All Dry USA v. Fred Savell and Mary Savell

FIRST D ISTRICT COURT OF APPEAL
S TATE OF FLORIDA
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No. 1D2024-1700
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A LL DRY USA,
Appellant,
v.
FRED SAVELL and M ARY SAVELL ,
Appellees.
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On appeal from the Circuit Court for Escambia County.
Amy P. Brodersen, Judge.
March 25, 2026
W INOKUR , J.
This 	case 	arises 	from 	a 	dispute 	over 	money 	owed 	for
remediation and mitigation services rendered by All Dry USA
(ADU). Because the trial court erred in striking ADU’s complaint
as a sanction for violating a discovery order, we reverse.
I
In 	September 	2020, 	Fred 	and 	Mary 	Savell’s 	home 	was
damaged by the flooding from Hurricane Sally. The Savells then
contracted 	with 	ADU 	to 	provide 	water 	mitigation, 	mold
remediation, and a restorative tarp. The Savells executed a “Work
Authorization Agreement” with ADU. After providing more than a

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week’s worth of work on the Savells’ home, ADU invoiced the
Savells for the services rendered. The three invoices provided by
ADU valued the work provided at $90,130.61. The Savells disputed
the valuation of the work performed and refused to pay.
ADU sued 	the 	Savells for breach 	of 	contract and 	unjust
enrichment. The Savells answered, admitting that they contracted
with ADU for remediation and mitigation services, but denying
that agreement was reached about the cost of the services.
As part of discovery, the Savells served ADU with a request
for production of documents. ADU failed to respond to the request,
so the Savells moved the trial court for an order compelling
discovery. The trial court granted the motion and ordered ADU to
respond 	to 	the 	request 	and 	to 	comply 	with 	all 	outstanding
discovery deadlines. On the day ADU’s response was required,
ADU filed a motion for an extension of the deadline. But before the
trial court ruled on the motion, the Savells moved the trial court
to strike ADU’s complaint as a sanction for violating the discovery
order and the case management order.
Following 	a 	hearing, 	the 	trial 	court 	granted 	the 	Savells’
motion to strike the pleadings, stating that ADU failed to comply
with the deadlines in the case management order and that, in
doing 	so, 	ADU’s 	actions 	prejudiced 	the 	Savells. 	The 	order,
however, did not explain how the Savells were prejudiced by ADU’s
noncompliance with the case management order or the order
compelling discovery. The Savells then moved the trial court for a
default 	judgment 	because 	ADU 	no 	longer 	had 	an 	operative
complaint. 	The 	trial 	court 	granted 	that 	request 	and 	entered
judgment for the Savells. And after rehearing was denied, this
appeal followed.
II
ADU argues the trial court (1) denied ADU due process when
it struck its complaint as a sanction, and (2) failed to find that ADU
willfully disregarded the trial court’s discovery orders.*
* We reject the Savell’s argument that ADU cannot receive
appellate relief because it failed to present a sufficient record for

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We begin with the source of the trial court’s authority to strike
pleadings—Florida Rule of Civil Procedure 1.380(b)(2). The rule
grants trial courts the discretion to strike pleadings in response to
discovery 	order 	violations. 	Id. 	We 	note, 	however, 	that 	rule
1.380(b)(2) 	only 	grants 	trial 	courts 	the 	discretion 	to 	strike
pleadings if a discovery order is disobeyed. See id. And that the
trial court’s discretion is not unbridled. See Mercer v. Raine, 443
So. 2d 944, 946 (Fla. 1983). Thus, an order striking pleadings is
justified if it is found that a party has violated numerous discovery
orders, or has shown a “deliberate and contumacious disregard of
the court’s authority[.]” Id. Under this standard, it does not appear
that an order striking pleadings is justified.
A
First, the trial court’s order addresses only the perceived
prejudice that the Savells would suffer if ADU were allowed to
extend the discovery deadline to disclose an expert witness when
the trial date was fast approaching. Although important, prejudice
is not the standard by which a trial court should be guided when
deciding to strike pleadings as a sanction for disobedience of
discovery orders. See Mercer, 443 So. 2d at 946 (holding that
striking 	pleadings 	is 	appropriate 	when 	the 	sanctioned 	party
showed a “deliberate and contumacious disregard of the court’s
authority” or acted in “bad faith, [or] willful disregard or gross
indifference to an order of the court[]”); see also Clark v. Lake City
Police Dep’t, 723 So. 2d 901, 902 (Fla. 1st DCA 1999) (“[O]rders
striking pleadings should contain specific findings of a willful
failure or deliberate refusal to comply with discovery.”).
The trial court here did not find that ADU deliberately and
willfully disregarded a discovery order. Rather than disobey the
trial court’s order compelling a response to the Savells’ request for
production, ADU chose to move for an extension of the deadlines.
appellate 	review 	by 	including 	transcripts, 	in 	particular 	the
transcript of the hearing on the motion to strike pleadings, in the
record on appeal. The issue on appeal does not turn on factual
findings that transcripts would disclose, but rather on the trial
court’s legal conclusion and election of remedies.

