MARIA DEL CARMEN MORALES, APPELLANT,
v.
FOUR STAR POULTRY AND PROVISION COMPANY, INC., APPELLEE

Fla. 3d DCA | 1988-03-22
No. 87-2035
Before BASKIN, FERGUSON and JORGENSON, JJ.
523 So. 2d 1183 Florida District Court of Appeal, Third District (1988) Positive Treatment
Cited by 2 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

Morales appeals the trial court's order denying her Rule 1.540 motion to set aside sanctions (striking of pleadings and defense) imposed for alleged discovery violations. The appellate court reversed, finding that the primary basis for sanctions—Morales's failure to produce cash receipts and disbursements journals—was unfounded because those documents were in Four Star's possession the entire time, and the sanction was disproportionately severe for any actual discovery misconduct.


Holding

The trial court's order denying the Rule 1.540 motion was reversed. The court held that Morales did not secrete, conceal, or withhold the requested documents; they were in Four Star's possession the entire time. Even though Morales was less than forthcoming with other discovery materials, the sanction imposed was too severe for the actual infraction committed.


Headnotes

[1] Striking a party's pleadings and defense as a sanction for discovery violations is reversible error when the record affirmatively demonstrates that the party did not secr…

[2] A party's failure to produce documents that were in the opposing party's possession does not justify the severe sanction of striking pleadings and defenses.

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Key Quotes

“the record affirmatively demonstrates that Morales did not secrete or withhold the requested discovery materials”

The core holding: Morales cannot be sanctioned for failing to produce documents that were in the opposing party's possession, not hers.

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Facts & Procedural History

Morales worked as a bookkeeper, director, and treasurer for Four Star Poultry for seven years. Four Star sued her for civil theft, alleging embezzleme…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

Morales appeals from a nonfinal order of the trial court denying her Florida Rule of Civil Procedure 1.540 motion to set aside the trial court’s order striking her pleadings and defense as a sanction for her discovery violations. We reverse because the record affirmatively demonstrates that Morales did not secrete or withhold the requested discovery materials.

Morales had been employed by Four Star Poultry and Provision Company as a bookkeeper, director, and treasurer for seven years. Four Star filed a complaint against Morales for civil theft, alleging that she had embezzled approximately $600,000 from Four Star. Morales’s answer denied the allegations and asserted as an affirmative defense that one of Four Star’s officers had laundered the missing cash as part of an income tax evasion scheme. Four Star filed a motion for production of all ledgers, receipts, bank statements, tax returns, and other financial records of four corporations owned by Morales and her husband as well as all of Four Star’s financial records in Morales’s possession. Morales’s objection to production of her corporations’ records was denied by the trial court. Four Star subsequently moved to compel production and to impose sanctions for Morales's incomplete compliance despite her contrary representations in her certificate of compliance. Following a hearing, the trial court found that Morales had failed to comply fully with the discovery order and held her in contempt. Morales attempted to purge herself of the contempt by producing Four Star’s 1983 general ledger. Four Star moved to enforce contempt and to impose sanctions on the ground that Morales had not yet produced all the documents.

At the hearing on Four Star’s motion, Four Star’s accountant, Irving Herris, testified that Four Star’s cash receipts and disbursements journals were still missing. Following the hearing, the trial court entered an order finding Morales in contempt and again imposed the sanction of striking her pleadings and defense.1 This court affirmed the trial court’s order in Case No. 86-2304.2

Morales filed a Rule 1.540 motion in the trial court to set aside the order based upon (1) newly discovered evidence which could not have been discovered previously with due diligence; and (2) fraud, misrepresentation, or other misconduct of Four Star. In her motion, Morales alleged that a recent deposition of a witness in a related criminal proceeding revealed that Four Star’s cash receipts and disbursements journals had been in Four Star’s possession during the entire discovery period.

At the hearing on the Rule 1.540 motion, Herris testified that he had been mistaken in his claim that the subject journals had been in Morales’s possession.

The trial court denied Morales’s 1.540 motion.3 Our review of the record reveals that the primary basis for the trial court’s striking of Morales’s pleadings and defense was Morales’s failure to produce the cash receipts and disbursements journals. It is clear from the record that the materials sought had been in Four Star’s possession the entire time and that Morales did not secrete, conceal, or otherwise impede Four Star in locating the “missing” cash journals. Four Star is correct in its assertion that Morales was less than forthcoming in her production of other discovery materials. The sanction imposed, the striking of Morales’s pleadings and defense, nevertheless, was too severe for the infraction committed. Mercer v. Raine, 443 So. 2d 944 (Fla.1983); Stimpson Computing Scale Co. v. Knuck, 508 So. 2d 482 (Fla. 3d DCA 1987); McNamara v. Bradley Realty, Inc., 504 So. 2d 814 (Fla. 4th DCA 1987); Santuoso v. McGrath & Assocs., 385 So. 2d 112 (Fla. 3d DCA 1980).

We accordingly reverse the trial court’s order striking Morales’s pleadings and remand for further proceedings.

Reversed.

. In its order, the trial court had also sentenced Morales to five months' incarceration. That sanction was quashed by this court in Case No. 86-2045.

. Morales’s motion to supplement the record in Case No. 86-2304 with a deposition of a witness in a related criminal proceeding was denied by this court without prejudice for Morales to file a Florida Rule of Civil Procedure 1.540 motion in the trial court.

.The Rule 1.540 motion was heard by a different trial court. The predecessor judge had re-cused himself due to his belief that Morales was patently untruthful.


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Citator

Cited By

  • Pilkington PLC v. Metro Corp., 526 So. 2d 943 (Fla. 3d DCA 1988)
    …., 522 So. 2d 1043 (Fla. 4th DCA 1988) (vague, jumbled, and incomplete responses to discovery requests do not justify dismissal, where appellant made a good faith effort to comply with discovery orders); Morales v. Four Star Poultry & Provision Co., 523 So. 2d 1183 (Fla. 3d DCA 1988) (where some materials already in proponent’s possession and interrogated party less than forthcoming in producing other documents, striking of pleadings too severe for infraction); Zafirakopoulous v. South Miami Int’l Crabhouse Co…
  • State Dep't OF Revenue v. Aguirre, 705 So. 2d 990 (Fla. 3d DCA 1998)
    …for not producing either a nonexistent item or an item of which Aguirre was already in possession. See A Aaable Bail Bonds, Inc. v. Able Bail Bond, Inc., 626 So. 2d 1105, 1106 (Fla. 3d DCA 1993); Morales v. Four Star Poultry and Provision Co., Inc., 523 So. 2d 1183, 1185 (Fla. 3d DCA 1988). With regard to the other items, the failure to produce the single DNA gel form (which was in fact later produced) was mere inadvertence and did not in any way prejudice Aguirre. The same is true with regard to the policies…

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