (Fla. 4th DCA 1987); United Services Automobile Association v. Strasser, 492 So. 2d 399, 401 (Fla. 4th DCA 1986), rev. denied, 501 So. 2d 1283 (Fla.1987). Entering a dismissal for noncompliance with an order compelling discovery is the most severe…
    1 / 2
  • Sheik Abdul Rahman Momenah v. Ammache, 616 So. 2d 121 (Fla. 2d DCA 1993)
    …a sanction, the court may strike a party’s pleadings and dismiss that party’s action. The dismissal of a cause of action as a sanction, however, is a drastic remedy which should be used only in extreme situations. Trupei v. City of Lighthouse Point, 506 So. 2d 19 (Fla. 4th DCA1987). Furthermore, before dismissing an action as a sanction, the court must find that a plaintiff’s failure to comply with discovery was willful, flagrant, contumacious, or contemptuous. Wallraff v. TGI Friday’s, Inc., 490 So. 2d 50 (…

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