       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

THE BANK OF NEW YORK MELLON, f/k/a THE BANK OF NEW YORK,
  as Trustee for Certificate Holders of CWABS INC., ASSET-BACKED
                  CERTIFICATES, SERIES 2007-5,
                                Appellant,

                                     v.

                             MINERVA DIAZ,
                                Appellee.

                              No. 4D16-1418

                           [December 13, 2017]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Patti Englander Henning, Judge; L.T. Case No. CACE-
14-013685 (11).

   Edward B. Cole of Cole Law Firm, P.A., Palm Harbor, for appellant.

   Rachel M. Coe of Polaris Legal Group, Lighthouse Point, for appellee.

CONNER, J.

    Our opinion in this case serves as a reminder of two principles: (1) the
grant of involuntary dismissal as a sanction requires findings of facts and
conclusions of law compliant with case law; and (2) a trial court may not
involuntarily dismiss a case during trial for insufficiency of evidence prior
to the completion of presentation of evidence by the plaintiff. Because the
order under review fails to explain the legal authority for dismissal, we are
compelled to reverse and quash the order. If dismissal was granted as a
sanction, the order of dismissal fails to include the requisite findings of
facts and conclusions of law. If dismissal was granted due to insufficiency
of evidence to establish a prima facie case at trial, the dismissal was
premature. Because the reason for dismissal is ambiguous, we give
alternative instructions on remand.

                                Background

    The Bank filed the underlying foreclosure action against the appellee
(“the title owner”) and junior lienholders. The title owner purchased the
subject property at a prior foreclosure sale brought by a homeowner’s
association. The title owner was not the borrower under the note and
mortgage. The title owner filed two affirmative defenses which survived a
motion to strike: lack of standing and failure to comply with conditions
precedent. A judicial default was entered against the borrower, who made
no appearance below.

    During pre-trial discovery, the title owner moved to compel better
responses to its first production request. The trial court sustained the
Bank’s objections to production of various documents, such as any bailee
letters and pooling or servicing agreements.

    Pursuant to the pre-trial order instructing the parties to make all
exhibits available for viewing in advance of trial, the Bank filed its exhibit
list. Two days later, the title owner sought production of unredacted copies
of all of the documents identified in the Bank’s exhibit list. The Bank
objected on various grounds, including confidentiality. The title owner
moved to compel better answers to its request for production, but later
withdrew the motion.

   The trial judge who tried the case was not the judge who presided over
the pretrial proceedings. The trial transcript reflects that the Bank
brought two witnesses to trial, one representing the current mortgage
servicer, the other representing the prior servicer.

    During direct examination of the Bank’s first witness, the title owner
objected to testimony concerning the Bank’s status as owner and holder
of the note and mortgage. The title owner argued that prior to trial, the
Bank had objected to its request to produce various documents and the
pretrial judge had sustained those objections. The title owner also argued
that in preparing for trial, it requested copies of the Bank’s trial exhibits,
which the Bank failed to produce in violation of the pretrial order requiring
the Bank to provide access to all of its trial exhibits. The title owner
explained that the only document the Bank provided pretrial was a power
of attorney, thus, the title owner would be objecting to any other
documents the Bank intended to rely upon that were not produced
pretrial.

    The trial court inquired as to the basis of the objections to the pretrial
discovery sustained by the pretrial judge. The Bank explained that the
title owner was not the borrower on the mortgage and that the objections
were sustained because the only information that the title owner was
entitled to obtain is the payoff amount for the loan. The Bank asserted
that disclosure of information regarding its borrower account could


                                      2
subject it to a felony for violation of confidentiality. It also asserted that
the title owner had withdrawn its motion to compel the request for
production of the items in the Bank’s trial exhibit list and further
contended that the two affirmative defenses regarding standing and
conditions precedent were improper because the title owner lacked privity
of contract. In response, the title owner maintained that, as a party at
trial, it was entitled to any document that the Bank intended to use during
the trial as an exhibit. After further arguments about other matters
concerning notice, the lis pendens, and the prior foreclosure by the
homeowner’s association, the title owner’s objection was overruled.

