Donner v. Smith

• Decision Date: 09 December 1987
• Docket Number: No. 4-86-0803,4-86-0803
• Citation: Donner v. Smith, 517 So.2d 709, 12 Fla. L. Weekly 2785 (Fla. App. 1987)
• Parties: 12 Fla. L. Weekly 2785 Miriam DONNER, Appellant, v. Edward Francis SMITH, Allstate Insurance Company, Charter Oak Fire Insurance Company, and Chevron USA, Inc., Appellees.
• Court: Florida District Court of Appeals

Page 709

517 So.2d 709

12 Fla. L. Weekly 2785

Miriam DONNER, Appellant, v.Edward Francis SMITH, Allstate Insurance Company, Charter Oak Fire Insurance Company, and Chevron USA, Inc., Appellees.

No. 4-86-0803.

District Court of Appeal of Florida Fourth District.

Dec. 9, 1987.

Rehearing and Rehearing En Banc Denied Jan. 28, 1988.

Miriam Donner, pro se.

Arthur J. Morburger, Miami, for appellant.

Tew, Jordan & Schulte, Fort Lauderdale, for appellees-Smith and Allstate Ins. Co.

GUNTHER, Judge.

Miriam Donner(Donner) appeals a final order dismissing her civil personal injury action.We reverse.

On January 20, 1978, Donner filed an action for damages against Edward Francis Smith(Smith) for injuries suffered when Smith's automobile struck Donner.For the next nine years, the parties prepared for trial.Finally, the case was set for trial on January 27, 1986, but was dismissed by the trial court on January 24, 1986, as a sanction for alleged discovery violations committed by Donner.

We conclude the trial court committed procedural errors that require reversal of the order of dismissal.First, the trial court erred in dismissing Donner's case on the basis that Donner had failed to answer supplemental interrogatories and to submit to a court-ordered physical examination.We agree with Donner's contention that the trial court abused its discretion by ordering her on December 12, 1986 to answer nonexistent supplemental interrogatories supposedly dated October 16, 1985.Not only was there no service of a motion to compel answers to such interrogatories and no notice of hearing thereon, but Donner was subsequently ordered on January 21, 1986 to comply with the December 12, 1986 order within eight hours.Since the trial court erred in ordering Donner to answer nonexistent interrogatories, the resulting dismissal was improperly entered because it was predicated upon an erroneous order.

As to Donner's failure to submit to the court-ordered physical examination, we conclude that the trial court erred in basing the dismissal of the case on this alleged discovery violation.The failure to submit to an examination was not a ground stated in the motion to dismiss, but was raised ore tenus.In Kuechenberg v. Creative Interiors, Inc., 424 So.2d 145(Fla. 4th DCA1982), this court held that a party to be sanctioned must first be given notice and an opportunity to be heard and offer mitigating or extenuating evidence.Since Donner was not given adequate notice that this alleged discovery violation was to be argued as a grounds for dismissal, the trial court erred in granting the dismissal based on Donner's non-compliance with the order compelling submission to a physical examination.

Secondly, notice of the January 24, 1986 hearing resulting in the dismissal was mailed to Donner on January 22, 1986.Under the circumstances of this case, a notice mailed two days before the hearing was inadequate notice and constitutes a violation of due process.SeeDevoe & Raynolds Co. v. KDS Paint Co., 382 So.2d 126(Fla. 4th DCA1980);Fla.R.Civ.P. 1.090(d).Since Donner did not receive adequate notice of the motion hearing, we reverse the trial court's order of dismissal.

Finally, in addition to the above...