Schemer v. Peck

BERANEK, Judge. Plaintiff appeals a final dismissal with prejudice of her complaint for failure to comply with a discovery order. We reverse. The facts are not disputed. An agreed order was entered in this medical malpractice case on June 9, 1980, giving plaintiff twenty (20) days to respond to certain interrogatories and a request for production. Plaintiff did not respond and defense counsel filed a motion to dismiss for failure to comply with the order. There was no contact between counsel and at the hearing plaintiff’s counsel indicated he had sustained two knee injuries and an episode with influenza which was responsible for his inability to comply with the discovery order. At the time of the hearing he had the answers to interrogatories in handwritten form and was prepared to file them the following day. Under these circumstances we conclude the sanction of dismissal of the case with prejudice was too severe and constituted an abuse of discretion by the trial court. Plaintiff’s counsel agreed to an order imposing costs and attorneys’ fees and further advised that the delay was due to his own fault rather than his client’s . Under these circumstances we reverse and remand for further proceedings which should include consideration of imposition of costs and attorneys’ fees. See Crystal Lake Golf Course, Inc. v. Kalin, 252 So.2d 379 (Fla. 4th DCA 1971); Herold v. Computer Components International, Inc., 252 So.2d 576 (Fla. 4th DCA 1971); and Hurley v. Werly, 203 So.2d 530 (Fla. 2d DCA 1967). REVERSE AND REMAND. GLICKSTEIN, J., concurs. MOORE, J., dissents without opinion.