IN RE THE FORFEITURE OF TWENTY THOUSAND NINE HUNDRED DOLLARS ($20,900) U.S. CURRENCY
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The court held that striking pleadings and ordering forfeiture without finding wilful or contumacious failure to appear for deposition is reversible error.
The City of West Palm Beach sought forfeiture of funds, claiming they were proceeds of drug sales. The claimant, Fritz Rousseau, filed an answer but f…
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WALDEN, Judge.
Petitioner, City of West Palm Beach, sought the forfeiture of $20,900, saying that the funds represented the proceeds of sales of a controlled substance. Fritz Rousseau, a claimant and a citizen and resident of Haiti, filed an answer and affirmative defenses saying, among other things, that the money was wrongfully taken and that the money was to buy an automobile and other items for his family’s use.
Both sides conducted pre-trial discovery. The city undertook to take Rousseau’s deposition and Rousseau filed a motion for protective order or, alternatively, for a telephone deposition since he was in Haiti and was unable to travel to the United States due to the expense and interruption of his work schedule. This motion was denied. Rousseau did not appear at the deposition.
Thereafter the trial court struck all of Rousseau’s pleadings and entered a final order of forfeiture because of his failure to appear. There was no recital or finding that Rousseau’s failure to appear for deposition was wilful or contumacious, nor a showing of prejudice to the City. The failure to make such finding constitutes reversible error. See Wallraff v. T.G.I. Friday’s, Inc., 490 So. 2d 50 (Fla.1986); Mercer v. Raine, 443 So. 2d 944 (Fla.1983); Bonner v. Smith, 517 So. 2d 709 (Fla. 4th DCA 1988).
In view of the reversal ruling herein reflected, it is not necessary to address Rousseau’s remaining appellate point.
REVERSED.
GLICKSTEIN and STONE, JJ., concur.
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Commonwealth Fed. Sav. & Loan Ass'n v. Moshe Tubero, 569 So. 2d 1271 (Fla. 1990)…construed Mercer to require that an order imposing sanctions under Florida Rule of Civil Procedure 1.380 must recite a party’s willful failure to submit to discovery. In re Forfeiture of Twenty Thousand Nine Hundred Dollars ($20,900) U.S. Currency, 539 So. 2d 14 (Fla. 4th DCA 1989); Bernaad v. Hintz, 530 So. 2d 1055 (Fla. 4th DCA 1988); Arviv v. Perlow, 528 So. 2d 139 (Fla. 4th DCA 1988); Donner v. Smith, 517 So. 2d 709 (Fla. 4th DCA 1987); Championship Wrestling from Florida, Inc. v. DeBlasio, 508 So. 2d 1…
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Moshe Tubero v. Chapnich, 552 So. 2d 932 (Fla. 4th DCA 1989)…(Fla. 4th DCA 1987); Donner v. Smith, 517 So. 2d 709 (Fla. 4th DCA 1987); Arviv v. Perlow, 528 So. 2d 139 (Fla. 4th DCA 1987); Bernaad v. Hintz, 530 So. 2d 1055 (Fla. 4th DCA 1988); In Re: Forfeiture of Twenty Thousand Nine Hundred Dollars Currency, 539 So. 2d 14 (Fla. 4th DCA 1989). Yet other cases from this court appear to examine the record as a whole and not just the order, to determine whether there is an indication that appellant willfully disobeyed the court order, thus justifying the severe sanction…
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Townsend v. Feinberg, 659 So. 2d 1218 (Fla. 4th DCA 1995)…e requisite findings in the order of dismissal constitutes reversible error. See Commonwealth Federal Savings and Loan Assn. v. Tubero, 569 So. 2d 1271 (Fla.1990); In re the Forfeiture of Twenty Thousand Nine Hundred Dollars ($20,900) U.S. Currency, 539 So. 2d 14 (Fla. 4th DCA 1989). We do not mean to imply that the mere inclusion of the “magic words” in the order of dismissal would have cured the error in this case. To the contrary, there is nothing in the record which indicates that appellant willfully f…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Mercer v. J.D. Raine, Sr., 443 So. 2d 944 (Fla. 1983)
- Wallraff v. T.G.I. Friday's, Inc., 490 So. 2d 50 (Fla. 1986)
- Donner v. Smith, 517 So. 2d 709 (Fla. 4th DCA 1987)