TILLMAN PEARSON, Judge.
The plaintiff appeals a final judgment dismissing her complaint with prejudice because of her failure to answer written interrogatories. The only substantial question on this appeal is whether it was error for the trial court to dismiss the complaint with prejudice. We hold that the complaint was improperly dismissed with prejudice.
A discussion of the facts alleged in the complaint is not necessary but it will be
The Florida Rules of Civil Procedure provide for sanctions against a party failing to make discovery. Rule 1.31 (d), 30 F.S.A. provides:
It will be noted that this rule gives the trial court the option, on motion and notice, of striking out all or any part of any pleading, or dismissing the action, or of entering a judgment by default against that party. It is obvious that the portion of this rule permitting entry of judgment by default can only be applied against the defendant. Therefore, as to the plaintiff the alternative provisions are: (1) to strike out all or part of a complaint or (2) to dismiss the action.
Rule 1.35(b) provides in part as follows:
It will be noted that this rule permits a dismissal upon motion of the defendant for three separate reasons: (1) failure to prosecute, (2) failure to comply with the rules, or (3) failure to comply with an order of court.
There can be no doubt of the authority of a trial court to dismiss a complaint with prejudice where the plaintiff wilfully fails to obey an order of court. Local 415, Miami Joint Council, etc. v. William Weitz, Inc., Fla.App. 1962, 141 So.2d 18. The Court in the Weitz case in discussing Rule 1.31(d) affirmed a judgment dismissing a complaint for plaintiff's failure to appear for the taking of a deposition after the trial court had denied a motion to quash the notice of taking the deposition and thus in effect ordered the plaintiff to appear. It was pointed out that our Supreme Court had held that a trial court has the inherent power to impose the sanction of dismissal as a coercive and disciplinary measure. Surrency v. Winn & Lovett Grocery Co., 160 Fla. 294, 34 So.2d 564.
In Chovert v. Rockwell, Fla.App. 1962, 145 So.2d 283, this Court acted on a petition for writ of certiorari and denied the writ which was prayed upon the basis of the trial court's refusal to grant a motion to vacate a dismissal. Inasmuch as the opinion was upon denial of certiorari, the holding of the case is that the trial court did not act in violation of the essential requirements of law when it refused to quash the dismissal. Nevertheless, the court does set out the procedure which may be followed and under which the refusal to
The law abhors the denial of access to the courts for any reason other than a wilful abuse of the processes of the court. Such a wilful disregard of the rules of court will not ordinarily be shown by a record which does not show the violation of a specific order of the court.
When a plaintiff is given time by order of the court within which to abide by the rule or suffer a dismissal with prejudice, the only question for review by an appellate court upon an appeal from an order dismissing the cause with prejudice would be upon the question of an abuse of discretion by the trial court in the making of the order directing the performance of the act within the time limit.
We hold that a reasonable interpretation of the two rules concerned [Florida Rules of Civil Procedure 1.31(d), and 1.35(b)] is that where dismissal is to be with prejudice and thus act as an adjudication on the merits it must be for the violation of an order of the court and not for a mere failure to abide by a notice of a procedural step. We think that it is important that in case an order of court is violated or disregarded, the party moved against knows at the time of the order that there has been judicial determination of the requirement he must observe. This is not to imply that a threat of dismissal or statement of penalty must be included in the order but simply that it must be an order that is breached.
Inasmuch as the record in this cause does not reflect a violation or disregard of an order of the trial court but a failure to follow the rules by responding to opposing counsel's notice to make discovery, the dismissal must be without prejudice. Accordingly, the final judgment appealed is reversed, insofar as it provides for a dismissal with prejudice, with directions to amend the final judgment to provide that the dismissal is without prejudice.
Affirmed in part and reversed in part.
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