    The Bank entered the note and mortgage into evidence. When the Bank
elicited testimony concerning the bailee letter and sought to have it
admitted into evidence, the title owner again objected and informed the
court that it would be asserting prejudice and unfair surprise due to the
Bank’s failure to comply with the order for trial preparation, which was a
matter that had not been ruled upon. The trial court sustained the
objection, noting that the document should have been presented prior to
trial. When the Bank attempted to introduce the payment history into
evidence, the title owner again raised the same objection. The title owner
clarified for the court that, while its first motion to compel better responses
to its first request for production was denied because the Bank’s objections
to that request were sustained, and while its subsequent motion to compel
better responses to its second request to produce the Bank’s trial exhibits
had been withdrawn, the second request to produce the trial exhibits had
yet to be ruled upon. The trial court overruled the objection and admitted
the payment history. The trial continued in the same manner, with the
title owner objecting to the admission of several of the Bank’s documents
for violation of the trial order and the prejudice caused thereby, and the
trial court sustaining some of the objections and overruling some of the
objections, seemingly based on documents pertaining to the title owner’s
asserted affirmative defenses.

   While still on direct examination of its first witness, the Bank asked the
witness questions regarding the amounts owed. The title owner then once
again objected to the Bank’s failure to provide it with any of the
information, claiming unfair surprise and prejudice in not having been
given the opportunity to review any of the documents introduced into
evidence referencing the numbers calculating the amount due. Thereafter
the following exchange ensued:

      THE COURT: So are you making any other Motion?




                                      3
      TITLE OWNER’S COUNSEL: Your Honor, I’d like to make a
      Motion to Involuntarily Dismiss this case at this point, or
      sanctions for --- or strike its pleadings or have them dismiss
      it.

      And we’d like to make a Motion to receive all these documents,
      so that we have time to look at them and inspect them and
      review them properly.

      We’re not opposed to [the Bank] taking a Voluntary Dismissal,
      and we’re not – actually, at this point, even willing to waive
      fees just to be done so this can be done properly.

      BANK’S COUNSEL: Your Honor, as I stated previously –

      THE COURT: There’s too much prejudice involved in this case.
      I’m granting your Involuntary Dismissal.

(emphases added). Thereafter, the trial concluded and the trial court
issued a written order granting the title owner’s motion for involuntary
dismissal. The written order simply stated that the title owner’s motion
for involuntary dismissal was granted and directed the return of the
original documents admitted into evidence to the Bank.

   The Bank filed a motion for rehearing and argued that the involuntary
dismissal was improper where the trial court failed to make the necessary
findings under Kozel v. Ostendorf, 629 So. 2d 817 (Fla. 1993). In response,
the title owner argued that the involuntary dismissal was not entered as a
sanction requiring a Kozel analysis, and maintained instead that the trial
court granted the dismissal because the Bank could not make a prima
facie case at trial since several of the documents it needed to succeed were
excluded from evidence as a result of the unfair prejudice caused by the
Bank’s failure to produce documents in advance of trial. The trial court
denied the title owner’s motion for rehearing without explanation.

   The Bank gave notice of appeal.

                            Appellate Analysis

   On appeal, sanctions orders are reviewed for an abuse of discretion.
Chappelle v. S. Fla. Guardianship Program, Inc., 169 So. 3d 291, 294 (Fla.
4th DCA 2015). An order granting an involuntary dismissal during trial is
reviewed de novo. See 3618 Lantana Rd. Partners, LLC, v. Palm Beach Pain
Mgmt., Inc., 57 So. 3d 966, 968 (Fla. 4th DCA 2011).


                                     4
   Neither the verbal ruling nor the written order granting involuntary
dismissal in this case explains the statutory, rule, or case law basis for
dismissal.

    The Bank’s first argument on appeal is that to the extent involuntary
dismissal was granted as a sanction for the Bank’s failure to produce
documents referenced in its exhibit list prior to trial, such dismissal was
error where the trial court failed to make the requisite findings under
Kozel. We agree that under the circumstances of this case, it appears most
likely that the trial court dismissed the case as a sanction due to the
prejudice caused by the Bank’s failure to provide the title owner with its
listed trial exhibits. Perhaps the strongest support for this conclusion is
that the trial transcript does not reflect any mention of the Bank’s ability
to present a prima facie case in light of any precluded evidence. Instead,
the title owner specifically argued for the sanction of involuntary dismissal
for the Bank’s violation of the trial preparation order.

    However, “[b]efore a court may dismiss a cause as a sanction, it must
first consider the six factors delineated in Kozel v. Ostendorf, 629 So. 2d
817 (Fla. 1993), and set forth explicit findings of fact in the order that
imposes the sanction of dismissal.” Chappelle, 169 So. 3d at 294 (quoting
Bennett ex rel. Bennett v. Tenet St. Mary’s, Inc., 67 So. 3d 422, 426 (Fla.
4th DCA 2011))(citation omitted). Those factors are whether:

      1. the attorney’s disobedience was willful, deliberate, or
         contumacious, rather than an act of neglect or
         inexperience;

      2. the attorney has been previously sanctioned;

      3. the client was      personally   involved    in   the   act    of
         disobedience;

      4. the delay prejudiced the opposing party through undue
         expense, loss of evidence, or in some other fashion;

      5. the attorney offered        reasonable      justification     for
         noncompliance; and

      6. the delay created       significant   problems    of    judicial
         administration.

