APPEAL: THE ISSUES: 2nd ISSUE - MY REPLY TO HIS ANSWER

Excerpted from my Reply Brief, this is my final counter to his Answer on the Second Issue.  

II.  The Trial Court Did Commit Error in Striking Wife’s Pleadings

Neither party moved for discovery enforcement until almost a year after litigation commenced. Neither party complied until April 2012 (1 R. 178-189^[1]). Subsequent to entry of the order compelling her discovery, Wife complied PRIOR TO the date Husband set for hearing on his Motion for Contempt. Nevertheless, Husband did not cancel the hearing.

Only One Warning About Striking Pleadings

During the hearing on May 10, 2012, the trial court issued its first and ONLY warning to Wife that if she did not supply missing items from discovery, her pleadings would be stricken. On April 19, 2012 (1 R. 136-137), the trial court ordered Husband to comply with discovery. If the trial court was frustrated with Wife as Husband alleges (Husband’s Brief, pg. 22), it should have been equally frustrated with Husband for committing an indistinguishable violation.

The Deposition

In the interim, Wife was ordered to appear at deposition (1 R. 195). Wife did not object because there was nothing in the order indicating Husband would be aware of the location at which she would appear. It was ordered that Wife’s counsel would coordinate the location because Wife had not disclosed her address (1 R. 195). On May 18 – just 4 days before the deposition date – Husband filed a notice showing the exact location and time at which Wife was to appear (2 R. 224-225). His notice was public record and, accordingly, Wife realized that Husband would be aware. This created a potentially hazardous situation for Wife. Nothing in the order (1 R. 195) indicates Husband would appear in West Palm Beach as Husband contends (Husband’s Brief, pg. 19). He could have traveled to the location of the deposition and harmed his Wife.

As demonstrated in his own Motion to Strike (2 R. 245), and contrary to Husband’s contentions (Husband’s Brief, pg. 19), Wife’s counsel contacted Husband’s counsel at 4:00 p.m. the day BEFORE the deposition to notify him that Wife would not appear and to request a continuance at another location.

No Evidence of Absolute Refusal to Comply

There is no evidence in the record that Wife “absolute[ly]” refused to comply with discovery court orders (Husband’s Brief, pg. 21). In fact, she complied substantially. Nor did Wife receive “numerous warnings” that her pleadings would be stricken as Husband contends (Husband’s Brief, pg. 24). The court only ever warned Wife ONCE, and that warning related strictly to items undisclosed (4 Tr. 3-4, lines 25 and 1-2).

Striking the Temporary Relief Motion Would Have Been Extreme

Florida appellate courts have found in cases detailed in Wife’s brief (Wife’s Brief, pgs. 29-30), striking pleadings is extreme and should be reserved for the most extreme cases. If a lesser sanction is available, it should be applied instead. Contrary to Husband’s Brief (Husband’s Brief, pg. 21), the lesser sanction of striking Wife’s Motion for Temporary Relief would also have constituted an extreme sanction, depriving her of representation at trial.

Substantial Compliance

Even a peremptory review of the record reveals Wife’s substantial compliance with discovery. Husband’s Request to Produce asks for 84 different items (1 R. 7-14). Husband’s Interrogatories require answers to 121 different questions (1 R. 16-28). En masse, his discovery requests total 205 items. The Order on Husband’s Motion for Contempt lists 19 of the original 205 items (1 R. 196-199). Husband’s subsequent Motion to Strike lists 8 items that Wife allegedly did not produce (2 R. 226-240); the final 2 of which refer to Wife’s disclosed – but redacted – residential lease and payroll checks.

Husband contends Wife “was not in compliance on any level,” (Husband’s Brief, pg. 22). In fact, by the time the Order on Husband’s Motion for contempt was entered, Wife had complied with 186 of the original discovery requests. At the time her pleadings were stricken, Wife had complied with 11 more. In total, Wife complied with 197 of 205 total discovery requests.

---

^[1]  With the exception that Wife filed a Financial Affidavit on February 22, 2012.  

APPEAL: THE ISSUES: 2nd ISSUE - HIS ANSWER

Excerpted from his Answer Brief, this is his counter to my Second Issue.  My Reply is here.

