EDWARD J. ROY AND REINHARD MUELLER, APPELLANTS,
v.
RICHARD E. GORDON, JR. AND KATHERINE K. GORDON, INDIVIDUALLY AND AS TRUSTEES, GORDON/FORD/REED PARTNERSHIP, RICK GORDON, AND VIRGINIA FORD, APPELLEES
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Florida appellate court reversed default judgment and sanctions against defendants for discovery violations, holding that striking pleadings or entering default is an extreme sanction requiring an evidentiary hearing where defendants can show cause.
Striking pleadings or entering default for discovery noncompliance is an extreme sanction that should be employed only in extreme circumstances and requires an evidentiary hearing where the defendant can show cause.
[1] Default judgment for discovery sanctions is an extreme remedy requiring an evidentiary hearing where the defendant may show cause why such sanctions should not be imposed…
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Join FLexlaw to unlock all legal intelligence“Striking of pleadings or entering default for noncompliance with order compelling discovery is most severe of all sanctions and should be employed only in extreme circumstances.”
Court explaining the standard for imposing default as a sanction for discovery violations.
Roy and Mueller failed to appear for depositions and comply with discovery orders. Their attorneys took responsibility for failing to communicate with…
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SHIVERS, Judge.
Appellants Roy and Mueller appeal final judgment for damages, which ratified default against them. Roy and Mueller contend the trial court abused its discretion in entering default for sanctions and that the trial court erred by awarding damages without a jury trial.
We understand the trial court’s frustration with the defendants and/or their attorneys over the defendants’ failure to appear for depositions and failure to comply with discovery. The appellants assert it was the fault of their attorneys and their attorneys have taken the blame for failure to communicate with appellants about their latest obligations herein. Striking of pleadings or entering default for noncompliance with order compelling discovery is most severe of all sanctions and should be employed only in extreme circumstances. Mercer v. Raine, 443 So. 2d 944 (Fla.1984). Under the facts here, we reverse and .remand for an evidentiary hearing at which appellants themselves will have an opportunity to attend and show cause why such severe sanctions should not be entered against them. If they are unable to show cause, the trial court shall explicate its rationale for finding the damages liquidated, thereby not requiring a trial by jury as demanded by appellants.
REVERSED and REMANDED.
ZEHMER and BARFIELD, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Gordon v. Omni Equities, Inc., 605 So. 2d 538 (Fla. 1st DCA 1992)…s. As a result of repeated discovery violations on the part of .the appellees, a partial final judgment was entered against all the appellees on February 12, 1988. This final judgment was appealed by Roy and Mueller, but not Omni. In Roy v. Gordon, 541 So. 2d 735 (Fla. 1st DCA 1989), this court reversed the entry of the final default judgment and remanded for an evidentiary hearing where Roy and Mueller would have an opportunity to show cause why such severe sanctions should not be imposed. After a full evi…
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Domenic A. Franchi v. Myron Shapiro and Jeffrey B. Shapiro, 650 So. 2d 161 (Fla. 3d DCA 1995)…rtunity to be heard must include the opportunity to present evidence of extenuating and/or mitigating circumstances, which might explain the failure to comply with the court’s discovery order or the opposing party’s discovery request. Roy v. Gordon, 541 So. 2d 735, 736 (Fla. 1st DCA 1989); Sizemore v. Ray Gunter Trucking, 524 So. 2d 717, 719 (Fla. 1st DCA 1988); Belflower v. Cushman & Wakefield of Fla., Inc., 510 So. 2d 1130, 1131 (Fla. 2d DCA 1987); Lazare v. Weiss, 437 So. 2d 211, 212 (Fla. 3d DCA 1983); Su…
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Harper-Elder v. Elder, 701 So. 2d 1230 (Fla. 4th DCA 1997)…hearing for the limited purpose of having wife present evidence of any mitigating or extenuating circumstances demonstrating that her noncompliance was not deliberate or willful. See Rose v. Clinton, 575 So. 2d 751 (Fla. 3d DCA 1991); Roy v. Gordon, 541 So. 2d 735 (Fla. 1st DCA 1989). If the trial court determines that the sanctions were justified and makes the express findings required by Tubero, it is authorized to reinstate the orders striking wife’s pleadings and the final judgment. See Nob Hill; Urbanek…
Authorities Cited
- Mercer v. J.D. Raine, Sr., 443 So. 2d 944 (Fla. 1983)