Chappell v. Affordable Air, Inc.

District Court of Appeal of Florida

Chappell v. Affordable Air, Inc.

705 So. 2d 1029, 1998 Fla. App. LEXIS 1001, 1998 WL 44989

CourtDistrict Court of Appeal of Florida

DecidedFebruary 6, 1998

DocketNo. 97-03307

StatusPublished

This text of 705 So. 2d 1029 (Chappell v. Affordable Air, Inc.) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Chappell v. Affordable Air, Inc., 705 So. 2d 1029, 1998 Fla. App. LEXIS 1001, 1998 WL 44989 (Fla. Ct. App. 1998).

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Opinion

WHATLEY, Judge.

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 noneom-pliance. 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 by Tubero, 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.

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WHATLEY, Judge.

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 noneom-pliance. 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 by Tubero, 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.

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705 So. 2d 1029, 1998 Fla. App. LEXIS 1001, 1998 WL 44989, Counsel Stack Legal Research, https://law.counselstack.com/opinion/chappell-v-affordable-air-inc-fladistctapp-1998.

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