Opinion

Franchi v. Shapiro

  • 650 So. 2d 161
  • 1995 Fla. App. LEXIS 952
  • 1995 WL 46419
Court
District Court of Appeal of Florida
Filed
Feb 8, 1995
Status
Published
Author
Cope
On the bench
Cope, Goderich, Levy
Cited by
4 cases

“Before this ultimate sanction [the striking of pleadings or entering a default for noncompliance with an order compelling discovery] can be entered ... a party must be given notice and an opportunity to be heard. This opportunity to be heard must include the opportunity to present evidence of extenuating and/or mitigating circumstances, which might explain the failure to comply with the court’s discovery order or the opposing party’s discovery request.”

How later courts described this case

  • “Before this ultimate sanction [the striking of pleadings or entering a default for noncompliance with an order compelling discovery] can be entered ... a party must be given notice and an opportunity to be heard. This opportunity to be heard must include the opportunity to present evidence of extenuating and/or mitigating circumstances, which might explain the failure to comply with the court’s discovery order or the opposing party’s discovery request.”
  • “Before this ultimate sanction can be entered, however, a party must be given notice and an opportunity to be heard.”

Written by the judges who cited it.

The opinion

COPE, Judge

(specially concurring).

Under the facts of this case, I agree that there must be a reversal and remand for an evidentiary hearing. The affidavit of Mr. Franchi’s Fort Myers counsel states, in part, “Although Mr. Franchi advised me that he was still sick and that I should seek a continuance [of the Fort Myers cases], I advised him that these cases had been pending for so long that it was very unlikely, if not impossible, to obtain a continuance_ I told Mr. Franchi that he would have to appear in court for both of these lawsuits or suffer a loss of the actions_ Although Mr. Fran-chi appeared to me as weak and ill, he came to court at my demand.” In light of this affidavit, plainly there must be an evidentia-ry hearing. I do not understand the majority opinion to require that there invariably be *163 an evidentiary hearing where there is a motion for sanctions, but only that there must be an evidentiary hearing where the material facts are in dispute.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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