Third District Court of Appeal
State of Florida
Opinion filed .
Not final until disposition of timely filed motion for rehearing.
________________
No. 3D14-85
Consolidated: 3D13-2612
Lower Tribunal No. 11-20930
________________
Celebrity Cruises, Inc.,
Appellant,
vs.
Vicente J. Fernandes,
Appellee.
Appeals from the Circuit Court for Miami-Dade County, David C. Miller,
Judge.
Holland & Knight, Rodolfo Sorondo, Jr. and Christopher Bellows, for
appellant.
Meister Law and Tonya J. Meister; Colson Hicks Eidson Colson Matthews
Martinez Gonzalez Kalbac & Kane, Maureen E. Lefebvre and Ervin A. Gonzalez,
for appellee.
Before WELLS, EMAS and LOGUE, JJ.
WELLS, Judge.
Celebrity Cruises, Inc., the defendant in this negligence action brought by an
injured seaman, appeals from a default final judgment entered after its pleadings
were stricken as a discovery sanction. Because the sanction order was entered
without prior notice or opportunity to be heard, we reverse the judgment predicated
on it and remand for further proceedings consistent with this opinion.
This action was filed on July 6, 2011, by Vicente J. Fernandes a seaman
allegedly injured during a fight with another crewmember while aboard a Celebrity
cruise ship. Early on and in response to interrogatories propounded with the initial
complaint, Celebrity disclosed that the altercation had been witnessed by a number
of crewmembers.
On October 14, only three months after this action was filed, Fernandes’s
counsel notified the court and opposing counsel that she would be unavailable for
approximately 10 weeks, or through December 30, 2011, due to a planned leave.
Despite the fact that counsel was unavailable to move this case forward and that no
depositions had been taken or discovery conducted, on December 5, Fernandes’s
counsel notified the court that this case was at issue and ready for trial. Two days
later, on December 7, 2011, an order was issued setting this matter for trial for the
one-week trial period commencing March 19, 2012. That order, among other
things, required the parties (1) within 60 days of Monday of the week of March
19—that is, by January 19—to exchange the names and addresses of all expert
2
witnesses and to complete all medical evaluations and examinations; (2) within 45
days of Monday of the week of March 19—that is, by February 4—to exchange
written witness and exhibit lists and to make all exhibits available to opposing
counsel for copying and examination; and, (3) within 15 days of Monday of the
week of March 19—that is, by March 4—to have completed all discovery and pre-
trial motions and to have attended mediation.
Needless to say, none of this was going to nor actually did happen.
On December 28, Celebrity propounded its first set of interrogatories and
request for production on Fernandes. On January 17, 2012, Celebrity filed an
unopposed motion to continue the trial representing that Fernandes had not yet
been deposed nor had he undergone a compulsory medical examination. Celebrity
also advised the court below that virtually no discovery had taken place and that
the action was “not ready to be tried.” Shortly thereafter, Fernandes requested an
extension of time to respond to Celebrity’s discovery requests. The trial was
continued to September 2012.
On February 22, 2012, counsel for Fernandes notified the court and
opposing counsel that she would be unavailable to advance this litigation for one
week at the end of March and for another week at the end of June 2012. On May
18, Celebrity filed its privilege log. It simultaneously noticed the filing of its
3
responses to Fernandes’s request for production, request for admissions, and
interrogatories.
On June 7, Fernandes moved to compel Celebrity to provide dates for the
depositions of the crewmember who allegedly assaulted Fernandes and the
crewmembers who investigated the incident; Fernandes also sought to compel a
date on which he might inspect the vessel on which the fight occurred. An agreed
order on this motion was entered requiring Celebrity within 7 days to provide
Fernandes with dates for the requested depositions which were to take place within
60 days. That same day, July 11, 2012, the trial was continued again, this time to
the three week trial period beginning February 4, 2013. Less than a week later,
Fernandes’s counsel notified the court that she already had a trial set for that week
and would be unavailable for trial of this matter at that time.
On August 20, 2012, Celebrity notified Fernandes’s counsel that the vessel
on which Fernandes allegedly was injured had been on “the west coast consistently
throughout the year,” but that it would be in Ft. Lauderdale on December 19, 2012
and January 18, 2013 and could be inspected locally on those days. Fernandes’s
counsel advised Celebrity that she would inspect the vessel on December 19 in Ft.
