GLORIA JALIL AND LYNNE GONZALEZ, APPELLANTS,
v.
MERKURY CORPORATION, D/B/A MERKURY DEVELOPMENT, AND PAUL TOLLES, APPELLEES
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Florida appellate court reversed dismissal of plaintiffs' amended complaint and striking of pleadings for discovery violation, finding the sanction was excessive without a finding of willful disregard and where lesser sanctions were available.
A trial court abuses its discretion by dismissing a complaint and striking pleadings as a sanction for a first-time discovery violation without finding willful disregard and without considering lesser available sanctions.
[1] A trial court abuses its discretion by dismissing a complaint and striking pleadings as a discovery sanction without finding willful disregard of court orders and without…
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Join FLexlaw to unlock all legal intelligenceGloria Jalil and Lynne Gonzalez filed an amended complaint against Merkury Corporation and Paul Tolles. The trial court dismissed the amended complain…
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PER CURIAM.
We find that the trial court abused its discretion by dismissing the plaintiffs’, Gloria Jalil and Lynne Gonzalez’s, amended complaint and by striking their pleadings where the trial court failed to make a finding of wilful disregard of the trial court’s discovery orders, where the dismissal of the plaintiffs’ amended complaint and the striking of their pleadings was too severe a sanction for a first time discovery violation, and where there were other lesser sanctions available. Kozel v. Ostendorf, 629 So. 2d 817 (Fla.1993); Mercer v. Raine, 443 So. 2d 944 (Fla.1983); Florida Lime Growers, Inc. v. Bloomer Plastics, Inc., 665 So. 2d 1151 (Fla. 3d DCA 1996).
For these reasons, we reverse the trial court’s order denying the plaintiffs’ verified emergency motion to set aside the order granting defendant Merkury Corporation’s motion to dismiss the plaintiffs’ amended complaint and to strike their pleadings. In addition, because the trial court improperly struck the plaintiffs’ pleadings, including their answer to defendant Merkury Corporation’s counterclaim, we must also reverse the adverse final summary judgment on Merkury Corporation’s counterclaim.
As to the plaintiffs’ appeal from the trial court’s order denying their motion to set aside the award of attorney’s fees to defendant Tolies, we dismiss this portion of the appeal for lack of jurisdiction because it was untimely filed. Fla. R.App. P. 9.110(b); Bailey v. Mobile Home Park Realty, Inc., 579 So. 2d 198 (Fla. 2d DCA 1991).
Reversed, in part, and remanded for further proceedings consistent with this opinion; dismissed, in part.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Mercer v. J.D. Raine, Sr., 443 So. 2d 944 (Fla. 1983)
- Carolann D. Kozel v. Ostendorf, 629 So. 2d 817 (Fla. 1993)
- Reed v. State, 579 So. 2d 198 (Fla. 2d DCA 1991)
- Bailey v. Mobile Home Park Realty, Inc., 579 So. 2d 198 (Fla. 2d DCA 1991)
- Fernandez v. State, 665 So. 2d 1151 (Fla. 3d DCA 1996)
- Fla. Lime Growers, Inc. v. Bloomer Plastics, Inc., 665 So. 2d 1151 (Fla. 3d DCA 1996)