Coppola v. McNab

540 So. 2d 242, 14 Fla. L. Weekly 788, 1989 Fla. App. LEXIS 1563

Opinion

GUNTHER, Judge.

We reverse. Donald Coppola’s counsel failed to meet with opposing counsel to draw a pre-trial statement as ordered by the trial court. As a result, the trial court sanctioned Coppola by striking his pleadings and entering a default against him. In our view, the sanction imposed, in light of the facts of this case, was too harsh a penalty for a first infraction. See Beasley v. Girten, 61 So.2d 179 (Fla.1952).

Within one day of learning he had been sanctioned, Coppola hired a new lawyer and immediately filed a sworn motion for reconsideration which was uncontroverted by the plaintiff. Under oath, Coppola’s new attorney offered to fully comply with all pre-trial procedures, and to try the case as scheduled or continue the matter if the plaintiff preferred. The only possible prejudice to plaintiff indicated by the record was a short delay in trying the eight-month-old case. Furthermore, there is no evidence that what Coppola did or did not do was in willful disobedience of a court order.

Therefore, we conclude that the trial judge abused his discretion in sanctioning Coppola by striking his pleadings and entering a default against him. Accordingly, the judgment is reversed and the cause remanded for further proceedings.

REVERSED AND REMANDED.

ANSTEAD and WARNER, JJ., concur.