555 So. 2d 401 | Fla. Dist. Ct. App. | 1989
Defendants appeal a non-final order granting plaintiff’s motion for default and the adverse final judgment entered thereafter awarding damages, attorney’s fees, and costs. We affirm in part and reverse in part.
In August of 1986, Network Security Acceptance Corporation (Network) and AVD Security Systems entered into a purchase agreement under which AVD sold Network certain contracts for monitored burglar alarm systems.
Problems developed concerning the payments which AVD was receiving from customers, and which it was to forward on to Network. In June of 1988, Network sued AVD. Network initiated the suit by serving Jose A. Garcia, AVD’s president and registered agent, and sought a preliminary injunction requiring AVD to turn over the contracts to Network and, further, to de
One day earlier, on February 1, 1989, a hearing had been held on Network’s Renewed Motion for Entry of Order of Sanctions against AVD. There had still been no compliance with the requested discovery, and, at the hearing, the court specifically found that defendant (singular) “has engaged in a course of conduct to thwart discovery,” and ordered defendants (plural) to “provide the addresses for each and every employee of AVD during the period August 21, 1986 to [February 1, 1989].” The order provided no time limits although, at the hearing which generated this order, the court gave the defendant (singular) five days from the date of the hearing to provide the addresses, failing which a default would be entered. When the five days passed and the addresses weren’t provided, Network moved for entry of default against both defendants. The next day, Network received what it felt was a wholly inadequate response to its interrogatories that requested the addresses of AVD’s bookkeepers. At an April 7, 1989, hearing, the court granted Network’s Motion for Default against both defendants. AVD’s and Garcia’s timely motion for rehearing was denied, and they appealed the order granting the motion for default against them. AVD and Garcia also appeal the final judgment, predicated on the defaults, that were subsequently entered against them.
We affirm that portion of the trial court’s April 7, 1989, order which granted Network’s motion for default against the corporate defendant AVD, and that portion of the final judgment which, likewise, addressed the liability of the corporate defendant. The trial court’s February 1, 1989, order specifically stated that “it appears to this Court that the Defendant has done each and every thing to thwart discovery in this cause,” and we find that the record is replete with substantial competent evidence reflecting not only AVD’s ignorance and disregard of the rules of civil procedure, but also its continuous pattern of willful, contemptuous and contumacious disregard of lawful court orders concerning its obligation to comply with reasonable discovery requests. See Mercer v. Raine, 443 So.2d 944 (Fla.1983); Fla.R.Civ.P. 1.380(b)(2)(C). We reject appellants’ argument that all discovery was ultimately produced, albeit late, and that Network was not substantially prejudiced by the delay.
While we are not unmindful that, from the inception of this litigation, Garcia was the prime mover behind AVD’s “efforts” at compliance (or, perhaps, more realistically, noncompliance), we must nonetheless reverse those portions of the order and judgment under review which are directed against Garcia in his individual capacity. We cannot ignore clear record evi
Assuming arguendo, then, that Garcia is seen as having been subject to the court’s jurisdiction as of January 31, 1989, it is clear that, in his individual capacity, he could only have disobeyed one court order, that being the one dated February 1, 1989, and it is only arguable that this order even applied to him in his individual capacity at all inasmuch as this order is internally inconsistent in that it speaks in terms of both “defendant” (singular) and “defendants” (plural) and, ultimately, only gives “defendant” (singular) five days within which to comply. We cannot say that the order by its terms is properly directed to both Garcia and AVD, and, in fact, AVD appears to be the only defendant subject to the court’s jurisdiction as of February 1, 1989. When the matter is viewed from this perspective, it is clear that Garcia, in his individual capacity, was defaulted for, at most, individually violating only one order. We find that this sanction against Garcia in his individual capacity is not commensurate with his possible discovery violation in his individual capacity, and, thus, is too harsh a sanction. See Mercer; Pilkington PLC v. Metro Corp., 526 So.2d 943 (Fla. 3d DCA 1988).
Accordingly, the order and judgment of the trial court are affirmed as to AVD and reversed as to Garcia individually.
Affirmed in part, reversed in part.