### D ISTRICT 

### C OURT 

### O F 

### A PPEAL 

### O F 

### T HE 

### S TATE 

### O F 

### F LORIDA

F OURTH D ISTRICT

KERRY ANN BARRETT
, Appellant,

v.

THE ESCAPE OF ARROWHEAD ASSOCIATION, INC.
, Appellee

.

No. 4D 13

- 3044

[ June 8, 2016 ]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County ; Jill Levy , Judge; L.T. Case No. CACE12016510

.

Kerry N. B arrett, Hollywood, pro se

.

Patrick Dervishi of Shir Law Group, P.A., Boca Raton, for appellee.

F ORST

, J

.

Appellee The Escape of Arrowhead Association, Inc. (“the HOA”) brought a f oreclosure action against Appellant Kerry Ann Barrett for failure to pay her homeowners’ association dues. During the course of the proceedings, the trial court struck Appellant’s answer and affirmative defenses as a sanction for repeated misconduct. Wit hout any answer to the HOA’s complaint from Appellant to create a genuine issue of material fact, the trial court entered summary judgment in favor of the HOA

. Appellant now appeals both the sanction and the summary judgment entered against her. As we ar e unable to find reversible error , we affirm the trial court’s rulings on both issues.

BACKGROUND

The HOA brought a foreclosure action against Appellant in 2011 based on a lien it obtained in 2006 for Appellant’s failure to pay the required dues. Appellant answered the complaint and alleged a variety of affirmative defenses and a counterclaim arising from alleged negligence by the HOA in protecting and/or repairing Appellant’s condo during Hurricane Wilma. Appellant’s counterclaim and, later, amended counterclaims were eventually dismissed as outside of the statute of2 limitations.

More pertinent to the case at hand, Appellant failed to comply with several discovery orders and was sanctioned for her failures for the first

time on November 16, 2012

. As part of the order granting sanctions, t he court ordered Appellant to pay $500 to the HOA within 30 days. Appellant failed to make this payment within the specified time frame and the HOA again moved for sanctions on January 2, 2013

.

The trial court scheduled a hearing on the January 2 motion and ordered Appellant to appear. She did not. On Februa ry 13, Appellant was given 30 days to pay another $500 sanction. She did not. On April 4, the HOA yet again moved for sanctions stemming from this failure to pay. The HOA requested the trial court strike Appellant’s pleadings as a penalty.

At the he aring on the April 4 motion for sanctions, Appellant argued

the reason she had not paid the February 13 sanction was because she had timely move d for rehearing on that order. The t rial court, seeing no

such motion before it, found that the Homeowner attem pted to intentionally mislead the court by claiming that she filed a motion for reconsideration. Additionally, the court noted Appellant’s failure to comply with numerous court orders and her untimely or non

- payment of the resulting sanctions. The court found the noncompliance with court orders to be “inexcusable, willful, and deliberate.”

Unfortunately, although the record before the trial court apparently did not include Appellant’s motion for rehearing of the February 13 sanction,

th e supplemental record submitted to this C ourt includes a motion for rehearing marked as filed with the Broward County Clerk’s office on February 22. It is unclear why it was not properly in the court file.

The trial court struck Appellant’s answer and affirmative de fenses and entered a default against her. The trial court then entered a final summary judgment against Appellant

.

ANALYSIS

We review a trial court’s order granting sanctions for an abuse of

discretion. See Nationwide Mut. Fire Ins. Co. v. Robinson

, 915 So. 2d 262, 263 (Fla. 4th DCA 2005); Mercer v. Raine , 443 So. 2d 944, 946 (Fla. 1983) (“[T]o justify reversal, it would have to be shown on appeal that the trial court clearly erred in its interpretation of the facts and the use of its judgment and not merely that the court, or another fact

- finder, might have made a different factual determination.”)

.3 Florida Rule of Civil Procedure 1.380(b) allows a trial court to enter an award of reasonable attorney s ’ fees as a sanction for failure to comply with

di scovery orders. The rule also allows for a trial court to enter “[a]n order striking out pleadings . . . or rendering a judgment by default against the disobedient party.” Fla. R. Civ. P. 1.380(b)(2)(C).

“[T]he striking of pleadings or entering a defa ult 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. “Moreover, the sanction ‘must be commensurate with the violation, since “just ice prefers decisions based upon the merits” over determinations resulting from defaults or dismissals.’” Precision Tune Auto Care, Inc. v. Radcliffe , 804 So. 2d 1287, 1290 (Fla. 4th DCA 2002 ) (quoting Tubero v. Chapnich , 552 So. 2d 932, 935 (Fla. 4th DCA 1989)). “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 cal lousness.” Mercer , 443 So. 2d at 946 (citation omitted)

.

Here, based on the record before the trial court, we cannot say the court abused its discretion when it entered the order granting sanctions. Appellant’s conduct throughout the case had displayed a “deliberate and contumacious disregard for the court’s authority” such that this extreme

sanction was warranted. Id. Appellant has not shown, nor would we be inclined to agree, that “ the trial court clearly erred in its interpretation of

the facts and the use of its judgment ,” given the record before the court at

the time of its ruling

. Id . Therefore, we affirm the trial court’s order granting sanctions, striking Appellant’s answer and affirmative defenses, and entering a default against her. Additio nally, since Appellant had been defaulted and had no responsive pleadings to show any genuine issues of material fact, we affirm the trial court’s entry of summary judgment in

favor of the HOA.

Our opinion in this case is no t meant to operate as a bar to Appellant seeking relief from the trial court’s judgment under Rule 1.540 of the Florida Rules of Civil Procedure. A Rule 1.540 motion may be Appellant’s best opportunity to show the trial court that it made its ruling without an accurate understanding o f the facts of the case , i.e., the filing of the motion

for reconsideration on February 22, 2013

.

CONCLUSION

Based on the record before the trial court, we cannot say the trial court4 abused its discretion by granting the motion for sanctions against Appellant and striking her pleadings. Likewise, the court did not err by granting summary judgment in favor of the HOA. Accordingly, we affirm

as to both issues.

W ARNER and C ONNER

, JJ., concur

.

* * *

Not final until disposition of timely filed motion for rehearing.