       Third District Court of Appeal
                               State of Florida

                                   Opinion filed .
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                                No. 3D14-85
                           Consolidated: 3D13-2612
                         Lower Tribunal No. 11-20930
                             ________________

                          Celebrity Cruises, Inc.,
                                    Appellant,

                                        vs.

                           Vicente J. Fernandes,
                                    Appellee.

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

      Holland & Knight, Rodolfo Sorondo, Jr. and Christopher Bellows, for
appellant.

      Meister Law and Tonya J. Meister; Colson Hicks Eidson Colson Matthews
Martinez Gonzalez Kalbac & Kane, Maureen E. Lefebvre and Ervin A. Gonzalez,
for appellee.


Before WELLS, EMAS and LOGUE, JJ.

     WELLS, Judge.
      Celebrity Cruises, Inc., the defendant in this negligence action brought by an

injured seaman, appeals from a default final judgment entered after its pleadings

were stricken as a discovery sanction. Because the sanction order was entered

without prior notice or opportunity to be heard, we reverse the judgment predicated

on it and remand for further proceedings consistent with this opinion.

      This action was filed on July 6, 2011, by Vicente J. Fernandes a seaman

allegedly injured during a fight with another crewmember while aboard a Celebrity

cruise ship. Early on and in response to interrogatories propounded with the initial

complaint, Celebrity disclosed that the altercation had been witnessed by a number

of crewmembers.

      On October 14, only three months after this action was filed, Fernandes’s

counsel notified the court and opposing counsel that she would be unavailable for

approximately 10 weeks, or through December 30, 2011, due to a planned leave.

Despite the fact that counsel was unavailable to move this case forward and that no

depositions had been taken or discovery conducted, on December 5, Fernandes’s

counsel notified the court that this case was at issue and ready for trial. Two days

later, on December 7, 2011, an order was issued setting this matter for trial for the

one-week trial period commencing March 19, 2012. That order, among other

things, required the parties (1) within 60 days of Monday of the week of March

19—that is, by January 19—to exchange the names and addresses of all expert



                                         2
witnesses and to complete all medical evaluations and examinations; (2) within 45

days of Monday of the week of March 19—that is, by February 4—to exchange

written witness and exhibit lists and to make all exhibits available to opposing

counsel for copying and examination; and, (3) within 15 days of Monday of the

week of March 19—that is, by March 4—to have completed all discovery and pre-

trial motions and to have attended mediation.

      Needless to say, none of this was going to nor actually did happen.

      On December 28, Celebrity propounded its first set of interrogatories and

request for production on Fernandes. On January 17, 2012, Celebrity filed an

unopposed motion to continue the trial representing that Fernandes had not yet

been deposed nor had he undergone a compulsory medical examination. Celebrity

also advised the court below that virtually no discovery had taken place and that

the action was “not ready to be tried.” Shortly thereafter, Fernandes requested an

extension of time to respond to Celebrity’s discovery requests. The trial was

continued to September 2012.

      On February 22, 2012, counsel for Fernandes notified the court and

opposing counsel that she would be unavailable to advance this litigation for one

week at the end of March and for another week at the end of June 2012. On May

18, Celebrity filed its privilege log. It simultaneously noticed the filing of its




                                         3
responses to Fernandes’s request for production, request for admissions, and

interrogatories.

      On June 7, Fernandes moved to compel Celebrity to provide dates for the

depositions of the crewmember who allegedly assaulted Fernandes and the

crewmembers who investigated the incident; Fernandes also sought to compel a

date on which he might inspect the vessel on which the fight occurred. An agreed

order on this motion was entered requiring Celebrity within 7 days to provide

Fernandes with dates for the requested depositions which were to take place within

60 days. That same day, July 11, 2012, the trial was continued again, this time to

the three week trial period beginning February 4, 2013. Less than a week later,

Fernandes’s counsel notified the court that she already had a trial set for that week

and would be unavailable for trial of this matter at that time.

      On August 20, 2012, Celebrity notified Fernandes’s counsel that the vessel

on which Fernandes allegedly was injured had been on “the west coast consistently

throughout the year,” but that it would be in Ft. Lauderdale on December 19, 2012

and January 18, 2013 and could be inspected locally on those days. Fernandes’s

counsel advised Celebrity that she would inspect the vessel on December 19 in Ft.

