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

District Court of Appeal of Florida, Third District2018-07-05No. No. 3D17–1838
246 So. 3d 574

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Opinion

majority opinion

PER CURIAM.

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

We affirm that portion of the trial courts 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 courts order insofar as it determined that Atkins conduct and actions justified the imposition of sanctions.

However, we reverse that portion of the trial courts order striking Atkins 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 Atkins pleadings, and remand to the trial court for consideration of commensurate sanctions and for further proceedings consistent with this opinion.

Atkin also seeks to appeal the trial courts order which determined only entitlement to attorneys 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 Engg, Inc. v. Miami Pump and Supply Co., Inc., 641 So.2d 474 (Fla. 3d DCA 1994).