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

Third District Court of Appeal
State of Florida
Opinion filed July 5, 2018.
Not final until disposition of timely filed motion for rehearing.
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No. 3D17-1838
Lower Tribunal No. 14-16371
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Benjamin Atkin,
Appellant,
vs.
Murray L. Kane, M.D.,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Antonio Marin,
Judge.
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, 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).
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. Torrablas, 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).
2
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.
3