DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

KERRY ANN BARRETT,

Appellant,

v.

THE ESCAPE OF ARROWHEAD ASSOCIATION, INC.,

Appellee.

No. 4D13-3044

[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. Barrett, Hollywood, pro se.

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

FORST, J.

Appellee The Escape of Arrowhead Association, Inc. (“the HOA”) 

brought a foreclosure 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. Without 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 are 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 of 
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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, the 

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 February 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 hearing on the April 4 motion for sanctions, Appellant argued 

the reason she had not paid the February 13 sanction was because she 

had timely moved for rehearing on that order. The trial court, seeing no 

such motion before it, found that the Homeowner attempted 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, 

the supplemental record submitted to this Court 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 defenses 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.”).
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Florida Rule of Civil Procedure 1.380(b) allows a trial court to enter an 

award of reasonable attorneys’ fees as a sanction for failure to comply with 

discovery 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 default 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 “justice 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 callousness.” 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. Additionally, 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 not 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 of 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 court 
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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.

WARNER and CONNER, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.