Lauderdale.

      Two days later, Celebrity notified Fernandes’s counsel that its corporate

representative would be available for deposition on either November 13 or 15,



                                           4
2012. While Fernandes was willing to take this deposition at the beginning of

October, she refused to wait until mid-November and moved to compel not only a

more timely date for the deposition of Celebrity’s corporate representative but also

compliance with the July 11 order to provide dates for the depositions of the

crewmember who allegedly injured Fernandes and the crewmembers who

investigated the incident in which he was injured. The motion to compel a more

timely date for the corporate representative’s deposition was, in effect, denied,

with the deposition being ordered for November 15, one of the dates proposed by

Celebrity. With regard to the other depositions, Celebrity was ordered to provide

a date for the deposition of investigator Ira Warder and shipboard investigator or

investigators within 7 days.

      That same day, September 27, 2012, Celebrity moved to compel Fernandes,

a resident of India, to appear in Miami for his deposition and a compulsory medical

examination. Shortly thereafter, Fernandes moved to compel the depositions of 11

crewmembers who allegedly had knowledge of the incident in which Fernandes

claimed he was injured. On September 27, Fernandes was ordered to appear

within 45 days to be deposed and examined and to appear in Miami for trial. In a

separate order dated October 18, 2012, Celebrity was ordered to provide, within 30

days, the “schedule, ship assignment and deposition availability [for the

crewmembers who had been identified by Celebrity as witnessing the fight],”



                                         5
along with their contact information. Celebrity also was ordered to provide, within

30 days, contact information for those crewmembers no longer employed by it.

Finally the court ordered Fernendes’s deposition to be taken first before the

deposition of any of these crewmembers.

      On October 29, Celebrity advised Fernandes’s counsel that one of the ship’s

investigators, Anton Kogan, was currently aboard a Celebrity ship in Europe but

that the ship would be in port in Miami in December and that Celebrity was

“aiming for Dec 3 in Miami” for his deposition, if not in person then via telephone.

In response, Fernandes’s counsel agreed to take Kogan’s deposition on December

3, if she were available and if not during the second week in December. Counsel

for Fernandes further advised that she would be taking Ira Warder’s deposition on

November 28. Upon receipt of this information, Celebrity advised that December

3 was not an option for Kogan but agreed to Fernandes’s counsel’s suggestion of

the following week and offered either December 7, 8, or 10, for Kogan’s

deposition. But because Celebrity’s counsel was set for trial during the week of

December 7, Celebrity notified Fernandes’s counsel that it was not available for

depositions during that week after all. Celebrity also inquired about Fernandes’s

availability for deposition which was to take place before that of any crewmember

and by mid-November. While stating that she was “happy to work with [counsel

for Celebrity] on the dates for the deposition of Anton Kogan, the ship board



                                          6
investigator, to accommodate [his] trial,” Fernandes’s counsel advised that if a date

for this deposition was not provided within a week, she would “seek court

intervention.” As for Fernandes’s availability, she further advised Celebrity that

she would “let [it] know.”

        When Celebrity was not able to provide deposition dates to counsel for

Fernandes as demanded, Fernandes filed a motion to sanction Celebrity for its

failures to comply with the July 11 and September 27 court orders to provide dates

for crewmember and investigator depositions.        This motion was never heard

because the parties jointly moved on December 17 to continue the scheduled trial.

In that joint motion, the parties represented that it would be best if the trial were

continued (1) because only the deposition of investigator, Ira Warder, had been

taken; (2) because the deposition of Celebrity’s corporate representative had

commenced but had not yet been completed because of scheduling conflicts1; (3)

because the parties were working with each other to schedule a deposition of the

ship’s other investigator, Anton Kogan, which had not been taken because he

“recently [had] been off contract and unavailable”2; and (4) because Fernandes—

who was to be deposed before the crewmembers—“ha[d] encountered difficulty



1 The corporate representative’s deposition subsequently was set to continue on
January 17, 2013.
2   Kogan’s deposition subsequently was set for February 1, 2013.

