ISABELLE DOMINGUEZ, APPELLANT,
v.
S. ANTHONY WOLFE, M.D., AND SAMUEL BERKOWITZ, D.D.S., APPELLEES
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.
Appellant Dominguez appealed dismissal of her medical malpractice complaint for failure to disclose expert witnesses and a ruling enforcing a settlement agreement against her. The appellate court affirmed both orders, finding no abuse of discretion by the trial court.
The trial court did not abuse its discretion in dismissing the complaint for failure to comply with the expert witness disclosure order. The trial court's enforcement of the settlement agreement was also proper, though review was precluded on the merits due to the lack of a complete record of the proceedings.
[1] A trial court does not abuse its discretion in dismissing a complaint for failure to comply with a discovery order when there is competent and substantial evidence of non…
[2] A party's failure to provide a record of proceedings precludes appellate review of factual determinations regarding the enforcement of a settlement agreement.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“appellant failed to comply with the order... In response to the court's inquiry regarding appellant's reason for failing to submit her list of experts, counsel indicated that appellant did not know whether she would be appealing the order enforcing a settlement agreement, and that she was not sure who the expert witnesses would be.”
Establishes the basis for the dismissal order—Dominguez's failure to comply with the expert witness disclosure deadline without valid excuse.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceDominguez sued Berkowitz and Wolfe for dental and medical malpractice in August 1982. After four and one-half years of litigation, the trial court set…
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PER CURIAM.
Isabelle Dominguez seeks reversal of two orders: 1) the trial court’s order granting appellee Berkowitz’s motion to dismiss her complaint for failure to comply with a court order compelling discovery, and 2) the trial court’s order granting appellee Wolfe’s motion to enforce a settlement agreement. We affirm both orders.
First, we address appellant’s contention that the trial court abused its discretion in dismissing her complaint for failure to comply with an order requiring disclosure of expert witnesses. She maintains that the record shows no evidence of willfulness or bad faith. We have examined the record and find competent and substantial evidence to support the trial court’s order. Appellant instituted suit on August 12, 1982, against Samuel Berkowitz, D.D.S., and Anthony Wolfe, M.D., alleging dental and medical malpractice.
On March 6, 1987, after four and one-half years of litigation, the trial court set the cause for trial on August 10, 1987. The order setting trial contained the specific requirement that the parties furnish opposing counsel with the names of all witnesses not less than twenty days before trial.
On May 5, appellee Wolfe filed a motion to amend the pretrial order asserting that it was impossible to complete discovery of expert witnesses within the allotted time.
On May 5, the parties agreed to an order amending pretrial instructions to require all parties to exchange the names of expert witnesses no later than June 10, 1987.
On June 17, 1987, the trial court determined that appel lant failed to comply with the order. In response to the court’s inquiry regarding appellant’s reason for failing to submit her list of experts, counsel indicated that appellant did not know whether she would be appealing the order enforcing a settlement agreement, and that she was not sure who the expert witnesses would be. Exasperated,1 the court gave appellant five days to comply with the order; she did not comply.
On July 9, 1987, the trial court granted appellee Berkowitz’s motion for dismissal.
We find no basis for reversal under these circumstances. See Freeman v. Humana, Inc., 501 So. 2d 639 (Fla. 3d DCA 1986), review denied, 511 So. 2d 298 (Fla.1987); A.H. Robbins Co. v. Devereaux, 415 So. 2d 30 (Fla. 3d DCA 1982), review denied, 426 So. 2d 25 (Fla.1983); Watson v. Peskoe, 407 So. 2d 954 (Fla. 3d DCA 1981).
Next, we address appellant’s contention that the trial court erred in granting appellee Wolfe’s motion to enforce a settlement agreement. She asserts that Wolfe failed to meet his burden of establishing her assent to the agreement. Appellant’s failure to provide a record of the proceedings precludes this court from reviewing the trial court’s determination of factual issues and evaluating whether the trial court’s decision is supported by the evidence. Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150 (Fla.1979).
We find no merit in appellant’s argument that the trial court lacked authority to consider the deposition filed subsequent to its initial refusal to enforce the settlement. See Commercial Garden Mall v. Success Academy, Inc., 453 So. 2d 934 (Fla. 4th DCA 1984); Margulies v. Levy, 439 So. 2d 336 (Fla. 3d DCA 1983).
Affirmed.
. The trial judge said, “This is ridiculous, a 1982 case, you don’t know who your experts are."
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Earnest Mathis, Jr. v. Fla. Dep't OF Corr., 726 So. 2d 389 (Fla. 1st DCA 1999)…tition is equivalent to missing the point of entry in the first instance. The present case is very different. The adequacy of the initial petition has never been questioned. . Where no lesser sanction will suffice, see generally Dominguez v. Wolfe, 524 So. 2d 1101 (Fla. 3d DCA 1988) (affirming dismissal for failure to comply with discovery order), an administrative law judge may dismiss a pleading as a sanction for a discovery violation. See A Professional Nurse, Inc. v. State, Department of Health and Rehabi…
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Ashley v. Marnie Gersten, 700 So. 2d 462 (Fla. 4th DCA 1997)…ement did not include a requirement that the settlement documents be executed as a condition of the settlement, plaintiff has not provided an adequate record to demonstrate that she raised this issue to the trial court below. See Dominguez v. Wolfe, 524 So. 2d 1101, 1102 (Fla. 3d DCA 1988). For purposes of this appeal, we must therefore assume that the settlement included the requirement that plaintiff sign the release and hold harmless agreement. Section 627.4265, Florida Statutes (1995), allows an insurer to…
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Scott G. Kranz and IMG v. Levan, 602 So. 2d 668 (Fla. 3d DCA 1992)…ry order violations in this case. Mercer v. Raine, 443 So. 2d 944, 946 (Fla.1983); Delta Info. Serv., Inc. v. Joseph R. Jannach, M.D. & Assoc., 569 So. 2d 1353 (Fla.3d DCA 1990); Gomez v. Pujols, 546 So. 2d 734 (Fla.3d DCA 1989); Dominguez v. Wolfe, 524 So. 2d 1101 (Fla.3d DCA 1988); F. Food Co. v. Hart Properties, Inc., 515 So. 2d 279 (Fla.3d DCA 1987), rev. denied, 523 So. 2d 577 (Fla.1988); HZJ, Inc. v. Wysocki, 511 So. 2d 1088 (Fla.3d DCA 1987); First Overseas Inv. Corp. v. Dantas, 509 So. 2d 987 (Fla.3d D…
Authorities Cited
- Pitcher v. Schneider (Fla. 5th DCA 2018)
- Albert v. Applegate et ux., 377 So. 2d 1150 (Fla. 1979)
- Watson v. Peskoe, 407 So. 2d 954 (Fla. 3d DCA 1981)
- A. H. Robins Co., Inc. v. Devereaux, 415 So. 2d 30 (Fla. 3d DCA 1982)
- Margulies v. The Honorable David L. Levy, 439 So. 2d 336 (Fla. 3d DCA 1983)
- Travelers Indem. Co. OF Am. v. Se. Commc'ns, Inc., 453 So. 2d 934 (Fla. 3d DCA 1984)
- Commercial Garden Mall v. The Success Acad., Inc., 453 So. 2d 934 (Fla. 4th DCA 1984)
- Freeman v. Humana, Inc., 501 So. 2d 639 (Fla. 3d DCA 1986)