Summit Chase Condominium Ass'n, Inc. v. Protean Investors, Inc.

• Decision Date: 28 September 1982
• Docket Number: No. 81-1116,81-1116
• Citation: 421 So.2d 562
• Parties: SUMMIT CHASE CONDOMINIUM ASSOCIATION, INC., a Florida corporation not-for-profit, Appellant, v. PROTEAN INVESTORS, INC., a New York corporation, Melba Investors, Northeast, Inc., a New York corporation, and Bankers Trust Company, a New York corporation, Appellees.
• Court: Florida District Court of Appeals

Page 562

421 So.2d 562

SUMMIT CHASE CONDOMINIUM ASSOCIATION, INC., a Florida corporation not-for-profit, Appellant, v. PROTEAN INVESTORS, INC., a New York corporation, Melba Investors, Northeast, Inc., a New York corporation, and Bankers Trust Company, a New York corporation, Appellees.

No. 81-1116.

District Court of Appeal of Florida Third District.

Sept. 28, 1982.

Horton, Perse & Ginsberg and Arnold Ginsberg and James F. Comander, Miami, for appellant.

Meyer, Weiss, Rose, Arkin, Shampanier, Ziegler & Barash and S. Harvey Ziegler, Miami Beach, for appellees.

Before SCHWARTZ, NESBITT and JORGENSON, JJ.

NESBITT, Judge.

Summit Chase commenced this action in its own right as a condominium unit owner and on behalf of all others similarly situated (comprising some 220 unit owners) as a class action pursuant to Section 718.111(2), Florida Statutes (1977) and Florida Rule of Civil Procedure 1.220(b). The complaint alleged breach of implied warranty and negligence in the construction and installation of the roofs and the mechanical, electrical, and plumbing components of the common elements of the condominium. Compensatory damages in excess of $250,000 were sought.

The action was commenced in May of 1979. The cause became at issue in December of 1979. In August of 1979, the defendants had propounded a set of sixty-one interrogatories, of which each question had multiple parts. Approximately eighteen months later, in March of 1981, the defendants filed a motion to either compel answers to interrogatories or dismiss the action. After hearing, an order compelling answers within fifteen days was entered on March 12, 1981. Simultaneously, plaintiff's notice of trial was stricken and the parties were given leave to re-notice as discovery was nearing completion.

The plaintiff filed answers to a few of the interrogatories within the fifteen-day period. Attached to the answers was an architectural and structural engineering survey describing the condominium defects and consisting of approximately 140 letter-size pages. Almost all of the interrogatories were indicated as having been answered by reference to the attached engineering survey and damage report. The defendants again moved to dismiss the action with prejudice for failure of the plaintiff to comply with the previous discovery order of court. The motion was granted and the plaintiff's action was dismissed with prejudice. The order of dismissal assessed a $250 cost judgment in favor of the defendants' attorneys for their efforts in seeking compliance with discovery.

Plaintiff has appealed the order, contending that the interrogatories were in fact substantially answered. In the alternative, plaintiff argues that even if there was a discovery violation, it did not result in sufficient prejudice to the defendants, nor was it so aggravated, as to justify the severity of the sanction imposed.

We disagree with plaintiff's contention that the interrogatories were substantially answered. Fla.R.Civ.P. 1.380(a)(3); see State Road Department v. Florida East Coast Railway, 212 So.2d 315 (Fla.3d DCA 1968). Assuming arguendo that the engineering report contained the desired information, it was not presented to the defendants as they were entitled to receive it in accordance with the arrangement of their questions. Florida Rule of Civil Procedure 1.340(e) permits that if insufficient space is provided in the interrogatories, "the answering party may attach additional papers with answers ...," but it does not authorize leaving a party to ferret and sift through a report to determine whether the requested information is there. Here, at the minimum, the defendants would have been forced to hazard the speculation that the information supplied was actually responsive ¹ to their inquiries.

Despite our determination that the answers to interrogatories were inadequate, we agree with plaintiff's alternative argument that the sanction of dismissal with prejudice was not warranted in this case. Herold v. Computer Components International, Inc., 252 So.2d 576 (Fla. 4th DCA 1971). In doing so, we feel compelled to make the following observations.

The openness of modern discovery is recognized to the point where the discovery process is for the most part self-executing. The superintendence of trial judges should be resorted to only with respect to whether information should be disgorged and the sequence or timing of its proliferation. It is inherent in the present rules of discovery that lawyers, out of respect for the adversary system, should make good faith efforts to comply with one another's reasonable discovery requests without constant recourse to the trial courts. This is especially so when counsel know full well that compliance with discovery is inevitable if sanctions are to be avoided.

In the instant case, it is apparent that had plaintiff's counsel attempted to promptly cooperate with his opponent, ² he might have been successful in merely submitting the engineering report subject to it being supplemented by further interrogatories or other discovery methods. Nonetheless, the fact that plaintiff's counsel was laggard and slothful does not warrant the visitation of the extreme sanction of dismissal. Santuoso v. McGrath & Associates, Inc., 385 So.2d 112 (Fla. 3d DCA 1980). The severity of the sanction must be commensurate with the violation, Turner v. Anderson, 376 So.2d 899 (Fla. 2d DCA 1979), and dismissal of an action should be imposed upon a party only in extreme situations for flagrant or aggravated cases of disobedience. Travelers Insurance Company v. Rodriguez, 357 So.2d 464 (Fla. 2d DCA 1978).

The visitation of the ultimate sanction was not warranted in this case because of the defendants' initial delay in moving to compel answers to interrogatories, and because the case had not been finally set for trial. Consequently, the defendants have been unable to make a sufficient showing of prejudice. Santuoso v. McGrath & Associates, Inc., supra; Beaver Crane Service, Inc. v. National Surety Corporation, 373 So.2d 88 (Fla. 3d DCA 1979). On this record, the trial judge should have followed the approved practice of granting the plaintiff an additional opportunity for compliance. Goldstein v. Goldstein, 284 So.2d 225 (Fla. 3d DCA 1973).

We hold that the sanction consisting of the entry of the order of dismissal with prejudice was excessive and an abuse of discretion. The order appealed from is reversed except that portion assessing costs and attorney's fees against the plaintiff, which is affirmed. ³ Our reversal does not preclude the trial court, on remand, from compelling the plaintiff to more adequately and fully answer the questions propounded and to assess further attorney's fees...