Third District Court of Appeal

State of Florida 

Opinion filed July 21, 2021.

Not final until disposition of timely filed motion for rehearing.

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No. 3D20-0178

Lower Tribunal No. 16-2746

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Yolanda Alvarez, et al.,

Appellants,

vs.

Citizens Property Insurance Corporation,

Appellee.

An appeal from the Circuit Court for Miami-Dade County, Veronica 

Diaz, Judge.

Giasi Law, P.A., and Melissa A. Giasi, and Erin M. Berger (Tampa), for 

appellants.

Methe & Rothell, P.A., Kristi Bergemann Rothell (West Palm Beach),

for appellee.

Before EMAS, HENDON, and MILLER, JJ. 

MILLER, J.
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In this first-party property dispute, appellants, the insured 

homeowners, Yolanda Alvarez, Dalia Gonzalez, and Carlos Abreu, 

challenge an order striking their pleadings and dismissing their lawsuit

against appellee, Citizens Property Insurance Corporation, upon a finding 

they willfully disobeyed the terms of a mediation order. Without conceding 

deliberate noncompliance, on appeal, the homeowners contend that, having 

failed to first consider the propriety of less onerous alternatives, the trial court 

erred in imposing litigation-ending sanctions. We reverse.

BACKGROUND

After sustaining water-related damage to the interior of her residence, 

Alvarez filed suit against Citizens seeking to recover proceeds under her 

homeowners’ policy. Citizens denied coverage and, asserting Gonzalez and 

Abreu were co-owners of the insured property, sought a court order requiring 

their joinder as co-insureds and indispensable parties. The trial court 

ordered Alvarez to add both as party plaintiffs. Alvarez complied and the

parties then embarked on discovery. Abreu failed to appear for one duly

noticed deposition and Gonzalez failed to appear for two, but both were 

eventually deposed without the imposition of any sanctions. 

Following the depositions, the trial court issued a mediation order. 

Mirroring the language contained within Florida Rule of Civil Procedure
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1.720, the order stated, in relevant part, “[t]he appearance of counsel, and 

each party or representative of each party with authority to enter into a full 

and complete compromise and settlement, without further consultation, is 

mandatory.” See Fla. R. Civ. P. 1.720(c).

On the day of mediation, Abreu appeared with his attorney, who also 

represented the other two homeowners. Alvarez was available

telephonically, pursuant to a stipulation reached at the eleventh hour.1 

Gonzalez failed to appear, however, as she was purportedly in Cuba. 

Citing noncompliance with the mediation order, Citizens aborted the 

mediation and, by way of a motion, sought terminating sanctions. In 

response, the homeowners’ counsel filed an affidavit contending Citizens 

“unilaterally refused to proceed with mediation, despite the fact” she and 

Abreu “had full authority to negotiate and settle the subject lawsuit.”

The trial court convened a non-evidentiary hearing and reserved ruling

on sanctions. Thereafter, without further hearing, a successor judge struck 

the homeowners’ pleadings and dismissed the case. The decision was 

premised upon a finding the homeowners willfully and contumaciously failed 

1 Citizens later raised a concern regarding Alvarez’s ability to sign a mediated 

settlement agreement that day. This concern is allayed by Florida Rule of 

Civil Procedure 1.730(b), as signature is not required on the day on the day 

of the mediation and the transcription or electronic recordation of the 

agreement is permitted.
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to appear for the mediation, as evidenced by both their nonappearance and

pattern of delays during the discovery process. The instant appeal ensued.

STANDARD OF REVIEW

Because an order dismissing a party's pleadings is a “severe sanction, 

to be administered only in the most egregious cases,” we employ “a 

narrowed abuse of discretion standard” of review. Willie-Koonce v. Miami 

Sunshine Transfer & Tours Corp., 233 So. 3d 1271, 1273 (Fla. 3d DCA 2017)

(quoting Empire World Towers, LLC v. CDR Créances, S.A.S., 89 So. 3d 

1034, 1038 (Fla. 3d DCA 2012)). 

