NOTE: My name and his have been deleted.
The trial court committed reversible error in striking wife’s pleadings.
Summary
Another of the reasons for striking Wife’s pleadings was that she did not attend one scheduled deposition. The deposition order was ambiguous on its face and Wife’s counsel was ordered to set the location, not Husband’s. From the order, Wife understood that her Husband would not know where she would appear. Wife received no warning that failure to appear at the deposition would result in striking her pleadings.
Finally, although Husband’s counsel may have received the second set of discovery disclosures minutes after the deadline, it was Wife’s counsel, not Wife, that was involved in any late transmission. Wife had no control over when her counsel sent the disclosures by email and was not even aware they had been transmitted late. However, Wife’s counsel was never sanctioned for her lateness. Instead, Wife was sanctioned in the most extreme manner possible, by having all her pleadings stricken.
For all of the above reasons, it was a clear abuse of discretion to strike Wife’s pleadings.
Argument
1. The most severe penalty (striking pleadings)
Florida courts have long held and affirmed that the striking of a party's pleadings as a sanction for discovery misconduct is "the most severe of penalties and must be employed only in extreme circumstances." Poling v. Palm Coast Abstract & Title, Inc., 882 So. 2d 483, 486 (Fla 2004).
In Ham v. Dunmire, 891 So. 2d 492 (Fla. Supreme Court 2004), the Court concluded that the severity of the sanction must be commensurate with the violation, affirming Travelers Ins. Co. v. Rodriquez, 357 So. 2d 464 (Fla. 2nd DCA 1978.)”
In Kelley v. Schmidt, 613 So. 2d 918 (Fla. 5th DCA 1993), the appellate court concluded that the court’s authority to sanction is not unbridled and must be commensurate with the offense, if numerous, less onerous sanctions are available in accordance with Insua v. World Wide Air, Inc., 582 So. 2d 102 (Fla. 2nd DCA, 1991).
In the instant case, the trial court certainly had other sanctions available. The trial court could have, for example, stricken Wife’s Motion for Temporary Relief (1 R. 138-141). While such action may certainly have prejudiced Wife’s ability to proceed to trial since she had never been placed on equal footing with Husband in regards to legal representation (1 R. 138, 140), striking that portion of Wife’s pleadings would not have resulted in default, as the striking of ALL of Wife’s pleadings did.
In Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. Supreme Court 1980), the court concluded that the trial court’s discretionary power is subject to the test of reasonableness, requiring a determination of whether there is logic and justification for the result. The appellate court also found that:
“[A] trial courts' discretionary power was never intended to be exercised in accordance with whim or caprice of the judge nor in an inconsistent manner. Judges dealing with cases essentially alike should reach the same result. Different results reached from substantially the same facts comport with neither logic nor reasonableness.”In the instant case, the trial court was obviously frustrated with the number of times it had to intervene as a result of Husband filing motion after motion – as evidenced in the transcript of the hearing on May 29, 2012 – the third hearing within a month – when the judge states “Again?” in response to Husband’s counsel’s statement that they are before her again on Tobin (3 Tr. 3, lines 3-5). However, that frustration did not grant the trial court the power to dispose of the case by imposing the ultimate sanction of striking Wife’s pleadings, without exercising reasonableness in its judgment.
By the time Wife’s pleadings were stricken, Husband had still not fully complied with discovery (2 R. 221-222). Wife’s only true non-compliance was in not disclosing (a) her home address, (b) the name and addresses of her employers during the previous few months, and (c) the name and address of the domestic violence center at which she received treatment – all of which certainly involved mitigating and extenuating circumstances as suggested in Franchi v. Shapiro, 650 So. 2d 161 (Fla. 3rd DCA 1995).
2. Substantial compliance with discovery
Because Wife was in substantial compliance with discovery[1] (2 R 226-240), the sanction imposed of striking all of Wife’s pleadings with prejudice was too harsh. In Steele v. Chapnick, 552 So.2d 209 (1989), the appellate court found that even if answers were less than complete, substantial compliance does not constitute willful, contumacious disregard of the court’s order that would warrant dismissal with prejudice in accordance with Mercer v. Raine, 443, So.2d, 944 (Fla. Supreme Court 1983).
3. No opportunity to be heard
It has been long held by Florida appellate courts that prior to entering the ultimate sanction of striking pleadings, a party must be given notice and an opportunity to be heard. In Franchi, the appellate court concluded that a party must have the opportunity to be heard and that must include “the opportunity to present evidence of extenuating and/or mitigating circumstances, which might explain the failure to comply with the court's discovery order or the opposing party's discovery request.” Wife was afforded no such opportunity (3 Tr. 4, lines 10-12) even though Wife’s counsel requested it.
4. Missing records were not in Wife’s possession or control
In Neal v. Neal, 636 So. 2d 810, (Fla. 1994), the appellate court found that if the wife did not have records in her possession, her inability to produce some of the documents listed in the discovery request did not satisfy the finding that the wife acted willfully or failed to comply with discovery orders in a substantial sense. Likewise, in Societe Internationale pour Participations Industrielles et Commerciales, SA v. Rogers, 357 US 197 (Supreme Court 1958), the court concluded that if a party was not in control of documents, and the inability to produce was not fostered by that party’s own conduct or by circumstances within its control, then the requirements of an order compelling their production were not met.