Lauderdale.
Two days later, Celebrity notified Fernandes’s counsel that its corporate
representative would be available for deposition on either November 13 or 15,
4
2012. While Fernandes was willing to take this deposition at the beginning of
October, she refused to wait until mid-November and moved to compel not only a
more timely date for the deposition of Celebrity’s corporate representative but also
compliance with the July 11 order to provide dates for the depositions of the
crewmember who allegedly injured Fernandes and the crewmembers who
investigated the incident in which he was injured. The motion to compel a more
timely date for the corporate representative’s deposition was, in effect, denied,
with the deposition being ordered for November 15, one of the dates proposed by
Celebrity. With regard to the other depositions, Celebrity was ordered to provide
a date for the deposition of investigator Ira Warder and shipboard investigator or
investigators within 7 days.
That same day, September 27, 2012, Celebrity moved to compel Fernandes,
a resident of India, to appear in Miami for his deposition and a compulsory medical
examination. Shortly thereafter, Fernandes moved to compel the depositions of 11
crewmembers who allegedly had knowledge of the incident in which Fernandes
claimed he was injured. On September 27, Fernandes was ordered to appear
within 45 days to be deposed and examined and to appear in Miami for trial. In a
separate order dated October 18, 2012, Celebrity was ordered to provide, within 30
days, the “schedule, ship assignment and deposition availability [for the
crewmembers who had been identified by Celebrity as witnessing the fight],”
5
along with their contact information. Celebrity also was ordered to provide, within
30 days, contact information for those crewmembers no longer employed by it.
Finally the court ordered Fernendes’s deposition to be taken first before the
deposition of any of these crewmembers.
On October 29, Celebrity advised Fernandes’s counsel that one of the ship’s
investigators, Anton Kogan, was currently aboard a Celebrity ship in Europe but
that the ship would be in port in Miami in December and that Celebrity was
“aiming for Dec 3 in Miami” for his deposition, if not in person then via telephone.
In response, Fernandes’s counsel agreed to take Kogan’s deposition on December
3, if she were available and if not during the second week in December. Counsel
for Fernandes further advised that she would be taking Ira Warder’s deposition on
November 28. Upon receipt of this information, Celebrity advised that December
3 was not an option for Kogan but agreed to Fernandes’s counsel’s suggestion of
the following week and offered either December 7, 8, or 10, for Kogan’s
deposition. But because Celebrity’s counsel was set for trial during the week of
December 7, Celebrity notified Fernandes’s counsel that it was not available for
depositions during that week after all. Celebrity also inquired about Fernandes’s
availability for deposition which was to take place before that of any crewmember
and by mid-November. While stating that she was “happy to work with [counsel
for Celebrity] on the dates for the deposition of Anton Kogan, the ship board
6
investigator, to accommodate [his] trial,” Fernandes’s counsel advised that if a date
for this deposition was not provided within a week, she would “seek court
intervention.” As for Fernandes’s availability, she further advised Celebrity that
she would “let [it] know.”
When Celebrity was not able to provide deposition dates to counsel for
Fernandes as demanded, Fernandes filed a motion to sanction Celebrity for its
failures to comply with the July 11 and September 27 court orders to provide dates
for crewmember and investigator depositions. This motion was never heard
because the parties jointly moved on December 17 to continue the scheduled trial.
In that joint motion, the parties represented that it would be best if the trial were
continued (1) because only the deposition of investigator, Ira Warder, had been
taken; (2) because the deposition of Celebrity’s corporate representative had
commenced but had not yet been completed because of scheduling conflicts1; (3)
because the parties were working with each other to schedule a deposition of the
ship’s other investigator, Anton Kogan, which had not been taken because he
“recently [had] been off contract and unavailable”2; and (4) because Fernandes—
who was to be deposed before the crewmembers—“ha[d] encountered difficulty
1 The corporate representative’s deposition subsequently was set to continue on
January 17, 2013.
2 Kogan’s deposition subsequently was set for February 1, 2013.
7
securing a travel visa, frustrating efforts to coordinate his deposition.” The trial
was reset for the three week trial period commencing May 6, 2013.
