Wells Fargo National Bank, National Association v. Gerald A. Anish

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT

WELLS FARGO NATIONAL BANK, NATIONAL ASSOCIATION, AS
TRUSTEE,
Appellant,

v.

GERALD A. ANISH,
Appellee.

No. 4D14-385

[February 24, 2016]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Richard L. Oftedal, Judge; L.T. Case No.
2007CA020127XXXXNB.

W. Aaron Daniel and Elliot B. Kula of Kula & Associates, P.A., Miami,
for appellant.

Kendrick Almaguer, Peter Ticktin, Josh Bleil and Felix G. Montañez of
The Ticktin Law Group, P.A., Deerfield Beach, for appellee.

PER CURIAM.

Appellant (“the Bank”) appeals the trial court’s order dismissing its
mortgage foreclosure complaint against appellee (“the Homeowner”). The
dismissal was based on multiple violations of court orders. Since the trial
court did not make the required findings pursuant to Kozel v. Ostendorf,
629 So. 2d 817 (Fla. 1993), we reverse and remand.

The Bank filed a one-count mortgage foreclosure complaint against the
Homeowner. The Homeowner filed his answer and affirmative defenses.

In preparation for trial, the Homeowner moved to strike the Bank’s
witness list and compel discovery. In ruling on the motion, the trial court
entered an order on June 6, 2013, requiring:

[The Bank] shall identify name of the witness to [the
Homeowner] within 20 (twenty) days of this Order. Deposition
 of [the Bank]’s witness shall occur within 40 (forty) days of
this Order. Trial is reset to Wed. Aug. 14, 2013.

On the reset trial date of August 14, 2013, no trial occurred. Instead,
the trial court entered another order, this time on the Homeowner’s motion
in limine and motion for involuntary dismissal. The trial court’s order
stated:

Parties appeared for trial today. The Court is aware of the
Order entered on June 6, 2013, that Order has not been been
[sic] complied with. The Court finds no willful non-compliance
of that Order. The Court very reluctantly will grant the [Bank]
a continuance, over the vehement objection of counsel for [the
Homeowner]. [The Bank]’s witness is [M.P.]. Witness shall
continue to be [M.P.] at trial. [M.P.] shall be made available
for deposition in Palm Beach County, within 30 (thirty) days
of this Order. As reflected in this Order, the Court is very
reluctant to grant continuance; however it is granted subject
to the following provisions: Parties shall (lawyers)
1) Make all efforts to amicably resolve this matter
2) [The Bank] shall pay within 30 (thirty) days, pay [sic]
$5,000.00 (five thousand) to [the Homeowner’s attorney]
directly
3) Court in an effort to be fair to both parties & using its
equitable powers makes this ruling
Reset for Trial, October 17. See Separate Order.

On August 20, 2013, the Homeowner filed a motion in limine/motion
for involuntary dismissal, arguing that, pursuant to the trial court’s June
6, 2013 Order, the Bank was required to name its witness within twenty
days of the June 6th Order, and make that witness available for deposition
within forty days of that order. The Homeowner argued that the Bank
failed in both instances. The Bank filed its witness list naming M.P. as its
intended witness at trial “on August 8, 2013, some 43 (forty-three) days
later than required by the Court’s [June 6th] Order,” and, as a result, the
Bank also failed to meet the deposition deadline.

On September 26, 2013, the Homeowner filed a motion to enforce the
trial court’s August 14, 2013 Order, requiring the Bank to pay the
Homeowner’s attorney $5,000. The Homeowner argued that the August
14th Order required the Bank to pay the $5,000 sanction within thirty
days of that order, which the Bank had failed to do and the deadline for
which had passed. Attached to the Homeowner’s motion was an email,
dated September 16, 2013, whereby the Homeowner’s attorney informed

2
the Bank that the $5,000 had not been received, along with an attachment
of the trial court’s August 14th Order, imposing the $5,000 sanction. The
Bank filed an “Opposition to [Homeowner]’s Motion to Enforce Order,”
wherein it addressed the deposition issue, but not the $5,000 sanction.
The Bank argued that, according to the August 14th Order, its witness,
M.P., was to be made available for deposition “within 30 (thirty) days of
this [August 14th] Order,” and that its witness was unavailable on the date
the Homeowner scheduled the deposition. The Bank further argued that
it sent the Homeowner alternative dates for deposition, which the
Homeowner rejected, since those dates were outside of the trial court’s
thirty-day deadline.

On October 16, 2013, the Homeowner filed a renewed motion in limine
and motion for involuntary dismissal, arguing that the Bank failed to
comply with both June 6th and August 14th Orders and that the Bank
“willfully, contumaciously, and contemptuously ignored and disregarded
the Orders.” And, therefore, the case should be dismissed.

