Santuoso v. McGrath & Associates, Inc.
| Decision Date | 10 June 1980 |
| Docket Number | No. 80-370,80-370 |
| Citation | 385 So.2d 112 |
| Court | Florida District Court of Appeals |
| Parties | Gerald M. SANTUOSO, Appellant, v. McGRATH & ASSOCIATES, INC. and Gail Marie Fournier, Appellees. |
Goodwin, Ryskamp, Welcher, Carrier & Donoff and Kenneth Ryskamp, Miami, for appellant.
Sams, Gerstein & Ward and Richard S. Rachlin, Miami, for appellees.
Before SCHWARTZ, NESBITT and PEARSON, DANIEL, JJ.
Santuoso, defendant below, brings this interlocutory appeal to challenge a default entered against him in the trial court. The default was entered as a result of the defendant's disobedience to the trial court's order to resubmit to a deposition. We find error and reverse.
Appellee, McGrath, by way of an amended complaint served July 24, 1979, sued Santuoso and co-appellee, Gail Marie Fournier, seeking to impose a constructive trust against them for conversion of funds allegedly the property of McGrath. Santuoso submitted to the taking of his deposition. However, his refusal to answer certain questions resulted in those questions being certified. On November 5, 1979, Santuoso and Fournier filed their answer to the amended complaint. Santuoso sought and obtained a protective order against the further taking of his deposition until a court-appointed psychiatrist evaluated co-defendant Fournier. In response, McGrath filed a motion to vacate that order along with a motion to compel Santuoso to resubmit to deposition. Prior to the hearing thereon, the attorney of record for Santuoso and Fournier filed a motion to withdraw. On December 19, 1979, the motions were heard and an order was entered which: (1) allowed the attorney of record for Santuoso and Fournier to withdraw; (2) required defendants to retain counsel of record not later than January 8, 1980; and (3) required Santuoso to resubmit to the taking of his deposition on January 10, 1980. Santuoso's former counsel of record was required to and did furnish Santuoso and Fournier with a copy of the order as required therein. Upon Santuoso's failure to resubmit to deposition scheduled for January 10, 1980, McGrath applied to the trial court for the entry of a default. A copy of that application and notice of hearing was furnished to Santuoso on January 12, 1980. On January 18, 1980, a hearing was held on the application for default at which time Santuoso's former attorney of record appeared and, ore tenus, moved for leave to be reinstated as Santuoso's attorney. The motion was denied and the application for default was granted determining liability in favor of McGrath and against Santuoso and Fournier. On February 20, 1980, the former attorney of record for Santuoso filed an affidavit in the trial court which is relied upon in this appeal to demonstrate that Santuoso did not receive notice to resubmit to deposition. In reaching our result in the determination of this appeal, we have not considered this affidavit because it is not properly part of the record on appeal.
By resort to the record, we are persuaded that Santuoso had notice that he was to resubmit himself for deposition, both to answer the questions which had been certified as well as for the purpose of further discovery. Nonetheless, we conclude from consideration of the record that the sanction imposed against Santuoso, in effect determining liability in favor of the plaintiff, was too drastic.
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....
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