II.  The Trial Court Did Not Commit Error in Striking Former Wife’s Pleadings

Summary

The trial court has discretion in striking the pleadings of a party for refusing to comply with court orders. Florida Family Law Rules of Procedure 12.380, and Florida Rules of Civil Procedure 1.380 specifically governs and allows a Court to strike pleadings if a party fails to answer a questions as ordered, or fails to respond to examination. In this matter, the Wife refused to obey numerous direct orders of the Court, specifically ordering the Wife to provide discovery to the Husband in order for him to properly defend himself against the Wife’s claims in her Counter-Petition for Dissolution. The Wife was ordered to provide discovery in an Order on a Motion to Compel. 1 R. 61-62. The Wife refused to comply, and was then ordered to provide a very specific list of designated discovery materials to counsel for the Husband. 1 R. 131-133. The Wife refused to comply again.

The Wife was specifically ordered to appear at a video/deposition, coordinated by counsel for both parties (1 R. 195-195.), of which she again refused to attend. On May 11, 2012, the Court issued an Order on Husband’s Motion for Contempt (1 R. 196-199.), ordering the Wife to provide specific missing discovery materials to the Husband’s counsel. The Court specifically ordered as follows: “If the Wife, [My Name], does not provide the above listed discovery by the time proscribed, May 21, 2012 by 5:00 p.m., the Wife’s pleadings, including her Counter Petition and Motion for Temporary Relief, will be stricken in their entirety”. (1 R. 196-199.) The Wife did not object to this Order. The Wife simply refused to comply again. Therefore, the Court exercised allowable discretion, and because of the Wife’s numerous refusals to obey court orders, and the Wife’s refusal to attend a Court Ordered deposition, the Lower Tribunal exercised discretion that was well within its’ authority, and properly struck the Wife’s pleadings.


Argument

Florida Family Law Rules of Civil Procedure 12.380 states that Florida Rule of Civil Procedure 1.380 shall govern the failure to make discovery in family law matters and related sanctions. Under Fla.R. Civ.P.Rule 1.380(b)(2), if a party…fails to obey an order to provide or permit discovery…the court in which the action is pending may make any of the following orders:…(C) An order striking out pleadings or parts of them…or rendering a judgment by default against the disobedient party.

In this case, the Former Wife consistently, continuously and willfully refused to obey numerous direct orders of the Lower Tribunal, in ordering the Former Wife to provide discovery to the Former Husband. The Former Wife was served with Request for Standard Family Law Interrogatories, and Request to Produce on or about March 22, 2011. 1 R. 7-14; 1 R. 15-15. The Former Wife failed to comply with the requested disclosure in the time and manner prescribed by law, did not object, nor did she request an extension of time. On or about February 16, 2012, the Former Husband filed an ex parte Motion to Compel Discovery. 1 R. 61-62. The Court granted an Order Compelling Discovery (1 R. 70-70) on February 22, 2012, ordering the Former Wife to fully respond to the Request for Standard Family Law Interrogatories and Requests to Produce, within ten (10) days from the date of the order.

On April 9, 2012, the Former Husband filed a Motion for Contempt (1 R. 131-133.) as the Former Wife still refused to comply with the prior Order on the Motion to Compel. Additionally, on May 2, 2012, Former Husband filed a Motion to Compel Attendance at Video/Teleconference Deposition Duces Tecum. 1 R. 190-192.

On May 10, 2012, the Court granted the Motion to Compel Attendance At Video/Teleconference Deposition Duces Tecum and issued an Order Compelling Wife’s Attendance at Video/Teleconference Deposition Duces Tecum. 1 R. 195-195. As the Court was well aware of the Former Wife’s prior refusals to provide discovery, at the hearing to compel Wife’s deposition, the Court specifically ordered, “The Wife shall appear in person for Deposition Duces Tecum via Video/Teleconference on Wednesday, May 23, 2012, from 9:00 am to 12:00 noon.” The Court Order was not objected to at the time it was issued. The Court and counsel for the Former Husband made specific provisions in an attempt to accommodate the Former Wife. Since Former Wife had not disclosed her address, the Court ordered, “Because the Wife resides out of State of Florida and has not disclosed her address, the Wife shall appear at a location designated by Wife’s counsel. Wife’s counsel shall coordinate with Husband’s counsel, and arrange for the location of the Wife’s video/teleconference deposition which shall be initiated by the Husband’s counsel and scheduled and coordinated through U.S. Legal Support or any other licensed court reporting agency as selected by Husband’s counsel”. 1 R. 195-195.

On May 11, 2012, the Court issued an Order on Husband’s Motion for Contempt (1 R. 196-199), ordering the Wife to provide specific delineated missing discovery material to the Husband’s counsel. After numerous warnings, the Court specifically ordered as follows: “If the Wife, [My Name], does not provide the above listed discovery by the time proscribed, May 21, 2012 by 5:00 p.m., the Wife’s pleadings, including her Counter Petition and Motion for Temporary Relief, will be stricken in their entirety”. This Order was not objected to by Wife’s counsel.

