Third District Court of Appeal
State of Florida
Opinion filed July 21, 2021.
Not final until disposition of timely filed motion for rehearing.
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No. 3D20-0178
Lower Tribunal No. 16-2746
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Yolanda Alvarez, et al.,
Appellants,
vs.
Citizens Property Insurance Corporation,
Appellee.
An appeal from the Circuit Court for Miami-Dade County, Veronica
Diaz, Judge.
Giasi Law, P.A., and Melissa A. Giasi, and Erin M. Berger (Tampa), for
appellants.
Methe & Rothell, P.A., Kristi Bergemann Rothell (West Palm Beach),
for appellee.
Before EMAS, HENDON, and MILLER, JJ.
MILLER, J.
In this first-party property dispute, appellants, the insured
homeowners, Yolanda Alvarez, Dalia Gonzalez, and Carlos Abreu,
challenge an order striking their pleadings and dismissing their lawsuit
against appellee, Citizens Property Insurance Corporation, upon a finding
they willfully disobeyed the terms of a mediation order. Without conceding
deliberate noncompliance, on appeal, the homeowners contend that, having
failed to first consider the propriety of less onerous alternatives, the trial court
erred in imposing litigation-ending sanctions. We reverse.
BACKGROUND
After sustaining water-related damage to the interior of her residence,
Alvarez filed suit against Citizens seeking to recover proceeds under her
homeowners’ policy. Citizens denied coverage and, asserting Gonzalez and
Abreu were co-owners of the insured property, sought a court order requiring
their joinder as co-insureds and indispensable parties. The trial court
ordered Alvarez to add both as party plaintiffs. Alvarez complied and the
parties then embarked on discovery. Abreu failed to appear for one duly
noticed deposition and Gonzalez failed to appear for two, but both were
eventually deposed without the imposition of any sanctions.
Following the depositions, the trial court issued a mediation order.
Mirroring the language contained within Florida Rule of Civil Procedure
2
1.720, the order stated, in relevant part, “[t]he appearance of counsel, and
each party or representative of each party with authority to enter into a full
and complete compromise and settlement, without further consultation, is
mandatory.” See Fla. R. Civ. P. 1.720(c).
On the day of mediation, Abreu appeared with his attorney, who also
represented the other two homeowners. Alvarez was available
telephonically, pursuant to a stipulation reached at the eleventh hour.1
Gonzalez failed to appear, however, as she was purportedly in Cuba.
Citing noncompliance with the mediation order, Citizens aborted the
mediation and, by way of a motion, sought terminating sanctions. In
response, the homeowners’ counsel filed an affidavit contending Citizens
“unilaterally refused to proceed with mediation, despite the fact” she and
Abreu “had full authority to negotiate and settle the subject lawsuit.”
The trial court convened a non-evidentiary hearing and reserved ruling
on sanctions. Thereafter, without further hearing, a successor judge struck
the homeowners’ pleadings and dismissed the case. The decision was
premised upon a finding the homeowners willfully and contumaciously failed
1
Citizens later raised a concern regarding Alvarez’s ability to sign a mediated
settlement agreement that day. This concern is allayed by Florida Rule of
Civil Procedure 1.730(b), as signature is not required on the day on the day
of the mediation and the transcription or electronic recordation of the
agreement is permitted.
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to appear for the mediation, as evidenced by both their nonappearance and
pattern of delays during the discovery process. The instant appeal ensued.
STANDARD OF REVIEW
Because an order dismissing a party's pleadings is a “severe sanction,
to be administered only in the most egregious cases,” we employ “a
narrowed abuse of discretion standard” of review. Willie-Koonce v. Miami
Sunshine Transfer & Tours Corp.,
233 So. 3d 1271, 1273 (Fla. 3d DCA 2017)
(quoting Empire World Towers, LLC v. CDR Créances, S.A.S.,
89 So. 3d
1034, 1038 (Fla. 3d DCA 2012)).
