YOLANDA ALVAREZ v. CITIZENS PROPERTY INSURANCE CORPORATION

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

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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).

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 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.

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 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

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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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