DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

RSBD, LLC,

Appellant,

v.

VELOCITY #1 LLC, VELOCITY 3 LLC and

VELOCITY SERVICES, INC.,

Appellees.

No. 4D2022-2957

[February 21, 2024]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, 

Broward County; John B. Bowman, Judge; L.T. Case No. CACE19-012748.

Matthew Carcano and Moises A. Saltiel of the Saltiel Law Group, Coral 

Gables, for appellant.

Stephen J. Padula and Joshua S. Widlansky of Padula Bennardo 

Levine, LLP, Boca Raton, for appellees.

WARNER, J.

Appellant RSBD, LLC (“RSBD”), appeals a final judgment for damages 

based upon a breach of contract and fraudulent lien in connection with 

construction work that RSBD performed for appellees, Velocity #1, LLC, 

Velocity 3, LLC, and Velocity Services, Inc. (collectively “Velocity”). Prior 

to the trial on damages, the court struck all of RSBD’s pleadings for its 

failure to attend a case management conference after the court had 

allowed RSBD’s counsel to withdraw. The court entered the order without 

a hearing. We reverse, as RSBD was denied due process to challenge the 

sanction.

In June 2019, RSBD initiated the underlying lawsuit against Velocity

for foreclosure, unjust enrichment, and quantum meruit on multiple 

contracts. The claims arose out of construction work that Velocity had 

hired RSBD to perform on the various properties, but Velocity terminated 

the contracts before RSBD had finished the work.
2

After unsuccessfully moving to dismiss, Velocity filed an answer and 

affirmative defenses, and counterclaims for breach of contract and for 

fraudulent lien regarding the different properties. The first counterclaim 

alleged that RSBD had breached several renovation contracts that RSBD 

had with Velocity. The second counterclaim alleged that RSBD also had 

filed liens on the subject properties for amounts RSBD alleged that Velocity 

contractually owed, and the lien amounts had been exaggerated. RSBD 

filed an answer and affirmative defenses to Velocity’s counterclaims.

In May 2020, RSBD’s counsel filed a motion to withdraw as counsel 

based upon irreconcilable differences. On June 4, 2020, the trial court 

granted the motion to withdraw and ordered RSBD to retain new counsel 

within thirty days. The withdrawal order provided that “[n]o hearing or 

conference shall be scheduled to occur during the next thirty (30) days.” 

The order also provided that “[a]ll further pleadings, motions, notices, 

correspondence, and other documents shall be served directly on [RSBD], 

care of Ricardo Sanchez.” This order was not served on Sanchez.

The trial court signed an order on June 1, 2020, setting a case 

management conference (“CMC”) for July 7, 2020. The order does not 

contain any filing date with the clerk’s office, and does not appear in the 

clerk’s progress docket for June of 2020. The order had the names and 

addresses of counsel and of Sanchez handwritten in the margins. On June 

5, 2020, Velocity’s attorney sent a notice of a virtual case management 

hearing for July 7, including information to connect to the Zoom call. This 

notice was served on the RSBD’s withdrawn attorney but not on Sanchez.

Apparently, the Zoom CMC occurred on July 7, 2020, but no one 

representing RSBD was present. On August 11, 2020, Velocity filed a 

motion for court’s default, to strike RSBD’s pleadings, and to discharge 

the underlying liens. The default motion was served on Sanchez. The 

motion argued that default should be entered against RSBD because 

RSBD had not attended the CMC and had not secured counsel within

thirty days of prior counsel’s withdrawal. Three days after the default 

motion was filed, and without affording RSBD a hearing, the trial court 

granted the motion and struck RSBD’s pleadings as well as discharged the 

liens which RSBD had placed against Velocity’s properties. On that same 

day, Velocity filed a verified motion for summary judgment after default, 

seeking summary judgment on its counterclaims. Velocity’s motion for 

summary judgment was served on Ricardo Sanchez on August 14, 2020.

A month later, an attorney filed a notice of appearance for RSBD and 

moved to vacate the sanction order. RSBD claimed excusable neglect, 
3

because it had difficulty obtaining new counsel on the court’s timeline due 

to the COVID-19 pandemic. The court denied the motion.

The case proceeded to a trial on damages on Velocity’s counterclaim, 

resulting in a judgment against RSBD for $1,484,171.47, plus 

prejudgment interest. From this judgment, RSBD takes this appeal.

Analysis

Striking pleadings is the most extreme of sanctions for failure to comply 

with court orders, but this sanction may be appropriate “where the 

offending conduct is flagrant, willful or persistent.” Kamhi v. Waterview 

Towers Condo. Ass’n, 793 So. 2d 1033, 1036 (Fla. 4th DCA 2001). 