On May 14, 2012, the Wife, in an attempt to circumvent the Court’s prior Order on the Husband’s Motion for Contempt, filed a Motion for Protective Order (2 R. 208-218), in a transparent attempt to block standard discovery information already ordered by the Court to be provided to Former Husband. Counsel for the Former Wife and counsel for the Former Husband entered into an Agreed Order on Wife’s Motion for Protective Order, whereby the Former Wife agreed that she would provide her home address to the Former Husband’s counsel, but Former Husband’s counsel could not disclose the Former Wife’s address to the Former Husband.

The Former Wife did not attend the court ordered deposition as ordered to by the Court, even though she was scheduled to appear in an office in the Washington, DC area, and the Former Husband was appearing in an office located in West Palm Beach, Florida. These locations had been coordinated by counsel for the parties. Former Wife’s counsel did not appear in person at the scheduled deposition, and instead called the deposition offices at the required time, informing the Former Husband’s counsel that her client refused to attend the deposition as ordered.

On May 24, 2012, the Husband filed a Motion to Strike Wife’s Pleadings Based on Wife’s Refusal to Comply with Order on Husband’s Motion for Contempt, and Wife’s Refusal to Attend Court Ordered Deposition. Wife’s counsel filed a “Motion In Opposing of Motion to Strike” (sic). 2 R. 243-245.

On May 29, 2012, after a hearing with counsel for both parties present, the Court stated, “Well, it’s not really an extreme remedy, because that’s what I said I was going to do without strict compliance with the prior order, particularly with the deposition. And if I recall, we had a long discussion about getting that set up. We talked about doing it on a Saturday to accommodate her and a temporary job that I believe she had. It’s a video deposition. It’s not like she’s live in the room with somebody. So I’m going to grant his motion and strike her pleadings.” 3 TR. Pg. 4, L. 18 – pg. 5. L.2. The Court issued an Order granting the Husband’s Motion to Strike Wife’s Pleadings (2R. 241-242), stating “The Wife acted and continues to act in a deliberate, willful, and contumacious manner, whereby she continues to act in defiance and disobedience of numerous orders issued by this court.” The Court struck all of the Wife’s pleadings, including but not limited to her Counter-Petition for Dissolution of Marriage, and Wife’s Motion for Temporary Relief, and ordered Wife to pay Husband’s attorney’s fees and costs incurred by the necessity of bringing the action.

In fact, sanctions Under Fla.R. Civ.P.Rule 1.380(b)(2) were contemplated specifically for cases of this nature…where a party continuously and deliberately refuses to obey an order of the court. Former Wife, argues 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. 357 So. 2d 464 (Fla. 2nd DCA 1978), and as such, should not have been stricken. This case is one of those extreme circumstances, whereby based on the deliberate, willful, and contumacious manner of the Former Wife, and her acting in defiance and disobedience of numerous orders issued by the court, the sanction was clearly appropriate. Former Wife argues in Ham v. Dunmire, 891 So. 2d 492 (Fla. Supreme Court 2004), that the severity of the sanction must be commensurate with the violation. The Former Wife’s absolute refusal to comply with court orders to provide standard discovery, and refusal to attend her deposition as ordered, severely prejudiced the Former Husband, particularly when the Former Wife was seeking remedies including equitable distribution and temporary and permanent spousal support. The lower tribunal deemed that the sanction was clearly appropriate under the circumstances.

Appellant argues that under Kelly v. Schmidt, 613 So. 2d 918 (Fla. 5th DCA 1993) the Court’s authority to sanction is not unbridled and must be commensurate with the offense if numerous, less onerous sanctions are available. There simply were no less onerous sanctions available…the fact is the Former Wife simply refused to comply with discovery obligations, after receiving order after order from the Court. The Former Wife states that striking her Motion for Temporary Relief would have been appropriate. This case was set for trial on June 18, 2012. In a bizarre move, counsel for the Former Wife set a Temporary Relief hearing for June 1, 2012, which was barely two weeks prior to trial. Striking a temporary relief hearing as such a late date only two weeks prior to trial, would have absolutely no effect on the Former Wife, and would not act as any type of sanction against her.

Although the Former Wife, in her Amended Initial Brief complains that “the trial court was obviously frustrated with the number of times it had to intervene as a result of Husband filing motion after motion,” and that the “Husband had still not fully complied with discovery,” it is clear from the record that the Former Wife was acting in a deliberate, willful, and contumacious manner, acting in defiance and disobedience of numerous orders issued by this court. In fact, the trial court was not frustrated with the Husband…the Court was obviously frustrated with the Wife’s continued efforts to interfere with providing mandatory required discovery to the Husband. It is also clear from the record that the Former Husband had no outstanding discovery requests, no outstanding orders on any motions to compel, and no findings of contempt against him.

