BOCA CASINO CRUISES, INC., A FLORIDA CORPORATION, APPELLANT,
v.
MONTE CARLO CRUISE CONCESSIONS, INC., A FLORIDA CORPORATION, APPELLEE
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The Florida Fourth District Court of Appeal reversed and remanded a trial court's order striking appellant's pleadings and entering a default judgment, holding that the trial court failed to include the required express written finding of willfulness necessary to justify such drastic sanctions.
An order striking pleadings and resulting in dismissal or default judgment must be accompanied by an express written finding of willfulness or deliberate disregard of court orders. The trial court's order here was reversed because it failed to contain any findings or reasons justifying the striking of pleadings.
[1] An order striking a party's pleadings which results in dismissal or a default judgment must be accompanied by an express written finding of willfulness.
[2] Dismissal is a drastic remedy that courts should employ only in extreme situations.
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Join FLexlaw to unlock all legal intelligence“an order striking a party's pleading which results in dismissal or a default judgment must be accompanied by an express written finding of willfulness”
Establishes the controlling legal standard requiring willfulness findings for striking pleadings
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Join FLexlaw to unlock all legal intelligenceThe trial court struck appellant Boca Casino Cruises' pleadings, entered a default, and rendered judgment for appellees Monte Carlo Cruise Concessions…
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PER CURIAM.
In this case, the trial court struck appellant’s pleadings, entered a default, and a judgment for appellees on the amended counterclaim.
The Florida Supreme Court has held that an order striking a party’s pleading which results in dismissal or a default judgment must be accompanied by an express written finding of willfulness. See Commonwealth Fed. Sav. & Loan Ass’n v. Tubero, 569 So. 2d 1271, 1273 (Fla.1990). In Townsend v. Feinberg, 659 So. 2d 1218, 1219 (Fla. 4th DCA 1995), this court stated:
It is uniformly held that dismissal is a drastic remedy which courts should employ only in extreme situations. Prior to exercising its discretion to grant dismissal based on failure to comply with a court order, the court must make a finding that the failure to comply was willful or contumacious. In the case at bar, there was no finding in the order of dismissal that appellant’s failure to attend her IME or her deposition was “willful or contumacious” or that appellant’s action, or non-action, resulted in prejudice to appellee. The failure to make the requisite findings in the order of dismissal constitutes reversible error. (Citations omitted).
While no “magic words” are required, the trial court’s order must contain “a finding that the conduct upon which the order is based was equivalent to willfulness or deliberate disregard.” Tubero, 569 So. 2d at 1273; see Harper-Elder v. Elder, 701 So. 2d 1230, 1231 (Fla. 4th DCA 1997).
The appealed order fails to state any reasons for striking the pleadings, let alone a finding of willfulness. On remand, the trial court may, if it deems necessary, conduct an evidentiary hearing for the limited purpose of having appellant present evidence of mitigating or extenuating circumstances demonstrating that its noncompliance with court orders was not deliberate or willful. If the trial court determines that the sanctions were justified, and makes the findings required by Tube-ro, it is authorized to reinstate the order striking the pleadings and the judgment on the amended counterclaim. If the trial court decides that the noncompliance was not willful, it is directed to reinstate appellant’s pleadings.
REVERSED AND REMANDED.
STONE, POLEN and GROSS, JJ., concur.
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HAM v. Dunmire, 891 So. 2d 492 (Fla. 2004)…s’ motion. Thus, the trial court’s order may be slightly distinguished from those found to violate Tubero because it did provide at least some reasoning underlying its findings, see Boca Casino Cruises, Inc. v. Monte Carlo Cruise Concessions, Inc., 760 So. 2d 281 (Fla. 4th DCA 2000) (reversing order of dismissal that failed to provide any reasoning), and made the requisite finding of willfulness or deliberateness. See Kelley v. Schmidt, 613 So. 2d 918 (Fla. 5th DCA 1993) (determining that a finding that defe…
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Schlitt v. Currier, 763 So. 2d 491 (Fla. 4th DCA 2000)…duct and, if knowledge is found, for a finding as to whether the actions were willful and deliberate. See Commonwealth Fed. Sav. and Loan Ass’n v. Tubero, 569 So. 2d 1271 (Fla.1990); Boca Casino Cruises, Inc. v. Monte Carlo Cruise Concessions, Inc., 760 So. 2d 281 (Fla. 4th DCA 2000). We recognize that a question remains, whether Kozel precludes trial courts from imposing ultimate sanctions on a party regardless of the extent of willfulness and outrageous disregard of court orders by counsel where the court…
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Adams v. Shiver, 890 So. 2d 1199 (Fla. 1st DCA 2005)…no case law that requires a trial court’s order to contain “magic words,” when its express findings sufficiently establish it properly considered the required factors. See generally Boca Casino Cruises, Inc. v. Monte Carlo Cruise Concessions, Inc., 760 So. 2d 281 (Fla. 4th DCA 2000). The trial court is not required to delineate in its final order everything it [*1201] considered in its resolution of each contested fact. The trial court’s order is AFFIRMED. DAVIS, J., Concurs; and BROWNING, J., Dissents wit…
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
- Commonwealth Fed. Sav. & Loan Ass'n v. Moshe Tubero, 569 So. 2d 1271 (Fla. 1990)
- Townsend v. Feinberg, 659 So. 2d 1218 (Fla. 4th DCA 1995)
- SUN Power Diesel, Inc. v. Fla. Detroit Diesel-Allison, Inc., 701 So. 2d 1230 (Fla. 4th DCA 1997)