Opinion
Case No. 97-03307.
Opinion filed February 6, 1998. Rehearing Denied December 2, 1996.
Appeal from nonfinal order of the Circuit Court for Polk County; J. Dale Durrance, Judge.
James V. Lobozzo, Jr., Sebring, for Appellants.
Melinda Delpech of Law Offices of Robert Watrous, Chartered, Sarasota, for Appellee.
Claud N. Chappell and Affordable Air Systems, Inc., appeal a default judgment on liability entered against them and in favor of Affordable Air, Inc. The default judgment was entered against the appellants for their failure to comply with discovery rules and court orders. We reverse.
In Commonwealth Federal Savings and Loan Ass'n v. Tubero, 569 So.2d 1271 (Fla. 1990), the Florida Supreme Court held that an order of dismissal or default for failure to comply with a discovery requirement must contain an explicit finding of willful noncompliance. See also Drakeford v. Barnett Bank of Tampa, 694 So.2d 822 (Fla. 2d DCA 1997); Smith v. Spitale, 675 So.2d 207 (Fla. 2d DCA 1996); Global Recreation, Ltd. v. Arco Shows, Inc., 585 So.2d 455 (Fla. 2d DCA 1991). Here, the default judgment contains no explicit finding of willful noncompliance. As in Tubero, the facts in this case might support a finding of willful noncompliance; however, absent a specific finding of such, reversal is required.
We vacate the final judgment and remand the case for the entry of an amended order containing the findings required byTubero, if the record supports such a finding. Otherwise, the trial court should reinstate the pleadings.
Judgment vacated and cause remanded for further proceedings consistent with this opinion.
ALTENBERND, A.C.J., and QUINCE, J., Concur.