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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