In February 2013, Fernandes moved to compel better answers to Celebrity’s
interrogatories and to compel the deposition of Tony Faso, the individual identified
by Celebrity as having decided Fernendes’s entitlement to maintenance and cure.
Celebrity agreed to an order providing for better answers to some of its
interrogatories. In a separate order dated February 20, 2013, Tony Faso was
ordered to appear for deposition within 30 days with Fernandes to be deposed “via
skype or videoconferencing following Faso’s deposition.” Celebrity was not,
however, obligated to take Fernandes’s deposition within 30 days if it decided to
go to India to depose him.
Two weeks later, on March 7, 2013, Fernandes filed a motion to compel
compliance with the court’s earlier October 18, 2012 order. While the motion
claimed that Celebrity had failed to provide information regarding five of the
eleven crewmembers who allegedly had witnessed the incident in which Fernandes
was injured, the purpose of the motion was to secure relief from the September 27,
2012 order that required Fernandes to be deposed before any crewmembers:
4. Although the Court ordered the [crewmember] depositions to be
set following the Plaintiff ’s deposition, the Court entered an Order on
February 20, 2013 requiring the deposition of the Plaintiff within
thirty (30) days. See Order attached as Exhibit “B”. Defendant was
allowed the option of going to India should it choose and, if so, the
thirty (30) day limitation would not be applicable.
8
5. Plaintiff requests this Court order the depositions of the witness
crewmembers following the thirty (30) day time period that Defendant
had to take Plaintiff’s deposition (on or before March 22, 2013). If
Defendant chooses to delay the Plaintiff[’]s deposition past March 22,
2013, then Plaintiff should thereafter be allowed to proceed with the
witness crew member depositions. Plaintiff’s trial preparation should
not be prejudiced by Defendant’s voluntary delay with respect to the
Plaintiff’s deposition. Plaintiff requests the witness crewmembers’
depositions take place between March 23, 2013 and April 11, 2013.
This motion (which provided the predicate for the trial court’s order striking
Celebrity’s pleadings) sought no sanctions in its title, in its body, or in its request
for relief.
Indeed, attorney discussions on March 19, one day before the hearing on this
motion, memorialized by e-mails, made no mention of sanctions. In fact, the
afternoon before the hearing, the parties were trying to work out a deposition
schedule with Fernandes’s attorney suggesting the exchange of crewmember
information and a 30-day deposition schedule:
Regarding Plaintiff’s Motion to Compel Compliance with Court Order
dated October 18, 2012 and to Compel Crewmember Depositions, you
indicated Celebrity will be providing the information regarding the
crew members [sic] locations this Friday [March 22]. I propose an
agreed order for Defendant to produce the crew members for
deposition within 30 days thereafter. In addition the crew depos will
not be dependant [sic] on Plaintiff’s deposition date considering
Defendant has not yet advised of its intentions regarding Plaintiff’s
deposition. Let me know if Celebrity is agreeable to that compromise.
If so, we can submit an Agreed Order.
9
Although the parties could not agree as to the timing of Fernandes’s
deposition, there was no hint that any sanctions were contemplated or were to be
imposed. However, at the March 20 motion-calendar hearing which followed,
without notice and without sanctions having been requested or ever previously
imposed in the matter, the trial court sua sponte entered an order sanctioning
Celebrity striking its pleadings,3 entering the default on liability, and ordering a
trial on damages alone:
Order granting Plaintiff’s Motion to Compel Compliance with
Court Order
3 There is no transcript of the March 20, 2013 hearing. Fernandes maintains this
mandates affirmance. We cannot agree. In the instant case, the error appears on
the face of the record which grants relief not noticed and without the requisite
evidentiary hearing, findings, or due process. See Hill v. Calderin, 47 So. 3d 852,
854 (Fla. 3d DCA 2010) (“Generally, where an appellant fails to provide the
appellate court with a trial transcript, the trial court’s judgment must be affirmed.
Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150 (Fla. 1979).
Notwithstanding the absence of a transcript, however, an appellate court may
review a lower court judgment for error apparent on its face.”); Connell v. Capital
City Partners, LLC, 932 So. 2d 442, 443-44 (Fla. 3d DCA 2006) (“We find that the
order on appeal reflects an error on its face, as it reveals a denial of due process.
