Summary
striking of pleadings and entry of final judgment against defendants improper in absence of willful nonattendance of scheduled depositions
Summary of this case from Stimpson Computing Scale Co. v. KnuckOpinion
No. 4-86-0372.
April 8, 1987.
Appeal from the Circuit Court, Broward County, John G. Ferris, J.
David J. Weiss and Terry Beth Moldoff of Parillo, Weiss Moss, Miami, for appellants.
Rodger L. Spink, Hollywood, for appellee.
We reverse the trial court's order, striking the defendants' pleadings and entering a final judgment against them. The facts do not support the severest sanctions because of the absence of extreme circumstances. The defendants last nonattendance at scheduled depositions was occasioned by attendance elsewhere; namely, upon an ill parent in South Africa; and although there was evidence of frustration or delay — which would justify lesser sanctions — the case had not yet been set for trial. See Wallraff v. T.G.I. Friday's, Inc., 490 So.2d 50 (Fla. 1986); Santuso v. McGrath Associates, Inc., 385 So.2d 112 (Fla. 3d DCA 1980); Anderson v. Merrill Lynch, Pierce, Fenner Smith, Inc., 434 So.2d 43 (Fla. 1st DCA 1983); and United Services Automobile Association v. Strasser, 492 So.2d 399 (Fla. 4th DCA 1986). See also Stoner v. Verkaden, 493 So.2d 1126, 1127 (Fla. 4th DCA 1986) (order imposing sanctions under Rule 1.380 must recite that party's failure to submit to discovery was willful). The order here did not contain such findings required by Stoner.
GLICKSTEIN and GUNTHER, JJ., and GOLDMAN, MURRAY, Associate Judge, concur.