Opinion
No. 4D04-2498.
April 13, 2005.
Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Robert A. Rosenberg, Judge; L.T. Case No. 03-7780 25.
Michael Moulis of Moulis Associates, P.A., Fort Lauderdale, for appellant.
Michael C. Siboni and Robert B. Buchanan of Siboni, Hamer Buchanan, P.A., Ocala, for appellees Avco Corp. and Avco Corp. Lycomming.
Troy A. Fuhrman of Hill, Ward Henderson, P.A., Tampa, for appellee Parker-Hannifin Corp.
Carolyn A. Pickard and John M. Murray of Murray, Marin Herman, P.A., Coral Gables, for appellee Certified Engines Unlimited, Inc.
Gregory P. Sreenan and Peter C. Lenart of Sreenan Associates, P.A., Miami, for appellee Crane Co.
William G. Burd, William T. McCauley and Patrick J. Rengstl of Tew Cardenas LLP, Miami, for appellee Consolidated Fuel Systems, Inc.
We reverse the trial court's dismissal of appellant's complaint with prejudice as a sanction for failing to respond to discovery requests and comply with orders compelling discovery. In dismissing this action, the trial court failed to make express written findings of fact supporting the conclusion that the failure to obey the court orders demonstrated willful or deliberate disregard. See Ham v. Dunmire, 891 So.2d 492, 495 (Fla. 2004) ("The dismissal of an action based on the violation of a discovery order will constitute abuse of discretion where the trial court fails to make express written findings of fact supporting the conclusion that the failure to obey the court order demonstrated willful or deliberate disregard."); Commonwealth Fed. Sav. Loan Ass'n v. Tubero, 569 So.2d 1271, 1273 (Fla. 1990) (holding that the trial court must make a "finding that the conduct upon which the order is based was equivalent to willfulness or deliberate disregard").
Accordingly, we reverse and remand for the trial court to consider the factors articulated in Kozel v. Ostendorf, 629 So.2d 817 (Fla. 1993), in determining whether dismissal is appropriate for the discovery violations at issue and to make written factual findings regarding willful or deliberate disregard if the court again concludes that dismissal is an appropriate sanction.
Reversed and Remanded.
KLEIN, SHAHOOD AND TAYLOR, JJ., concur.