ANALYSIS

Section 44.102, Florida Statutes, permits a court to order parties to 

engage in mediation and provides that “[c]ourt-ordered mediation shall be 

conducted according to rules of practice and procedure adopted by the 

Supreme Court.” Areizaga v. Bd. of Cnty. Comm'rs of Hillsborough Cnty., 

935 So. 2d 640, 643 (Fla. 2d DCA 2006) (citation omitted). Florida Rule of 

Civil Procedure 1.720, governing mediation procedures, expressly 

authorizes the imposition of sanctions upon a party as a penalty for failing to 

appear at a duly noticed mediation conference. Fredericks v. Sturgis, 598 

So. 2d 94, 96 (Fla. 5th DCA 1992); Fla. R. Civ. P. 1.720(f).
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In the instant case, the gravamen of the disputed order was that 

nonappearance at mediation demonstrated a flagrant disregard for court 

order, justifying the ultimate sanction of dismissal. As Citizens correctly 

posits, Florida Rule of Civil Procedure 1.720(b) requires the presence of a 

party or party representative with full settlement authority and counsel of 

record at mediation. The rule further mandates physical attendance, and a 

“party representative having full authority to settle” is defined elsewhere in 

the rules as “the final decision maker with respect to all issues presented by 

the case who has the legal capacity to execute a binding settlement 

agreement on behalf of the party.” Fla. R. Civ. P. 1.720(c).

Here, Abreu physically attended the conference accompanied by his 

attorney, and Alvarez appeared telephonically, without objection. Further, 

the affidavit filed in opposition to the sanctions motion, uncontroverted by 

other sworn testimony, alleged both Alvarez and Gonzalez delegated final 

settlement authority to counsel. These events do not warrant a finding that 

all three homeowners willfully or contumaciously defied a court order. 

Instead, the evidence presented below compels the conclusion Abreu fully 

complied, Alvarez either complied or substantially complied, and Gonzalez 

endeavored to comply with the edict of the order and rule. Nonetheless, as 

Citizens urges, it is irrefutable that the record reflects no formal filing of a 
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certificate of settlement authority. See Fla. R. Civ. P. 1.720(e) (“Unless 

otherwise stipulated by the parties, each party, [ten] days prior to appearing 

at a mediation conference, shall file with the court and serve all parties a 

written notice identifying the person or persons who will be attending the 

mediation conference as a party representative.”). Thus, the inconvenience 

associated with the adjournment of mediation falls squarely upon Gonzalez 

and, arguably, her counsel.

It is axiomatic that trial courts enjoy broad discretion and flexibility in 

fashioning sanctions to enforce court orders.2 Among these options is the 

authority to strike the pleadings of a party or dismiss an action. See Fla. R. 

Civ. P. 1.420(b) (“Any party may move for dismissal of an action or of any 

claim against that party for failure of an adverse party to comply with these 

rules or any order of court.”). Such discretion is not unbridled, however, as 

it is widely presumed the interests of justice are best served by resolving 

cases on their merits. 

2 The homeowners correctly argue that where the actions of counsel are 

implicated, the trial court must consider the six factors established in the 

seminal case of Kozel v. Ostendorf, 629 So. 2d 817 (Fla. 1993) to determine 

whether dismissal is appropriate and set forth explicit findings of fact in an

order imposing the sanction of dismissal. See Bank of Am., N.A. v. Ribaudo, 

199 So. 3d 407, 408 (Fla. 4th DCA 2016). Here, the court did neither. 

Because the homeowners did not raise this oversight at the hearing on the 

motion to dismiss or by subsequently filing a motion for rehearing, however,

the issue is unreviewable on appeal. Id. at 409. 
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Adhering to these principles, it is imperative that “courts strike the 

appropriate balance between the severity of the infraction and the impact of 

the sanction when exercising their discretion to discipline parties to an 

action.” Ham v. Dunmire, 891 So. 2d 492, 499 (Fla. 2004). In this vein, 

“because dismissal is the ultimate sanction in the adversarial system, it 

should be reserved for those aggravating circumstances in which a lesser

sanction would fail to achieve a just result.” Kozel, 629 So. 2d at 818; see

also Gonzalez v. Trinity Marine Grp., Inc., 117 F.3d 894, 899 (5th Cir. 1997)

