PILKINGTON PLC AND CHANCE PILKINGTON LIMITED, PETITIONERS,
v.
METRO CORPORATION, RESPONDENT

Fla. 3d DCA | 1988-05-17
No. 87-3030
Before HUBBART, BASKIN and PEARSON, JJ.
526 So. 2d 943 Florida District Court of Appeal, Third District (1988) Positive Treatment
Cited by 8 cases

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Holding

The court held that striking a counterclaim as a sanction for discovery violations was an abuse of discretion when the conduct did not rise to the level of willful disregard or gross indifference.


Headnotes

[1] Striking pleadings for noncompliance with a discovery order is the most severe sanction and should be employed only in extreme circumstances.

[2] A deliberate and contumacious disregard of the court's authority, bad faith, willful disregard, or gross indifference to an order justifies the severest discovery sanctio…

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Facts & Procedural History

Petitioners, codefendants with Metro, were sanctioned by the trial court striking their counterclaim for discovery violations related to interrogatori…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

Pilkington pic and Chance Pilkington Limited [petitioners] present a petition for writ of certiorari to review the trial court’s order striking their counterclaim to the crossclaim of Metro Corporation [Metro] as a sanction for discovery violations. We grant the petition and quash the order. Petitioners and Metro are codefendants in a lawsuit instituted by plaintiff, Visual Scene, Inc. After extensive discovery, the court issued an order requiring discovery to conclude by October 30, 1987; setting the pretrial conference on November 16, 1987; and warning the parties that failure to comply might result in severe sanctions. On September 29, 1987, Metro sent petitioners an initial set of interrogatories, consisting of twenty-five questions with numerous subparts. Metro did not comply with Florida Rule of Civil Procedure 1.340(a), which limits the number of questions to twenty-five “unless the court permits a larger number on motion and notice and on good cause.” Petitioners did not respond to the interrogatories. Instead, on October 30, petitioners filed objections to the excessive number of questions. On November 3, Metro filed a motion requesting the court to compel petitioners to answer the interrogatories or to impose sanctions. Metro also cited frivolity and the untimeliness of the objections as grounds for sanctions. The trial court granted Metro’s motion. The court ordered petitioners to answer the interrogatories by November 6 and warned it would not entertain motions for extension of time. Petitioners filed emergency motions for modification, but the court did not rule on these motions. On November 6, petitioners submitted completed interrogatories; however, Metro objected to petitioners’ failure to furnish de tailed answers. On Friday, November 13, Metro filed a motion to strike petitioners’ damage claims. On Monday, November 16, the court granted Metro’s motion and struck petitioners’ damage claims. In its order the trial court stated that petitioners willfully failed to comply with the court’s November 3 order. In Mercer v. Raine, 443 So. 2d 944 (Fla.1983), the Supreme Court of Florida stated:

[T]he striking of pleadings ... for noncompliance with an order compelling discovery is the most severe of all sanctions which should be employed only in extreme circumstances. A deliberate and contumacious disregard of the court’s authority will justify application of this severest of sanctions, as will bad faith, willful disregard or gross indifference to an order of the court, or conduct which evinces deliberate callousness.

Mercer, 443 So. 2d at 946 (citations omitted). The harsh sanction of dismissal is warranted only where it is commensurate with the discovery violation. Mercer; Harless v. Kuhn, 403 So. 2d 423 (Fla.1981); see Wallraff v. T.G.I. Friday’s, Inc., 490 So. 2d 50 (Fla.1986) (failure to attend deposition does not warrant dismissal absent finding of willfulness or bad faith); Maxwell v. Rolls-Royce Motors, Inc., 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 Corp., 513 So. 2d 1353 (Fla. 3d DCA 1987) (error to dismiss claim for discovery violation where interrogated party in foreign country on business failed to submit to physical examination as scheduled); Stimpson Computing Scale Co. v. Knuck, 508 So. 2d 482 (Fla. 3d DCA 1987) (where record does not demonstrate that late production of document was in bad faith, trial court erred in striking pleadings); Beauchamp v. Collins, 500 So. 2d 294 (Fla. 3d DCA 1986) (dismissal reversed where documents were not timely submitted but no showing of bad faith), review denied, 511 So. 2d 297 (Fla.1987); Velazquez v. Gaitan, 499 So. 2d 66 (Fla. 3d DCA 1986) (order striking pleadings reversed where interrogatories answered several days late); Pey v. Turnberry Towers Corp., 474 So. 2d 1279 (Fla. 3d DCA 1985) (striking pleadings for failure to file timely answers to interrogatories too severe a penalty).

