MIRIAM DONNER, APPELLANT,
v.
EDWARD FRANCIS SMITH, ALLSTATE INSURANCE COMPANY, CHARTER OAK FIRE INSURANCE COMPANY, AND CHEVRON USA, INC., APPELLEES

Fla. 4th DCA | 1987-12-09
No. 4-86-0803
ANSTEAD and LETTS, JJ., concur.
517 So. 2d 709 Florida District Court of Appeal, Fourth District (1987) Negative Treatment
Cited by 21 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

Miriam Donner appeals the dismissal of her personal injury action against Edward Francis Smith, arguing the trial court committed procedural errors in imposing this severe sanction. The appellate court reverses, finding multiple due process violations and lack of requisite findings of bad faith required to support dismissal as a discovery sanction.


Holding

The trial court's dismissal order must be reversed because: (1) the court erred in ordering Donner to answer nonexistent supplemental interrogatories without proper motion to compel or notice; (2) the court erred in basing dismissal on failure to submit to a physical examination when this ground was raised sua sponte without adequate notice to Donner; (3) notice mailed two days before the hearing violated due process; and (4) the dismissal order lacked requisite findings of bad faith, willful disregard, or gross indifference required for such severe sanctions.


Headnotes

[1] A trial court abuses its discretion by ordering a party to answer nonexistent interrogatories.

[2] A dismissal based on failure to submit to a court-ordered physical examination is improper if the failure was not a stated ground in the motion to dismiss and the party l…

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Key Quotes

“Entering a dismissal for noncompliance with an order compelling discovery is the most severe of all sanctions and should only be employed in extreme circumstances.”

Establishes the legal standard that dismissal sanctions require extreme circumstances and are not to be used casually.

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Facts & Procedural History

Donner filed a personal injury action on January 20, 1978, against Smith for injuries from an automobile accident. After nine years of discovery, the …

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Opinion of the Court
GUNTHER, Judge.

GUNTHER, Judge.

Miriam Donner (Donner) appeals a final order dismissing her civil personal injury action. We reverse.

On January 20, 1978, Donner filed an action for damages against Edward Francis Smith (Smith) for injuries suffered when Smith’s automobile struck Donner. For the next nine years, the parties prepared for trial.

Finally, the case was set for trial on January 27, 1986, but was dismissed by the trial court on January 24, 1986, as a sanction for alleged discovery violations committed by Donner.

We conclude the trial court committed procedural errors that require reversal of the order of dismissal.

First, the trial court erred in dismissing Donner’s case on the basis that Donner had failed to answer supplemental interrogatories and to submit to a court-ordered physical examination.

We agree with Donner’s contention that the trial court abused its discretion by ordering her on December 12,1986 to answer nonexistent supplemental interrogatories supposedly dated October 16, 1985. Not only was there no service of a motion to compel answers to such interrogatories and no notice of hearing thereon, but Donner was subsequently ordered on January 21, 1986 to comply with the December 12, 1986 order within eight hours. Since the trial court erred in ordering Donner to answer nonexistent interrogatories, the resulting dismissal was improperly entered because it was predicated upon an erroneous order. As to Donner’s failure to submit to the court-ordered physical examination, we conclude that the trial court erred in basing the dismissal of the case on this alleged discovery violation. The failure to submit to an examination was not a ground stated in the motion to dismiss, but was raised ore terms. In Kuechenberg v. Creative Interiors, Inc., 424 So. 2d 145 (Fla. 4th DCA 1982), this court held that a party to be sanctioned must first be given notice and an opportunity to be heard and offer mitigating or extenuating evidence. Since Donner was not given adequate notice that this alleged discovery violation was to be argued as a grounds for dismissal, the trial court erred in granting the dismissal based on Donner’s non-compliance with the order compelling submission to a physical examination.

Secondly, notice of the January 24, 1986 hearing resulting in the dismissal was mailed to Donner on January 22,1986. Under the circumstances of this case, a notice mailed two days before the hearing was inadequate notice and constitutes a violation of due process. See Devoe & Raynolds Co. v. KDS Paint Co., 382 So. 2d 126 (Fla. 4th DCA 1980); Fla.R.Civ.P. 1.090(d). Since Donner did not receive adequate notice of the motion hearing, we reverse the trial court’s order of dismissal.

Finally, in addition to the above mentioned procedural defects, the order of dismissal did not contain the requisite finding of bad faith, willful disregard or gross indifference to an order of court by Donner, or a finding 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 of all sanctions and should only be employed in extreme circumstances. See Mercer v. Raine, 443 So. 2d 944 (Fla.1983); Trupei v. City of Lighthouse Point, 506 So. 2d 19 (Fla. 4th DCA 1987); United Services Automobile Association v. Strasser, 492 So. 2d 399 (Fla. 4th DCA 1986), rev. denied, 501 So. 2d 1283 (Fla.1987). The severe sanction of dismissal of Donner’s action was not warranted in light of the various procedural errors and defective order. Accordingly, we reverse and remand for further proceedings consistent with this opinion.

REVERSED.

ANSTEAD and LETTS, JJ., concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • …covery. In re Forfeiture of Twenty Thousand Nine Hundred Dollars ($20,900) U.S. Currency, 539 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.…
  • Moshe Tubero v. Chapnich, 552 So. 2d 932 (Fla. 4th DCA 1989)
    …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, 539 So. 2d 14 (Fla. 4th DCA 1989). Yet other cases…
  • Wildwood Props., Inc. v. Archer OF Vero Beach, Inc., 621 So. 2d 691 (Fla. 4th DCA 1993)
    …uating evidence as to why discovery did not take place. Kuechenberg v. Creative Interiors, Inc., 424 So. 2d 145 (Fla. 4th DCA 1982). Failure to give adequate notice and opportunity to be heard constitutes a violation of due process. Donner v. Smith, 517 So. 2d 709 (Fla. 4th DCA 1987). No notice was given to appellant of the hearing on the motion to strike. Appellant’s attorney’s objection to the motion and announcement that he had not informed appellant of the motion because of its late filing is sufficient t…

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