                                          7
securing a travel visa, frustrating efforts to coordinate his deposition.” The trial

was reset for the three week trial period commencing May 6, 2013.

      In February 2013, Fernandes moved to compel better answers to Celebrity’s

interrogatories and to compel the deposition of Tony Faso, the individual identified

by Celebrity as having decided Fernendes’s entitlement to maintenance and cure.

Celebrity agreed to an order providing for better answers to some of its

interrogatories. In a separate order dated February 20, 2013, Tony Faso was

ordered to appear for deposition within 30 days with Fernandes to be deposed “via

skype or videoconferencing following Faso’s deposition.”        Celebrity was not,

however, obligated to take Fernandes’s deposition within 30 days if it decided to

go to India to depose him.

      Two weeks later, on March 7, 2013, Fernandes filed a motion to compel

compliance with the court’s earlier October 18, 2012 order. While the motion

claimed that Celebrity had failed to provide information regarding five of the

eleven crewmembers who allegedly had witnessed the incident in which Fernandes

was injured, the purpose of the motion was to secure relief from the September 27,

2012 order that required Fernandes to be deposed before any crewmembers:

       4. Although the Court ordered the [crewmember] depositions to be
      set following the Plaintiff ’s deposition, the Court entered an Order on
      February 20, 2013 requiring the deposition of the Plaintiff within
      thirty (30) days. See Order attached as Exhibit “B”. Defendant was
      allowed the option of going to India should it choose and, if so, the
      thirty (30) day limitation would not be applicable.


                                         8
       5. Plaintiff requests this Court order the depositions of the witness
       crewmembers following the thirty (30) day time period that Defendant
       had to take Plaintiff’s deposition (on or before March 22, 2013). If
       Defendant chooses to delay the Plaintiff[’]s deposition past March 22,
       2013, then Plaintiff should thereafter be allowed to proceed with the
       witness crew member depositions. Plaintiff’s trial preparation should
       not be prejudiced by Defendant’s voluntary delay with respect to the
       Plaintiff’s deposition. Plaintiff requests the witness crewmembers’
       depositions take place between March 23, 2013 and April 11, 2013.

This motion (which provided the predicate for the trial court’s order striking

Celebrity’s pleadings) sought no sanctions in its title, in its body, or in its request

for relief.

       Indeed, attorney discussions on March 19, one day before the hearing on this

motion, memorialized by e-mails, made no mention of sanctions. In fact, the

afternoon before the hearing, the parties were trying to work out a deposition

schedule with Fernandes’s attorney suggesting the exchange of crewmember

information and a 30-day deposition schedule:

       Regarding Plaintiff’s Motion to Compel Compliance with Court Order
       dated October 18, 2012 and to Compel Crewmember Depositions, you
       indicated Celebrity will be providing the information regarding the
       crew members [sic] locations this Friday [March 22]. I propose an
       agreed order for Defendant to produce the crew members for
       deposition within 30 days thereafter. In addition the crew depos will
       not be dependant [sic] on Plaintiff’s deposition date considering
       Defendant has not yet advised of its intentions regarding Plaintiff’s
       deposition. Let me know if Celebrity is agreeable to that compromise.
       If so, we can submit an Agreed Order.




                                          9
      Although the parties could not agree as to the timing of Fernandes’s

deposition, there was no hint that any sanctions were contemplated or were to be

imposed. However, at the March 20 motion-calendar hearing which followed,

without notice and without sanctions having been requested or ever previously

imposed in the matter, the trial court sua sponte entered an order sanctioning

Celebrity striking its pleadings,3 entering the default on liability, and ordering a

trial on damages alone:

              Order granting Plaintiff’s Motion to Compel Compliance with
       Court Order
3 There is no transcript of the March 20, 2013 hearing. Fernandes maintains this