A review of the events leading to the court’s dismissal fails to support the trial court’s finding that petitioners acted in willful disregard of the court’s authority. Although petitioners failed to answer the initial set of interrogatories on October 29, or file a timely objection to the number of questions,1 they complied with the trial court’s November 3 order and answered the interrogatories by November 6. In light of the extensive discovery preparations, these actions do not constitute conduct evincing deliberate disregard or gross indifference to the court’s order. See Zafirakopoulous, 513 So. 2d at 1355 (“inability to comply with a single discovery order due to geographical and business constraints” does not warrant dismissal). Cf. Freeman v. Humana, Inc., 501 So. 2d 639 (Fla. 3d DCA 1986) (where party failed to comply with four discovery orders dismissal warranted), review denied, 511 So. 2d 298 (Fla.1987); Campagna Constr. Co. v. Riverview Condominium Corp., 467 So. 2d 807 (Fla. 3d DCA 1985) (“continued and willful” violations support order striking pleadings). Furthermore, petitioners’ arguably inadequate answers could have been remedied by amendment. See Maxwell; Summit Chase Condominium Ass’n v. Protean Investors, Inc., 421 So. 2d 562 (Fla. 3d DCA 1982) (inadequate interrogatory responses do not support dismissal).

Accordingly, we hold that the trial court departed from essential requirements of law and quash the order striking petitioners’ damage claims.

Certiorari granted; order quashed; remanded.

. Petitioners filed their objections one day late.


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Citator

Cited By

  • AVD Enters., Inc. v. Network Sec. Acceptance Corp., 555 So. 2d 401 (Fla. 3d DCA 1989)
    …only one order. We find that this sanction against Garcia in his individual capacity is not commensurate with his possible discovery violation in his individual capacity, and, thus, is too harsh a sanction. See Mercer; Pilkington PLC v. Metro Corp., 526 So. 2d 943 (Fla. 3d DCA 1988). Accordingly, the order and judgment of the trial court are affirmed as to AVD and reversed as to Garcia individually. Affirmed in part, reversed in part.…
  • B.C. v. A.P., 538 So. 2d 525 (Fla. 3d DCA 1989)
    …order granting discovery of juvenile files, HRS files, police records, and all psychological and psychiatric records pertaining to K.C. We have jurisdiction. Martin-Johnson, Inc. v. Savage, 509 So. 2d 1097 (Fla.1987); Pilkington PLC v. Metro Corp., 526 So. 2d 943 (Fla. 3d DCA 1988). Finding that the trial court did not depart from the essential requirements of law, we deny petitioners’ request for a writ of common law certiorari. Petitioners are defendants in an action filed by A.P., a minor child, and his…
  • Adolfo Barreto v. Griffin, 600 So. 2d 566 (Fla. 3d DCA 1992)
    …’ action because of alleged discovery violations. We conclude that the order represented an abuse of discretion under the circumstances and therefore reverse for trial and for other proceedings consistent herewith. See Pilkington PLC v. Metro Corp., 526 So. 2d 943 (Fla. 3d DCA 1988); Pey v. Turnberry Towers Corp., 474 So. 2d 1279 (Fla. 3d DCA 1985); Muhtar v. Aetna Ins. Co., 456 So. 2d 586 (Fla. 3d DCA 1984); Beaver Crane Service, Inc. v. National Sur. Corp., 373 So. 2d 88 (Fla. 3d DCA 1979). Reversed. SC…

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