This appeal is from an order dismissing appellant's complaint with prejudice for failure to comply with an order to produce certain documents.
The plaintiff sought to enjoin the assessment and collection of certain intangible personal property taxes which the tax assessor of Palm Beach County had assessed against her based upon the corpus of the Patricia Warren Swindle Trust A. Although plaintiff resided in Palm Beach County, and was the grantor and principal lifetime beneficiary of the trust, she contended that the corpus of the trust was located in Oklahoma and had no taxable situs within the State of Florida. Defendant tax assessor initiated extensive discovery procedures, including a motion to produce certain documents.
The plaintiff did produce certain of the documents but failed to produce others. She filed with the court a sworn statement to the effect that she did not have custody or control of the documents which she had failed to produce and that the trustees who did have the custody of such documents had refused to deliver copies to the plaintiff. The defendants at that time sought to have the complaint dismissed for plaintiff's failure to comply with the order, but the court allowed plaintiff an extension of time within which to produce the remaining documents.
The trial court clearly has the authority under Rule 1.380 R.C.P. to dismiss a complaint as a sanction against the plaintiff for a failure to make discovery, and the dismissal may be with prejudice where the plaintiff refuses to obey an order of court. Rashard v. Cappiali, Fla.App. 1965, 171 So.2d 581. However, dismissal of an action with prejudice is a drastic punishment and should not be invoked except in those cases where the conduct of the party shows a deliberate and contumacious disregard of the court's authority. State v. Fattorusso, Fla.App. 1969, 228 So.2d 630.
We deem it important to note that the order of dismissal in this case did not contain any finding by the trial court that the plaintiff's failure to fully comply with the order to produce was due to a refusal to do so. Instead, the court merely found that the plaintiff had shown an insufficient excuse for her failure to comply, a distinction which we feel to be significant. The record before us is certainly susceptible of the reasonable interpretation that plaintiff's failure to produce the documents was occasioned by events beyond her control. Since the trial court did not expressly find, and the record does not conclusively reveal, that the plaintiff's failure to produce was a refusal to obey, we hold that the court abused its discretion in dismissing the complaint with prejudice. Cf. Metro Sporting Goods, Inc. v. Mutual Employees Trademart, Inc., Fla.App. 1964, 176 So.2d 578.
Our decision to reverse the order appealed does not preclude a finding by the trial court upon remand that the appellant's failure to produce was in fact a refusal. We merely hold that in the absence of either an expressed finding to that effect or the record conclusively revealing that there was a refusal to obey the order, it was an abuse of discretion to dismiss the complaint with prejudice for the plaintiff's failure to comply with the order. The order appealed is reversed and the cause remanded for further proceedings not inconsistent herewith.
Reversed and remanded.
REED, J., concurs.
McCAIN, J., dissents, with opinion.
McCAIN, Judge (dissenting).
I would affirm the trial court's dismissal of appellant's complaint with prejudice for the following reasons.
Not only has appellant sought to enjoin the assessment and collection of certain intangible personal property taxes against a trust upon the assertion of lack of a taxable situs within the State of Florida, as stated by the majority, but my review of the entire complaint, particularly paragraphs XVI, XIX and XXXI, confirms that appellant also seeks to invalidate and nullify the assessments as being confiscatory and arbitrary.
The majority turns their opinion on the following essentials: (1) appellant is beneficiary of a trust, (2) pursuant to certain discovery processes she was ordered to produce certain documents, (3) those which she did not produce were not in her possession and that the trustees of the trust,
The trust estate was valued at $6,000,000.00. There is no doubt but that the documents in contention are material to the issues of both situs and value, i.e., statements showing how the trust estate is invested and transactions related thereto, and inventories of intangible assets comprising the corpus. One of the two co-trustees in the State of Oklahoma, both of whom refused to deliver the required documents to appellant, is appellant's brother. These co-trustees also refused to testify concerning market value of the trust corpus, how or where invested or any transactions related thereto. Of particular import is that the trust instrument provided:
Upon being ordered to produce certain documents including those in question appellant perfected an interlocutory appeal to this court which was affirmed in Swindle v. Maxwell, Fla.App. 1968, 213 So.2d 602. Thereafter, in respect to the documents in contention, appellant chose not to enforce or even attempt to enforce her clear rights under the trust to obtain them. She contented herself to rest in the shade of brother's and co-trustee's adamant refusal to account.
Therefore, could not the trial judge in determining that appellant had shown an insufficient excuse for failure to comply with his order have equated this with or construed it to be tantamount to a refusal to do so. As the entire record reveals the facts of this case to be, I believe so. The majority concludes, but I cannot agree, that we can interpret appellant's failure to comply to events beyond her control.
Rashard v. Cappiali, Fla.App. 1965, 171 So.2d 581, in referring to a dismissal for violation of a court order, stated:
The record sub judice is replete with appellant's knowledge of the order and of the possible consequences following noncompliance.
For these reasons I would affirm.