Mercer v. Raine

• Decision Date: 17 June 1981
• Docket Number: No. 80-400,80-400
• Citation: 410 So.2d 931
• Parties: Leonard J. MERCER, Jr., General Partner d/b/a Galt Ocean Mile Hotel Association, Ltd., a Pennsylvania limited partnership, Appellant, v. J. D. RAINE, Sr., Trustee, and Alladin Manavi, Appellees.
• Court: Florida District Court of Appeals

Page 931

410 So.2d 931

Leonard J. MERCER, Jr., General Partner d/b/a Galt Ocean Mile Hotel Association, Ltd., a Pennsylvania limited partnership, Appellant, v. J. D. RAINE, Sr., Trustee, and Alladin Manavi, Appellees.

No. 80-400.

District Court of Appeal of Florida, Fourth District.

June 17, 1981.

Rehearing Denied April 2, 1982.

Joel L. Kirschbaum of Esler & Kirschbaum, P.A., Fort Lauderdale, for appellant.

Douglas K. Silvis of English, McCaughan & O'Bryan, Fort Lauderdale, for appellees.

PER CURIAM.

This is an appeal from an order resulting from a discovery violation. The trial court struck the defendant's answer and entered default judgment against defendant on liability. The court simultaneously granted defendant's lawyer leave to withdraw from the case. This situation occurred at a hearing scheduled on defense counsel's motion to withdraw and plaintiffs' motion to impose sanctions for discovery violations. The court considered the motions simultaneously and granted both motions in the absence of the defendant. The decision to impose sanctions for a discovery violation and the severity thereof are matters within the discretion of the trial judge. Absent clear abuse these discretionary acts will not be reversed on appeal. Ferrante v. Waters, 383 So.2d 749 (Fla. 4th DCA 1980). We conclude that appellant has failed to make such a demonstration in this case and the order below is thus affirmed.

Affirmed.

LETTS, C. J., and BERANEK, J., concur.

HURLEY, J., dissents with opinion.

HURLEY, Judge, dissenting.

There is no question but that sanctions were necessary in this case. Nevertheless, I believe that the multiple sanctions imposed were so unnecessarily severe as to constitute an abuse of discretion. Consequently, I respectfully dissent.

The trial court entered an order on November 27, 1979, which was rendered on November 28, 1979, and which required the defendant to produce documents and to answer interrogatories within twenty days (December 18, 1979). Defendant failed to comply. On January 11, 1980, defense counsel moved to withdraw, citing a disagreement as to fees and other conduct which made it difficult for counsel to properly represent his client. A few days later, plaintiffs filed a motion for sanctions; both motions were heard on February 7, 1980.

The trial court granted plaintiffs' motion and imposed the following sanctions: (1) defendant's answer was stricken; (2) a default judgment was entered against the defendant on liability; and (3) defendant was ordered to pay plaintiffs' costs and fees occasioned by defendant's refusal to comply with the court's order of November 27th.

Given the posture of the case, I must acknowledge "the general principle that the decision to impose sanctions and the severity thereof, are matters within the sound discretion of the trial court. The exercise of this discretion will not be disturbed absent a clear showing of abuse." Ferrante v. Waters, 383 So.2d 749, 751 (Fla. 4th DCA 1980) (citations omitted). Nonetheless, I view the striking of defendant's answer and entry of a default judgment on liability as so unnecessarily severe as to constitute an abuse of discretion.

I believe this case is governed by Santuoso v. McGrath & Associates, Inc., 385 So.2d 112 (Fla. 3d DCA 1980) wherein the court held:

Even in a situation where notice is given to the defendant for the purpose of imposing sanctions, the record must be clear that such a severe sanction is authorized. Florida Rule of Civil...