IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
THE BANK OF NEW YORK MELLON, ETC.,
Appellant,
v. Case No. 5D14-2313
SARAH SANDHILL AND PETER SANDHILL,
Appellees.
____________________________________/
Opinion filed October 28, 2016
Appeal from the Circuit Court
for Osceola County,
Robert J. Pleus, Jr., Senior
Judge.
Jacqueline Costoya, of Kelley Kronenberg,
Fort Lauderdale, and Ronald Scott Kaniuk,
and Richard S. Lubliner, of Greenstein and
Associates, LLP, West Palm Beach, for
Appellant.
James E. Toale, Aaron Alfano, and Alan E.
Tannenbaum, of Tannenbaum Law Group,
PL, Sarasota, for Appellees.
EDWARDS, J.
The Bank of New York Mellon (“Appellant”) appeals the trial court’s dismissal of its
mortgage foreclosure action against Sarah and Peter Sandhill (“Appellees”). The trial
court based the dismissal upon Appellant’s repeated failure to comply with orders to
provide appropriate discovery responses. We affirm the dismissal and remind counsel of
the requirement to provide the trial court with an opportunity to rule upon an issue before
seeking appellate review.
Appellees served a discovery request on Appellant. Appellant first sought an
extension of time. It then filed blanket objections to the discovery request but also
provided 300 documents in response to Appellees’ request for production and certain
responses to Appellees’ interrogatories. Appellees sought more complete discovery
responses, first informally, and then through a motion to compel, which the trial court
granted on June 27, 2013. Appellant concedes that its prior counsel took no action in
response to that order which required supplemental responses. After a hearing on
February 20, 2014, the trial court ordered Appellant to provide better responses regarding
two of the interrogatories or “the court will consider dismissal.” On May 27, 2014, the trial
court granted Appellees’ April 10, 2014, motion to dismiss for failure to comply with the
trial court’s previous discovery order.
Appellant asserts that its prior counsel, rather than Appellant itself, was to blame
for the discovery order violations. Appellant’s primary arguments on appeal are that the
trial court failed to consider or discuss its analysis of the Kozel factors. Kozel v. Ostendorf,
629 So. 2d 817 (Fla. 1993). The Florida Supreme Court laid out six factors for a trial court
to consider in determining whether dismissal is the appropriate sanction “in those
situations where the attorney, and not the client is responsible for the error.” Id. at 818.
The Kozel factors are:
1) [W]hether 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
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in some other fashion; 5) whether the attorney offered
reasonable justification for noncompliance; and 6) whether
the delay created significant problems of judicial
administration.
Id. Before ordering dismissal, the trial court must consider all of the Kozel factors in
making its decision. Deutsche Bank Nat’l Trust Co. v. Lippi, 78 So. 3d 81, 86 (Fla. 5th
DCA 2012) (“[T]he lower court’s failure to consider the Kozel factors when deciding
whether to dismiss a case with prejudice, by itself, is sufficient reason to remand the
matter for application of the proper standard.”); see also Bennett v. Tenet St. Mary’s, Inc.,
67 So. 3d 422, 424 (Fla. 4th DCA 2011) (“[B]ecause the trial court failed to expressly set
forth an analysis of the Kozel factors prior to dismissal, we reverse and remand for written
findings on that order.”). As the subject order of dismissal simply granted the motion
without setting forth any explanation for its ruling or any analysis utilizing the Kozel factors,
Appellant argues that it is entitled to reversal for that reason alone.
However, in order to preserve as error the failure of the trial court to set forth its
Kozel analysis in the order of dismissal, the Appellant was obligated to bring the matter
to the trial court’s attention by filing a timely motion for rehearing or clarification with a
specific request for inclusion of the Kozel factor analysis in an amended order. The Fourth
District addressed this preservation issue in Bank of America, N.A. v. Ribaudo, 199 So.
3d 407 (Fla. 4th DCA 2016). “Ordinarily, a trial court’s failure to address the Kozel factors
would constitute reversible error, provided that the error has been preserved.” Ribaudo,
199 So. 3d at 408. In Ribaudo, when plaintiff’s complaint was dismissed by an order with
no Kozel factor analysis included, the plaintiff immediately appealed, rather than seeking
rehearing or reconsideration. Id. “[D]espite the trial court’s clear errors, we are unable to
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address them on appeal.” Id. (citing Sunset Harbour Condo. Ass’n. v. Robbins, 914 So.
2d 925, 928 (Fla. 2005)).
We have held in other situations that a party must move for rehearing or similarly
provide the trial court with an opportunity to set forth mandatorily required factual findings
before seeking appellate review based upon the absence or insufficiency of factual
findings. “[W]e will treat the lack of adequate findings as an unpreserved error unless
previously brought to the trial court’s attention.” Mathieu v. Mathieu, 877 So. 2d 740, 741
(Fla. 5th DCA 2004). Appellant did not provide this court with a transcript of the hearing
that resulted in dismissal of the case; thus, we do not know what arguments were made
nor what the trial court may have considered. See Applegate v. Barnett Bank of
Tallahassee, 377 So. 2d 1150 (Fla. 1979).1
For the reasons set forth above, we affirm.
AFFIRMED
TORPY and EVANDER, JJ., concur.
1 While we need not reach the merits, a party’s repeated failures to comply with
serial discovery orders where at least one order warns of the potential for dismissal, can,
under certain circumstances, justify a finding of willful noncompliance and dismissal. See
Ledo v. Seavie Resources, LLC, 149 So. 3d 707, 711 (Fla. 3d DCA 2014); Johnson v.
Allstate Ins. Co., 410 So. 2d 978, 979-80 (Fla. 5th DCA 1982).
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