Deutsche Bank Nat'l Trust Co. v. LGC, 2D12–863.

• Decision Date: 13 February 2013
• Docket Number: No. 2D12–863.,2D12–863.
• Citation: 107 So.3d 486
• Parties: DEUTSCHE BANK NATIONAL TRUST COMPANY as Trustee on behalf of The Harbor View Mortgage Trust 2006–9 Trust Fund, Appellant, v. LGC as Trustee of Trust 3104 under Trust Agreement dated September 19, 2006, Len Gale, and Unknown Tenants/Owners n/k/a Claudia Lopez and Jose Tabra, Appellees.
• Court: Florida District Court of Appeals

107 So.3d 486

DEUTSCHE BANK NATIONAL TRUST COMPANY as Trustee on behalf of The Harbor View Mortgage Trust 2006–9 Trust Fund, Appellant,
v.
LGC as Trustee of Trust 3104 under Trust Agreement dated September 19, 2006, Len Gale, and Unknown Tenants/Owners n/k/a Claudia Lopez and Jose Tabra, Appellees.

No. 2D12–863.

District Court of Appeal of Florida,
Second District.

Feb. 13, 2013.

[107 So.3d 487]

Karene L. Tygenhof, Michael Rodriguez, and Natalie F. Guerra–Valdes of Blank Rome LLP, Boca Raton, for Appellant.

John P. Fleck, Jr., Bradenton, for Appellee LGC as Trustee of Trust 3104 Under Trust Agreement Dated September 19, 2006.

No appearance for remaining Appellees.

KHOUZAM, Judge.

Deutsche Bank National Trust Company appeals an order dismissing with prejudice its foreclosure action against LGC and others due to a single violation of a discovery order. Because the trial court abused its discretion in employing such a harsh sanction, we reverse the order and remand the case for further proceedings.

The procedural history of this case is somewhat unusual. On February 17, 2009, Deutsche Bank filed a two-count complaint against LGC and others to collect on a note and foreclose a mortgage. The defendants filed a motion to dismiss on July 24, 2009, arguing that Deutsche Bank failed to attach necessary documents to the complaint. The parties then began the discovery process, and although the extent of that discovery is not clear, our record demonstrates that Deutsche Bank participated by responding to at least one request for production and serving at least one set of answers to the defendants' interrogatories. Thereafter, a discovery dispute arose and LGC filed on September 1, 2010, a motion to compel the production of documents. The defendants twice amended their motion to dismiss, and by October 29, 2010, it included allegations that the court lacked subject matter jurisdiction to hear the case and that Deutsche Bank had committed fraud upon the court.

On November 22, 2010, a hearing was held on both the motion to compel and the

[107 So.3d 488]

amended motion to dismiss. At the hearing, the trial court orally denied the motion to dismiss and orally granted the motion to compel. But our record does not indicate any further action from either party or the court until September 21, 2011, when Deutsche Bank filed a motion for summary judgment. Six days later, on September 27, 2011, the trial court entered two orders memorializing its oral rulings made in November 2010. One denied the defendants' amended motion to dismiss and the other granted the September 1, 2010, motion to compel and allowed Deutsche Bank 45 days from the entry of the order to comply.

Deutsche Bank did not comply with the order to compel within the time provided. Consequently, on December 29, 2011, LGC filed a motion to dismiss the case for noncompliance with the discovery order. A hearing on the motion to dismiss was held on January 12, 2012, and five days later the trial court entered an order granting the motion and dismissing the case with prejudice.

The trial court explained in its order that this sanction was warranted because, inter alia, the plaintiff, but not...