Ledo v. Seavie Resources, LLC

Third District Court of Appeal

State of Florida

Opinion filed September 17, 2014.

Not final until disposition of timely filed motion for rehearing.

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No. 3D14-21

Lower Tribunal No. 12-6752

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David Ledo,

Appellant,

vs.

Seavie Resources, LLC,

Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Darrin P.

Gayles, Judge.

T.P. Murphy’s Law P.A., and Thomas P. Murphy, for appellant.

De La Cruz & Cutler, LLC, and H. Jeffrey Cutler; Albert D. Viener, for

appellee.

Before WELLS, EMAS and SCALES, JJ.

WELLS, Judge.

This is a straight forward mortgage foreclosure action to which defendant

below, Appellant here, David Ledo, asserted no valid defenses, and, after his

attorney withdrew because of irreconcilable differences, continued to represent

himself. Ledo appeals from a resulting Final Judgment of Foreclosure entered by

the trial court after the entry of an earlier order striking Ledo’s pleadings. Upon

failure to respond to interrogatories, and following an order to show cause why his

pleadings should not be stricken for failure to comply with discovery demands,

Ledo’s pleadings were stricken by the trial court. Because the record is devoid of

any excuse or hint of explanation for Ledo’s failure to comply with an express

court order to respond to discovery, we affirm.

I. Facts

This action to collect on a $165,000 promissory note and to foreclose the

mortgage securing it was filed by Seavie Resources, LLC on February 22, 2012.

After Ledo’s attorney, Joshua Bliel of The Ticktin Law Group, P.A., requested an

enlargement of time to respond, an answer generally denying the allegations of the

sworn complaint and a single affirmative defense were asserted. In sum, the

defense stated:

The Defendant raises as his First Affirmative Defense the defense of

Unclean Hands, as the Defendant has made several attempts to repay

the amounts alleged to be due pursuant to the negotiations between

the Plaintiff and Defendant, but the agents of the Plaintiff have failed

to abide by those negotiations.

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This answer and defense were filed on June 5, 2012, and, that same day,

Seavie propounded its first set of interrogatories on Ledo. No answers or

responses to these interrogatories were served within the thirty-day time limit as

required by the relevant rule. See Fla. R. Civ. P. 1.340(a). Rather, an agreed order

was entered granting Ledo until August 22, 2012, in which to respond.

On September 5, 2012, two weeks after answers to Seavie’s interrogatories

were due, Seavie moved to compel and for sanctions for Ledo’s failure to timely

respond. That same day, Ledo’s counsel moved to withdraw citing to

“irreconcilable differences.” On September 13, the motion to withdraw was

granted, and Ledo was ordered to either retain new counsel within thirty days or

advise the court whether he was going to represent himself. That same order

clearly advised Ledo that his failure to either retain new counsel or advise the court

that he would continue to represent himself could result in imposition of sanctions,

including striking of his pleadings:

THIS CAUSE, having come before this Court on September

13, 2012 on Motion to Withdraw as Counsel for Defendant David

Ledo [hereinafter “CLIENT”], and appropriate notice having been

given, it is hereby,

ORDERED AND ADJUDGED as follows:

1) The Motion to Withdraw is GRANTED.

2) Movant shall mail a copy of this order to Client forthwith.

3) Within 30 days from the date of this order, Client shall either:

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a. Retain new counsel and have that counsel file a written

appearance with the clerk; OR

b. File a written notice with the clerk advising that Client

will represent himself/herself. . . .

4) Failure to comply with the preceding paragraph, will create a

presumption that Client no longer wishes to participate in this

lawsuit and the Court may sua sponte or on motion of opposing

party impose sanctions against Client. Sanctions may include

the imposition of fees and costs, striking of pleadings, entry of

default, and dismissal with prejudice.

5) In the interim, Client is required to comply with orders/notices

requiring Client’s appearance in court; pending orders requiring

compliance are stayed for thirty days . . . .

(Emphasis added in paragraphs three and four). Ledo neither secured new counsel

within thirty days nor notified the court below that he intended to self-represent.