mandates affirmance. We cannot agree. In the instant case, the error appears on
the face of the record which grants relief not noticed and without the requisite
evidentiary hearing, findings, or due process. See Hill v. Calderin, 47 So. 3d 852,
854 (Fla. 3d DCA 2010) (“Generally, where an appellant fails to provide the
appellate court with a trial transcript, the trial court’s judgment must be affirmed.
Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150 (Fla. 1979).
Notwithstanding the absence of a transcript, however, an appellate court may
review a lower court judgment for error apparent on its face.”); Connell v. Capital
City Partners, LLC, 932 So. 2d 442, 443-44 (Fla. 3d DCA 2006) (“We find that the
order on appeal reflects an error on its face, as it reveals a denial of due process.
Specifically, the order reflects that the only motion set for hearing was a motion to
dismiss. The trial court, however, went beyond a determination of the motion to
dismiss, by also requiring Connell to transfer $49,000 to Capital City.”) (footnote
omitted); see also Alsina v. Gonzalez, 83 So. 3d 962, 965 (Fla. 4th DCA 2012)
(“The Gonzalezes argue that an affirmance [of the discovery sanction order at
issue] is required because the Alsinas have not provided a transcript of the hearing
where those factors [enunciated in Kozel] may have been considered. We disagree
that a transcript is necessary where the order is devoid of any consideration of the
factors. In fact, no transcript of the sanction hearing was available in Ham [v.
Dunmire, 891 So. 2d 492 (Fla. 2004)], and the order contained language finding
willful conduct. Despite this, the supreme court still remanded for the trial court to
conduct a Kozel [v. Ostendorf, 629 So. 2d 817 (Fla. 1993)] analysis.”).


                                         10
             This Cause having come to be heard on March 20, 2013 on
      Plaintiff’s Motion to Compel Compliance with Court Order dated
      October 18, 2012 and Compel Crew Depositions[,] 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

            Granted as follows: Court finds Defendant’s failure to comply
      with Court’s Order was intentional delay and prejudiced Plaintiff’s
      preparation for the May 2013 [trial] and there is insufficient time to
      conduct depositions now. As such, this Court strikes Defendant’s
      pleadings and this matter shall proceed to trial on damages only.
      Default judgment against defendant on liability.

(Emphasis added).

      Celebrity, by that time had actively engaged in substantial discovery and

was prepared to exchange extensive exhibit and witness lists in anticipation of the

upcoming trial. Within days of this order, Celebrity provided better answers to

Fernandes’s interrogatories as agreed; it also set Fernandes and others for

deposition and provided witness and exhibit lists.               It also moved for

reconsideration of the order striking its pleadings and entering default on liability.

      The motion was denied in an order stating only:

      Denied based on reasons set forth in Pltff’s [sic] response in
      opposition [to the motion for rehearing]. Court notes non-compliance
      with orders dated 7/11/12; 9/27/12; 10/18/12; and 2/20/13

      This matter thereafter proceeded to jury trial without Fernandes—who was

unable to secure a visa—and resulted in a $2.5 million damage award. Celebrity

appeals; we reverse.


                                          11
      While Celebrity argues a number errors mandating reversal, we need go no

further than the total lack of notice to Celebrity that sanctions were going to be

considered much less imposed and the lack of an opportunity to present evidence

on this issue, to conclude reversal is required. First, “the granting of relief, which

is not sought by the notice of hearing or which expands the scope of a hearing and

decides matters not noticed for hearing, violates due process.” Connell, 932 So. 2d

at 444 (citations omitted). In his March 7, 2013 motion, Fernandes neither moved

for sanctions nor asked to have Celebrity’s pleadings stricken and the court below

did not issue an order to show cause as to why sanctions should not be imposed.4

Thus, we agree with Celebrity that the court below had no authority to strike its

pleadings on March 20 or to otherwise impose the sanction ordered. See Keys

Island Props., LLC v. Crow, 97 So. 3d 329, 330-31 (Fla. 3d DCA 2012) (observing

the trial court could not determine matters not the subject of a proper pleading and

notice and citing Pro–Art Dental Lab, Inc. v. V–Strategic Grp., LLC, 986 So. 2d

1244, 1252 (Fla. 2008) (quoting Carroll & Assocs., P.A. v. Galindo, 864 So. 2d 24,

28–29 (Fla. 3d DCA 2003)) (“noting that ‘Florida law clearly holds that a trial


4 Fernandes had filed a motion for sanctions in December of 2012, however a
motion to compel better answers followed and the next order from the trial court
was the February 20, 2013 “Agreed Order Granting Plaintiff’s Motion to Compel
Better Int. Answers.” The March 7 motion requested only an order compelling
Celebrity to comply with the trial court’s October 18, 2012 order and “any other
relief this Court deems appropriate,” an insufficient basis for the sanction that
followed.

