06-1020 CRUZ V. CARIBBEAN

SUPREME COURT CASES

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State: Florida

Court: Florida Southern District Court

Docket No: 3d06-1020

Case Date: 12/20/2006

Plaintiff: 06-1020 CRUZ

Defendant: CARIBBEAN

Preview:NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF.

IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JULY TERM, A.D. 2006

RINALDO CRUZ, Appellant, vs. CARIBBEAN SPRING VILLAGE, ETC., Appellee.

** ** ** ** ** ** LOWER TRIBUNAL NO. 03-04263 CASE NO. 3D06-1020

Opinion filed December 13, 2006. An Appeal from a non-final order from the Circuit Court for Miami-Dade County, Michael A. Genden, Judge. Cummins & Wanshel and Lawrence A. Wanshel, for appellant. Leon A. Brunet and Ryan A. Mazur, for appellee.

Before RAMIREZ, and LAGOA, JJ., and SCHWARTZ, Senior Judge. RAMIREZ, J. Rinaldo Cruz appeals an order vacating and setting aside a final default judgment. Because we find no abuse of discretion in the trial court's ruling, we affirm.

Attorney

Robert

J.

Tieso

filed

suit

against

Cruz

in

February of 2003, on behalf of appellee Caribbean Spring Village Condominium damages. for Association, Inc., seeking injunctive relief and

During discovery, Cruz served Caribbean with requests and interrogatories, followed by a motion to

production

compel, which the court granted.

When Caribbean did not comply At the hearing, Tieso which he then

with the order, Cruz moved for sanctions. consented to an Agreed Order on

Sanctions,

proceeded to ignore, leading to the entry of a Final Default Judgment. Through Vacate Final new counsel, Caribbean filed a Sworn Tieso Motion failed to to

Default

Judgment,

arguing

that

comply with discovery requests, communicate with them, or notify them of the entry of the final default judgment. Caribbean

further argued that, since new counsel was retained, it has been unable to contact Tieso. In support of its motion to vacate, Caribbean later filed the affidavits of various of its officers and directors asserting that they assumed that Tieso was

handling the suit appropriately, and that Tieso did not inform them or any other members of the board that Cruz's counsel had requested any documents. motion to vacate and set The trial court granted Caribbean's aside the final default judgment

without making any specific findings in its order.

2

The trial court was eminently correct in setting aside the default final judgment where there was ample evidence to find that Caribbean was not involved in any way in disobeying the court's discovery orders. 817, 818 (Fla. 1994), the In Kozel v. Ostendorf, 629 So. 2d Florida Supreme Court listed six

criteria in deciding whether and to what extent to sanction the parties for discovery violations. client was personally involved The third one is "whether the in the act of disobedience."

See also

King v. Macaleer, 774 So. 2d 68, 69 (Fla. 2d DCA

2000)("Of particular importance to our decision [to reverse an order of dismissal as too harsh a sanction] is the lack of any record indication that Ms. King, the client, was personally

involved in the act of disobedience or was even aware that her lawsuit was in danger of being dismissed."); Walicki v. Waste Mgmt., Inc., 703 So. 2d 1095, 1096 (Fla. 2d DCA 1997)("The

record ... does not show that appellant personally contributed to the delayed filing or the protracted course of this

litigation.

Appellant should not be made to suffer the loss of

viable claims due to her attorney's malfeasance where there is no evidence in the record to indicate that she personally

engaged in misconduct.

Absent such evidence, it was an abuse of

discretion to dismiss the complaint as a sanction based solely on [the attorney's] noncompliance.").

3

We distinguish Herrick v. Southeast Bank, N.A., 512 So. 2d 1029 (Fla. 3d DCA 1987), in which we affirmed the denial of a motion to set aside the default and default judgment, because the attorney at a there never filed any pleadings for and failed to

appear

properly

noticed

motion

summary

judgment.

Additionally, there was no claim of abandonment by counsel in Herrick. See Yusem v. Butler, 683 So. 2d 1170 (Fla. 4th DCA

1996) (reversing the trial court's order which denied a motion to vacate a default where the defendant's attorney abandoned his clients without notice and vacated his Florida office). therefore discretion judgment. Affirmed. agree when that it the trial and court did the not abuse We its

vacated

set

aside

final

default

4

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