OLUWABUKOLA OLAWOYE 

and MULIKATOU DISU,

Appellants,

v.

OLUFISAYO ARUBUOLA,

Appellee.

IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT, STATE OF FLORIDA

NOT FINAL UNTIL TIME EXPIRES TO 

FILE MOTION FOR REHEARING AND 

DISPOSITION THEREOF IF FILED

CASE NO. 1D15-3774

_____________________________/

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 
2

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 
3

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 
4

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.