PROGRESSIVE CONSUMERS INSURANCE CO., APPELLANT,
v.
DECO NATURAL STONE, INC., APPELLEE
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SCHWARTZ, Chief Judge.
Because of the plainly non-prejudicial failure to timely indicate their names on a formal witness list, the trial court struck the primary witnesses for the plaintiff, resulting in a directed verdict for the defendant. This action punished the appellant far out of proportion to the magnitude of the alleged offense and thus constituted a gross and reversible abuse of discretion. See Kamhi v. Waterview Towers Condominium Ass’n, 793 So. 2d 1033 (Fla. 4th DCA 2001); Pascual v. Dozier, 771 So. 2d 552 (Fla. 3d DCA 2000); Tomlinson-McKenzie v. Prince, 718 So. 2d 394 (Fla. 4th DCA 1998); Earp v. Winters, 693 So. 2d 621 (Fla. 2d DCA 1997); Kelley v. Schmidt, 613 So. 2d 918 (Fla. 5th DCA 1993); Aguila-Rojas v. City Management Group Corp., 606 So. 2d 765 (Fla. 3d DCA 1992). See generally Binger v. King Pest Control, 401 So. 2d 1310 (Fla.1981). While this decision does not preclude appropriate lesser sanctions for the discovery violation against the appellant or its counsel, the judgment below is therefore reversed and the cause is remanded for trial.
Reversed and remanded.
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Taylor v. Mazda Motor OF Am., Inc., 934 So. 2d 518 (Fla. 3d DCA 2005)…s in First Republic, is whether the sanction was appropriate under the circumstances in the present case. We conclude that it was not.2 The sanction must be commensurate with the offense. See Progressive Consumers Ins. Co. v. Deco Nat’l Stone, Inc., 827 So. 2d 336 (Fla. 3d DCA 2002) (striking primary witness for plaintiff and directing verdict for defendant out of proportion to magnitude of alleged offense for failure to include name on formal witness list); Kamhi v. Waterview Towers Condo. Ass’n, 793 So. 2d…
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Deutsche Bank Nat'l Tr. Co. v. Estrella Perez, 180 So. 3d 1186 (Fla. 3d DCA 2015)…st important witnesses because if the witness is stricken, that party will be left unable to present evidence to support his or her theory of the case.” Pascual, 771 So. 2d at 554; see also Progressive Consumers Ins. Co. v. Deco Natural Stone, Inc., 827 So. 2d 336, 336 (Fla. 3d DCA 2002) (finding the trial court abused its discretion in striking the plaintiffs primary witness, resulting in a directed verdict for the defendant, where the failure to timely provide a formal witness list was non-prejudicial). In…
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Alejandra Cossio v. Arrondo, 53 So. 3d 1141 (Fla. 3d DCA 2011)…cision to impose sanctions is discretionary, “a litigant should not be punished for fault on the part of ... counsel by such a severe sanction as striking ... witnesses for noncompliance”); Progressive Consumers Ins. Co. v. Deco Natural Stone, Inc., 827 So. 2d 336, 336-37 (Fla. 3d DCA 2002) (confirming that imposing a punishment “far out of proportion to the magnitude of the alleged offense” constitutes “a gross and reversible abuse of discretion”). The record in this case does not show that Cossio was in an…
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- Binger v. King Pest Control, 401 So. 2d 1310 (Fla. 1981)
- Kelley v. Schmidt, 613 So. 2d 918 (Fla. 5th DCA 1993)
- Pascual v. Dozier, 771 So. 2d 552 (Fla. 3d DCA 2000)
- Jones v. Jones, 606 So. 2d 765 (Fla. 3d DCA 1992)
- Belcher v. State, 793 So. 2d 1033 (Fla. 5th DCA 2001)
- Kamhi v. Waterview Towers Condo. Ass'n, Inc., 793 So. 2d 1033 (Fla. 4th DCA 2001)
- Earp v. Birdie L. Winters & State Farm Mut. Auto. Ins. Co., 693 So. 2d 621 (Fla. 2d DCA 1997)
- State v. Tamario Calloway, 718 So. 2d 394 (Fla. 4th DCA 1998)
- Collins v. State, 718 So. 2d 394 (Fla. 4th DCA 1998)