Specifically, the order reflects that the only motion set for hearing was a motion to
dismiss. The trial court, however, went beyond a determination of the motion to
dismiss, by also requiring Connell to transfer $49,000 to Capital City.”) (footnote
omitted); see also Alsina v. Gonzalez, 83 So. 3d 962, 965 (Fla. 4th DCA 2012)
(“The Gonzalezes argue that an affirmance [of the discovery sanction order at
issue] is required because the Alsinas have not provided a transcript of the hearing
where those factors [enunciated in Kozel] may have been considered. We disagree
that a transcript is necessary where the order is devoid of any consideration of the
factors. In fact, no transcript of the sanction hearing was available in Ham [v.
Dunmire, 891 So. 2d 492 (Fla. 2004)], and the order contained language finding
willful conduct. Despite this, the supreme court still remanded for the trial court to
conduct a Kozel [v. Ostendorf, 629 So. 2d 817 (Fla. 1993)] analysis.”).
10
This Cause having come to be heard on March 20, 2013 on
Plaintiff’s Motion to Compel Compliance with Court Order dated
October 18, 2012 and Compel Crew Depositions[,] and the court
having heard arguments of counsel, and being otherwise advised in
the premises, it is hereupon ORDERED AND ADJUDGED that said
motion be and the same is hereby
Granted as follows: Court finds Defendant’s failure to comply
with Court’s Order was intentional delay and prejudiced Plaintiff’s
preparation for the May 2013 [trial] and there is insufficient time to
conduct depositions now. As such, this Court strikes Defendant’s
pleadings and this matter shall proceed to trial on damages only.
Default judgment against defendant on liability.
(Emphasis added).
Celebrity, by that time had actively engaged in substantial discovery and
was prepared to exchange extensive exhibit and witness lists in anticipation of the
upcoming trial. Within days of this order, Celebrity provided better answers to
Fernandes’s interrogatories as agreed; it also set Fernandes and others for
deposition and provided witness and exhibit lists. It also moved for
reconsideration of the order striking its pleadings and entering default on liability.
The motion was denied in an order stating only:
Denied based on reasons set forth in Pltff’s [sic] response in
opposition [to the motion for rehearing]. Court notes non-compliance
with orders dated 7/11/12; 9/27/12; 10/18/12; and 2/20/13
This matter thereafter proceeded to jury trial without Fernandes—who was
unable to secure a visa—and resulted in a $2.5 million damage award. Celebrity
appeals; we reverse.
11
While Celebrity argues a number errors mandating reversal, we need go no
further than the total lack of notice to Celebrity that sanctions were going to be
considered much less imposed and the lack of an opportunity to present evidence
on this issue, to conclude reversal is required. First, “the granting of relief, which
is not sought by the notice of hearing or which expands the scope of a hearing and
decides matters not noticed for hearing, violates due process.” Connell, 932 So. 2d
at 444 (citations omitted). In his March 7, 2013 motion, Fernandes neither moved
for sanctions nor asked to have Celebrity’s pleadings stricken and the court below
did not issue an order to show cause as to why sanctions should not be imposed.4
Thus, we agree with Celebrity that the court below had no authority to strike its
pleadings on March 20 or to otherwise impose the sanction ordered. See Keys
Island Props., LLC v. Crow, 97 So. 3d 329, 330-31 (Fla. 3d DCA 2012) (observing
the trial court could not determine matters not the subject of a proper pleading and
notice and citing Pro–Art Dental Lab, Inc. v. V–Strategic Grp., LLC, 986 So. 2d
1244, 1252 (Fla. 2008) (quoting Carroll & Assocs., P.A. v. Galindo, 864 So. 2d 24,
28–29 (Fla. 3d DCA 2003)) (“noting that ‘Florida law clearly holds that a trial
4 Fernandes had filed a motion for sanctions in December of 2012, however a
motion to compel better answers followed and the next order from the trial court
was the February 20, 2013 “Agreed Order Granting Plaintiff’s Motion to Compel
Better Int. Answers.” The March 7 motion requested only an order compelling
Celebrity to comply with the trial court’s October 18, 2012 order and “any other
relief this Court deems appropriate,” an insufficient basis for the sanction that
followed.
