U.S. Bank Nat'l Ass'n v. Rodriguez

• Decision Date: 13 July 2016
• Docket Number: No. 3D14–2993.,3D14–2993.
• Citation: 206 So.3d 734
• Parties: U.S. BANK NATIONAL ASSOCIATION, etc., Appellant, v. Lourdes M. RODRIGUEZ, etc., Appellee.
• Court: Florida District Court of Appeals

206 So.3d 734

U.S. BANK NATIONAL ASSOCIATION, etc., Appellant,

v.Lourdes M. RODRIGUEZ, etc., Appellee.

No. 3D14–2993.

District Court of Appeal of Florida, Third District.

July 13, 2016.

Morris, Laing, Evans, Brock & Kennedy, CHTD., and Jeremy W. Harris, Alicia G. Windsor, and David F. Knobel, West Palm Beach; Bryan Cave LLP, and Adwoa Ghartey–Tagoe Seymour and Christian J. Bromley, Atlanta, GA, for appellant.

Jacobs Keeley, PLLC, and Bruce Jacobs, Court E. Keeley, and Amida Frey, for appellee.

Before SALTER, FERNANDEZ, and LOGUE, JJ.

LOGUE, J.

U.S. Bank National Association appeals an order that dismissed its foreclosure suit against Lourdes M. Rodriguez ("Borrower") pursuant to Kozel v. Ostendorf, 629 So.2d 817 (Fla.1993). The predecessor trial judge had previously sanctioned the Bank for failure to comply with discovery orders. The successor trial judge, however, dismissed the case for one primary reason: the Bank's decision to call one witness to testify over another. The successor trial judge found that the Bank's decision to do so violated an order from the predecessor judge and prejudiced the Borrower. Because the record does not support these findings, we reverse the dismissal order and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

On September 10, 2009, the Bank filed its mortgage foreclosure complaint. The Borrower moved for an extension of time to file an answer. Nearly one year after the Bank filed its complaint, the Borrower filed her answer and affirmative defenses. The parties thereafter engaged in substantial discovery.

During the course of discovery, the Bank's counsel failed to timely comply with court orders requiring it to produce certain discovery. The trial court reserved ruling on the merits of most of these motions, but entered one order granting a motion for sanctions, which restricted certain evidence the Bank could produce at trial. The court ultimately set a trial date and required each party to provide a witness list.

In the Bank's first trial witness list, it named several witnesses, including Roberto Montoya and Sony Prudent. The court later reset the trial date several times. The parties eventually appeared before the court on March 24, 2012. By that time, the Bank had provided an amended witness list indicating that Montoya would be its sole trial witness.

When the parties appeared before the trial court on March 24, 2012, the bench trial did not proceed as scheduled. Instead, the Borrower deposed Montoya in the courtroom. The deposition transcript reflects that during the deposition, the trial court interrupted the parties, continued the trial until April 8, 2014, and ordered the Bank to call Montoya as its trial witness on that date: "You are going to finish this deposition today. The trial has been reset to April 8th at 10:30 in the morning. Make sure this witness is here. I'm not having a substitute witness." This order, which is at the heart of this appeal, was never reduced to writing.

The bench trial was ultimately not held on April 8, 2014, because the court reset the trial date an additional three times. Each time it did so, the court required the parties to file a trial witness list fifteen days before trial. The Bank timely complied. In the Bank's penultimate witness list, it named several trial witnesses, including Montoya and Prudent. Around that same time, the Bank had obtained new counsel, who, unlike its previous counsel, timely complied with court orders. In the Bank's final amended witness list, the Bank listed only Prudent—not Montoya—as the corporate representative with "the most knowledge" of the relevant documents produced during discovery.

On the day of the bench trial, November 13, 2014, the parties appeared before a successor trial judge. The Bank called Prudent to testify as its sole witness. The Borrower's counsel objected, arguing that the Bank was required to call Montoya to testify. Counsel explained that during Montoya's deposition earlier that year, the predecessor judge ordered Montoya to appear at trial. He also argued that the Borrower would be prejudiced by Prudent's testimony because counsel prepared for trial based upon his belief that Montoya was the Bank's sole trial witness.

