Third District Court of Appeal
State of Florida
Opinion filed October 10, 2018.
Not final until disposition of timely filed motion for rehearing.
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No. 3D17-2715
Lower Tribunal No. 16-9644
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DSLRPros, Inc., et al.,
Appellants,
vs.
Eyal Lalo,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Jose M.
Rodriguez, Judge.
Xander Law Group, P.A., and Wayne R. Atkins, for appellants.
Law Offices of Shelley Ray Senecal, and Shelley Ray Senecal (Fort
Lauderdale), for appellee.
Before ROTHENBERG, C.J., and FERNANDEZ and SCALES, JJ.
SCALES, J.
DSLRPros, Inc. and Tayzu, Inc., the defendants below, appeal an order
entering what amounted to a default final judgment against them after the court
below struck the parties’ pleadings “for failure to comply with the court’s order
dated June 6, 2017.” The record reflects that the trial court entered two, separate
and distinct orders on June 6, 2017: (1) a discovery order directing the appellants
to produce discovery within thirty days; and (2) an order permitting the appellants’
attorney to withdraw as their counsel, and directing the appellants to retain new
counsel within twenty days. The appellees failed to comply with either order.
On this record, it is entirely unclear whether the trial court struck the
appellants’ pleadings for violation of the discovery order, for failure to timely
retain new counsel, or for both. Regardless of the reason, reversal is warranted
here because the trial court did not make, nor is there record evidence to support,
an express finding that the failure to comply with the trial court’s order(s) was the
result of willful or deliberate disregard of the court’s authority.1 See Ledo v.
Seavie Resources, LLC, 149 So. 3d 707, 710 (Fla. 3d DCA 2014) (confirming,
1 Nor could the trial court make such a finding as to Tayzu, Inc.’s failure to timely
retain new trial counsel. Though both appellants purportedly share the same chief
executive officer and both appellants hired the same trial counsel to defend this
action, trial counsel filed separate pleadings on behalf of the appellants in the
lower proceedings. The motion to withdraw as counsel, titled “Agreed Ex-Parte
Motion to Withdraw as Counsel for DSLRPros, Inc.” represented that
“DSLRPROS, INC.’s representative” had agreed to the withdrawal “for
DSLRPROS, Inc.” No mention is made in the motion as to Tayzu, Inc. Nor did
trial counsel ever file a separate motion to withdraw directed at Tayzu, Inc.
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where the party was sanctioned for his own failure to comply with discovery
orders while he was acting pro se, that “[e]xpress findings are required to ensure
that the trial judge has consciously determined that the failure was more than a
mistake, neglect, or inadvertence, and to assist the reviewing court to the extent the
record is susceptible to more than one interpretation” (quoting Ham v. Dunmire,
891 So. 2d 492, 496 (Fla. 2004))); Toll v. Korge, 127 So. 3d 883, 887 (Fla. 3d
DCA 2013) (recognizing, where a party is sanctioned for counsel’s failure to
comply with discovery orders, that the trial court must apply the six-factor test set
forth in Kozel v. Ostendorf, 629 So. 2d 817 (Fla. 1993) and make express written
findings of fact to support the conclusion that the failure to obey the court orders
“demonstrates willful or deliberate disregard”); Baja Vill. Markets, Inc. v. Baja
Supermarket, Inc., 712 So. 2d 465, 466 (Fla. 3d DCA 1998) (concluding, where
the trial court struck the defendant’s pleadings for failure to comply timely with a
court order directing the defendant to retain new counsel, that the “striking of a
party’s pleadings is a severe sanction which can only be imposed upon a party’s
willful and deliberate disregard of a court’s authority,” noting that “mere
noncompliance with a court order, standing alone, is insufficient to indicate
willfulness”). Accordingly, we reverse the final judgment on review and remand
this case to the trial court for further proceedings consistent with this opinion.
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Reversed.
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