12
court lacks jurisdiction to hear and to determine matters which are not the subject
of proper pleading and notice’ and ‘[t]o allow a court to rule on a matter without
proper pleadings and notice is violative of a party’s due process rights’”)
(emphasis removed) and Mizrahi v. Mizrahi, 867 So. 2d 1211, 1213 (Fla. 3d DCA
2004) (“Due process protections prevent a trial court from deciding matters not
noticed for hearing and not the subject of appropriate pleadings.”)); Atala v.
Kopelowitz, 664 So. 2d 1156, 1157 (Fla. 3d DCA 1995) (holding that striking of
pleadings for failure to comply with discovery was error where party was not given
notice that such a sanction was being considered); Epic Metals Corp. v. Samari
Lake E. Condo. Ass’n, Inc., 547 So. 2d 198, 199 (Fla. 3d DCA 1989) (“A trial
court violates a litigant’s due process rights when it expands the scope of a hearing
to address and determine matters not noticed for hearing.”).
Second, while it is well established that “determining sanctions for discovery
violations is committed to the discretion of the trial court,” dismissal of an action
or striking a party’s pleadings and entry of a default for failure to comply with a
discovery order is “the most severe of all sanctions which should be employed only
in extreme circumstances.” Ham v. Dunmire, 891 So. 2d 492, 495 (Fla. 2004)
(citing Mercer v. Raine, 443 So. 2d 944, 946 (Fla. 1983)). Thus, “[w]here a trial
court fails to make express written findings of fact to support a conclusion that a
party’s failure to obey court orders demonstrates willful or deliberate disregard, the
13
dismissal of such action [or the striking of a party’s pleadings] constitutes an abuse
of discretion.” Toll v. Korge, 127 So. 3d 883, 887 (Fla. 3d DCA 2013).
Moreover, to ensure that a litigant is not unduly punished for failures of counsel, a
trial court must consider those factors delineated by the Florida Supreme Court in
Kozel to determine whether dismissal or striking of a party’s pleadings is an
appropriate sanction for an attorney’s rather than a client’s behavior.5 See Kozel v.
Ostendorf, 629 So. 2d 817, 818 (Fla. 1994); see also Korge, 127 So. 3d at 887
(“[t]he Kozel factors ensure that a sanction is directed towards the party
responsible for the error or misconduct”).
In this case, the trial court did not conduct an evidentiary hearing6 before
striking Celebrity’s pleadings to determine whether Celebrity or its lawyers had
violated any court orders by failing to engage in meaningful discovery. Nor did it
make findings necessary to support its sanctions order.7 These failures also require
5These factors are: (1) whether the attorney’s disobedience was willful, deliberate,
or contumacious, rather than negligent or uninformed; (2) whether the attorney has
been sanctioned previously; (3) whether the client was personally involved in the
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 a reasonable justification for noncompliance; and, (6) whether the delay
created significant problems for judicial administration. See Kozel, 629 So. 2d at
818.
6The March 20, 2013 hearing was an add-on to the trial court’s five minute motion
calendar, it was not an evidentiary hearing.
7Attempts to justify the March 20, 2013 sanction order by later order citing to a
number of orders (dated 7/11/12; 9/27/12; 10/18/12; and 2/20/13) and an unsworn
14
reversal here. See TICO Ins. Co. v. Schonning, 960 So. 2d 6, 6 (Fla. 3d DCA
memorandum of law filed by Fernandes’s counsel after Celebrity’s pleadings were
stricken does not satisfy these requirements.
The July 11, 2012 order read:
Agreed ORDER GRANTING/DENYING
PLAINTIFF’S/DEFENDANT’S Motion to Compel
THIS CAUSE having come to be heard on July 11, 2012 on
Plaintiff’s/Defendant’s Motion to Compel Depositions and Vessel
Inspection and the Court having heard arguments of counsel, and
being otherwise advised in the premises, it is hereupon
ORDERED AND ADJUDGED that said Motion be, and the
same is hereby
Granted. Defendant to provide dates for the requested
depositions within (7) seven days and for the depositions to be
conducted within (60) sixty days. Parties may mutually agree to
different dates.