                                         12
court lacks jurisdiction to hear and to determine matters which are not the subject

of proper pleading and notice’ and ‘[t]o allow a court to rule on a matter without

proper pleadings and notice is violative of a party’s due process rights’”)

(emphasis removed) and Mizrahi v. Mizrahi, 867 So. 2d 1211, 1213 (Fla. 3d DCA

2004) (“Due process protections prevent a trial court from deciding matters not

noticed for hearing and not the subject of appropriate pleadings.”)); Atala v.

Kopelowitz, 664 So. 2d 1156, 1157 (Fla. 3d DCA 1995) (holding that striking of

pleadings for failure to comply with discovery was error where party was not given

notice that such a sanction was being considered); Epic Metals Corp. v. Samari

Lake E. Condo. Ass’n, Inc., 547 So. 2d 198, 199 (Fla. 3d DCA 1989) (“A trial

court violates a litigant’s due process rights when it expands the scope of a hearing

to address and determine matters not noticed for hearing.”).

      Second, while it is well established that “determining sanctions for discovery

violations is committed to the discretion of the trial court,” dismissal of an action

or striking a party’s pleadings and entry of a default for failure to comply with a

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

in extreme circumstances.” Ham v. Dunmire, 891 So. 2d 492, 495 (Fla. 2004)

(citing Mercer v. Raine, 443 So. 2d 944, 946 (Fla. 1983)). Thus, “[w]here a trial

court fails to make express written findings of fact to support a conclusion that a

party’s failure to obey court orders demonstrates willful or deliberate disregard, the



                                         13
dismissal of such action [or the striking of a party’s pleadings] constitutes an abuse

of discretion.”   Toll v. Korge, 127 So. 3d 883, 887 (Fla. 3d DCA 2013).

Moreover, to ensure that a litigant is not unduly punished for failures of counsel, a

trial court must consider those factors delineated by the Florida Supreme Court in

Kozel to determine whether dismissal or striking of a party’s pleadings is an

appropriate sanction for an attorney’s rather than a client’s behavior.5 See Kozel v.

Ostendorf, 629 So. 2d 817, 818 (Fla. 1994); see also Korge, 127 So. 3d at 887

(“[t]he Kozel factors ensure that a sanction is directed towards the party

responsible for the error or misconduct”).

      In this case, the trial court did not conduct an evidentiary hearing6 before

striking Celebrity’s pleadings to determine whether Celebrity or its lawyers had

violated any court orders by failing to engage in meaningful discovery. Nor did it

make findings necessary to support its sanctions order.7 These failures also require

5These factors are: (1) whether the attorney’s disobedience was willful, deliberate,
or contumacious, rather than negligent or uninformed; (2) whether the attorney has
been sanctioned previously; (3) whether the client was personally involved in the
disobedience; (4) whether the delay prejudiced the opposing party through undue
expense, loss of evidence, or in some other fashion; (5) whether the attorney
offered a reasonable justification for noncompliance; and, (6) whether the delay
created significant problems for judicial administration. See Kozel, 629 So. 2d at
818.
6The March 20, 2013 hearing was an add-on to the trial court’s five minute motion
calendar, it was not an evidentiary hearing.
7Attempts to justify the March 20, 2013 sanction order by later order citing to a
number of orders (dated 7/11/12; 9/27/12; 10/18/12; and 2/20/13) and an unsworn

                                         14
reversal here. See TICO Ins. Co. v. Schonning, 960 So. 2d 6, 6 (Fla. 3d DCA
memorandum of law filed by Fernandes’s counsel after Celebrity’s pleadings were
stricken does not satisfy these requirements.

    The July 11, 2012 order read:

          Agreed       ORDER           GRANTING/DENYING
      PLAINTIFF’S/DEFENDANT’S Motion to Compel

             THIS CAUSE having come to be heard on July 11, 2012 on
      Plaintiff’s/Defendant’s Motion to Compel Depositions and Vessel
      Inspection 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

             Granted. Defendant to provide dates for the requested
      depositions within (7) seven days and for the depositions to be
      conducted within (60) sixty days. Parties may mutually agree to
      different dates.

