                                      IN THE DISTRICT COURT OF APPEAL
                                      FIRST DISTRICT, STATE OF FLORIDA

OLUWABUKOLA OLAWOYE                   NOT FINAL UNTIL TIME EXPIRES TO
and MULIKATOU DISU,                   FILE MOTION FOR REHEARING AND
                                      DISPOSITION THEREOF IF FILED
      Appellants,
                                      CASE NO. 1D15-3774
v.

OLUFISAYO ARUBUOLA,

      Appellee.

_____________________________/

Opinion filed August 22, 2016.

An appeal from the Circuit Court for Duval County.
Lawrence P. Haddock, Judge.

Brian J. Lee of Schuler & Lee, P.A., Jacksonville, for Appellants.

Donald E. Pinaud, Jr. and Charles William Lammers of Kattman & Pinaud, P.A.,
Jacksonville, for Appellee.




BILBREY, J.

      Appellants challenge on appeal an order striking their pleadings and entering

a default against them as a sanction for failing to comply with a case management

order. Appellants argue that the sanctions were entered without the requisite
findings that their conduct was willful and contumacious, and must therefore be

reversed.   We agree.    Appellants also challenge the final judgment awarding

substantial monetary damages to Appellee, the plaintiff below, based upon

Appellee’s affidavit and without a jury determination. Appellee correctly concedes

error on this point. Accordingly, the order sanctioning the Appellants and the final

judgment on appeal are reversed.

      This case stems from a domestic altercation among the parties which took

place in 2006. In 2010, Appellee filed a 5-count complaint in tort for monetary

damages against the Appellants, and demanded a jury trial. Appellants filed an

answer and affirmative defenses. Progress of the litigation was delayed by at least

one continuance, and Appellants proceeded pro se after withdrawal of their

counsel. On January 17, 2014, the trial court entered a case management order

setting the pretrial conference for October 9, 2014. Neither Appellant attended the

pretrial conference or filed any of the documents required by this case management

order. No transcript of the pretrial conference was prepared for the record.

      On July 16, 2015, with no record activity in the interim, the trial court

entered the sanctions including the default against Appellants. The trial court

referred to an oral motion by Appellee made during the pretrial conference on

October 9, 2014, granted the motion, struck Appellants’ answer and affirmative

defenses, and entered a default against the Appellants. The same date, Appellee

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filed an affidavit specifying his monetary damages. Despite Appellee’s demand

for a jury trial earlier in the litigation, the trial court entered the final judgment for

Appellee and awarded him damages in the amount of $122,500.00 without a jury

proceeding.

      Trial courts exercise discretion in sanctioning a party for failure to attend a

pretrial conference, and striking that party’s pleadings is an available punishment.

Fla. R. Civ. P. 1.200(c). However, the severe sanction of striking pleadings and

entering a default must be supported by an express finding in the order “that the

party’s conduct was willful and contumacious.” Schneider v. Spaeth, 133 So. 3d

1167, 1168 (Fla. 4th DCA 2014) (citations omitted); see also Mullins v.

Moneyham, 861 So. 2d 108 (Fla. 1st DCA 2003) (reversing order striking

pleadings and entering default as sanction for failure to comply with discovery

order; order lacked express written findings of willful or deliberate violation);

Greenhill v. Shands Teaching Hosp. & Clinics, Inc., 834 So. 2d 896 (Fla. 1st DCA

2003) (reversing dismissal of action upon appellants’ failure to comply with

pretrial conference order due to lack of finding in order that party’s conduct was

willful or deliberate); Kelley v. Schmidt, 613 So. 2d 918 (Fla. 5th DCA 1993)

(reversing order striking pleadings and entering default judgment upon party’s

failure to attend pretrial conference; order lacked express written findings of

willfulness or contumacious behavior). The absence of such finding expressed in

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the order striking Appellants’ answer and entering a default against them requires

reversal. See Commonwealth Fed. Sav. & Loan Ass’n v. Tubero, 569 So. 2d 1271

(Fla. 1990).

      As for the final judgment awarding monetary damages in favor of Appellee

based upon an affidavit and without a jury determination, Appellee properly

conceded error on appeal. See Curbelo v. Ullman, 571 So. 2d 443, 444 (Fla. 1990)

(“When a jury trial has been requested by the plaintiff, the defendant is still entitled

to a jury trial on the issue of damages even though a default has been entered

against the defendant. . . .”); Lynn v. Sakharoff, 82 So. 3d 896 (Fla. 4th DCA

2011).

      Accordingly, the order striking Appellants’ answer and affirmative defenses

and entering a default against them is REVERSED. The final order awarding

monetary damages is likewise REVERSED and this matter is REMANDED for

further proceedings.

KELSEY and M.K. THOMAS, JJ., CONCUR.




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