Reliance Builders of Coral Springs, Inc. v. City of Coral Springs , 373 So. 2d 410 ( 1979 )

373 So. 2d 410 (1979)

RELIANCE BUILDERS OF CORAL SPRINGS, INC., a Florida Corporation, and Sy Elakman, Appellants,
v.
The CITY OF CORAL SPRINGS, a Municipal Corporation, and Coral Ridge Properties, Inc., a Florida Corporation, Appellees.

No. 78-698.

District Court of Appeal of Florida, Fourth District.

July 25, 1979.

Ephraim Collins, Margate, for appellants.

Paul J. McDonough, City Atty., and Robert M. Fournier, Asst. City Atty., of Paul J. McDonough, P.A., Coral Springs, for appellee, City of Coral Springs.

William E. Blyler and Hans Feige of Patterson, Maloney, Blyler & Feige, Coral Springs, for appellee Coral Ridge Properties, Inc.

DAUKSCH, Judge.

This is an appeal from an order dismissing the plaintiff's cause of action for an alleged failure to comply with discovery demands. We have determined the remedy to be out of keeping with the alleged violation and thus reverse the order appealed and remand the matter for reinstatement of the cause of action. Should the plaintiff wilfully fail to comply with an order compelling compliance with a discovery demand then the matter will be subject to being dismissed. Such an order was not entered before the matter was dismissed this time and there was no evidence or finding plaintiff wilfully violated any order of the court. Owens-Illinois, Inc. v. Lewis, 260 So. 2d 221 (Fla. 1st DCA 1972); Swindle v. Reid, 242 So. 2d 751 (Fla. 4th DCA 1970). We have also considered appellant's contention he should not have to produce his income tax records and marital dissolution documents. Appellees have urged no real need to see those documents and have cited us no authority for sustaining the denial of the protective order so we must reverse that order and permit Sy Elakman to refuse to produce his marital dissolution documents and income tax returns.

REVERSED and REMANDED.

BERANEK, J., concurs in part, dissents in part, with opinion.

SCHWARTZ, ALAN R., Associate Judge, concurs.

BERANEK, Judge, dissenting in part:

Although I agree with the reversal of the order dismissing plaintiff's action, I disagree and dissent from the finding relating to tax records and marital dissolution documents. I would not reverse the trial court in this regard.