Precision Tune Auto Care, Inc. v. Radcliffe

• Citation: 804 So.2d 1287
• Decision Date: 06 February 2002
• Docket Number: No. 4D00-2351.,4D00-2351.
• Parties: PRECISION TUNE AUTO CARE, INC., Appellant, v. James E. RADCLIFFE, individually, and Performance Concepts, Inc., Appellees.
• Court: Court of Appeal of Florida (US)

804 So.2d 1287

PRECISION TUNE AUTO CARE, INC., Appellant, v. James E. RADCLIFFE, individually, and Performance Concepts, Inc., Appellees.

No. 4D00-2351.

District Court of Appeal of Florida, Fourth District.

February 6, 2002.

Glen R. Goldsmith, Miami, and Philip M. Burlington of Caruso, Burlington, Bohn & Compiani, West Palm Beach, for appellant.

John R. Hargrove and W. Kent Brown of Heinrich Gordon Hargrove Weihe & James, P.A., Fort Lauderdale, for appellees.

ON MOTION FOR REHEARING

WARNER, J.

We deny the appellant's motion for rehearing, withdraw our previously issued opinion, and substitute the following in its place.

When, after several discovery skirmishes, appellant, Precision Tune Auto Care, Inc. ("PTAC"), produced a corporate representative for deposition with only limited knowledge of the issues involved in the case, the trial court gave PTAC one last chance to comply and ordered the corporation to produce three specific representatives within five days or have its pleadings struck. Two of the witnesses appeared for the depositions, but PTAC failed to produce the third. The court struck its pleadings. We affirm, concluding that the court was well within its discretion to find a deliberate disregard of its order. We reverse, however, the judgment entered on the subsequent trial on damages because the trial court erred in submitting to the jury special damages not pled in the complaint.¹

I. Order Striking Pleadings

This case involved disputes over an automotive service business franchise agreement. Appellees' (hereinafter referred to as Radcliffe) complaint contained several causes of action, and PTAC answered and filed a counterclaim. Initiating discovery, Radcliffe requested production of a wide range of documents in thirty-six categories. On September 22, 1999, the trial court sustained some objections to his request, overruled other objections, and gave PTAC thirty days to comply. When it did not produce the documents by October 23rd, Radcliffe moved for sanctions. PTAC subsequently filed an amended response in early November, attributing the untimely response to a paralegal's scheduling error.

As part of discovery concerning the counterclaim, Radcliffe noticed the deposition duces tecum of PTAC's corporate representative in Radcliffe's counsel's offices in Fort Lauderdale on September 2, 1999. He listed thirty-three areas of inquiry. PTAC responded by moving for a protective order requesting that the deposition be scheduled in Virginia because: (1) it did not maintain a corporate office in Florida; (2) all of the requested documents were located in Virginia at PTAC's headquarters; and (3) the parties allegedly agreed that all such activities would take place in Virginia. PTAC never requested a hearing or obtained the protective order from the court, and it failed to produce a representative at the deposition.

Radcliffe moved for sanctions for failure to appear. The court granted the motion and ordered PTAC to produce a corporate representative in Broward County within ten days. Radcliffe re-noticed the deposition accordingly for October 18th.

PTAC produced a corporate representative at that deposition who had very limited knowledge of the case, but identified three others with knowledge in the requested areas. Radcliffe again moved for sanctions, which the court granted on November 1, 1999, and ordered PTAC to produce those three individuals in Fort Lauderdale by Friday, November 5th, or its pleadings would be struck. Radcliffe re-noticed the depositions duces tecum for 11:00 a.m. on Friday, November 5th, and two of the three identified individuals appeared.

Elliot Bowytz, PTAC's Assistant General Counsel and Corporate Secretary, was present for his deposition, as was John Tarrant, one of the other witnesses listed in the court order. Mr. Bates, the third witness and a corporate officer, was not present because he was in Seattle, Washington, on previously scheduled company business. When the trial judge had entered the order on Monday, November 1st, Bates had not left for Seattle. In his deposition, Bowytz admitted that even though he knew of the order and the requirement that Bates be in Florida on November 5th or the corporation's pleadings would be struck, Bowytz did not impress upon Bates the importance of being in Fort Lauderdale on Friday and merely asked Bates when he could be available. Bates thought the following Friday was convenient for him. Bowytz admitted that the corporation was not in compliance with the court's order. The documents requested were also not present but were at PTAC's attorney's office. As PTAC previously noted in its amended response, Bowytz said that his paralegal had miscalendared the date when the documents should have been produced. Bowytz said he did not know why the documents were not at the deposition. PTAC's attorney stated that he had not been able to review them yet but would do so and produce them the next week at any rescheduled deposition.

