Atkin v. Kane, 246 So. 3d 574 (2018)

July 5, 2018 · District Court of Appeal of Florida, Third District · No. 3D17–1838

246 So. 3d 574

Benjamin ATKIN, Appellant,
v.
Murray L. KANE, M.D., Appellee.

No. 3D17-1838

District Court of Appeal of Florida, Third District.

Opinion filed July 5, 2018

Dickinson Wright PLLC, and Alan J. Perlman and Vijay G. Brijbasi (Fort Lauderdale), for appellant.

Simon, Schindler & Sandberg, LLP, and Sherryll Martens Dunaj and Neal L. Sandberg, Miami, for appellee.

Before SALTER, EMAS and LOGUE, JJ.

PER CURIAM.

Benjamin Atkin, defendant below, appeals from the trial court's order striking his answer and affirmative defenses to the complaint, and the resulting final judgment entered in favor of Murray Kane, plaintiff below.¹

We affirm that portion of the trial court's order which concluded that the actions and conduct of Atkin, including his answer to the complaint and answers to interrogatories, "at best were inaccurate and, at worst ... are deceptive." We also affirm the trial court's order insofar as it determined that Atkin's conduct and actions justified the imposition of sanctions.

However, we reverse that portion of the trial court's order striking Atkin's pleadings, leading to entry of a final judgment against him. We hold that imposition of this severest of sanctions-foreclosing any further defense of the action and the resulting entry of final judgment-was simply too severe under the circumstances presented and was not commensurate with the conduct and actions at bar. See, e.g., Prater v. Comprehensive Health Ctr., LLC, 185 So.3d 559, 560 (Fla. 3d DCA 2016).

We therefore vacate the final judgment, reverse in part the order striking Atkin's pleadings, and remand to the trial court for consideration of commensurate sanctions and for further proceedings consistent with this opinion.

1 Atkin also seeks to appeal the trial court's order which determined only entitlement to attorney's fees pursuant to section 57.105, Florida Statutes (2016) but deferred a determination of the amount of those fees. We dismiss this portion of the appeal as one taken from a nonfinal, nonappealable order. See Tower Hill Prime Ins. Co. v. Torralbas, 176 So.3d 374 (Fla. 3d DCA 2015) ; Reid v. Estate of Sonder, 63 So.3d 7 (Fla. 3d DCA 2011) ; Chaiken v. Suchman, 694 So.2d 115 (Fla. 3d DCA 1997) ; Gonzalez Eng'g, Inc. v. Miami Pump and Supply Co., Inc., 641 So.2d 474 (Fla. 3d DCA 1994).