Although this sanction may be imposed for failure to secure counsel, or 

for failure to attend a noticed case management conference, it “should only 

be employed in extreme circumstances such as when the party exhibits a 

deliberate and contumacious disregard for the court’s authority.” Global 

Recreation, Ltd. v. Arco Shows, Inc., 585 So. 2d 455, 456 (Fla. 2d DCA 

1991); Giemme USA, LLC v. La Sala Grp., Inc., 92 So. 3d 920, 922 (Fla. 4th 

DCA 2012). In Giemme, on facts very similar to this case, we reversed the 

entry of a default and striking of the party’s pleadings where the party did 

not appear at a case management hearing after its counsel had withdrawn. 

92 So. 3d at 922. We noted that the record did not disclose any willful 

and contumacious conduct which was necessary to justify the default. Id.

Where the court is considering imposing the sanction of striking a 

party’s pleadings for disobedience to a court order or failing to appear at a 

hearing, due process requires that the party be given notice and an 

opportunity to be heard on the issue. See Baleanu v. Sandulescu, 78 So. 

3d 98, 99 (Fla. 4th DCA 2012) (“When a defendant fails to appear for trial, 

the court has two options: proceed with the trial, requiring the plaintiff to 

put on its case, or enter a default due to the failure to defend. The default 

may not be entered, however, until the defendant is served with notice of 

the application for default and afforded an opportunity to explain.”

(citations omitted)). “A party to be sanctioned . . . must first be given notice 

and an opportunity to be heard and offer mitigating or extenuating 

evidence . . . .” Wildwood Props., Inc. v. Archer of Vero Beach, Inc., 621 So. 

2d 691, 692 (Fla. 4th DCA 1993).

Here, RSBD had no opportunity to be heard prior to the court issuing 

its order striking RSBD’s pleadings and discharging its liens. This error

requires us to reverse.
4

While acknowledging the lack of a hearing and thus the lack of due 

process, Velocity states that the record is undisputed as to RSBD’s failure 

to abide by the order to secure counsel and to attend the case management 

conference. Although this still would not excuse the lack of notice and 

opportunity to be heard, we disagree that the record is sufficient to justify 

the default.

The striking of pleadings and entry of default should only be employed 

in extreme circumstances and requires that the court find that the conduct 

was willful and contumacious. Kamhi, 793 So. 2d at 1036. So important 

is this limitation that our supreme court has held that the trial court must 

make findings of willful noncompliance in order to enter a default. See

Commonwealth Fed. Sav. & Loan Ass’n v. Tubero, 569 So. 2d 1271, 1272–

73 (Fla. 1990). Such findings must be supported by the record. See

Giemme, 92 So. 3d at 922. The trial court did not make such findings and 

only recited that it was basing its order on “having read the moving 

papers,” and “having heard argument of counsel.”

The motion to strike the pleadings alleged only that RSBD was ordered 

to obtain new counsel and did not do so within the thirty-day deadline. 

Thus, the only ground was noncompliance with the court order. “Mere 

negligence does not suffice to justify such an extreme measure, and mere 

noncompliance with a court order, standing alone, is insufficient to 

indicate willfulness.” Baja Vill. Mkts., Inc. v. Baja Supermarket, Inc., 712 

So. 2d 465, 466 (Fla. 3d DCA 1998); see also Giemme, 92 So. 3d at 922

(finding that failing to attend a case management conference after party’s 

attorney withdrew was not evidence of a willful and contumacious 

disregard of court order to justify defaulting party).

Additionally, while RSBD failed to attend the July 2020 case 

management conference, the notice for that conference was served on 

RSBD’s recently withdrawn counsel. While Sanchez is listed on the order 

setting the case management conference, it is unclear whether that order 

was served on him, because the order does not include a certificate of 

service, and his name is merely handwritten in the margin. In any event, 

the order actually noticing the hearing, which included all of the pertinent 

Zoom information to attend the remote hearing, was served only on 

RSBD’s withdrawn counsel. Thus, from this record it cannot be concluded 

that RSBD’s failure to attend that conference was willful, rather than 

neglectful or inadvertent. See Tubero, 569 So. 2d at 1271.
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Conclusion

The trial court failed to afford RSBD due process by denying it the

opportunity to be heard before striking all of its pleadings. The record 

does not support a conclusion that such relief is warranted, as the motion 

itself did not present any claim of willful or contumacious disregard of the 

court’s authority such that the severe sanction of default should be 

imposed, nor did the court’s order include such findings. For these 

reasons, we reverse the final judgment, direct the vacation of the order 

striking pleadings and entering a default, and remand for further 

proceedings.

Reversed and remanded.

DAMOORGIAN and FORST, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.