       Third District Court of Appeal
                               State of Florida

                         Opinion filed October 14, 2015.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 14-2197
                   Lower Tribunal Nos. 12-2918 & 09-1837
                            ________________


                              Patricia Sukonik,
                                    Appellant,

                                        vs.

                                Holly Wallack,
                                    Appellee.



      An Appeal from the Circuit Court for Miami-Dade County, Maria M.
Korvick, Judge.

     Patricia Sukonik, in proper person.

      Chepenik Trushin LLP, and Bradley H. Trushin and Stacey B. Rubel, for
appellee.


Before ROTHENBERG, LAGOA, and SCALES, JJ.

     ROTHENBERG, J.
      Patricia Sukonik (“Sukonik”) appeals the trial court’s order granting Holly

Wallack’s (“Wallack”) motion to dismiss or strike Sukonik’s pleadings for failing

to comply with discovery requests and for disobeying court orders. Because the

trial court’s order finding that Sukonik’s repeated failure to comply with her

discovery obligations and the trial court’s orders was willful, deliberate, and

contumacious is amply supported by the record, we affirm.

                                BACKGROUND

      Sukonik, who lives in Pennsylvania, and Wallack, who lives in Florida, are

sisters. The sisters have disputed aspects of the administration of their late

mother’s estate since she died in 2007. In 2009, Sukonik filed a petition for

administration, and in August of 2012, Sukonik, who was represented by Michael

Greenwald (“Greenwald”), initiated adversarial proceedings to determine the

assets of the estate. The adversarial trial was to commence on March 10, 2014,

with discovery and mediation scheduled for January and February, 2014.

      On December 19, 2013, Wallack delivered initial discovery requests giving

Sukonik until January 20, 2014 to respond. However, prior to the expiration of that

deadline, Greenwald filed a motion to withdraw as counsel, which the trial court

granted on January 23, 2014. After granting Greenwald’s motion to withdraw, the

trial court gave Sukonik until February 28, 2014 to retain new counsel; extended

the discovery and mediation deadlines; reset the trial to September 8, 2014; and



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entered a pretrial order specifying that all witness lists and exhibits must be filed

no later than forty-five days prior to trial and cautioning that the failure to comply

with the order could result in severe sanctions, including dismissal of the cause of

action.

         Thereafter, Wallack resent her discovery package, providing Sukonik with

another thirty days to respond, but Sukonik failed to respond by the new deadline.

Wallack also attempted to schedule a deposition with Sukonik, offering a variety

of dates for her to choose from, several of them occurring well after the deadline

set by the trial court for Sukonik to retain new counsel. In response, Sukonik filed

a motion for a protective order and sent Wallack a letter, stating that she “will not

respond to aforesaid letters, or for that matter to any other mailing [Wallack] might

send.”

         In addition to filing for a protective order, Sukonik filed a motion to extend

her time to find counsel. The trial court granted Sukonik an extension to retain

counsel until March 24, 2014, but stated that no further extensions would be

granted. The trial court also ordered Sukonik to schedule a deposition with

Wallack by April 3, 2014, and to comply with Wallack’s discovery requests by

April 4, 2014. Sukonik did not retain new counsel and chose to proceed pro se, did

not meet the deadline to schedule her deposition, and failed to produce a single

document in compliance with Wallack’s requests for production.1



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      After conducting separate hearings on Sukonik’s motion for a protective

order against being compelled to travel to Florida and on Wallack’s motion to

compel Sukonik to attend a deposition and mediation in Florida, the trial court

entered an order granting Wallack’s motion to compel attendance and requiring

Sukonik to physically appear for her deposition on July 30, 2014 and mediation on

August 6, 2014. The trial court repeated its warning that failure to comply with its

orders could result in the dismissal of the case.

      Sukonik did not appear for her scheduled deposition. Instead, she sent a

letter to the mediator and the trial court protesting the authority of the court and

stating in relevant part that “[t]his Mediation was initially arranged without my

approval . . . I will not be attending this Mediation.”