On November 7, 2102, Seavie’s motion for sanctions against Ledo for his

failure to respond to its interrogatories was heard. Although the motion was

granted, Ledo’s pleadings were not stricken for failure to respond to Seavie’s

interrogatories. To the contrary, a small monetary sanction was imposed and Ledo

was accorded yet another opportunity to respond to Seavie’s discovery request:

THIS CAUSE having come on to be heard on November 7,

2012, on Plaintiff’s . . . Motion To compel Defendant, David Ledo’s,

Answers to Plaintiff’s Initial Set of Interrogatories, for Sanctions, etc.

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 1) Granted. The defendant, David Ledo, shall provide

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full and complete answers to Plaintiff’s interrogatories within 10 days

from the date of this order. 2) Sanctions are granted for defendant’s

failure to comply with the prior agreed order in the amount of $500 to

be paid to plaintiff within 10 days. (3) Failure to comply with 1 or

2 above will result in defendant’s pleadings being stricken.

(Emphasis added).

When Ledo failed yet again to provide discovery as expressly ordered,

Seavie moved for imposition of the sanctions delineated in the November 7 order

(to wit, the striking of Ledo’s pleadings). On December 12, 2012, that motion was

granted, and Ledo’s pleadings were stricken and judgment on liability was entered.

Ledo filed no motion for reconsideration of the December 12 order striking his

pleadings.

On January 22, 2013, Seavie moved for summary judgment to foreclose the

mortgage securing Ledo’s defaulted loan. The motion was set for hearing on

February 26, 2013. However, the day before the scheduled summary judgment

hearing, Ledo, still acting pro se, filed for Chapter 7 bankruptcy protection and

filed a suggestion of bankruptcy with the circuit court in the foreclosure action. As

a consequence, the summary judgment hearing was stayed.

On April 25, 2013, after the bankruptcy action was dismissed, the motion for

summary judgment was reset for June 3, 2013. With a hearing on Seavie’s motion

for summary judgment looming, on May 16, 2013, the scheduled June 3 hearing

was continued to allow Ledo to notice the appearance of new counsel and to allow

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that attorney to file any “motions” that might be appropriate. Ledo’s new lawyer

filed no motions, but instead filed a counterclaim which purported to state claims

sounding in fraud and usury.1

Seavie moved to strike this pleading because Ledo’s pleadings had already

been stricken and liability determined against him by virtue of the trial court’s

December 12 order. Seavie’s motion was granted, Ledo’s counterclaim was

stricken, and summary judgment in Seavie’s favor was entered. Ledo appeals this

summary judgment. Essentially, Ledo argues that summary judgment was

improper because the trial court’s December 12 order striking Ledo’s pleadings

and determining Ledo’s liability lacked the express written findings of fact

required by Kozel v. Ostendorf, 629 So. 2d 817 (Fla. 1993), and Ham v. Dunmire,

891 So. 2d 492 (Fla. 2004).

II. Analysis

1 More particularly, Ledo’s counterclaim alleged that the original verified

complaint was a fraud because: (1) the promissory note attached to Seavie’s

complaint was “a false and fraudulent document” because it bore no signature,

whereas the original (and identical) later filed promissory note actually bore

Ledo’s signature; (2) Seavie’s complaint falsely represented that Ledo had failed to

make payments required by the note because Ledo had made payments as

purportedly evidenced by three checks attached to the complaint; and (3) Seavie’s

complaint falsely represented that $165,000 was due when Seavie had proposed a

$30,000 principal modification. Ledo claimed that he was not only entitled to a

judgment in his favor on these claims, but also that he was entitled to damages for

slander of title and fraud and unjust enrichment as a consequence. Ledo also

claimed that Seavie had charged usurious interest on a separate $8000 loan that it

had made to him.

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We review the trial court’s order striking the pleadings for abuse of

discretion. Ham, 891 So. 2d at 495 (“[D]etermining sanctions for discovery

violations is committed to the discretion of the trial court, and will not be disturbed

upon appeal absent an abuse of the sound exercise of that discretion.”) (citing

Mercer v. Raine, 443 So. 2d 944, 946 (Fla. 1983)). The striking of pleadings for

noncompliance with an order compelling discovery “is the most severe of all

sanctions which should be employed only in extreme circumstances.” Mercer, 443

So. 2d at 946.