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We find no contumacious disregard of a court’s authority in such
an action.
Likewise, ADU’s actions do not rise to the level commonly
associated with the sanction of striking pleadings. As the Fifth
District put it:
[T]his is not a case in which one party flat-out refused to
furnish information requested. It is a partial compliance
case in which information is trickling in slowly, which
courts 	have 	described 	as 	‘foot-dragging,” 	not 	stone-
walling. In these kinds of cases, the court should initially
devise 	sanctions 	and 	remedies 	short 	of 	the 	ultimate
sanction of dismissal.
Kilstein v. Enclave Resort, Inc., 715 So. 2d 1165, 1169 (Fla. 5th
DCA 1998). See also Green v. Mann, 420 So. 3d 501, 504(Fla. 4th
DCA 2025) (holding that the trial court did not abuse discretion in
striking pleadings because Green and her counsel “violated at least
three court-ordered deadlines to comply with scheduling Green’s
deposition” 	and 	because 	“on 	two 	separate 	occasions 	before
imposing the dismissal sanction, the 	trial court gave Green’s
counsel and Green the opportunity to avoid the sanctions and
comply.” (emphasis supplied)); Clements v. Club Space Mgmt.,
LLC, 388 So. 3d 923, 925 (Fla. 3d DCA 2024) (affirming trial court
order striking pleadings where trial court found appellant failed to
comply with multiple discovery orders up to the eve of trial, even
after “multiple hearings and admonitions by the trial judge”).
B
Second, the trial court’s order found that the sanction was
justified because ADU did not comply with the deadlines in the
case 	management 	order. 	But 	failure 	to 	comply 	with 	case
management deadlines is not grounds for the ultimate sanction of
striking 	a 	party’s 	pleadings. 	Cf. 	Fla. 	R. 	Civ. 	P. 	1.200(j)(6)
(providing that striking of pleadings is available when a party does
not attend a case management conference).
Indeed, nothing in rule 1.200 or 1.380 grants a trial court the
authority to strike a pleading because certain case management

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deadlines are not met. Rather, the rules allow trial courts to bring
the parties in, order them to comply with the case management
discovery deadlines, and then strike pleadings if the subsequent
discovery orders are disobeyed. See generally Fla. R. Civ. P. 1.200,
1.380. And even then, the striking is justified only if the trial court
makes 	a 	finding 	that 	the 	disobedience 	was 	“willful 	and
contumacious.” Oluwabukola Olawoye v. Olufisayo Arubuola, 198
So. 3d 1086, 1088 (Fla. 1st DCA 2016) (“The absence of [a finding
that the party’s conduct was willful and contumacious] expressed
in the order striking Appellants’ answer and entering a default
against them requires reversal.” (citing Commonwealth Fed. Sav.
& Loan Ass’n v. Tubero, 569 So. 2d 1271 (Fla. 1990))).
Thus, without such a finding, we cannot affirm.
III
The order striking ADU’s complaint is R EVERSED, the default
judgment is V ACATED, and the case is REMANDED for further
proceedings.
OSTERHAUS, C.J., concurs; L ONG, J., concurs in result only.
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Not 	final 	until 	disposition 	of 	any 	timely 	and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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L ONG, J., concurring in result only.
I concur in the result only. I would reverse based solely on the
trial court’s failure to make an express written finding that ADU
willfully 	or 	deliberately 	refused 	to 	obey 	a 	court 	order. 	See
Commonwealth Fed. Sav. & Loan Ass’n v. Tubero, 569 So. 2d 1271
(Fla. 1990) (holding that a trial court must make an express
written finding that a party willfully or deliberately refused to
obey a court order before the sanctions of dismissal or default may
be imposed against the party under rule 1.380). The majority goes

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beyond that holding and suggests that the order would still be
reversible even if the required written finding had been included.
I likewise decline to reach the question of whether violation of a
discovery order contained within a case management order can be
sufficient to strike pleadings under rule 1.380(b)(2). Finally, I note
for clarity that the trial court’s error goes only to the striking of
the complaint, not to the striking of any untimely filed witness
lists.
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Michael L. Buckner of Buckner Legal Self-Help Program, Inc.,
Coral Springs, for Appellant.
Ryan M. Barnett of Whibbs Stone Barnett Turner, P.A., Pensacola,
for Appellees.