Arviv v. Perlow
| Decision Date | 20 July 1988 |
| Docket Number | No. 87-2607,87-2607 |
| Citation | Arviv v. Perlow, 528 So.2d 139, 13 Fla. L. Weekly 1697 (Fla. App. 1988) |
| Court | Florida District Court of Appeals |
| Parties | 13 Fla. L. Weekly 1697 Harold ARVIV, Arviv Holdings, Ltd., Crepaco Corporation and Belgravia Corporation, Appellants, v. Jeffrey M. PERLOW, Jeffrey M. Perlow, P.A., and Perlman & Perlow, P.A., Appellees. |
Gregory A. Martin of Wallace, Engels, Pertnoy, Martin & Solowsky, P.A., Miami, for appellants.
William R. Wicks, III, and Carmen Y. Cartaya of Dixon, Dixon, Nicklaus, Valle & McIntosh, Miami, for appellees.
This is an appeal from a final judgment dismissing plaintiffs' complaint with prejudice for failure to comply with certain discovery orders.Plaintiffs appeal.We reverse and remand with instructions to reinstate plaintiffs' complaint.
Since there is nothing particularly novel about the circumstances and law we do shortly record:
1.The trial court abused its discretion by dismissing the complaint with prejudice for failure to comply with discovery because the plaintiff, Harold Arviv, had no means of complying with discovery.At the time of the discovery order Arviv was involved in criminal proceedings in Canada and one of the conditions of his bail was that he register with police daily in Toronto.Additionally, plaintiffs indicated that they would be willing to defer all reasonable expenses of opposing counsel in travelling to Canada in order to take Mr. Arviv's deposition.
2.It is well settled that sanctions for failure to comply with discovery may only be imposed when the non-complying party has the present ability to comply with the discovery orders.The striking of pleadings is unreasonable absent a...
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4 cases
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Commonwealth Federal Sav. and Loan Ass'n v. Tubero
...submit to discovery. In re Forfeiture of Twenty Thousand Nine Hundred Dollars ($20,900) U.S. Currency, 539 So.2d 14 (Fla. 4th DCA 1989); Bernaad v. Hintz, 530 So.2d 1055 (Fla. 4th DCA 1988);
Arviv v. Perlow, 528 So.2d 139 (Fla. 4th DCA 1988); Donner v. Smith, 517 So.2d 709 (Fla. 4th DCA 1987); Championship Wrestling from Florida, Inc. v. DeBlasio, 508 So.2d 1274 (Fla. 4th DCA), review denied, 518 So.2d 1274 (Fla.1987); McNamara v. Bradley Realty, Inc.,... -
Dunn v. White
...(Fla. 4th DCA 1987); Championship Wrestling from Florida, Inc. v. DeBlasio, 508 So.2d 1274 (Fla. 4th DCA), rev. denied, 518 So.2d 1274 (Fla.1987); Zafirakopoulous v. South Miami International Crab House Corp., 513 So.2d 1353 (Fla. 3d DCA 1987);
Arviv v. Perlow, 528 So.2d 139 (Fla. 4th DCA 1988); Bernaad v. Hintz, 530 So.2d 1055 (Fla. 4th DCA 1988); but see Pinero v. Pinero, 498 So.2d 637 (Fla. 3d DCA 1986); Freeman v. Humana, Inc.,... -
Tubero v. Chapnich
...been followed in several later opinions by this court. McNamara v. Bradley Realty, Inc., 504 So.2d 814 (Fla. 4th DCA 1987); Donner v. Smith, 517 So.2d 709 (Fla. 4th DCA 1987);
Arviv v. Perlow, 528 So.2d 139 (Fla. 4th DCA 1987); Bernaad v. Hintz, 530 So.2d 1055 (Fla. 4th DCA 1988); In Re: Forfeiture of Twenty Thousand Nine Hundred Dollars Currency, 539 So.2d 14 (Fla. 4th DCA 1989). Yet other cases from this court appear to examine the record as a whole... -
Gomez-Bonilla v. Apollo Ship Chandlers, Inc.
...discovery orders. A trial court should only impose discovery sanctions, especially the severe sanction of dismissal, "when the non-complying party has the present ability to comply with the discovery orders."
Arviv v. Perlow, 528 So.2d 139, 140 (Fla. 4th DCA 1988). It is an abuse of discretion for a trial court to impose the sanction of dismissal upon a party who does not have the present ability to comply with the court's discovery orders. See Arviv, 528 So.2d at 140 (findingDCA 1988). It is an abuse of discretion for a trial court to impose the sanction of dismissal upon a party who does not have the present ability to comply with the court's discovery orders. See Arviv, 528 So.2d at 140(finding that the trial court abused its discretion in dismissing the plaintiff's case where the plaintiff had no present means with which to comply with the discovery order); Garcia Fleet Corp. v. Martinez, 483 So.2d 502, 503 (Fla. 3d DCA 1986) (holding...