MARIE KLEINSCHMIDT, APPELLANT,
v.
GATOR OFFICE SUPPLY AND FURNITURE, INC., ROBERT B. BALOGH, CHARLES SINCLAIR (LANZA, O'CONNOR, ARMSTRONG, SINCLAIR & TUNSTALL, P.A.), MATZ, TRATKMAN, GURIAN & ASSOCIATES, JAMES J. TRAITZ, FRESHMAN, FRESHMAN & TRAITZ, P.A., APPELLEES
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A plaintiff appealed the dismissal of her negligence action imposed as a sanction for discovery violations. The appellate court held that dismissal was an overly harsh sanction where the plaintiff eventually complied with deposition orders and was given only one opportunity to comply with interrogatory and production orders before dismissal.
Dismissal was an inappropriate and overly harsh sanction. While the plaintiff's eventual compliance with deposition orders made dismissal plainly inappropriate, and her single failure to comply with the interrogatory order warranted a less severe remedy, the court retained authority to dismiss if the plaintiff persisted in future discovery violations.
[1] Dismissal of a negligence action is an inappropriate remedy when a plaintiff eventually complies with discovery orders regarding their deposition.
[2] Dismissal of an action is an overly harsh remedy for a plaintiff's failure to comply with an interrogatory and discovery production order when given only one opportunity…
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Join FLexlaw to unlock all legal intelligence“This showing, without more, was insufficient to justify the drastic sanction of dismissal.”
Establishes the court's holding that the discovery violations, taken together, did not justify dismissal as a sanction.
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Join FLexlaw to unlock all legal intelligencePlaintiff Marie Kleinschmidt brought a negligence action against multiple defendants. Throughout the litigation, she disregarded multiple court orders…
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PER CURIAM.
This is an appeal by the plaintiff Marie Kleinschmidt from a final order dismissing her negligence action below on the ground that the plaintiff had shown a deliberate and continuing disregard for court orders relating to discovery throughout the course of the proceedings below.
The record reveals that (1) the plaintiff, after disregarding many court orders concerning the taking of her deposition, eventually complied and submitted to a deposition, and (2) the plaintiff did not comply with a court order directing her to file answers to additional interrogatories and to produce certain physical evidence for the defendants, but, instead, filed additional objections to the subject court order.
We hold that this showing, without more, was insufficient to justify the drastic sanction of dismissal.
As to the plaintiff’s violation of court orders concerning the taking of her deposition, the plaintiff eventually did comply with these orders, and, accordingly, a dismissal of the action was plainly an inappropriate remedy. See Muhtar v. Aetna Ins. Co., 456 So. 2d 586 (Fla. 3d DCA 1984); Davis v. Freeman, 405 So. 2d 241 (Fla. 1st DCA 1981); Donner v. Hetherington, 376 So. 2d 404 (Fla. 3d DCA 1979).
As to the failure to comply with the interrogatory and discovery production order, the plaintiff was given but one opportunity to comply with this order prior to the dismissal order and, accordingly, a dismissal of the action was an overly harsh remedy. See Lazare v. Weiss, 437 So. 2d 211 (Fla. 3d DCA 1983); Kuechenberg v. Creative Interiors, Inc., 424 So. 2d 145 (Fla. 4th DCA 1982).
We do not, however, condone the plaintiff’s refusal to obey the court’s discovery orders; plainly, the trial court on this record could have imposed lesser sanctions short of dismissal. See Fla.R.Civ.P. 1.380(b).
Moreover, if the plaintiff persists in refusing to obey the court’s interrogatory and discovery production order discussed above, or any other discovery order, the trial court at some point will clearly have the authority to dismiss the action. Mercer v. Raine, 443 So. 2d 944 (Fla.1983); European X-Ray Distrib. of America, Inc. v. Saab-Scania Aktiebolag, 414 So. 2d 4 (Fla. 3d DCA 1982); Merrill Lynch Pierce Fenner & Smith Inc., 413 So. 2d 102 (Fla. 3d DCA 1982).
The final order of dismissal under review is therefore reversed and the cause is remanded to the trial court with directions to impose lesser sanctions against the plaintiff which the trial court, in its discretion, deems appropriate under Fla.R.Civ.P. 1.380(b).
Reversed and remanded.
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Abel Gomez-Bonilla v. Apollo Ship Chandlers, Inc., 650 So. 2d 116 (Fla. 3d DCA 1995)…d on appeal upon a clear showing that the trial court abused its discretion. Tubero, 569 So. 2d at 1173; Mercer, 443 So. 2d at 946; Sekot Lab., Inc. v. Gleason, 585 So. 2d 286, 288 (Fla. 3d DCA 1990); Kleinschmidt v. Gator Office Supply & Furniture, 551 So. 2d 515, 516 (Fla. 3d DCA 1989), review denied, 560 So. 2d 233 (Fla.1990). The entry of a dismissal or default for a party’s noncompliance with a court’s discovery order “is the most severe of all sanctions which should be employed only in extreme circumsta…
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Owens v. Howard, 662 So. 2d 1325 (Fla. 2d DCA 1995)…the interrogatories. The sanction of dismissal was too harsh in this case. Accordingly, we reverse the order and remand with directions for the trial court to impose less severe sanctions. See Kleinschmidt v. Gator Office Supply & Furniture, Inc., 551 So. 2d 515 (Fla. 3d DCA 1989), review denied, 560 So. 2d 233 (Fla.1990). Reversed and remanded. ALTENBERND and QUINCE, JJ., concur.…
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Solano v. City OF Hialeah, 578 So. 2d 338 (Fla. 3d DCA 1991)…nks v. Amerifirst Bank, 569 So. 2d 496 (Fla. 3d DCA 1990). Therefore, we reverse the orders of dismissal as to City of Hialeah. On remand, the trial court may consider imposing lesser sanctions. Kleinschmidt v. Gator Office Supply & Furniture, Inc., 551 So. 2d 515 (Fla. 3d DCA 1989), review denied, 560 So. 2d 233 (Fla.1990). We dismiss the appeal as to Metropolitan Dade County for lack of jurisdiction because appellants failed to file a timely notice of appeal. State ex rel. Cantera v. District Court of App…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Mercer v. J.D. Raine, Sr., 443 So. 2d 944 (Fla. 1983)
- Freddy Charles Green v. State, 424 So. 2d 145 (Fla. 4th DCA 1982)
- Merrill Lynch Pierce Fenner & Smith Inc. v. Haydu, 413 So. 2d 102 (Fla. 3d DCA 1982)
- Calafell v. Kinstler, 437 So. 2d 211 (Fla. 3d DCA 1983)
- Cavanaugh v. Etta Reuben, 437 So. 2d 211 (Fla. 3d DCA 1983)
- Bonard v. State, 456 So. 2d 586 (Fla. 3d DCA 1984)
- European X-Ray Distribs. OF Am., Inc. v. Saab-Scania Aktiebolag, 414 So. 2d 4 (Fla. 3d DCA 1982)
- SUN Bank OF Miami v. Nat'l Bank OF Fla., 376 So. 2d 404 (Fla. 3d DCA 1979)
- Donner v. Hetherington, 376 So. 2d 404 (Fla. 3d DCA 1979)
- Rogers v. State, 405 So. 2d 241 (Fla. 4th DCA 1981)