HAYWARD THORNTON, A MINOR, BY AND THROUGH HIS FATHER AND NEXT FRIEND, ADOLPHUS M. THORNTON, AND ADOLPHUS M. THORNTON, INDIVIDUALLY, APPELLANTS,
v.
BOARD OF COUNTY COMMISSIONERS OF DADE COUNTY, FLORIDA, A POLITICAL SUBDIVISION OF THE STATE OF FLORIDA, APPELLEES
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This case reviews an order dismissing a personal injury complaint and a derivative claim due to the father's failure to appear for depositions. The appellate court reversed the dismissal with prejudice, finding it too harsh a sanction for the father's non-compliance, especially concerning the minor's claim.
No, the dismissal of both claims with prejudice was not appropriate. While dismissal is a permissible sanction for discovery violations, it was too severe for the father's non-compliance, particularly as it affected the minor's independent claim.
“A trial judge is possessed of the authority, under the rules,1 to dismiss a complaint or a cause of action because of failure to comply with discovery procedures and, under certain circumstances, may be within his power in dismissing a complaint or a cause of action with prejudice.”
Acknowledges the trial court's power to dismiss for discovery violations.
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Join FLexlaw to unlock all legal intelligenceA minor, through his father, filed a personal injury lawsuit, and the father also filed a derivative claim for medical expenses. The trial judge dismi…
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By this appeal, review is sought of an order of the trial judge dismissing a complaint for personal. injuries brought by a minor through his father as his next friend, and also the father’s derivative claim for medical expenses incurred because of the alleged' injuries.
It appears that the dismissal was. with prejudice because of the failure of the father to appear at the time he was noticed' for the taking of his deposition on more *394than one occasion. A trial judge is possessed of the authority, under the rules,1 to dismiss a complaint or a cause of action because of failure to comply with discovery procedures and, under certain circumstances, may be within his power in dismissing a complaint or a cause of action with prejudice. However, the record in this case fails to support a dismissal of both the minor’s and the father’s complaints or causes of action with prejudice and, there-. fore, so much of the order of dismissal as dismissed the cause with prejudice be and the same is hereby reversed, with directions to eliminate this provision from the final order of dismissal. See: Palm Shores, Inc. v. Nobles, 1941, 149 Fla. 103, 5 So.2d 52.
Affirmed in part; reversed in part.
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Cited By
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Hurley v. Werly, 203 So. 2d 530 (Fla. 2d DCA 1967)…ing” compliance was a condition precedent, even though Rule 1.31(d) did not in terms require such prior order; again resulting in reversal. Lastly, the 3rd District Court, in Thornton v. Board of County Commissioners of Dade County, Fla. App. 1963, 149 So. 2d 393, reversed the trial Court for applying the sanctions of Rule 1.31(d) even where the plaintiff “had failed on more than one occasion to appear at time he was noticed for taking of his deposition.” Plaintiff here was held in default for not appearing…
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Adolph W. Nenow, Jr. v. Ceilings & Specialties, Inc., 151 So. 2d 28 (Fla. 2d DCA 1963)….31(b) (2) to dismiss for failure to observe discovery orders, and dismissal with prejudice under the circumstances of this case might well have constituted abuse of discretion. See Thornton v. Board of County Commissioners of Dade County, Fla.App., 149 So. 2d 393. The entry of the order of March 28, 1962, dismissing the cause was erroneous and is reversed with permission, on remand, to file amended complaint. See Volpicella v. Volpicella, supra. Reversed and remanded for further proceedings consistent with…
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Bellomy Aviation, Inc. v. Sunny S. Aircraft Serv., Inc., 184 So. 2d 696 (Fla. 3d DCA 1966)…and considered the record and briefs in the light of each contention and have found no reversible error. The order appealed is affirmed. Affirmed. See Rule 1.31 F.R.C.P., 30 F.S.A., Thornton v. Board of County Com’rs of Dade County, Fla.App.1963, 149 So. 2d 393; Warriner v. Ferraro, Fla.App.1965, 177 So. 2d 723.…
Authorities Cited
- Palm Shores, Inc. v. Nobles, 149 Fla. 103 (Fla. 1941)