Bank of New York Mellon v. Timothy M. Clark, Sanctuary at Redfish Condominium Association, Inc. Excuisite Builders, LLC Beach Community Bank Unknown Occupant 1 Unknown Occupant 2 Unknown Spouce of Timothy M. Clark
IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
BANK OF NEW YORK NOT FINAL UNTIL TIME EXPIRES TO
MELLON, FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
Appellant,
v. CASE NO. 1D15-2250
TIMOTHY M. CLARK;
SANCTUARY AT REDFISH
CONDOMINIUM
ASSOCIATION, INC;
EXQUISITE BUILDERS, LLC;
BEACH COMMUNITY BANK;
UNKNOWN OCCUPANT #1;
UNKNOWN OCCUPANT #2;
UNKNOWN SPOUSE OF
TIMOTHY M. CLARK,
Appellees.
_____________________________/
Opinion filed February 2, 2016.
An appeal from the Circuit Court for Walton County.
William P. White, Jr., Judge.
David W. Rodstein of Padula Hodkin, PLLC, Boca Raton, for Appellant.
John Cottle of Becker & Poliakoff, P.A., Fort Walton Beach, for Appellee,
Sanctuary at Redfish Condominium Association, Inc.
PER CURIAM.
Appellant argues the trial court abused its discretion when it dismissed
appellant’s foreclosure claim with prejudice as a sanction for counsel’s discovery
violations without making explicit written findings pursuant to Kozel v. Ostendorf,
629 So. 2d 817 (Fla. Oct. 28, 1993, clarified Jan. 13, 1994). We agree and reverse
and remand for the trial court to consider the six factors outlined in Kozel and
whether a sanction less severe than dismissal with prejudice is a viable alternative
in light of those factors. If, after considering these factors, the trial court concludes
that the conduct of appellant and/or its counsel warrants dismissal of the action
with prejudice, the court shall enter an order containing explicit findings of fact
and conclusions of law with respect to each of the six Kozel factors and with
respect to the determination that no less severe sanction would be a viable
alternative under the circumstances. See Smith v. City of Panama City, 951 So. 2d
959, 962 (Fla. 1st DCA 2007).
REVERSED and REMANDED with instructions.
ROBERTS, C.J., and WOLF, J., CONCUR; THOMAS, J., SPECIALLY
CONCURRING WITH OPINION.
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THOMAS, J., SPECIALLY CONCURRING.
Although this Court must remand for factual findings consistent with Kozel
v. Ostendorf, 629 So. 2d 817 (Fla. 1994), it is apparent that discovery violations
occurred in this case. And although it is correct that this court reversed an order
imposing a sanction of dismissal for discovery violations in GMAC Mortgage,
LLC v. Whiddon, 164 So. 3d 97 (Fla. 1st DCA 2015), that case is readily
distinguishable from the discovery violations documented here. In GMAC, the
party at fault improvidently filed a foreclosure action and demonstrated an inability
to follow rules of procedure. Here, the trial court correctly recognized that some of
the discovery violations were egregious.
But we do not decide here whether the trial court will and could enter an
order that would comply with Kozel, and we cannot speculate whether the trial
court will again find dismissal the appropriate sanction. Nevertheless, we cannot
and do not countenance actions in which litigants disregard discovery deadlines,
file meaningless objections, insert boilerplate responses, and file repeated motions
for additional time to respond, only to provide insufficient information or
documents. When legal decisions are unduly delayed because one party refuses to
perform their legal obligations to comply with discovery rules, it is entirely
appropriate for a trial court to carefully consider sanctions when raised by the non-
offending party. It is critical to remember that discovery abuses are not merely
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private matters between private litigants, but are public abuses that violate citizens’
proper expectation that the judiciary will ensure that cases are timely resolved.
Civil cases lingering in courts for years without final resolution because of
lengthy discovery disputes should not be tolerated in courts of law. All involved,
judges and litigants, have a solemn responsibility to ensure that inexcusable delays
in civil legal proceedings do not occur, and where such are documented, that the
delays are appropriately punished. I commend the trial court for its efforts here,
but I concur, as I must, for further proceedings in accordance with Kozel.
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