R.W. WESTERLY, D/B/A R.W. WESTERLY CONSTRUCTION, APPELLANT,
v.
H. MITCHELL KING AND WIFE, SANDRA KING, APPELLEE
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Appellant R.W. Westerly Construction challenged sanctions imposed by the trial court for procedural violations, including striking its counterclaim, affirmative defenses, and limiting its trial witnesses. The appellate court reversed, finding that the trial court failed to make the required findings of willful noncompliance and prejudice necessary to impose such severe sanctions.
The trial court's sanctions were improper because it failed to make required findings of willful noncompliance or deliberate refusal to comply with court orders before striking pleadings, and failed to find prejudice to the opposing party before excluding witnesses. Such findings are necessary prerequisites to imposing these severe sanctions.
[1] Striking a counterclaim and affirmative defenses as a sanction requires a finding of willful non-compliance with court orders.
[2] Excluding a party's witnesses as a sanction requires a finding of prejudice to the opposing party.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Because of the severity of the sanction, orders striking pleadings should contain specific findings of a willful failure or deliberate refusal to comply with discovery.”
Establishes the requirement for willfulness findings when striking pleadings as a sanction.
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Join FLexlaw to unlock all legal intelligenceR.W. Westerly Construction failed to comply with various orders of the trial court. The trial court issued three separate orders attempting to sanctio…
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PER CURIAM.
Appellant R.W. Westerly Construction (Westerly) contends that the trial court erred by striking its counterclaim and affirmative defenses and limiting its witnesses as sanctions for procedural violations. Because the trial court’s orders imposing these sanctions include no finding of willful behavior by Westerly or prejudice to the opposing party, we reverse.
We have three orders before us pertaining to the imposition of sanctions, all purporting to contain the findings and order of the court. The first order found that Westerly willfully failed to comply with orders of the court; struck Westerly’s counterclaim; struck Westerly’s affirmative defenses; limited Westerly’s trial witnesses; ordered Westerly to comply with the court’s orders; denied Westerly’s motion to dismiss; and denied Westerly’s motion for continuance. The amended order found that the first order did not accurately reflect the court’s findings; found that Westerly’s failure to comply with orders of the court was “not willful or intentional”; struck Westerly’s counterclaim; struck Westerly’s affirmative defenses; and denied Westerly’s motion for rehearing. The second amended order made no finding as to willfulness; denied plaintiffs’ motion for default; struck Westerly’s counterclaim; struck Westerly’s affirmative defenses; limited Westerly’s trial witnesses; ordered Westerly to comply with the orders of the court; denied Westerly’s motion to dismiss; and denied Westerly’s motion for continuance.
In the end, the trial court made no finding that Westerly’s failure to comply with the orders of the court was willful, and such a finding is required before striking the counterclaim and affirmative defenses. See Clark v. Lake City Police Dep’t, 723 So. 2d 901, 902 (Fla. 1st DCA 1999) (“Because of the severity of the sanction, orders striking pleadings should contain specific findings of a willful failure or deliberate refusal to comply with discovery.”). Additionally, the trial court made no finding that plaintiff was prejudiced by Westerly’s failure to comply with the orders of the court, and such a finding is necessary to strike a party’s witness. See Walters v. Keebler Co., 652 So. 2d 976, 977 (Fla. 1st DCA 1995) (“[T]he exclusion of an unlisted witness’ testimony is a drastic remedy which should pertain in only the most compelling circumstances.... Binger further indicates that when the opposing party is not prejudiced by the late disclosure, and compelling circumstances are not otherwise shown, the witness should generally be allowed to testify.)” (citing Binger v. King Pest Control, 401 So. 2d 1310, 1314 (Fla.1981)). These errors are fatal to the trial court’s imposition of sanctions.
Accordingly, the final judgment of the trial court is REVERSED and the case is REMANDED for further proceedings.
BOOTH, KAHN and VAN NORTWICK, JJ., concur.
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Citator
Authorities Cited
- Binger v. King Pest Control, 401 So. 2d 1310 (Fla. 1981)
- Walters v. Keebler Co. & Crawford & Co., 652 So. 2d 976 (Fla. 1st DCA 1995)
- Clark v. Lake City Police Dep't, 723 So. 2d 901 (Fla. 1st DCA 1999)