Zafirakopoulous v. South Miami Intern. Crabhouse Corp.
Decision Date | 20 October 1987 |
Docket Number | No. 86-2714,86-2714 |
Citation | 12 Fla. L. Weekly 2449,513 So.2d 1353 |
Parties | 12 Fla. L. Weekly 2449 Vasiliki ZAFIRAKOPOULOUS, Appellant, v. SOUTH MIAMI INTERNATIONAL CRABHOUSE CORPORATION, d/b/a Rustic Inn Crabhouse, and Rustic Inn Crabhouse, Inc., and Kent Insurance Company, Appellees. |
Court | Florida District Court of Appeals |
Neal A. Roth, Miami, and David Enis, for appellant.
Sparber, Shevin, Shapo & Heilbronner, P.A., and Nancy Schleifer, Miami, for appellees.
Before HENDRY, FERGUSON and JORGENSON, JJ.
Zafirakopoulous appeals from an order of the trial court dismissing with prejudice Zafirakopoulous's negligence action against the South Miami International Crabhouse Corporation and Kent Insurance Company [collectively Kent]. The trial court had granted Kent's motion for sanctions based upon Zafirakopoulous's failure to appear for a compulsory physical examination. We reverse the trial court's order of dismissal with prejudice.
Zafirakopoulous had filed a negligence action in 1984 against Kent's insured, the South Miami International Crabhouse Corporation. The trial court set the case for trial for the two-week period beginning October 20, 1986, and entered a pretrial order requiring the completion of all discovery thirty days prior to trial. Kent deposed Zafirakopoulous on August 6, 1986, at which time it learned that she would be leaving the United States on August 8 to spend two months in Greece. Kent immediately moved for a compulsory physical examination of Zafirakopoulous. 1 On August 21, 1986, the trial court granted the motion and set the examination for September 17, 1986. After her counsel unsuccessfully sought to extend the time for the examination, he communicated with Zafirakopoulous in Greece regarding the scheduled appointment. She responded that she could not terminate her stay in Greece without suffering severe financial losses but expressed her willingness to submit to the examination any time after her return to the United States on October 12, 1986. When Zafirakopoulous failed to keep the September 17 appointment, Kent moved for sanctions. Following a hearing, the trial court granted the motion for sanctions and dismissed the case with prejudice.
The sanction of dismissal with prejudice is the most severe and is appropriate only in extreme circumstances. The severity of a sanction must be commensurate with the violation. Mercer v. Raine, 443 So.2d 944 (Fla.1983). See also Wallraff v. T.G.I. Friday's, Inc., 490 So.2d 50 (Fla.1986) ( ); Stimpson Computing Scale Co. v. Esch, 508 So.2d 482 (Fla. 3d DCA 1987) ( ); Beauchamp v. Collins, 500 So.2d 294 (Fla. 3d DCA 1986) (, )rev. denied, 511 So.2d 297 (Fla.1987); Velazquez v. Gaitan, 499 So.2d 66 (Fla. 3d DCA 1986) ( ); United Servs. Auto. Ass'n v. Strasser, 492 So.2d 399 (Fla. 4th DCA 1986) (, )rev. denied, 501 So.2d 1283 (Fla.1987); Pey v. Turnberry Towers Corp., 474 So.2d 1279 (Fla. 3d DCA 1985) ( ); Summit Chase Condominium Ass'n v. Protean Investors, Inc., 421 So.2d 562 (Fla.3d DCA 1982) ( ).
Measured against these standards, Zafirakopolous's conduct in the instant case fails to achieve the egregious level required to sustain the sanction imposed. Although the trial court specifically found that Zafirakopoulous "willfully and intentionally refused to comply with this Court's Order dated August 21, 1986 requiring a compulsory...
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