King Tyson, Inc. v. Marta Soto Perez, etc.

• Court: District Court of Appeal of Florida
• Decided: June 26, 2024
• Docket: 2023-0029
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed June 26, 2024. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D23-29 Lower Tribunal No. 18-3711 ________________

King Tyson, Inc., et al., Appellants,

vs.

Marta Soto Perez, etc., et al., Appellees.

An Appeal from the Circuit Court for Miami-Dade County, Beatrice Butchko, Judge.

Charlip Law Group, L.C., and David H. Charlip, for appellants.

The Rousso Boumel Law Firm, and Darren J. Rousso; Philip D. Parrish, P.A., and Philip D. Parrish, for appellees.

Before EMAS, FERNANDEZ and GORDO, JJ.

GORDO, J. King Tyson, Inc., Kingland Realty Corp, Inc., Isaiah King, Joyce King

and Carolyn King (collectively, “Defendants”), appeal a final judgment

entered after a jury verdict in favor of Marta Soto Perez and Miriam Tapari,

as co-personal representatives of the estate of Jonathan Soto. We have

jurisdiction. Fla. R. App. P. 9.030(b)(1)(A). We affirm in part and reverse in

part.

After the entry of an earlier order striking Defendants’ pleadings for

failure to comply with discovery demands, the trial court entered a final

judgment against Defendants. On appeal, Defendants argue it was error for

the trial court to enter judgment against the deceased defendant, Isaiah King.

We agree and therefore reverse the final judgment to the extent it includes

Isaiah King. See Campbell v. Napoli, 786 So. 2d 1232, 1232 (Fla. 2d DCA

2001) (holding “[t]here being no party against whom a judgment could be

entered, the trial court erred in entering the judgment”).

We affirm the final judgment in all other respects. See Ham v.

Dunmire, 891 So. 2d 492, 495 (Fla. 2004) (“It is well settled that determining

sanctions for discovery violations is committed to the discretion of the trial

court, and will not be disturbed upon appeal absent an abuse of the sound

exercise of that discretion.”); Phillips v. Mitchell’s Lawn Maint. Corp., 306 So.

3d 305, 306 (Fla. 3d DCA 2020) (“[I]t was unnecessary for the trial court to

2 provide written findings pursuant to Kozel v. Ostendorf, 629 So. 2d 817 (Fla.

1993), before striking pleadings as a sanction. Kozel is applicable to

misconduct by counsel for a party, not (as here) where the entirety of the

misconduct is attributable to the party.”); Ledo v. Seavie Res., LLC, 149 So.

3d 707, 710-11 (Fla. 3d DCA 2014) (“Since [appellant] was sanctioned for

his own failures to comply . . . Kozel has no application here. Rather, this

matter falls within the Mercer/Ham rubric, which mandates a determination

and findings of willful or deliberate disregard of a court's authority . . . . In this

case, the record is not susceptible to more than one interpretation—

[appellant’s] conduct clearly constituted willful or deliberate disregard for the

court's November 7 order—and, it is clear that the trial judge made the

conscious determination that [appellant’s] failure to respond to [appellee’s]

interrogatories was more than a mistake, neglect or inadvertence.”) (footnote

omitted).

Affirmed in part; reversed in part and remanded.