Noel v. Schoninger

488 So. 2d 153, 11 Fla. L. Weekly 1131, 1986 Fla. App. LEXIS 7784

Opinion

PER CURIAM.

The defendant Isabella Noel appeals from a final default judgment entered in favor of the plaintiffs, Bernard and Howard Schoninger, partners in Schoninger Enterprises. We reverse.

The record reflects and it is undisputed that the medical condition of Noel’s husband was grave. It further appears without dispute that, among other deficiencies, counsel for Noel failed to notify her of at least one of her scheduled depositions. Though we appreciate the court’s frustration, the sanction of striking the pleadings and entering a default is too severe where there is no dispute that the reasons for Noel’s nonattendance were her husband’s illness and her counsel’s failure to notify her. See Beasley v. Girten, 61 So.2d 179 (Fla.1952); Livingston v. State, Department of Corrections, 481 So.2d 2 (Fla. 1st DCA 1985); Lazare v. Weiss, 437 So.2d 211 (Fla. 3d DCA 1983); Summit Chase Condominium Association v. Protean Investors, Inc., 421 So.2d 562 (Fla. 3d DCA 1982); Zayres Department Stores v. Fingerhut, 383 So.2d 262 (Fla. 3d DCA 1980).

We reverse and remand to the trial court with instructions to reinstate Noel’s counterclaim and her answer. On remand, plaintiff may apply for, and the trial court may impose, less severe sanctions for the discovery abuses. Zayres Department Stores, 383 So.2d at 266.

Reversed and remanded.