Since Ledo was sanctioned for his own failures to comply with court orders

while he was acting pro se, Kozel has no application here. See Ham, 891 So. 2d at

496 (confirming that Kozel addresses “whether a dismissal with prejudice is a

warranted response to an attorney’s behavior”). Rather, this matter falls within the

Mercer/Ham rubric, which mandates a determination and findings of willful or

deliberate disregard of a court’s authority:

It is well settled that determining sanctions for discovery

violations is committed to the discretion of the trial court, and will not

be disturbed upon appeal absent an abuse of the sound exercise of that

discretion. See Mercer v. Raine, 443 So. 2d 944, 946 (Fla. 1983).

Reviewing courts apply a “reasonableness test” to determine if the

trial court has abused its discretion, which provides that if reasonable

people could differ as to the propriety of the trial court’s action, the

action is not unreasonable, and no abuse of discretion has occurred.

See id. (citing Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980)).

While sanctions are within a trial court’s discretion, it is also well

established that dismissing an action for failure to comply with orders

compelling discovery is “the most severe of all sanctions which

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should be employed only in extreme circumstances.” Mercer, 443 So.

2d at 946. In Mercer, this Court held that “[a] deliberate and

contumacious disregard of the court’s authority will justify application

of this severest of sanctions, as will bad faith, willful disregard or

gross indifference to an order of the court, or conduct which evinces

deliberate callousness.” Id. (citation omitted).

The dismissal of an action based on the violation of a discovery order

will constitute an abuse of discretion where the trial court fails to

make express written findings of fact supporting the conclusion that

the failure to obey the court order demonstrated willful or deliberate

disregard. See Commonwealth Fed. Savings & Loan Ass’n v. Tubero,

569 So. 2d 1271 (Fla. 1990). Express 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. See id. at 1273. While no “magic words” are

required, the trial court must make a “finding that the conduct upon

which the order is based was equivalent to willfulness or deliberate

disregard.” Id.

Ham, 891 So. 2d at 495-96.

The record plainly reflects that the trial court repeatedly informed Ledo: (1)

of the need to respond to the interrogatory requests; and (2) that sanctions,

including the striking of his pleadings, would follow if he failed to do so in a

timely manner. Further, the record clearly reflects that Ledo’s failure to respond to

the interrogatories was the result of Ledo’s willful and deliberate disregard of the

court’s orders, rather than any mistake or inadvertence.

Under the circumstances of this case—where the record demonstrably

establishes Ledo’s deliberate disregard of the trial court’s order—we do not find

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any reversible error in the trial court’s failure to provide written findings of fact in

its December 12 order striking Ledo’s pleadings.

In Ham, the Florida Supreme Court explained:

Express 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.

Ham, 891 So. 2d at 496 (emphasis added). In this case, the record is not

susceptible to more than one interpretation—Ledo’s conduct clearly constituted

willful or deliberate disregard for the court’s November 7 order—and, it is clear

that the trial judge made the conscious determination that Ledo’s failure to respond

to Seavie’s interrogatories was more than a mistake, neglect or inadvertence.2

2The instant case is distinguishable from Toll v. Korge, 127 So. 3d 883, 887 (Fla.

3d DCA 2013), where this court found reversible error where:

The trial court failed to hold an evidentiary hearing and failed to make

the necessary findings under Kozel, rendering it impossible to

determine whether the Defendants’ collective dilatory conduct was

personally attributable to Toll, to another defendant, or to Toll’s

counsel.

In Toll, this court remanded for an evidentiary hearing and further instructed:

If, on remand, the trial court determines that dismissal is appropriate,

the trial court shall include in its written order findings of fact with

respect to each [Kozel] factor, and individualized findings with regard

to the conduct of each of the sanctioned parties and their counsel.

Id. at 888. In the instant case, it is clear that Ledo’s conduct was personally

attributable to himself, rather than his attorney or any other party.

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Affirmed.

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