(Some emphasis added).

The record shows that the vessel was being made available to Fernandes upon its
return to a local port. There is no showing that Fernandes was denied access at any
other port at which this vessel called had his counsel wanted to go there. Also, the
depositions of the ship’s investigators had either begun or were scheduled when
Celebrity’s pleadings were stricken. The same applies to the deposition of
Celebrity’s corporate representative.

    The September 27, 2012 order read:

           Agreed      ORDER           GRANTING/DENYING
      PLAINTIFF’S/DEFENDANT’S Motion for Compliance

            THIS CAUSE having come to be heard on September 27, 2012
      on Plaintiff’s/Defendant’s Motion to Compel Compliance with Court
      Order and the Court having heard arguments of counsel, and being
      otherwise advised in the premises, it is hereupon

                                        15
2005) (“Because the pleadings were struck in the absence of an evidentiary

           ORDERED AND ADJUDGED that said Motion be, and the
     same is hereby

           Granted as follows:

           Deposition of Defendant’s corporate representative shall take
     place on November 15, 2012. Defendant shall provide proposed dates
     for deposition for Ira Warder and shipboard investigator(s) within
     seven (7) days.

(Some emphasis added).

Again, these depositions had already been taken, had commenced, or were
scheduled when Celebrity’s pleadings were stricken.

   The October 18, 2012 order read:

           Order                     GRANTING/DENYING
     PLAINTIFF’S/DEFENDANT’S Motion to Compel Crew Member
     Depos

           THIS CAUSE having come to be heard on October 18, 2012
     on Plaintiff’s/Defendant’s Motion to Compel Crew member
     Depositions 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

           Granted. Defendant shall provide crew members schedule, ship
     assignment and deposition availability within 30 days. These
     depositions will be set following Plaintiff’s deposition. Plaintiff
     shall update Defendant on Plaintiff’s visa status/ability to travel to
     US within 60 days. Defendant shall provide contact information for
     crewmembers no longer employed within 30 days.

(Some emphasis added).


                                       16
hearing, we reverse.”); Bank One, N.A. v. Harrod, 873 So. 2d 519, 521 (Fla. 4th
Although Celebrity apparently provided the information ordered for only six of the
eleven crewmembers at issue, it failed to timely provide the information sought for
the other five crewmembers. This failure did not prejudice Fernandes because
none of these individuals could be deposed until after Fernandes had made himself
available here—something that he could not do—for examination and deposition.
Moreover, Celebrity had advised Fernandes’s counsel that the information sought
would be made available, and actually was made available, on March 22, 2013,
only two days after the motion to compel this information was set.

    Two orders dated February 20, 2013.

   The first February 20 order read:

           ORDER                     GRANTING/DENYNG
      PLAINTIFF’S/DEFENDANT’S Motion to Compel Fasos [sic]
      Deposition

            THIS CAUSE having come to be heard on February 20, 2013
      on Plaintiff’s/Defendant’s to Compel Deposition of Tony Faso 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

             Granted. Tony Faso shall appear for deposition within the next
      30 days. Court sua sponte orders Plaintiff to be deposed via Skipe or
      videoconferencing following Faso’s deposition. If [Defendant] wants
      to go to India the 30 day limitation/requirement is not applicable.

      The second February 20 order:

This order was an Agreed Order on Plaintiff’s “Motion to Compel Better Answers
to As Well as Sworn Answer[s] to Plaintiff’s Interrogatories.” That order listed a
number of questions requiring better responses but again made no mention
whatsoever of sanctions. It read:

      Agreed as follows: Defendant shall provide sworn answers/jurat
      page; telephone #s of the individuals* disclosed in #1 and #8; better

                                        17
DCA 2004) (“Where, as here, there is no indication that the trial court considered

[the Kozel] factors . . . reversal has been required.”)”); Franchi v. Shapiro, 650 So.

