The Bank of New York Mellon f/k/a The Bank of New York, as Trustee for the Certificateholders of the CWALT, Inc., Alternative Loan Trust 2007-HY7C Mortgage Pass-Through Certificates, etc. v. David B. Johnson

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________

No. 1D18-3656
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THE BANK OF NEW YORK
MELLON f/k/a The Bank of New
York, as Trustee for the
Certificateholders of the
CWALT, Inc., Alternative Loan
Trust 2007-HY7C Mortgage
Pass-through Certificates,
Series 2007-HY7C,

Appellant,

v.

DAVID B. JOHNSON, et al.,

Appellees.
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On appeal from the Circuit Court for Bay County.
Elijah Smiley, Judge.

May 13, 2019

WETHERELL, J.

Appellant (the bank) seeks review of the order dismissing its
foreclosure action against Appellees (the borrowers) as a sanction
for its noncompliance with court orders. We reverse the dismissal
order because the record reflects that the bank complied with the
court orders on which the borrowers’ motion for sanctions—and,
hence, the dismissal order—was based.
 Facts

The bank filed this foreclosure action in December 2011. The
parties attended court-ordered mediation in 2012 but no
agreement was reached. The trial court again ordered mediation
in 2013 and 2014, but the mediations did not take place for reasons
attributable to the bank. 1 Thereafter, in early 2015, the trial court
directed the parties to attend a “face-to-face mediation” and
ordered the bank to bear the cost of the mediation. The mediation
was held over three days in April, June, and August 2015, but no
agreement was reached.

In November 2015, the borrowers filed a motion to dismiss in
which they argued that the bank violated the court orders
requiring the parties to mediate because the bank’s corporate
representatives who attended the 2015 mediations did not have
the requisite authority to settle the case. The bank disputed this
allegation and the trial court entered an order stating that the
matter “shall be scheduled for an evidentiary hearing.”

The parties then commenced discovery on the issue of the
corporate representative’s settlement authority. During the
course of this discovery, the trial court entered several orders
directing the bank to respond to the borrowers’ discovery requests.
Specifically, on April 11, 2016, the court granted the bank’s motion
for an extension of time to respond to the borrowers’
interrogatories and ordered the bank to respond “by April 17,
2016;” and on July 12, 2016, the court granted the borrowers’
motion to compel additional interrogatory responses and ordered
the bank to provide the borrowers with addresses for two specific
witnesses “within 5 days.”

Thereafter, there was very little record activity in the case
until May 2017 when the borrowers filed a motion for sanctions in
which they argued that this case should be dismissed based on the

1 The bank failed to schedule the mediation required by the
2013 order and the mediation required by the 2014 order did not
take place because the bank’s corporate representative appeared
by phone rather than in person as required. The trial court
ordered the bank to pay $2,350 of the borrowers’ attorney’s fees
and costs as a sanction for these actions.
2
bank’s failure to comply with the April 11 and July 12 orders. A
senior judge (Judge Brace) held a hearing on the motion in June
2018, and several weeks after the hearing, a different judge (Judge
Smiley 2) entered an order of dismissal. The order stated that “[t]he
basis of the dismissal is numerous violations of prior Court Orders
in this case by [the bank].”

The bank filed a motion for rehearing in which it argued,
among other things, that dismissal was unwarranted because it
had complied with the April 11 and July 12 orders on which the
motion for sanctions was based. Judge Smiley held a hearing on
the motion and thereafter entered an order denying the motion
without explanation.

This appeal followed.

Analysis

The bank argues on appeal—as it did below—that the
dismissal order is deficient because it does not contain the findings
required by Kozel v. Ostendorf, 629 So. 2d 817 (Fla. 1993), to justify
the ultimate sanction of dismissal; that Judge Smiley did not have
the authority to enter the dismissal order because he did not
preside over the hearing on the borrowers’ motion for sanctions on
which the order was based; and that dismissal was unwarranted
because the bank complied with the orders on which the motion for
sanctions was based. We find it unnecessary to address the
sufficiency of the dismissal order or Judge Smiley’s authority to
enter the order because the record clearly establishes that the
bank complied with the specific orders on which the motion for
sanctions was based—i.e., the April 11 and July 12 orders. 3

2 At the hearing on the bank’s motion for rehearing, Judge
Smiley explained that he signed the order on behalf of and at the
direction of Judge Brace.
3 We reject the borrowers’ argument that a transcript of the
hearing on the motion for sanctions was necessary for us to review
this issue. The hearing was not an evidentiary hearing and the
bank’s compliance (or not) with the court orders can be gleaned
from the record that was transmitted to this court.
3
 Specifically, with respect to the April 11 order, although the
record reflects that the bank served its responses to the borrowers’
interrogatories on Monday, April 18, 2016, one day after the April
17 deadline established in the order, the responses were timely
because April 17 was a Sunday. See Fla. R. Jud. Admin.
2.514(a)(1)(C) (explaining that if a deadline falls on a Saturday,
Sunday, or legal holiday, the deadline is extended to the next
business day). With respect to the July 12 order, the discovery
response providing the two witnesses’ addresses that was served
by the bank on Monday, July 18, 2016, was timely because the five-
day period in the order excluded the intermediate Saturday and
Sunday and did not expire until Tuesday, July 19. See Fla. R. Jud.
Admin. 2.514(a)(3) (“When the period stated in days is less than 7
days, intermediate Saturdays, Sundays, and legal holidays shall
be excluded in the calculation.”). Accordingly, the trial court
abused its discretion 4 to the extent that the dismissal order was
based on the bank’s alleged failure to comply with the April 11 and
July 12 orders.

The borrowers’ answer brief does not dispute the bank’s
compliance with the April 11 and July 12 orders but rather argues
that the dismissal of this case was justified by other instances of
the bank’s noncompliance with court orders, such as its repeated
failure to comply with the mediation orders entered by the trial
court. The problem with that argument (aside from it not being
raised in the borrowers’ motion for sanctions) is that the bank was
already sanctioned for its failure to comply with the 2013 and 2014
mediation orders and the trial court did not—and without an
evidentiary hearing, could not—find that the bank failed to comply
with the 2015 mediation order by not having corporate
representatives with full settlement authority at the mediation
held pursuant to that order. Accordingly, even if the dismissal

4 See Reverse Mortgage Solutions, Inc. v. Unknown Heirs, 207
So. 3d 917, 920 (Fla. 1st DCA 2016) (“A trial court's order
dismissing a case with prejudice for non-compliance with a court
rule or order is reviewed on appeal under the abuse of discretion
standard of review.”).

4
order was based on matters other than those alleged in the
borrowers’ motion for sanctions, reversal would be required.

Conclusion

For the reasons stated above, the dismissal order is reversed
and this case is remanded for further proceedings. 5

REVERSED and REMANDED.

WOLF and MAKAR, JJ., concur.

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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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Nancy M. Wallace of Akerman LLP, Tallahassee; William P.
Heller of Akerman LLP, Fort Lauderdale; and Eric M. Levine of
Akerman LLP, West Palm Beach, for Appellant.

Jeffrey P. Whitton of Whitton Law, Panama City, for Appellees.

5 We encourage the trial court (and the parties) to conduct
such proceedings as expeditiously as possible because this case has
been pending for more than seven years and the parties have spent
an inordinate amount of that time focused on the adequacy of the
mediation process rather than the merits of the case. Indeed, from
our review of the record, there does not appear to be any reason
that this case cannot be promptly tried upon remand.
5