(Some emphasis added).
The record shows that the vessel was being made available to Fernandes upon its
return to a local port. There is no showing that Fernandes was denied access at any
other port at which this vessel called had his counsel wanted to go there. Also, the
depositions of the ship’s investigators had either begun or were scheduled when
Celebrity’s pleadings were stricken. The same applies to the deposition of
Celebrity’s corporate representative.
The September 27, 2012 order read:
Agreed ORDER GRANTING/DENYING
PLAINTIFF’S/DEFENDANT’S Motion for Compliance
THIS CAUSE having come to be heard on September 27, 2012
on Plaintiff’s/Defendant’s Motion to Compel Compliance with Court
Order and the Court having heard arguments of counsel, and being
otherwise advised in the premises, it is hereupon
15
2005) (“Because the pleadings were struck in the absence of an evidentiary
ORDERED AND ADJUDGED that said Motion be, and the
same is hereby
Granted as follows:
Deposition of Defendant’s corporate representative shall take
place on November 15, 2012. Defendant shall provide proposed dates
for deposition for Ira Warder and shipboard investigator(s) within
seven (7) days.
(Some emphasis added).
Again, these depositions had already been taken, had commenced, or were
scheduled when Celebrity’s pleadings were stricken.
The October 18, 2012 order read:
Order GRANTING/DENYING
PLAINTIFF’S/DEFENDANT’S Motion to Compel Crew Member
Depos
THIS CAUSE having come to be heard on October 18, 2012
on Plaintiff’s/Defendant’s Motion to Compel Crew member
Depositions and the Court having heard arguments of counsel, and
being otherwise advised in the premises, it is hereupon
ORDERED AND ADJUDGED that said Motion be, and the
same is hereby
Granted. Defendant shall provide crew members schedule, ship
assignment and deposition availability within 30 days. These
depositions will be set following Plaintiff’s deposition. Plaintiff
shall update Defendant on Plaintiff’s visa status/ability to travel to
US within 60 days. Defendant shall provide contact information for
crewmembers no longer employed within 30 days.
(Some emphasis added).
16
hearing, we reverse.”); Bank One, N.A. v. Harrod, 873 So. 2d 519, 521 (Fla. 4th
Although Celebrity apparently provided the information ordered for only six of the
eleven crewmembers at issue, it failed to timely provide the information sought for
the other five crewmembers. This failure did not prejudice Fernandes because
none of these individuals could be deposed until after Fernandes had made himself
available here—something that he could not do—for examination and deposition.
Moreover, Celebrity had advised Fernandes’s counsel that the information sought
would be made available, and actually was made available, on March 22, 2013,
only two days after the motion to compel this information was set.
Two orders dated February 20, 2013.
The first February 20 order read:
ORDER GRANTING/DENYNG
PLAINTIFF’S/DEFENDANT’S Motion to Compel Fasos [sic]
Deposition
THIS CAUSE having come to be heard on February 20, 2013
on Plaintiff’s/Defendant’s to Compel Deposition of Tony Faso and the
Court having heard arguments of counsel, and being otherwise
advised in the premises, it is hereupon
ORDERED AND ADJUDGED that said Motion be and the
same is hereby
Granted. Tony Faso shall appear for deposition within the next
30 days. Court sua sponte orders Plaintiff to be deposed via Skipe or
videoconferencing following Faso’s deposition. If [Defendant] wants
to go to India the 30 day limitation/requirement is not applicable.
The second February 20 order:
This order was an Agreed Order on Plaintiff’s “Motion to Compel Better Answers
to As Well as Sworn Answer[s] to Plaintiff’s Interrogatories.” That order listed a
number of questions requiring better responses but again made no mention
whatsoever of sanctions. It read:
Agreed as follows: Defendant shall provide sworn answers/jurat
page; telephone #s of the individuals* disclosed in #1 and #8; better
17
DCA 2004) (“Where, as here, there is no indication that the trial court considered
[the Kozel] factors . . . reversal has been required.”)”); Franchi v. Shapiro, 650 So.