ANALYSIS
Section 44.102, Florida Statutes, permits a court to order parties to
engage in mediation and provides that “[c]ourt-ordered mediation shall be
conducted according to rules of practice and procedure adopted by the
Supreme Court.” Areizaga v. Bd. of Cnty. Comm'rs of Hillsborough Cnty.,
935 So. 2d 640, 643 (Fla. 2d DCA 2006) (citation omitted). Florida Rule of
Civil Procedure 1.720, governing mediation procedures, expressly
authorizes the imposition of sanctions upon a party as a penalty for failing to
appear at a duly noticed mediation conference. Fredericks v. Sturgis,
598
So. 2d 94, 96 (Fla. 5th DCA 1992); Fla. R. Civ. P. 1.720(f).
4
In the instant case, the gravamen of the disputed order was that
nonappearance at mediation demonstrated a flagrant disregard for court
order, justifying the ultimate sanction of dismissal. As Citizens correctly
posits, Florida Rule of Civil Procedure 1.720(b) requires the presence of a
party or party representative with full settlement authority and counsel of
record at mediation. The rule further mandates physical attendance, and a
“party representative having full authority to settle” is defined elsewhere in
the rules as “the final decision maker with respect to all issues presented by
the case who has the legal capacity to execute a binding settlement
agreement on behalf of the party.” Fla. R. Civ. P. 1.720(c).
Here, Abreu physically attended the conference accompanied by his
attorney, and Alvarez appeared telephonically, without objection. Further,
the affidavit filed in opposition to the sanctions motion, uncontroverted by
other sworn testimony, alleged both Alvarez and Gonzalez delegated final
settlement authority to counsel. These events do not warrant a finding that
all three homeowners willfully or contumaciously defied a court order.
Instead, the evidence presented below compels the conclusion Abreu fully
complied, Alvarez either complied or substantially complied, and Gonzalez
endeavored to comply with the edict of the order and rule. Nonetheless, as
Citizens urges, it is irrefutable that the record reflects no formal filing of a
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certificate of settlement authority. See Fla. R. Civ. P. 1.720(e) (“Unless
otherwise stipulated by the parties, each party, [ten] days prior to appearing
at a mediation conference, shall file with the court and serve all parties a
written notice identifying the person or persons who will be attending the
mediation conference as a party representative.”). Thus, the inconvenience
associated with the adjournment of mediation falls squarely upon Gonzalez
and, arguably, her counsel.
It is axiomatic that trial courts enjoy broad discretion and flexibility in
fashioning sanctions to enforce court orders. 2 Among these options is the
authority to strike the pleadings of a party or dismiss an action. See Fla. R.
Civ. P. 1.420(b) (“Any party may move for dismissal of an action or of any
claim against that party for failure of an adverse party to comply with these
rules or any order of court.”). Such discretion is not unbridled, however, as
it is widely presumed the interests of justice are best served by resolving
cases on their merits.
2
The homeowners correctly argue that where the actions of counsel are
implicated, the trial court must consider the six factors established in the
seminal case of Kozel v. Ostendorf,
629 So. 2d 817 (Fla. 1993) to determine
whether dismissal is appropriate and set forth explicit findings of fact in an
order imposing the sanction of dismissal. See Bank of Am., N.A. v. Ribaudo,
199 So. 3d 407, 408 (Fla. 4th DCA 2016). Here, the court did neither.
Because the homeowners did not raise this oversight at the hearing on the
motion to dismiss or by subsequently filing a motion for rehearing, however,
the issue is unreviewable on appeal.
Id. at 409.
