Martin v. Mennello

615 So. 2d 877, 1993 Fla. App. LEXIS 3345, 1993 WL 84479

• Court: District Court of Appeal of Florida
• Decided: March 26, 1993
• Docket: No. 92-1704
• Status: Published

Opinion

COBB, Judge.

This is the appeal of two final judgments entered against appellants as a result of a discovery sanction which struck their pleadings and barred them from testifying in the underlying cases because they had refused to be deposed after asserting a blanket Fifth Amendment privilege. There are two issues on appeal: (1) whether the trial court erred by striking appellants’ testimony and pleadings; (2) whether the trial court erred in calculating the damages awarded.

On November 12, 1990, appellants, Glenn H. Martin, Evelyn Martin, Martin’s Home & Hobby House, Inc., and 20th Century Financial Corporation of America, filed a complaint against appellees, Michael Men-nello, Marilyn Mennello and Home & Hobby House, Inc., seeking specific performance of an alleged agreement between the parties. Thereafter, on March 13,1991, Michael and Marilyn Mennello filed a complaint in a second action naming as defendants Glenn Martin, 20th Century Financial Corporation of America, and Evelyn Martin. In this latter action, the defendants were charged with various securities violations. The two cases were consolidated for purposes of discovery only.

Apparently, during discovery, the Martins became the target of an ongoing federal criminal investigation m relation to the instant transaction. Fearing that they might be indicted by a federal grand jury, they cancelled their depositions previously scheduled by the Mennellos on two days’ notice, and subsequently filed a motion for stay of proceedings or, in the alternative, entry of a protective order precluding discovery. In response, the Mennellos filed a Motion to Compel and for sanctions in the event of noncompliance with any court order requiring such discovery. At a subsequent hearing on December 12, 1991, the trial court granted the motion for protective order, but also barred the Martins from testifying at trial and sua sponte struck their pleadings in both cases. As a result, the trial court ultimately entered a final dismissal in Case NO. CI 90-9313 (filed by the Martins) and a final judgment for the appellees in Case No. CI 91-2324 (filed by the Mennellos) awarding the ap-pellees $704,854.80 damages and ordering the return of several items of office furniture to the Mennellos.

Under the instant facts, we find that it was an abuse of the trial court’s discretion to strike the pleadings and prohibit the testimony of the appellants, particularly in view of the fact that such a harsh remedy was not sought, nor noticed for hearing by, the appellees. Such abuse was particularly manifest in the case wherein the Martins occupied the status of defendants invoking their Fifth Amendment right. See In re Forfeiture of $13,000.00 U.S. Currency, 522 So.2d 408 (Fla. 5th DCA 1988). In view of our disposition of the first issue on appeal, the second is moot.

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT HEREWITH.

HARRIS and DIAMANTIS, JJ., concur.