2d 161, 162 (Fla. 3d DCA 1995) (“Before this ultimate sanction [the striking of

pleadings or entering a default for noncompliance with an order compelling

discovery] can be entered . . . a party must be given notice and an opportunity to be

heard.     This opportunity to be heard must include the opportunity to present

evidence of extenuating and/or mitigating circumstances, which might explain the

failure to comply with the court’s discovery order or the opposing party’s

discovery request.”) (citations omitted); see also Alsina, 83 So. 3d at 964 (“While

dismissal of a complaint for non-compliance with a court order is subject to an

         answer to #18 with an MM I date or “none”; in response to #13
         Defendant shall produce all of Plaintiff’s pay slips for 2009; Objection
         to #14 withdrawn; will provide better answers to #14 and #15 + #23;
         #24 (2nd) language following “including but not. . .” stricken and . . .
         withdraws objection and will provide better answer.

         Compliance within 30 days.
         *no longer employed by cruise line

(Emphasis added).

Celebrity provided the better answers as agreed and was only obligated to take
Fernandes’s deposition in 30 days if it opted to do so via skype or videoconference.
It also noticed his deposition for April 2, 2013, within 30 days of the March 20
order.

These orders, neither individually nor in concert, would have alerted Celebrity that
some sanction, much less that its pleadings were subject to being stricken, was
being contemplated by the court on March 20.


                                           18
abuse of discretion standard of review, Erdman v. Bloch, 65 So. 3d 62, 65 (Fla. 5th

DCA 2011) (citing Bank One, N.A. v. Harrod, 873 So. 2d 519, 520 (Fla. 4th DCA

2004)), failure to apply the standards for the sanction of dismissal set forth in

Kozel . . . is in itself a basis for reversal and remand for application of those

standards. Ham v. Dunmire, 891 So. 2d 492, 500 (Fla. 2004).”).

      Third, the record does not support the trial court’s conclusion that

Celebrity’s delay in taking Fernandes’s deposition left Fernandes with insufficient

time before the scheduled May trial to take the remaining crewmembers’

depositions. To the contrary, when Fernandes sought relief from the October 18

2012 order which required his deposition to be taken before that of any

crewmembers, he proposed a 30-day deposition schedule for these individuals

“between March 23, 2013 and April 11, 2013,” and represented this schedule as

being sufficient for him to prepare for the upcoming May trial. Thus, the trial

court’s March 20 conclusion that Fernandes was incurably prejudiced because

“there is insufficient time to conduct depositions now,” is not only unsupported by

the record but also contradicted by it. See Beaver Crane Serv., Inc. v. Nat’l Sur.

Corp., 373 So. 2d 88, 89 (Fla. 3d DCA 1979) (sanction of dismissal was error

where appellee was not prejudiced in any meaningful way by appellant’s

tardiness).




                                        19
      Finally, the record below fails to demonstrate the level of disobedience or

inappropriate behavior that would justify imposition of the litigation/liability death

penalty. This matter was first noticed for trial in December of 2011 by counsel for

Fernandes only six months after this action was filed and at a time when neither

party was prepared to try this case. While Celebrity may have engaged in some

discovery “foot dragging” along the way, all of the delays incurred below cannot

be attributed to it. Indeed, this matter was reset for trial a number of times, often

on agreement of the parties and on occasion to accommodate the schedule of

Fernandes’s trial counsel. Some of the delays certainly must be attributed to

Fernandes’s inability to secure a visa to enter the country so that he could be

examined and deposed.

      The record also shows that both parties were diligently pursuing this matter

and had engaged in substantial negotiations over, and agreed for the most part

about, discovery.    The parties also had attended mediation, secured expert

witnesses, and prepared extensive witness and exhibit lists. In short, the parties

were close to being ready for trial when the court below sunk Celebrity’s case

without so much as the proverbial warning shot across the bow.

      As this court and others before us have made clear, the ultimate penalty for

discovery sanctions must be reserved for the most egregious cases. See, e.g.,

Franchi, 650 So. 2d at 162 (quoting Mercer, 443 So. 2d at 946 for the proposition



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that “the striking of pleadings or entering a default for noncompliance with an

order compelling discovery is the most severe of all sanctions which should be

employed only in extreme circumstances”). This is not a case where such a

sanction is warranted.

      We therefore reverse the judgment in Fernandes’s favor and remand for a

trial on the merits. In light of this reversal, we decline to address the remainder of

the arguments advanced by Celebrity.




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