
    Gerald EVANS, Appellant, v. Amey F. KALAL, Appellee.
    No. 87-2156.
    District Court of Appeal of Florida, Third District.
    Feb. 14, 1989.
    On Rehearing April 25, 1989.
    Kimbrell & Hamann, W. Sam Holland and Virginia S. Forbes, for appellant.
    Neblett & Sauer and John Moore, Key West, for appellee.
    Before HUBBART, FERGUSON and LEVY, JJ.
   PER CURIAM.

The final order of dismissal entered below as a sanction for a discovery violation is reversed because, on this record, it cannot be said that the plaintiff willfully refused to produce his 1040 income tax returns for the past three years as required by court order. Indeed, the record affirmatively reflects that (a) the plaintiff did not have personal copies of the 1040 income tax returns desired, and (b) the Internal Revenue Service in a letter to plaintiff’s counsel stated that it had no records of any tax returns filed by the plaintiff for 1981-85, the years for which returns were ordered produced by the trial court. This being so, there was no willful discovery violation in this case, and the trial court abused its discretion in entering the final order of dismissal under review. See Wallraff v. T.G.I. Friday’s, Inc., 490 So.2d 50, 51 (Fla.1986); Mercer v. Raine, 443 So.2d 944, 946 (Fla.1983); Mittleman v. Rowe Int’l, Inc., 511 So.2d 766, 768 (Fla. 4th DCA 1987); Zayres Dept. Stores v. Fingerhut, 383 So. 2d 262, 265 (Fla. 3d DCA 1980); Herald v. Computer Components Int’l, Inc., 252 So. 2d 576, 579 (Fla. 4th DCA 1971).

The final order of dismissal is reversed, and the cause is remanded to the trial court for further proceedings.

ON REHEARING

PER CURIAM.

The appellee has filed a motion for rehearing claiming certain factual errors in the court’s opinion and urging certain other positions previously asserted. We agree that the facts of the case require some clarification, but otherwise deny the motion for rehearing.

It appears from the record that the defendant filed a motion with the trial court requesting a court order compelling the plaintiff to produce the latter’s federal income tax returns and W-2 forms for the years 1981-85 in accord with plaintiff’s previously filed interrogatory. (R. 8). The trial court heard and granted this motion

“to the extent of the last three forms 1040 filed by Mr. Evans [plaintiff] with the IRS. If, for example, Mr. Evans did not so file forms 1040 for the years 1984 and 1985, he shall produce copies of 1040’s for the years 1981, 1982, and 1983.” (R. 68).

Without dispute, the plaintiff did not have personal copies of his 1040 income tax returns for the years 1981-85. Moreover, in response to a letter sent by the plaintiff’s counsel, the IRS Jacksonville Office stated that it had no records of the plaintiff’s 1040 tax returns for 1981-85, and that it only had plaintiff’s 1040 return for 1986.

The defendant now faults the plaintiff for not producing the 1986 tax return which the IRS stated it had; the simple answer to that argument is that the plaintiff never asked for this form and the trial court never ordered its production. The defendant also faults the plaintiff for not asking the Atlanta office of the IRS for the 1040 forms in question. There is no showing in this record, however, that plaintiff’s counsel was dealing with the incorrect IRS office — as, indeed, the Jacksonville office did have a copy of the plaintiff's 1040 form for 1986, thereby refuting defendant’s contention that only the Atlanta office kept such forms. Moreover, we do not think the trial court’s above-stated order of production required the plaintiff to thread his way through the IRS bureaucracy to produce the 1040 forms in question upon peril of having his suit dismissed.

For the above-stated reasons, the motion for rehearing, subject to the aforesaid clarification, is

Denied.  