The Former Wife argues in her Section (2) that she was in substantial compliance with discovery. The record is clear that she was not in compliance with discovery on any level. In reviewing the Husband’s Motion to Strike (2 R. 226-240), there were numerous discovery materials which were specifically not provided by the Wife. The Wife refused to give any information regarding her assets, her residence, where she worked, what she earned, what her living expenses were…all while making claims for equitable distribution and temporary and permanent support from the Husband. Most importantly, she simply refused to submit to deposition, even after the Court and the Former Husband went to great lengths and expense to accommodate her.

Next, in the Former Wife’s Section (3) she argues that she did not have the opportunity to be heard at the hearing on the Former Husband’s Motion to Strike Wife’s Pleadings Based on Wife’s Refusal to Comply with Order on Husband’s Motion for Contempt, and Wife’s Refusal to Attend Court Ordered Deposition for Sanctions and Striking her pleadings. The hearing was duly noticed and was indeed attended by Wife’s counsel. The Court addressed this argument and stated, “Well, it’s not really an extreme remedy, because that’s what I said I was going to do without strict compliance with the prior order, particularly with the deposition. And if I recall, we had a long discussion about getting that set up. We talked about doing it on a Saturday to accommodate her and a temporary job that I believe she had. It’s a video deposition. It’s not like she’s live in the room with somebody. So I’m going to grant his motion and strike her pleadings.” 3 TR. Pg. 4 L. 18 – P. 5 L. 2. There was no objection to the prior order by counsel, so the Court was well within its authority to strike the Wife’s pleadings.

In Former Wife’s Section (4), she now argues that the discovery records that she was ordered to provide were not in her possession or control. This is nowhere in the record. The Former Wife is attempting to use her appeal to continue arguing her case. Nowhere in the record does it indicate that the Former Wife filed any response indicating any records were not in her possession or control. She simply refused to provide the records as ordered.

The Former Wife in her Section (5) argues that her counsel was only minutes late in transmitting a set of disclosures, pursuant to the trial court’s order. The Former Wife omits the fact that the few items she did transmit, were insufficient, incomplete, and that she continued to omit material discovery materials as she was previously ordered to by the court. Again, the Wife did not comply with the Court’s order to provide discovery.

The Former Wife in her paragraph (6) argues that “the trial court was silent in regards to the penalty to be imposed if the Wife failed to appear at the deposition.” Under Fla.R. Civ.P.Rule 1.380(b)(2) If a party…fails to obey an order to provide or permit discovery…the court in which the action is pending may make any of the following orders:…(C) An order striking out pleadings or parts of them…or rendering a judgment by default against the disobedient party.” There is no provision in the rule, that the court must specifically warn a party of the available sanction which may be imposed. This is a moot point anyway. In this instance, the Former Wife was well aware of the Court’s impatience with her. After numerous warnings, the Court specifically ordered as follows: “If the Wife, [My Name], does not provide the above listed discovery by the time proscribed, May 21, 2012 by 5:00 p.m., the Wife’s pleadings, including her Counter Petition and Motion for Temporary Relief, will be stricken in their entirety.” 1 R. 196-199 In fact, the Former Wife was duly warned by the court that her continued disobedience to court orders would result in the striking of her pleadings. The Wife did not object or appeal to the Court’s order.

APPEAL: THE ISSUES: 2nd ISSUE - STRIKING PLEADINGS

Excerpted from my Initial Brief, this is my second Issue.  His Answer is here, and my Reply is here.

NOTE:  My name and his have been deleted.  

The trial court committed reversible error in striking wife’s pleadings.

Summary

Striking pleadings is the most severe of sanctions. Trial courts should reserve such actions for only the most extreme of cases. At the time of striking, Wife was in substantial compliance with discovery, absent providing her home and work addresses, the name and address of her domestic violence treatment center, and missing documents which were not in her possession. Wife should never have been ordered to provide her home or work address to her abusive Husband or his counsel (since Husband could simply request his file from his counsel and access her address). Wife disclosed bank statements that clearly demonstrated both her rent payments and direct deposit pay checks; therefore Husband was not prejudiced by not having the names and addresses of her employers and landlord. Domestic violent treatment centers are confidential under both federal and Florida law. The few missing documents were neither in Wife’s possession nor control, and written responses were provided in regards to each one.

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.