6
Adhering to these principles, it is imperative that “courts strike the
appropriate balance between the severity of the infraction and the impact of
the sanction when exercising their discretion to discipline parties to an
action.” Ham v. Dunmire,
891 So. 2d 492, 499 (Fla. 2004). In this vein,
“because dismissal is the ultimate sanction in the adversarial system, it
should be reserved for those aggravating circumstances in which a lesser
sanction would fail to achieve a just result.” Kozel, 629 So. 2d at 818; see
also Gonzalez v. Trinity Marine Grp., Inc.,
117 F.3d 894, 899 (5th Cir. 1997)
(remanding “case to the district court for selection of an appropriate sanction
which fully addresses Plaintiff's egregious behavior, but falls short of the
ultimate sanction of dismissal of Plaintiff's entire claim with prejudice”);
Barnhill v. United States,
11 F.3d 1360, 1367 (7th Cir. 1993) (observing “the
particular sanction of dismissal with prejudice or judgment is ‘draconian,’ and
‘must be infrequently resorted to by [trial] courts’”) (citations omitted).
Applying these adages to the instant case, as two of the three
homeowners followed the directive of the court, dismissal was not
commensurate with the dereliction it sought to punish. Indeed, less
draconian, rule-based alternatives to case-determinative sanctions were
readily available to effectively remedy the troublesome delay in mediation.
Florida Rule of Civil Procedure 1.720(f) provides, “[i]f a party fails to appear
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at a duly noticed mediation conference without good cause, the court, upon
motion, shall impose sanctions, including award of mediation fees, attorneys'
fees, and costs, against the party failing to appear.” The specified penalties
have not been uniformly construed as exhaustive. See Smith v. Wal-Mart,
Inc.,
835 So. 2d 353 (Fla. 1st DCA 2003) (contemplating dismissal as an
appropriate sanction when failure to attend mediation is willful).
Nonetheless, our sister courts have widely embraced the position that
monetary penalties, such as those promulgated under the rule, adequately
serve to punish the non-compliant and negate any prejudice against the
opposing party. See H & R Block Bank v. Perry,
205 So. 3d 776, 781 (Fla.
2d DCA 2016) (determining “[v]iolations of rule 1.720 have typically been
addressed with” “sanctions that include attorney's fees and costs and
mediator expenses”); Mash v. Lugo,
49 So. 3d 829, 830 (Fla. 5th DCA 2010)
(“[I]f a party fails to appear at a duly noticed mediation conference without
good cause, the court may impose sanctions against the party failing to
appear. Accordingly, appellees are hereby ordered to pay [the mediator’s
and attorney’s fees as] sanctions.”); HDE, Inc. v. Bee-Line Supply Co. Inc.,
181 So. 3d 1285, 1287 (Fla. 5th DCA 2015) (finding “sanctions are
appropriate for a party's failure to appear at a court-ordered mediation” and
ordering party to pay mediation and attorney’s fees for failure to attend
8
mediation); Carbino v. Ward,
801 So. 2d 1028, 1031 (Fla. 5th DCA 2001)
(determining paying “mediator costs and attorney's fees” was sufficient
sanction for failure to appear at mediations without good cause); Carden &
Assocs., Inc. v. C.O.D. Trees P'ship,
83 So. 3d 862, 863 (Fla. 5th DCA 2012)
(ordering appellant to pay “all fees charged by the mediator in connection
with [the] appellate mediation; and, . . . [appellee’s] reasonable costs and
attorneys' fees incurred in preparing for and attending the appellate
mediation and filing the instant motion for sanctions” after appellant failed to
show for mediation); Harrelson v. Hensley,
891 So. 2d 635, 636-37 (Fla. 5th
DCA 2005) (ordering appellant pay all fees charged by the mediator,
appellee’s attorney’s fees incurred in conjunction with mediation, and a
monetary sanction for “willful failure to comply with [the] court's mediation
order”).
Declining to stray from these sagacious decisions, we conclude the
findings below do not pass muster. Any transgression in this case was not
so egregious as to warrant the ultimate sanction of dismissal. Thus, we
reverse the order under review and remand for further proceedings
consistent with this opinion.
Reversed and remanded.
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