Property Owners Association, Inc.

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT

THE BANK OF NEW YORK MELLON f/k/a
THE BANK OF NEW YORK,
AS TRUSTEE FOR THE CERTIFICATEHOLDERS CWMBS, INC.,
CHL MORTGAGE PASS-TROUGH TRUST 2006-HYB 2
MORTGAGE PASS-TROUGH CERTIFICATES, SERIES 2006-HYB 2,
Appellant,

v.

JEFFREY KOSSIS, MARLENE KOSSIS,
MEADOWS ON THE GREEN CONDOMINIUM ASSOCIATION, INC.,
THE 300 PROPERTY OWNERS ASSOCIATION, INC., and
UNKNOWN TENANT IN POSSESSION OF THE SUBJECT PROPERTY,
Appellees.

No. 4D12-3855

[May 27, 2015]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Howard H. Harrison, Senior Judge; L.T. Case No.
502011CA018402XXXXMB.

Karene Lynn Tygenhof and Wm. David Newman, Jr., of Choice Legal
Group, P.A., Fort Lauderdale, and substituted as counsel after filing of
initial brief, Shaib Rios of Brock & Scott, PLLC, Fort Lauderdale, for
appellant.

Peter Ticktin, Josh Bleil, Kendrick Almaguer and Nusrat Aziz of The
Ticktin Law Group, P.A., Deerfield Beach, for appellees Jeffrey Kossis and
Marlene Kossis.

GERBER, J.

The bank appeals from the circuit court’s order dismissing the bank’s
foreclosure action without prejudice as a sanction for the bank’s failure to
comply with a discovery order. The bank primarily argues the court erred
by dismissing the action without the requisite written findings of fact to
support such a sanction. We agree with that argument. Therefore, we
reverse the dismissal order and remand for further proceedings.
 After the bank filed its foreclosure action, the homeowners served
interrogatories and a request for production on the bank. The bank failed
to timely respond to the requests. The homeowners, by e-mail, attempted
to obtain the bank’s responses. The bank still did not respond. The
homeowners then filed an ex-parte motion to compel the bank’s responses.
The court granted the motion, giving the bank a period of time to serve its
responses. The bank failed to comply timely with the court’s order.

The bank later served its belated response to the homeowners’ request
for production, including some objections. However, the bank did not
serve its responses to the homeowners’ interrogatories.

Based on the bank’s failure to comply with the court’s discovery order,
the homeowners filed a motion for sanctions. In the motion, the
homeowners stated: “Prohibiting the [bank] from supporting its claims
. . . is a sanction proportionate with the violation committed.”

The day before the hearing on the motion for sanctions, the bank served
its unverified responses to the homeowners’ interrogatories, including
some objections.

After the hearing on the motion for sanctions, the court entered a
written order stating that the motion “is hereby granted. [The bank’s]
complaint is involuntarily dismissed without prejudice. New complaint
must be served.”

The bank filed a motion for rehearing. In the motion, the bank first
noted that the homeowners did not seek the dismissal sanction which the
court entered. The bank then argued the court erred in entering the
dismissal sanction because: (1) the aggravating circumstances necessary
to warrant the dismissal sanction were not present; (2) the court did not
hold an evidentiary hearing to determine whether a lesser sanction would
suffice; and (3) the court did not issue written findings of fact justifying
the dismissal sanction.

The court denied the bank’s motion for rehearing without comment.
This appeal followed.1

1We initially relinquished jurisdiction to the circuit court to clarify whether it was
dismissing the action (thus giving this court jurisdiction over this appeal) or was
permitting an amended complaint to be served within the action (thus leaving
this court without jurisdiction). See, e.g., Potts v. Potts, 615 So. 2d 695, 696 (Fla.
2d DCA 1992). The circuit court entered an amended sanctions order indicating
that it was dismissing the action. Thus, we have jurisdiction over this appeal.