2d 161, 162 (Fla. 3d DCA 1995) (“Before this ultimate sanction [the striking of
pleadings or entering a default for noncompliance with an order compelling
discovery] can be entered . . . a party must be given notice and an opportunity to be
heard. This opportunity to be heard 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.”) (citations omitted); see also Alsina, 83 So. 3d at 964 (“While
dismissal of a complaint for non-compliance with a court order is subject to an
answer to #18 with an MM I date or “none”; in response to #13
Defendant shall produce all of Plaintiff’s pay slips for 2009; Objection
to #14 withdrawn; will provide better answers to #14 and #15 + #23;
#24 (2nd) language following “including but not. . .” stricken and . . .
withdraws objection and will provide better answer.
Compliance within 30 days.
*no longer employed by cruise line
(Emphasis added).
Celebrity provided the better answers as agreed and was only obligated to take
Fernandes’s deposition in 30 days if it opted to do so via skype or videoconference.
It also noticed his deposition for April 2, 2013, within 30 days of the March 20
order.
These orders, neither individually nor in concert, would have alerted Celebrity that
some sanction, much less that its pleadings were subject to being stricken, was
being contemplated by the court on March 20.
18
abuse of discretion standard of review, Erdman v. Bloch, 65 So. 3d 62, 65 (Fla. 5th
DCA 2011) (citing Bank One, N.A. v. Harrod, 873 So. 2d 519, 520 (Fla. 4th DCA
2004)), failure to apply the standards for the sanction of dismissal set forth in
Kozel . . . is in itself a basis for reversal and remand for application of those
standards. Ham v. Dunmire, 891 So. 2d 492, 500 (Fla. 2004).”).
Third, the record does not support the trial court’s conclusion that
Celebrity’s delay in taking Fernandes’s deposition left Fernandes with insufficient
time before the scheduled May trial to take the remaining crewmembers’
depositions. To the contrary, when Fernandes sought relief from the October 18
2012 order which required his deposition to be taken before that of any
crewmembers, he proposed a 30-day deposition schedule for these individuals
“between March 23, 2013 and April 11, 2013,” and represented this schedule as
being sufficient for him to prepare for the upcoming May trial. Thus, the trial
court’s March 20 conclusion that Fernandes was incurably prejudiced because
“there is insufficient time to conduct depositions now,” is not only unsupported by
the record but also contradicted by it. See Beaver Crane Serv., Inc. v. Nat’l Sur.
Corp., 373 So. 2d 88, 89 (Fla. 3d DCA 1979) (sanction of dismissal was error
where appellee was not prejudiced in any meaningful way by appellant’s
tardiness).
19
Finally, the record below fails to demonstrate the level of disobedience or
inappropriate behavior that would justify imposition of the litigation/liability death
penalty. This matter was first noticed for trial in December of 2011 by counsel for
Fernandes only six months after this action was filed and at a time when neither
party was prepared to try this case. While Celebrity may have engaged in some
discovery “foot dragging” along the way, all of the delays incurred below cannot
be attributed to it. Indeed, this matter was reset for trial a number of times, often
on agreement of the parties and on occasion to accommodate the schedule of
Fernandes’s trial counsel. Some of the delays certainly must be attributed to
Fernandes’s inability to secure a visa to enter the country so that he could be
examined and deposed.
The record also shows that both parties were diligently pursuing this matter
and had engaged in substantial negotiations over, and agreed for the most part
about, discovery. The parties also had attended mediation, secured expert
witnesses, and prepared extensive witness and exhibit lists. In short, the parties
were close to being ready for trial when the court below sunk Celebrity’s case
without so much as the proverbial warning shot across the bow.
As this court and others before us have made clear, the ultimate penalty for
discovery sanctions must be reserved for the most egregious cases. See, e.g.,
Franchi, 650 So. 2d at 162 (quoting Mercer, 443 So. 2d at 946 for the proposition
20
that “the striking of pleadings or entering a default for noncompliance with an
order compelling discovery is the most severe of all sanctions which should be
employed only in extreme circumstances”). This is not a case where such a
sanction is warranted.
We therefore reverse the judgment in Fernandes’s favor and remand for a
trial on the merits. In light of this reversal, we decline to address the remainder of
the arguments advanced by Celebrity.
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