(remanding “case to the district court for selection of an appropriate sanction 

which fully addresses Plaintiff's egregious behavior, but falls short of the 

ultimate sanction of dismissal of Plaintiff's entire claim with prejudice”); 

Barnhill v. United States, 11 F.3d 1360, 1367 (7th Cir. 1993) (observing “the 

particular sanction of dismissal with prejudice or judgment is ‘draconian,’ and 

‘must be infrequently resorted to by [trial] courts’”) (citations omitted).

Applying these adages to the instant case, as two of the three 

homeowners followed the directive of the court, dismissal was not

commensurate with the dereliction it sought to punish. Indeed, less

draconian, rule-based alternatives to case-determinative sanctions were 

readily available to effectively remedy the troublesome delay in mediation. 

Florida Rule of Civil Procedure 1.720(f) provides, “[i]f a party fails to appear 
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at a duly noticed mediation conference without good cause, the court, upon 

motion, shall impose sanctions, including award of mediation fees, attorneys' 

fees, and costs, against the party failing to appear.” The specified penalties

have not been uniformly construed as exhaustive. See Smith v. Wal-Mart, 

Inc., 835 So. 2d 353 (Fla. 1st DCA 2003) (contemplating dismissal as an

appropriate sanction when failure to attend mediation is willful). 

Nonetheless, our sister courts have widely embraced the position that 

monetary penalties, such as those promulgated under the rule, adequately 

serve to punish the non-compliant and negate any prejudice against the 

opposing party. See H & R Block Bank v. Perry, 205 So. 3d 776, 781 (Fla. 

2d DCA 2016) (determining “[v]iolations of rule 1.720 have typically been 

addressed with” “sanctions that include attorney's fees and costs and 

mediator expenses”); Mash v. Lugo, 49 So. 3d 829, 830 (Fla. 5th DCA 2010)

(“[I]f a party fails to appear at a duly noticed mediation conference without 

good cause, the court may impose sanctions against the party failing to

appear. Accordingly, appellees are hereby ordered to pay [the mediator’s 

and attorney’s fees as] sanctions.”); HDE, Inc. v. Bee-Line Supply Co. Inc., 

181 So. 3d 1285, 1287 (Fla. 5th DCA 2015) (finding “sanctions are 

appropriate for a party's failure to appear at a court-ordered mediation” and 

ordering party to pay mediation and attorney’s fees for failure to attend 
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mediation); Carbino v. Ward, 801 So. 2d 1028, 1031 (Fla. 5th DCA 2001)

(determining paying “mediator costs and attorney's fees” was sufficient 

sanction for failure to appear at mediations without good cause); Carden & 

Assocs., Inc. v. C.O.D. Trees P'ship, 83 So. 3d 862, 863 (Fla. 5th DCA 2012)

(ordering appellant to pay “all fees charged by the mediator in connection 

with [the] appellate mediation; and, . . . [appellee’s] reasonable costs and 

attorneys' fees incurred in preparing for and attending the appellate 

mediation and filing the instant motion for sanctions” after appellant failed to 

show for mediation); Harrelson v. Hensley, 891 So. 2d 635, 636-37 (Fla. 5th 

DCA 2005) (ordering appellant pay all fees charged by the mediator, 

appellee’s attorney’s fees incurred in conjunction with mediation, and a 

monetary sanction for “willful failure to comply with [the] court's mediation 

order”). 

Declining to stray from these sagacious decisions, we conclude the 

findings below do not pass muster. Any transgression in this case was not 

so egregious as to warrant the ultimate sanction of dismissal. Thus, we 

reverse the order under review and remand for further proceedings 

consistent with this opinion.

Reversed and remanded.