Deutsche Bank National Trust Co. ex rel. Harbor View Mortgage Trust 2006-9 Trust Fund v. LGC

VILLANTI, Judge,

Concurring.

I fully concur in the majority opinion, but write to make one observation. Although a trial court is ordinarily not required to state its reasons for dismissing a case, a special rule applies when a case is dismissed with prejudice as a sanction. Under this circumstance, the trial court must make an express written finding of willful or deliberate violation of a discovery order supporting its imposition of the most severe sanction of dismissal. See, e.g., Urbanek v. R.D. Schmaltz, Inc., 573 So.2d 107, 108 (Fla. 4th DCA 1991). To its credit, the trial court in this case attempted to comply with this requirement by stating in its order that the plaintiff had willfully or deliberately disregarded a discovery order that went to the issue of whether the plaintiff had standing to file this foreclosure action. But, standing was a red herring in this case. Rather, it appears the issue was raised by the defendant in a prototypical motion to dismiss, despite the actual note being in the court file. In any event, it is clear that the court’s most serious findings, which might have justified dismissal with prejudice, were not supported by the record. As pointed out by the majority, only a simple, first time discovery violation occurred and, thus, dismissal with prejudice was not justified.