GWENN SCHEMER AND MICHAEL SCHEMER, APPELLANTS,
v.
SYDNEY PECK, M.D., AND PECK & GLAZER, P.A., APPELLEES
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Court reversed dismissal with prejudice for discovery non-compliance, holding that dismissal was an abuse of discretion where counsel's personal illness caused brief delay and answers were substantially prepared.
Dismissal with prejudice is an abuse of discretion when discovery delay results from counsel's personal illness and answers are substantially prepared at the hearing.
[1] Dismissal with prejudice is an abuse of discretion as a sanction for discovery non-compliance when the delay is brief, caused by counsel's personal illness rather than cl…
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Join FLexlaw to unlock all legal intelligence“Under these circumstances we conclude the sanction of dismissal of the case with prejudice was too severe and constituted an abuse of discretion by the trial court.”
Court's explanation for reversing the dismissal sanction
Plaintiff's counsel failed to respond to interrogatories and production requests within 20 days of an agreed order, citing two knee injuries and influ…
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BERANEK, Judge.
Plaintiff appeals a final dismissal with prejudice of her complaint for failure to comply with a discovery order. We reverse. The facts are not disputed. An agreed order was entered in this medical malpractice case on June 9, 1980, giving plaintiff twenty (20) days to respond to certain interrogatories and a request for production. Plaintiff did not respond and defense counsel filed a motion to dismiss for failure to comply with the order. There was no contact between counsel and at the hearing plaintiff’s counsel indicated he had sustained two knee injuries and an episode with influenza which was responsible for his inability to comply with the discovery order. At the time of the hearing he had the answers to interrogatories in handwritten form and was prepared to file them the following day. Under these circumstances we conclude the sanction of dismissal of the case with prejudice was too severe and constituted an abuse of discretion by the trial court. Plaintiff’s counsel agreed to an order imposing costs and attorneys’ fees and further advised that the delay was due to his own fault rather than his client’s . Under these circumstances we reverse and remand for further proceedings which should include consideration of imposition of costs and attorneys’ fees. See Crystal Lake Golf Course, Inc. v. Kalin, 252 So. 2d 379 (Fla. 4th DCA 1971); Herold v. Computer Components International, Inc., 252 So. 2d 576 (Fla. 4th DCA 1971); and Hurley v. Werly, 203 So. 2d 530 (Fla. 2d DCA 1967).
REVERSE AND REMAND.
GLICKSTEIN, J., concurs.
MOORE, J., dissents without opinion.
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Citator
Cited By
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Perez v. Hugh S. Unger, M.D., 571 So. 2d 67 (Fla. 3d DCA 1990)…rp., 567 So. 2d 992 (Fla. 1st DCA 1990); Clay v. City of Margate, 546 So. 2d 434 (Fla. 4th DCA 1989), rev. denied, 553 So. 2d 1164 (Fla.1989); Zafirakopoulous v. South Miami Int’l Crabhouse, Inc., 513 So. 2d 1353 (Fla. 3d DCA 1987); Schemer v. Peck, 405 So. 2d 1033 (Fla. 4th DCA 1981). Accordingly, the judgment under review is reversed. In accordance with Perez’s specific request, the cause is remanded with directions to set the cause for an expeditious trial, forty-five days or more from the return of the m…
Authorities Cited
- Crystal Lake Golf Course, Inc. v. Kalin, 252 So. 2d 379 (Fla. 4th DCA 1971)
- Herold v. Computer Components Int'l, Inc., 252 So. 2d 576 (Fla. 4th DCA 1971)
- Hurley v. Werly, 203 So. 2d 530 (Fla. 2d DCA 1967)