PEACHIE D. TIANVAN, APPELLANT,
v.
AVCO CORP., A FOREIGN CORPORATION FOR PROFIT; AND/OR ITS SUBSIDIARY, DIVISION OR RELATED COMPANY, AVCO CORP. LYCOMMING, A FOREIGN CORPORATION FOR PROFIT; PARKER-HANNIFIN, CORP., A FOREIGN CORPORATION FOR PROFIT; LEAR ROMEC, A FOREIGN CORPORATION FOR PROFIT; AIRMARK OVERHAUL, INC., A CORPORATION FOR PROFIT; CERTIFIED ENGINES UNLIMITED, INC., A CORPORATION FOR PROFIT; CRANE CO., A FOREIGN CORPORATION FOR PROFIT; CONSOLIDATED FUEL SYSTEMS, INC., A FOREIGN CORPORATION FOR PROFIT, APPELLEES
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The court reversed the trial court's dismissal of a products liability complaint as a discovery sanction because the trial court failed to make express written findings that the discovery violations demonstrated willful or deliberate disregard.
A trial court abuses its discretion by dismissing an action for discovery violations without making express written findings of fact supporting a conclusion of willful or deliberate disregard.
[1] A trial court must make express written findings of fact demonstrating willful or deliberate disregard of discovery orders before dismissing an action as a sanction for d…
Previewing 1 of 1 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“The dismissal of an action based on the violation of a discovery order will constitute abuse of discretion where the trial court fails to make express written findings of fact supporting the conclusion that the failure to obey the court order demonstrated willful or deliberate disregard.”
Citing Ham v. Dunmire, 891 So. 2d 492, 495 (Fla.2004), establishing the requirement for express written findings.
Appellant Tianvan filed a products liability action against multiple defendants including Avco Corp., Parker-Hannifin, and others. The trial court dis…
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PER CURIAM.
We reverse the trial court’s dismissal of appellant’s complaint with prejudice as a sanction for failing to respond to discovery requests and comply with orders compelling discovery. In dismissing this action, the trial court failed to make express written findings of fact supporting the conclusion that the failure to obey the court orders demonstrated willful or deliberate disregard. See Ham v. Dunmire, 891 So. 2d 492, 495 (Fla.2004) (“The dismissal of an action based on the violation of a discovery order will constitute abuse of discretion where the trial court fails to make express written findings of fact supporting the conclusion that the failure to obey the court order demonstrated willful or deliberate disregard.”); Commonwealth Fed. Sav. & Loan Ass’n v. Tubero, 569 So. 2d 1271, 1273 (Fla.1990) (holding that the trial court must make a “finding that the conduct upon which the order is based was equivalent to willfulness or deliberate disregard”).
Accordingly, we reverse and remand for the trial court to consider the factors articulated in Kozel v. Ostendorf, 629 So. 2d 817 (Fla.1993), in determining whether dismissal is appropriate for the discovery violations at issue and to make written factual findings regarding willful or deliberate disregard if the court again concludes that dismissal is an appropriate sanction.
Reversed and Remanded.
KLEIN, SHAHOOD AND TAYLOR, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Smith v. City OF Panama City, 951 So. 2d 959 (Fla. 1st DCA 2007)…nction.” Id. at 500. It found that “[t]he trial court’s failure to consider the Kozel factors in determining whether dismissal was appropriate is, by itself, a basis for remand for application of the correct standard.” Id. In Tianvan v. AVCO Corp., 898 So. 2d 1208, 1209 (Fla. 4th DCA 2005), the court reversed the dismissal of a complaint with prejudice as a sanction for discovery violations, finding that “the trial court failed to make express written findings of fact supporting the conclusion that the failur…
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Arkiteknic, Inc. v. United Glass Laminating, Inc., 53 So. 3d 366 (Fla. 3d DCA 2011)…18 (Fla.1993). To ensure that the sanction of dismissal is prudently applied, trial courts must first make certain preliminary findings of fact. Alvarado v. Snow White & the Seven Dwarfs, Inc., 8 So. 3d 388 (Fla. 3d DCA 2009); Tianvan v. AVCO Corp., 898 So. 2d 1208, 1209 (Fla. 4th DCA 2005). These findings must address: 1) whether the attorney’s disobedience was willful, deliberate, or contumacious, rather than an act of neglect or inexperience; 2) whether the attorney has been previously sanctioned; 3) whet…
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Yalila Alvarado and Wilfredo Alvarado, Jr. v. Snow White & the Seven Dwarfs, Inc., 8 So. 3d 388 (Fla. 3d DCA 2009)…would fail to achieve a just result.” Kozel v. Ostendorf, 629 So. 2d 817, 818 (Fla.1993). To ensure that the sanction of dismissal is prudently applied, trial courts must first [*389] make certain preliminary findings of fact. Tianvan v. AVCO Corp., 898 So. 2d 1208, 1209 (Fla. 4th DCA 2005). These findings must address: 1) whether the attorney’s disobedience was willful, deliberate, or contumacious, rather than an act of neglect or inexperience; 2) whether the attorney has been previously sanctioned; 3) whet…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Carolann D. Kozel v. Ostendorf, 629 So. 2d 817 (Fla. 1993)
- Commonwealth Fed. Sav. & Loan Ass'n v. Moshe Tubero, 569 So. 2d 1271 (Fla. 1990)
- HAM v. Dunmire, 891 So. 2d 492 (Fla. 2004)