Anderson v. Merrill Lynch, Pierce, Fenner & Smith, Inc.
| Decision Date | 08 July 1983 |
| Docket Number | No. AQ-59,AQ-59 |
| Court | Florida District Court of Appeals |
| Parties | David M. ANDERSON and Jo An B. Anderson, Appellants, v. MERRILL LYNCH, PIERCE, FENNER & SMITH, INC., Appellee. |
Thomas M. Ervin, Jr., of Ervin, Varn, Jacobs, Odom & Kitchen, Tallahassee, and Paul G. Wright, of Anderson & Wright, P.A., Gainesville, for appellants.
Curtin R. Coleman of Coleman, Leonard & Morrison, Fort Lauderdale, for appellee.
This is an interlocutory appeal from an order striking appellants' answer and counterclaim as sanctions for failing to comply with orders of the trial court compelling discovery.
The striking of pleadings or the entering of a default judgment for noncompliance with an order compelling discovery is the most severe of all sanctions and should be employed only in extreme circumstances such as where a party acts in deliberate and contumacious disregard of the court's authority or gross indifference to an order of court. Watson v. Peskoe, 407 So.2d 954 (Fla. 3d DCA 1981); Swindle v. Reid, 242 So.2d 751 (Fla. 4th DCA 1970). Moreover, the visitation of such an ultimate sanction should not be imposed for failure to timely comply with the discovery order especially where failure to comply does not operate to prejudice the opposing party in any substantial manner. Santuoso v. McGrath & Associates, Inc., 385 So.2d 112 (Fla. 3d DCA 1980).
On review of the facts of this case, we believe that the sanctions imposed in this case are too severe and, therefore, constitute an abuse of discretion by the trial court. We, therefore, reverse the order striking appellants' answer and counterclaim and remand the matter to the trial court with instructions that our decision does not operate to deprive the trial court of authority to proceed to impose on appellants some authorized lesser sanction which is just and proper under the circumstances.
REVERSED and REMANDED.
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Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Anderson
...the court even imposed sanctions on the Andersons which, on appeal, were found to be too severe. Anderson v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 434 So.2d 43 (Fla. 1st DCA 1983). The jury trial took four days and encompassed the testimony of ten witnesses, including that of David A......
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McNamara v. Bradley Realty, Inc.
...490 So.2d 50 (Fla.1986); Santuso v. McGrath & Associates, Inc., 385 So.2d 112 (Fla. 3d DCA 1980); Anderson v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 434 So.2d 43 (Fla. 1st DCA 1983); and United Services Automobile Association v. Strasser, 492 So.2d 399 (Fla. 4th DCA 1986). See also St......