The trial court heard arguments regarding the renewed motion in limine
and motion for involuntary dismissal on the date of trial, October 17, 2013.
The Bank argued that on September 10, 2013, the Homeowner set the
deposition for September 13, 2013, and on September 11, 2013, the Bank
informed the Homeowner that the witness was unavailable on that date.
The Bank admitted, however, that the witness it intended to call that day
at trial was not the witness it listed in accordance with the trial court’s
August 14 Order, which stated “[w]itness shall continue to be [M.P.] at
trial.” As for the $5,000 sanction the Bank failed to pay, the Bank’s
attorney argued that this was the first time he was made aware that the
money had not been paid, as he did not “get a phone call . . . [or] an email”1
and, although his firm represented the Bank since the beginning of
litigation, he was personally not part of the case when the $5,000 sanction
was levied.

The trial court orally ruled:

I understand the ramifications, but the court orders have to
be obeyed. Judge Colton’s somewhat rather liberal in granting
the second opportunity to cure the discovery, and you’re back
here the third time. Essentially, none of the orders have been
complied with. The witness that Judge Colton ordered to be

1 The Homeowner presented the Bank with the September 16th email notifying
the Bank of its failure to pay the $5,000 sanction to which the Bank stated “[t]o
me, this is a different 5,000 than what the Judge ordered.”

3
 deposed, she wasn’t deposed. It wasn’t the same witness. The
$5,000 hasn’t been paid that he ordered within the time there.
I’m not unsympathetic, and I understand the ramifications,
but if court orders mean anything they have to be enforced.
I’m going to grant the defendant’s motion for involuntary
dismissal.

In its written order, the trial court wrote:

ORDERED AND ADJUDGED, that said Motion be, and the
same is hereby GRANTED/DENIED and the case is dismissed
based upon the wilful [sic] and intentional violation of prior
court orders.

The Bank filed a motion for rehearing, arguing that the trial court did
not consider the Kozel factors before it dismissed the case based on the
discovery violation. The trial court denied the motion, and this appeal
followed.

“We review a trial court’s imposition of sanctions under an abuse of
discretion standard of review.” Baker v. Myers Tractor Servs., Inc., 765 So.
2d 149, 150 (Fla. 1st DCA 2000); see also Bob Montgomery Real Estate v.
Djokic, 858 So. 2d 371, 374 (Fla. 4th DCA 2003) (“[A] dismissal imposed
as a sanction is reviewed under an abuse of discretion standard.”).

The Bank argues on appeal that the trial court erred in failing to make
factual findings as to the six factors stated in Kozel. These six factors are:

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 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.

Kozel, 629 So. 2d at 818.

It is well settled that a trial “court’s ‘failure to consider the Kozel factors
in determining whether dismissal was appropriate is, by itself, a basis for
remand for application of the correct standard.’” Bennett ex rel. Bennett v.

4
Tenet St. Mary’s, Inc., 67 So. 3d 422, 427 (Fla. 4th DCA 2011) (quoting
Ham v. Dunmire, 891 So. 2d 492, 500 (Fla. 2004)); see also Portofino Prof’l
Ctr. v. Prime Homes at Portofino, 133 So. 3d 1112, 1114 (Fla. 3d DCA 2014)
(“It is well established that a court must first consider each of the Kozel
factors before it may dismiss a cause as a sanction.”); Heritage Circle
Condo. Ass’n v. State, Fla. Dep’t of Bus. & Prof’l Regulation, Div. of Condos.,
Timeshares & Mobile Homes, 121 So. 3d 1141, 1144 (Fla. 4th DCA 2013)
(“Neither the trial court’s order striking [appellant]’s pleadings and
entering a default nor the final judgment contain any findings of willful
and deliberate disregard of the court’s order, nor do they make any factual
findings regarding the Kozel factors.”); Deutsche Bank Nat’l Trust Co. v.
Cagigas, 85 So. 3d 1181, 1182 (Fla. 3d DCA 2012) (“Here, the trial court
dismissed [plaintiff]’s complaint as a sanction. However, the order does
not reflect that the trial court considered the Kozel factors or that the trial
court made the required written findings of fact addressing each factor.”).

Since the trial court’s order lacks express findings of fact as to any of
the factors, except, arguably, that the Bank’s actions were willful, we must
reverse the trial court’s order. As we have recently instructed:

[W]e “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.”

Bank of N.Y. Mellon v. Kossis, 165 So. 3d 793, 796 (Fla. 4th DCA 2015)
(quoting Tianvan v. AVCO Corp., 898 So. 2d 1208, 1209 (Fla. 4th DCA
2005)). We reverse with the same instructions for this case.

Reversed and remanded with instructions.

WARNER, LEVINE and CONNER, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

5