      On August 1, 2014, Sukonik requested a continuance and a 120-day stay of

discovery, claiming that she had retained counsel (who she did not identify) to

represent her, with the caveat that the counsel would be unavailable until after the

scheduled September 8, 2014 trial date. After conducting a hearing on August 13

to consider both Sukonik’s motion for a continuance and Wallack’s motion to

dismiss for Sukonik’s allegedly willful disregard for the trial court’s orders, the




1 In its order dismissing the cause of action, the trial court found that Sukonik’s
eighty-four page response to Wallack’s interrogatories was deficient because it was
filled with “unresponsive narratives, legal arguments, and accusations.”

                                           4
trial court granted Wallack’s motion to dismiss and provided detailed justifications

for its decision. Sukonik appealed.



                                      ANALYSIS

      A trial court has the discretion to determine discovery sanctions, and such

determinations are reviewed for an abuse of discretion. Ham v. Dunmire, 891 So.

2d 492, 495 (Fla. 2004). We must therefore apply the “reasonableness test” to

evaluate whether the trial court abused its discretion. Id. (explaining that “if

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

action is not unreasonable”).

      It is undeniable that entering a default because a party did not comply with

discovery orders “is the most severe of all sanctions which should be employed

only in extreme circumstances.” Mercer v. Raine, 443 So. 2d 944, 946 (Fla. 1983).

However, it is justified where a party shows “deliberate and contumacious

disregard of the court’s authority” or “willful disregard or gross indifference to an

order of the court.” Id. To ensure that the trial court consciously determines that

the misconduct was more than neglect, it is required to find that the noncompliant

party willfully or deliberately disregarded the court’s directions. Commonwealth

Fed. Sav. & Loan Ass’n v. Tubero, 569 So. 2d 1271, 1273 (Fla. 1990).2

2Both parties mention the Kozel factors. Where a party’s counsel is either partly or
wholly to blame for discovery misconduct, the Florida Supreme Court has

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      In the instant case, the trial court issued a very thorough order justifying its

decision to dismiss Sukonik’s claim. The trial court found that Sukonik’s failure to

comply with its orders was a willful and contumacious disregard of the trial court’s

authority. This finding is fully supported by the record. Sukonik failed to: (1)

comply with the trial court’s order resetting the case for trial and its pretrial

instructions requiring Sukonik to submit her witness list and trial exhibits to

opposing counsel, and file the same with the clerk of court; (2) respond to

Wallack’s discovery requests for production of documents; (3) retain counsel

within the court ordered time frame despite obtaining substantial time to retain new

counsel, thereby delaying the trial, and waiting until the eve of trial to claim that

she had found new counsel—an anonymous attorney—who would be unable to

represent her until well after the September 8, 2014 trial date; and (4) appear for

the court-ordered mediation and her court-ordered deposition.3 The trial court

established a set of factors to guard against unduly punishing the client for
counsel’s blunders. Kozel v. Ostendorf, 629 So. 2d 817, 818 (Fla. 1993); see also
Ham, 891 So. 2d at 496. However, where a pro se litigant commits discovery
violations, the Kozel factors are not relevant. Ledo v. Seavie Res., LLC, 149 So. 3d
707, 710 (Fla. 3d DCA 2014) (“Since [appellant] was sanctioned for his own
failures to comply with court orders while he was acting pro se, Kozel has no
application here.”). Sukonik is a pro se litigant. Thus, the Kozel factors are not
relevant.
3 Sukonik provided two doctor’s notes supporting her claim that she suffered from

vertigo, which prevented her from attending the court-ordered mediation and
deposition. While we note that opposing counsel was unable to verify or to inquire
about the nature or severity of Sukonik’s claimed medical problem because
Sukonik refused to sign a medical release to allow such inquiry, even if we
assumed that her claim was true, we would affirm as the remaining grounds

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noted that although Sukonik was proceeding pro se, she had previously been

licensed to practice law in the state of Pennsylvania, and she provided no

reasonable explanation for her failure to identify the name or address of a single

witness she intended to call at trial or to comply with the court’s orders, despite the

trial court’s multiple attempts to accommodate her. Because the record supports

the trial court’s findings, we find no abuse of discretion and therefore affirm.

      Affirmed.




supporting the order independently justify the trial court’s dismissal.

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