Counsel for Radcliffe proceeded to take Bowytz's deposition until 5:15 p.m. that afternoon, when he terminated any further inquiry because of long-standing personal plans, of which he had previously informed PTAC's counsel. He also could no longer question Bowytz because he had not seen the documents which PTAC was required to produce. The two counsel then discussed the continuation of the depositions during the next week. However, counsel for Radcliffe could not determine which day would be best because he was unsure of his schedule and said he wanted to consider "subsequent undertakings." He still maintained that PTAC had not complied with the judge's order of November 1st Bowytz's deposition was not continued on Saturday, nor was Tarrant's deposition ever started. Instead, on Monday, Radcliffe filed a motion to strike PTAC's pleadings based upon Bates's nonappearance and the failure to produce the documents. The next week, all of the documents were produced. The trial court held a hearing on the motion to strike, but no transcript of it is part of the record. Nevertheless, the order recites that after considering Bowytz's deposition and hearing from counsel, the trial court struck the pleadings, detailing most of the above, and concluded that PTAC's actions were a "deliberate and contumacious disregard of the Court's previous orders," particularly the order requiring it to produce all three witnesses or its pleadings would be struck. The court ordered that the case be submitted to a jury on Radcliffe's damages only. The case ultimately proceeded to a jury trial, which resulted in a verdict and judgment of $840,093.86, from which PTAC filed its appeal.

In Mercer v. Raine, 443 So.2d 944, 945-46 (Fla.1983), the supreme court held that a trial court's order granting sanctions for violations of discovery rules should be reviewed using an abuse of discretion standard. Specifically, the court quoted from Farish v. Lum's Inc., 267 So.2d 325, 327-8 (Fla.1972):

The exercise of discretion by a trial judge who sees the parties first-hand and is more fully informed of the situation, is essential to the just and proper application of procedural rules. In the absence of facts showing an abuse of that discretion, the trial court's decision excusing, or refusing to excuse, noncompliance with rules ... must be affirmed.... It is the duty of the trial court, and not the appellate courts, to make that determination.

Mercer, 443 So.2d at 945. The court concluded: "[T]o justify reversal, it would have to be shown on appeal that the trial court clearly erred in its interpretation of the facts and the use of its judgment and not merely that the court, or another factfinder, might have made a different factual determination." Id. at 946.

Florida Rule of Civil Procedure 1.380 governs sanctions for failure to comply with discovery orders and provides that a trial court may enter "[a]n order striking out pleadings ... or rendering a judgment by default against the disobedient party." Fla. R. Civ. P. 1.380(b)(2)(C). "The purpose of reposing in the trial court the authority to enter a default is to ensure compliance with its order, not to punish or penalize." Garden-Aire Village Sea Haven, Inc. v. Decker, 433 So.2d 676, 677 (Fla. 4th DCA 1983). Generally,

the striking of pleadings or entering of a default for noncompliance with an order compelling discovery is the most severe of all sanctions which should be employed only in extreme circumstances. A deliberate and contumacious disregard of the court's authority will justify application of this severest of sanctions, as will bad faith, willful disregard or gross indifference to an order of the court, or conduct which evinces deliberate callousness.

Mercer, 443 So.2d at 946 (citations omitted). Moreover, the sanction "must be commensurate with the violation, since `justice prefers decisions based upon the merits' over determinations resulting from defaults or dismissals." Tubero v. Chapnich, 552 So.2d 932, 935 (Fla. 4th DCA 1989) (citations omitted), approved sub nom., Commonwealth Fed. Sav. & Loan Ass'n v. Tubero, 569 So.2d 1271 (Fla.1990)

.

We have reviewed the record, including Bowytz's deposition. In our view, the court did not err in its interpretation of the facts or the use of its judgment. First, discovery had already been delayed considerably by PTAC's "foot dragging." When faced with an exact deadline, PTAC's corporate counsel failed to secure the attendance of one of the critical witnesses required to be present, even though he knew that the corporation's pleadings would be struck by the witness's failure to appear. From a reading of the deposition, it becomes clear that Bowytz simply disregarded the order of the trial court because it was inconvenient to...