In the instant case, Wife stated in not just one, but two different sets of discovery disclosures, that she was not in possession of, or control of the few missing bank statements; the bank was. Wife provided a written response (on two occasions) that her Husband had confiscated her mail and that the bank could not produce the missing statements in time to comply with the court’s order.
5. Wife’s counsel’s lateness
Wife’s counsel may have been a few minutes late in transmitting the second set of disclosures. Or perhaps email transmission was delayed (2 R. 226). In her Motion in Opposing of Motion to Strike, Wife’s counsel partially admits to her oversights:
“During the course of coordination [for the deposition], petitioner tendered offers of settlement and requests for the undersigned to prepare a master settlement agreement. Respondent’s counsel thereafter focused on settlement and preparation of a settlement agreement in the interest of saving attorney’s fees.” (2 R. 244)Wife’s counsel had little experience in dissolution proceedings and appeared inattentive to detail in many of her pleadings. For example, in the Motion in Opposing of Motion to Strike – arguably the most important motion filed on behalf of her client – she failed to respond to Husband’s points, and captioned incorrectly, referring to Husband as “[His Name Misspelled]” and misspelling Wife’s name – her own client – as “[My Name Misspelled]” (2 R. 223).
In Fisher v. Professional Advertising, 955 So.2d 78 (2007), the appellate court reaffirmed the standards for striking pleadings for a trial court to look at, are:
“1) whether the attorney's disobedience was willful, deliberate, or contumacious, rather than an act of neglect or inexperience; 2) whether the attorney has been previously sanctioned; 3) whether the client was personally involved in the act of disobedience; 4) whether the delay prejudiced the opposing party through undue expense, loss of evidence, or in some other fashion; 5) whether the attorney offered reasonable justification for noncompliance; and 6) whether the delay created significant problems of judicial administration.” Kozel v. Ostendorf, 629 So. 817, 818 (Fla. Supreme Court 1993).”While Wife was involved in non-disclosure of her home and work addresses, she was not involved in her counsel’s possible late submissions, and that, therefore, did not satisfy one of the requirements necessary for striking her pleadings.
The Second, Third and Fourth Districts of Florida have previously held that the willful misconduct required for striking of pleadings or dismissal must come from the party, not the party’s lawyer. In Ham v. Dunmire, 891 So. 2d 492 (Fla. Supreme Court 2004), the Florida Supreme Court held that fault by the litigant is not the exclusive factor but is just one of the factors to be weighed in assessing whether dismissal is the appropriate sanction.
In Kozel, the appellate court added:
“if a sanction less severe than dismissal with prejudice appears to be a viable alternative, the trial court should employ such an alternative.”Indeed, in the instant case, there were alternative sanctions available to the trial court, including striking Wife’s Motion for Temporary Relief or imposing sanctions upon Wife’s counsel. By the time of striking Wife’s pleadings, Husband had received the disclosures, albeit moments late (2 R. 227). The disclosures were absent Wife’s home and work addresses; but several other documents disclosed therein (i.e., bank statements), clearly demonstrated Wife’s rent payments and direct deposit pay checks (2 R. 227) although they did not reveal the name of her landlord or her employer. This information was not relevant and allowed Husband to proceed without any prejudice.
6. No warning that failure to appear at deposition would result in striking
Wife was never warned that failure to appear at the deposition would result in her pleadings being stricken (5 Tr. 3-7, 1 R. 195). In fact, during the hearing, the trial court had simply specified that the deposition must take place before June 1 (5 Tr. 6, lines 6-9 & 5 Tr. 7, lines 13-15) and was silent regarding any penalty. Therefore, not attending the deposition – which Husband scheduled sua sponte prior to the June 1 date the court ordered – implied a far lesser penalty, if any, would result than striking her pleadings, especially in light of Wife’s substantial compliance with discovery. In Cadwell v. Cadwell, 549 So. 2d 1133 (Fla. Supreme Court 1989), a similar set of circumstances resulted in reversal and remand when the Wife failed to appear at deposition, but substantially executed documents as ordered.
There is ambiguity in the fact that the order stated that Wife’s counsel would coordinate the location of the deposition (1 R. 195), but the trial court somehow allowed Husband to set the location (whereby an abusive Husband became fully aware of the time and location that his victim would be present). In Stilwell v. Stilwell-Southern Walls, Inc., 711 So. 2d 1023 (Fla. 5th DCA 1998), the appellate court held that when there was ambiguous language in an order, “failure to comply was something short of the willful regard, deliberate callousness, or bad faith required to support the severe sanction of striking a party’s pleadings.”
Based on all of the foregoing, the trial court erred in striking Wife’s pleadings.
[1] One need only compare the list of questions and items on the Standard Family Law Interrogatories and Request to Produce filed by Appellee on March 22, 2011 (1 R. 7-28) with the list of few missing answers and documents from Appellee’s Motion to Strike before the lower tribunal (2 R. 226-240) to realize that Wife was obviously in substantial compliance with discovery.
