SHERRIE CLEMENTS

v.

CLUB SPACE MANAGEMENT, LLC, D/B/A CLUB SPACE

Third District Court of Appeal State of Florida

Opinion filed January 24, 2024. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D22-2016 Lower Tribunal No. 18-15418 ________________

Sherrie Clements, Appellant,

vs.

Club Space Management, LLC, d/b/a Club Space, Appellee.

An Appeal from the Circuit Court for Miami-Dade County, David C. Miller, Judge.

Sherrie Clements, in proper person.

Cole, Scott & Kissane, P.A., and Lissette Gonzalez and Carly M. Weiss, for appellee.

Before HENDON, GORDO and BOKOR, JJ.

BOKOR, J.

2

Sherrie Clements appeals the trial court’s striking of her pleadings for her repeated failures to comply with discovery deadlines and court orders. The trial court didn’t strike pleadings for the first or second violation, or for technical violations, but instead struck the pleadings after giving Ms. Clements, by that time representing herself, multiple opportunities to comply or cure the violations. And Ms. Clements didn’t provide incomplete or partial responses; rather, Ms. Clements provided no responses to overdue discovery even after multiple attempts and deadlines and failed to provide a witness or exhibit list on the eve of trial. While the striking of pleadings is a severe sanction, based on the facts of this case, we cannot say the trial court abused its discretion. Ms. Clements sued Club Space in tort for an injury allegedly caused by a club-employed security guard’s negligent handling of her, which caused her to trip over a railing and fall. The trial court ordered non-binding arbitration, which occurred in January 2022. After arbitration, Ms. Clements sought a trial de novo. In March 2022, Ms. Clements’ counsel withdrew. Ms. Clements proceeded pro se. In April 2022, the trial court entered a uniform trial order setting the trial for October 2022. The trial order contained pretrial deadlines and the warning that failure to comply may result in sanctions as deemed proper by the trial court, including the striking of pleadings.

1 The fact that Ms. Clements represented herself means that the trial court wasn’t required to engage in an analysis of the factors set forth in Kozel v. Ostendorf, 629 So. 2d 817 (Fla. 1993). See, e.g., Ledo v. Seavie Res., LLC, 149 So. 3d 707, 710 (Fla. 3d DCA 2014) (“Since Ledo was sanctioned for his own failures to comply with court orders while he was acting pro se, Kozel has no application here.”). Instead, we review the sanctions as outlined in Ham v. Dunmire, 891 So. 2d 492, 495 (Fla. 2004), and Mercer v. Raine, 443 So. 2d 944, 946 (Fla. 1983).

2 It is better practice to provide written findings in an order striking pleadings for willful and contumacious disregard of discovery orders. Indeed, in many circumstances, such failure will result in reversal. But here, as in Ledo, the record reflects that the trial court repeatedly warned Ms. Clements that she needed to comply with discovery orders, and she was on notice that such failure to comply could result in sanctions including striking of pleadings. The record shows that this was not technical noncompliance, a few days late, partial compliance, or the like, but “was the result of [Ms. Clements’] willful and deliberate disregard of the court’s orders, rather than any mistake or inadvertence.” Ledo, 149 So. 3d at 711. Further, “[u]nder the circumstances of this case—where the record demonstrably establishes [Ms. Clements’] deliberate disregard of the trial court’s order[s]—we do not find any reversable error in the trial court’s failure to provide written findings of fact.” Id.; see also Ham, 891 So. 2d at 496 (requiring express findings “to the extent the record is susceptible to more than one interpretation”). Here, the record is clear and not susceptible to multiple interpretations.