2
 The bank primarily argues that the court erred by dismissing the action
without the requisite written findings of fact to support such a sanction.
The bank secondarily argues that the dismissal was disproportionate to
the violation because the bank had violated a single discovery order and
had substantially cured the violation before the court entered the
dismissal.

Based on these arguments, we review the court’s actions for an abuse
of discretion. See Ham v. Dunmire, 891 So. 2d 492 (Fla. 2004) (“It is well
settled that determining sanctions for discovery violations is committed to
the discretion of the trial court, and will not be disturbed upon appeal
absent an abuse of the sound exercise of that discretion.”).

We agree with the bank that the court erred by dismissing the action
without the requisite written findings of fact to support such a sanction.
As our supreme court held in Ham:

The dismissal of an action based on the violation of a
discovery order will constitute an abuse of discretion where
the trial court fails to make express written findings of fact
supporting the conclusion that the failure to obey the court
order demonstrated willful or deliberate disregard. Express
findings are required to ensure that the trial judge has
consciously determined that the failure was more than a
mistake, neglect, or inadvertence, and to assist the reviewing
court to the extent the record is susceptible to more than one
interpretation . . . .

Moreover, to ensure that a litigant is not unduly punished
for failures of counsel, the trial court must consider whether
dismissal with prejudice is warranted. In . . . Kozel v.
Ostendorf, 629 So. 2d 817 (Fla. 1993)[,] . . . [w]e articulated a
test identifying six factors pertinent in the determination of
whether a dismissal with prejudice is a warranted response to
an attorney’s behavior. These factors require a trial court to
consider:

1) whether the attorney’s disobedience was
willful, deliberate, or contumacious, rather than
an act of neglect or inexperience; 2) whether the
attorney has been previously sanctioned; 3)
whether the client was personally involved in the
act of disobedience; 4) whether the delay

3
 prejudiced the opposing party through undue
expense, loss of evidence, or in some other
fashion; 5) whether the attorney offered
reasonable justification for noncompliance; and
6) whether the delay created significant problems
of judicial administration.

Upon consideration of these factors, if a sanction less severe
than dismissal with prejudice appears to be a viable
alternative, the trial court should employ such an alternative.

Ham, 891 So. 2d at 495-96 (citations and quotation marks omitted).

Here, the dismissal order makes no written findings as Ham requires,
and provides no indication that the court considered the six factors as
Kozel requires. Thus, the dismissal order violates both Ham and Kozel.

The homeowners argue, among other things, that such findings and
consideration were unnecessary because the dismissal order was “without
prejudice.” We disagree that the “without prejudice” caveat made such
findings and consideration unnecessary. See Wells Fargo Bank, N.A. v.
Stahler, 115 So. 3d 1105, 1106 (Fla. 5th DCA 2013) (“The dismissal
without prejudice was clearly intended as a sanction for perceived
discovery abuses. As such, we agree with [the bank] that the trial court
erred in failing to include in its order a written finding of willful or
intentional defiance of court authority.”) (citation omitted; emphasis
added).

Accordingly, we “reverse and remand for the trial court to consider the
factors articulated in Kozel . . . in determining whether dismissal is
appropriate for the discovery violations at issue and to make written
factual findings regarding willful or deliberate disregard if the court again
concludes that dismissal is an appropriate sanction.” Tianvan v. AVCO
Corp., 898 So. 2d 1208, 1209 (Fla. 4th DCA 2005).

Because we remand for this purpose, it is premature for us to consider
the bank’s secondary argument that the dismissal order was
disproportionate to the violation. However, for the circuit court’s
consideration on remand, we note only our supreme court’s admonition
from Ham: “While sanctions are within a trial court’s discretion, it is also
well established that dismissing an action for failure to comply with orders
compelling discovery is the most severe of all sanctions which should be
employed only in extreme circumstances.” 891 So. 2d at 495 (citation and
quotation marks omitted).

4
 Reversed and remanded.

STEVENSON and CONNER, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

5