CHAMPIONSHIP WRESTLING FROM FLORIDA, INC., A FLORIDA CORPORATION, NATIONAL WRESTLING ALLIANCE, VIRGIL RUNNELS, JR. AND CITY OF WEST PALM BEACH, APPELLANTS,
v.
STEPHEN DEBLASIO A/K/A BIG DADDY, AND SUSAN DEBLASIO, HIS WIFE, APPELLEES
PER CURIAM.
We reverse this matter because the trial court did not expressly find, nor does the record conclusively reveal, that appellants’ failure to comply with discovery was a willful refusal to obey. Mercer v. Raine, 443 So. 2d 944 (Fla.1983); Garden-Aire Village Sea Haven v. Decker, 433 So. 2d 676 (Fla. 4th DCA 1983). In absence of such an express finding of willful refusal the sanction of default is too severe. We reverse the order of default and remand with leave to impose lesser sanctions.
REVERSED.
DELL and WALDEN, JJ., concur. ANSTEAD, J., concurs specially with opinion.
ANSTEAD, Judge,
concurring specially.
While I agree that the case law cited in the majority opinion suggests that a written finding of willful refusal to obey court orders is necessary to sustain the severe sanction of default, the issue is sufficiently in doubt and, in my opinion, of such significance to warrant our certifying that issue as one of great public importance. In that way, trial courts will be put on notice that the extreme sanction of dismissing a case or entering a default must be supported by an express finding of willful misconduct, similar to the express finding of ability to pay required before spouses may be held in contempt for failure to pay family support.
In addition, I believe our reversal should be without prejudice to the trial court to reconsider the sanction issue in order to determine whether there was sufficient misconduct to warrant the entry of default or some lesser sanction.
Cases With Similar Vibessemantic neighbors from the corpus
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Commonwealth Fed. Sav. & Loan Ass'n v. Moshe Tubero, 569 So. 2d 1271 (Fla. 1990)…39 So. 2d 14 (Fla. 4th DCA 1989); Bernaad v. Hintz, 530 So. 2d 1055 (Fla. 4th DCA 1988); Arviv v. Perlow, 528 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 Anstea…
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Moshe Tubero v. Chapnich, 552 So. 2d 932 (Fla. 4th DCA 1989)…, to determine whether there is an indication that appellant willfully disobeyed the court order, thus justifying the severe sanction of dismissal, although none of them directly conflict with Stoner. Championship Wrestling From Florida v. DeBlasio, 508 So. 2d 1274 (Fla. 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 Po…
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Gilles Bernaad and Michel Bernaad v. Hintz, 530 So. 2d 1055 (Fla. 4th DCA 1988)…macious disregard of the court’s authority or evidenced a willful failure to submit to discovery. Mercer v. Raine, 443 So. 2d 944 (Fla.1983); 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), rev. denied, 518 So. 2d 1274 (Fla.1987); Trupei v. City of Lighthouse Point, 506 So. 2d 19 (Fla. 4th DCA 1987); Stoner v. Verkaden, 493 So. 2d 1126 (Fla. 4th DCA 1986). WALDEN, J., concurs. STONE, J., dissents with opinion.…1 / 2
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Mercer v. J.D. Raine, Sr., 443 So. 2d 944 (Fla. 1983)
- Garden-Aire Vill. SEA Haven, Inc. v. Decker, 433 So. 2d 676 (Fla. 4th DCA 1983)