Ganem v. Ganem

District Court of Appeal of Florida

Ganem v. Ganem

269 So. 2d 740

CourtDistrict Court of Appeal of Florida

DecidedNovember 21, 1972

Docket72-35

StatusPublished

Cited by10 cases

This text of 269 So. 2d 740 (Ganem v. Ganem) 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.

Bluebook

Ganem v. Ganem, 269 So. 2d 740 (Fla. Ct. App. 1972).

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Opinion

269 So.2d 740 (1972)

Elias GANEM, Appellant,
v.
Herlinda GANEM de Issa et al., Appellees.

No. 72-35.

District Court of Appeal of Florida, Third District.

November 21, 1972. Rehearing Denied December 21, 1972.

*742 Helliwell, Melrose & DeWolf, and William E. Sadowski, Miami, for appellant.

Smathers & Thompson, and William C. Lewis, Jr., Miami, for appellees.

Before BARKDULL, C.J., and PEARSON and HENDRY, JJ.

HENDRY, Judge.

This is an appeal by defendant Elias Ganem from a final summary judgment in favor of plaintiffs, who are related to him, which awarded money damages of about One Million, Eight Hundred Thousand Dollars, and other relief. The order appealed, which we reproduce in pertinent part in margin,^[1] stems from adjudications *743 *744 of contempt entered against the defendant and the striking of certain of his pleadings for noncompliance with certain orders. This case has been here on other occasions.^[2]

The appellant has presented for reversal the following contentions: 1. The court erred in entering final judgment by virtue of striking his answer and denying him an opportunity to defend on the merits, violating Florida and Federal due process and rights under a treaty of 1846 between the United States and Colombia. 2. The court, in failing to apply Colombian law, denied him Federal and Florida due process and rights under the 1846 treaty. 3. and 4. The appellee-plaintiffs are not the real parties in interest, but rather, the indispensible parties are the two Colombian businesses were not before the Florida circuit court. 5. The final judgment entered went beyond the issues framed in the pleadings, thereby denying him various constitutional and treaty rights. 6. The circuit court findings are clearly erroneous and not supported by substantial competent evidence. 7. The final judgment violates Article VIII, § 2(b) of the Bretton Woods Agreement relating to foreign exchange controls.

In reply, the appellees contend: 1. The court was justified in striking defendant's answer and proceeding to enter judgment against him for refusal to make court ordered discovery, et cetera. 2. The "law of the case" prevents the defendant from arguing about the failure to join the Colombian businesses as parties and about application of Colombian law. 3. Final judgment entered did not go beyond the issues framed in the pleadings. 4. Final judgment was supported by substantial competent evidence. 5. The Bretton Woods Agreement is irrelevant to this proceeding.

To begin with, we find no merit in defendant's arguments that he was denied due process. The record refutes his statements in the brief that he had only one-half day's notice that a default would be entered against him. Suffice it to say that beginning with a November 16, 1971 hearing, defendant was fully advised by the trial court of the likelihood that his pleadings would be stricken and a final judgment entered against him. Not only did defendant fail to purge himself of his various violations of court orders, but he made no other attempts to delay the entry of certain orders on December 7 and 8, 1971.

We therefore express the view that the circuit court was authorized to enter the final judgment under Rule 1.380(b)(2), Florida Rules of Civil Procedure, 30 F.S.A. See generally: White v. Spears, Fla. App. 1960, 123 So.2d 689, 692 and Kay v. Swimmer, Fla.App. 1963, 151 So.2d 353, 354.

*745 Nationally, the two leading cases in this area are Hammond Packing Co. v. Arkansas (1909), 212 U.S. 322, 29 S.Ct. 370, 53 L.Ed. 530, 15 Ann.Cas. 645 and Hovey v. Elliott (1897), 167 U.S. 409, 17 S.Ct. 841, 42 L.Ed. 215. These cases are discussed in: Societe Internationale Pour Participations Industrielles, et Commerciales, S.A. v. Rogers (1958), 357 U.S. 195, 209 et seq., 78 S.Ct. 1087, 2 L.Ed.2d 1255; 2A Barron & Holtzoff, Federal Practice and Procedure §§ 851-853, pp. 526 et seq. (1961), and 4 Moore, Federal Practice ¶ 37.03[2.-4], pp. 37-61 et seq. (1927 ed.). We have fully examined these authorities and have concluded that the rule in Hammond Packing Company governs the instant case.

Moreover, it is at least arguable that this court could dismiss defendant's appeal because of the outstanding and unpurged contempt of court orders and other misconduct in the trial court, see: Morris v. Rabara, Fla.App. 1962, 145 So.2d 265 and Conde v. Full House, Inc., Fla.App. 1968, 206 So.2d 22.

We express the view, based on the foregoing authorities, that the failure to afford defendant a more complete opportunity to contest damages (than was furnished when defense counsel attended and participated in the deposition of Richard Welden, Esq. as to damages) was harmless error. If we were to reverse the judgment appealed, we would visit the defendant's sins upon the plaintiffs, who have presented at least a prima facie case as to damages. We cannot ignore that the defendant has possession or control of the key evidence in this case, and that he refused to comply with various discovery orders.

We begin our examination of defendant's contention that the trial in refusing to apply, or allow him to prove, Colombian law resulted in a deprivation of due process and treaty rights with a consideration of the sanctions imposed under Rule 1.380(b)(2), for failure to comply with certain court orders. Rule 1.380(b)(2) provides:

"(2) Other Consequences. If any party or an officer or managing agent of a party refuses to obey an order made under subdivision (a) of this rule requiring him to answer designated questions or an order made under Rule 1.350 to produce any document or other thing for inspection, copying or photographing or to permit it to be done or to permit entry upon land or other property or an order made under Rule 1.360 requiring him to submit to a physical or mental examination, the court may make such orders in regard to the refusal as are just, and among others the following:

"(i) An order that the matters regarding which the questions were asked or the character or description of the thing or land or the contents of the paper or the physical or mental condition of the party or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;

"(ii) An order denying the disobedient party the privilege of supporting or opposing designated claims or defenses or prohibiting him from introducing in evidence designated documents or things or items of testimony or from introducing evidence of physical or mental condition;

"(iii) An order striking out pleadings or parts thereof or staying further proceedings until the order is obeyed or dismissing the action or proceedings or any part thereof or rendering a judgment by default against the disobedient party;

"(iv) An order in lieu of any of the foregoing orders or in addition thereto directing the arrest of any party or agent of a party for disobeying any of such orders except an order to submit to a physical or mental examination."

Under Rule 1.380(b)(2), the court was authorized in preventing the defendant *746 from introducing evidence as to Colombian law.

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