The Bank's counsel, who was present at trial but not counsel at the time of Montoya's deposition, stated that she was unaware of the predecessor judge's order. She emphasized that the order was never reduced to writing. She further explained she did not expect to find a court order buried in a deposition transcript: "I have very rarely seen an actual court order contained in a deposition." The successor trial judge agreed: "Well, that is rare. I mean for sure that's rare." Counsel also noted that the trial date for which Montoya was ordered to appear was ultimately reset.

After listening to arguments from counsel, the successor trial judge decided that a sanction against the Bank was appropriate. The judge discussed the Kozel factors, finding that most of the factors had been met:

I do find that the Kozel factors have been met; all but ... Number Three.

....

[D]efinitely there is either willful or negligence in not seeing [the predecessor judge's] order; certainly the prior law firm had a duty to advise counsel that this order was stated in a deposition. The prior counsel was previously sanctioned and had many times failed to follow the Court's orders.

Skipping Three. Four; the delay clearly—this is the most important one to me, does the delay prejudice to opposing counsel. He is prepared to cross examine Mr. Montoya, not this gentleman that's here.

Five; whether the attorney offered a reasonable explanation. Not really. I mean I hate to say this with you here. I don't—I'm not trying to disparage you or be disrespectful in any way.

Six; whether the delay created significant problems of judicial administration. That's yes.

The judge excluded Prudent from testifying and then entered an order dismissing the case "without prejudice" pursuant to Kozel. This appeal followed.

ANALYSIS

I. Jurisdiction

We begin by addressing jurisdiction. "Generally, when an order dismisses a complaint ‘without prejudice,’ that language signifies that the order is not a final order." Al–Hakim v. Big Lots Stores, Inc., 161 So.3d 568, 569 (Fla. 2d DCA 2014). But this general rule is not without exception. If a dismissal is "without prejudice" but it is clear from the context of the record that the plaintiff's right to pursue the case requires the filing of a new case, the order is final. See Fed. Nat'l Mortg. Ass'n v. Wild, 164 So.3d 94, 95 (Fla. 3d DCA 2015) ; Al–Hakim, 161 So.3d at 569 ; Gerber v. Vincent's Men's Hairstyling, Inc., 57 So.3d 935, 937 (Fla. 4th DCA 2011) ; Hollingsworth v. Brown, 788 So.2d 1078, 1079 n. 1 (Fla. 1st DCA 2001).

In this case, the order on appeal states that the dismissal is "without prejudice," but it is clear from the context of the order that it requires the Bank to file a new case. We therefore have jurisdiction. See Wild, 164 So.3d at 95.

II. Kozel Factors

Turning to the merits, in Kozel, the Florida Supreme Court articulated a six-factor analysis to assist the trial court in determining whether it should impose the extreme sanction of dismissal due to an attorney's behavior:

(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 818.¹

Appellate courts recognize the high degree of deference afforded to the trial court with respect to this type of discretionary decision. Id. at 817; Commonwealth Fed. Savs. & Loan Ass'n v. Tubero, 569 So.2d 1271, 1273 (Fla.1990) ("The standard by which such orders shall be reviewed is whether there was an abuse of discretion."). But the trial court's discretion is not absolute.

In cases where the trial court's crucial findings were unsupported by the record, appellate courts have not hesitated to reverse. See, e.g., Prater v. Comprehensive Health Ctr., LLC, 185 So.3d 559, 560 (Fla. 3d DCA 2016) ("[T]here was not competent substantial evidence to support the trial court's conclusions that each of the Kozel factors had been met, including the absence of record support for a finding that the actions of [Plaintiff's] counsel were willful, deliberate or contumacious, and a finding that [Plaintiff's] counsel had been previously sanctioned. More significantly, the trial court's imposition of the ultimate sanction—the striking of [Plaintiff's] pleadings and entry of final judgment in favor of Defendants—was not commensurate with the violation at issue."); Gomez–Bonilla v. Apollo Ship Chandlers, Inc., 650 So.2d 116, 118 (Fla. 3d DCA 1995) ("Contrary to the trial court's ruling, the record in this case does not contain sufficient evidence to indicate that [Plaintiff] exhibited the sort of willful disregard for the court's orders which would support the sanction of dismissal, either with or without prejudice.").

In this case, the trial court's primary reason for dismissing the case was the Bank's decision to call one witness to testify, Prudent, over another, Montoya. The court found that the Bank's decision to do so violated the verbal order from the predecessor judge and prejudiced the Borrower. We hold, however, that the Bank's decision to call Prudent to testify did not violate the verbal order of the...