“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.