Championship Wrestling From Florida, Inc. v. DeBlasio

508 So.2d 1274 (1987)

CHAMPIONSHIP WRESTLING FROM FLORIDA, INC., a Florida Corporation, National Wrestling Alliance, Virgil Runnels, Jr. and City of West Palm Beach, Appellants,
v.
Stephen DeBLASIO a/K/a Big Daddy, and Susan DeBlasio, His Wife, Appellees.

No. 4-86-2247.

District Court of Appeal of Florida, Fourth District.

June 3, 1987. Rehearing Denied July 21, 1987.

John Beranek of Klein & Beranek, P.A., and John J. Bulfin of Wiederhold, Moses & Bulfin, P.A., West Palm Beach, for appellants.

Jeffrey H. Wolfson, and Michael B. Nipon, Fort Lauderdale, for appellees.

PER CURIAM.

We reverse this matter because the trial court did not expressly find, nor does the record conclusively reveal, that appellants' failure to comply with discovery was a willful refusal to obey. Mercer v. Raine, 443 So.2d 944 (Fla. 1983); Garden-Aire Village Sea Haven v. Decker, 433 So.2d 676 (Fla. 4th DCA 1983). In absence of such an express finding of willful refusal the sanction of default is too severe. We reverse the order of default and remand with leave to impose lesser sanctions.

REVERSED.

DELL and WALDEN, JJ., concur.

ANSTEAD, J., concurs specially with opinion.

ANSTEAD, Judge, concurring specially.

While I agree that the case law cited in the majority opinion suggests that a written finding of willful refusal to obey court orders is necessary to sustain the severe sanction of default, the issue is sufficiently in doubt and, in my opinion, of such significance to warrant our certifying that issue as one of great public importance. In that way, trial courts will be put on notice that the extreme sanction of dismissing a case or entering a default must be supported by an express finding of willful misconduct, similar to the express finding of ability to pay required before spouses may be held in contempt for failure to pay family support.

In addition, I believe our reversal should be without prejudice to the trial court to reconsider the sanction issue in order to determine whether there was sufficient misconduct to warrant the entry of default or some lesser sanction.