Id. (quoting Kozel, 629 So. 2d at 818). We have observed that “[a]fter
considering these factors, if there is a less-severe sanction available than
dismissal with prejudice, the court should use it.” Id. (quoting

                                     5
rel. Bennett, 67 So. 3d at 427). “[A] trial court’s failure to consider the
Kozel factors in determining whether dismissal was appropriate is, by
itself, a basis for remand for application of the correct standard.” Id.
(quoting Ham v. Dunmire, 891 So. 2d 492, 500 (Fla. 2004)). “We have
consistently required the record to show an express consideration of the
Kozel factors.” Id. (quoting Vista St. Lucie Ass’n v. Dellatore, 165 So. 3d
731, 735 (Fla. 4th DCA 2015)) (citation omitted) (internal quotation marks
omitted). “While no ‘magic words’ are required, the trial court must make
a ‘finding that the conduct upon which the order is based was equivalent
to willfulness or deliberate disregard.’” Id. (quoting Ham, 891 So. 2d at
495).

    Having concluded that the trial court most likely dismissed the case as
a sanction for the Bank’s failure to comply with the trial preparation order,
we agree with the Bank that the record reflects that the trial court failed
to consider and make explicit findings as to the Kozel factors. In
dismissing the case, the trial court merely stated, “there’s too much
prejudice involved in this case” and then immediately granted the
involuntary dismissal. Therefore, reversal and remand is required for the
trial court to consider each of the factors articulated in Kozel in
determining whether dismissal is appropriate for the asserted violation of
the trial preparation order.

   The Bank additionally argues that even considering the Kozel factors,
the record would not support dismissal as a sanction. However, that
argument is premature, and the trial court should rule on that issue before
we review it.

    Although the trial transcript supports the conclusion that the trial
court entered the involuntary dismissal as a sanction, we address the
Bank’s second argument on appeal, disputing the propriety of the title
owner’s assertion that the involuntary dismissal was granted because the
Bank could not make a prima facie case at trial since several of the
documents it needed to succeed were excluded from evidence. If that was
the basis for dismissal, we agree with the Bank that involuntary dismissal
was prematurely and erroneously granted during the middle of the Bank’s
direct examination of its first witness, where it had a second witness
waiting to testify and additional evidence still left to be presented in its
case-in-chief. The title owner’s motion for involuntary dismissal, had it in
fact been based on insufficient evidence pursuant to rule 1.420(b), should
not have been made until after the Bank had completed the presentation
of all of its evidence in its case-in-chief. Fla. R. Civ. P. 1.420(b). Indeed,
it is well established that a trial court may not involuntarily dismiss a case
prior to the plaintiff’s completion of its presentation of evidence. See

                                      6
Wachovia Mortg., FSB v. Montes, 156 So. 3d 1105, 1106 (Fla. 4th DCA
2015) (finding that the trial court could not involuntarily dismiss
mortgagee’s foreclosure action, due to the absence of the original
promissory note from the court file, before mortgagee had finished
presenting evidence as part of its case-in-chief at bench trial); Deutsche
Bank Nat’l Tr. Co. v. Santiago, 117 So. 3d 1146, 1147 (Fla. 3d DCA 2013)
(“[T]he trial court erred when it ordered an involuntary dismissal of the
foreclosure action before the bank had rested its case. The governing rule
of civil procedure provides for an involuntary dismissal for lack of evidence
only ‘[a]fter a party seeking affirmative relief in an action tried by the court
without a jury has completed the presentation of evidence.’”) (quoting Fla.
R. Civ. P. 1.420(b)); Sheldon Greene & Assocs. v. Williams Island Assocs.,
550 So. 2d 1142, 1143 (Fla. 3d DCA 1989) (“[I]t is error to direct a verdict
before a plaintiff has completed presentation of his evidence.”); A.N. v.
M.F.–A., 946 So. 2d 58, 60 (Fla. 3d DCA 2006) (“By denying appellants the
opportunity to complete their case-in-chief, the trial court denied
appellants their due process.”); see also SJS Enters. v. Cates, 547 So. 2d
226, 227 (Fla. 4th DCA 1989) (holding that the trial court could not “jump
the gun” by granting a motion for an involuntary dismissal while the
plaintiff was on its first witness). Therefore, the title owner’s attempt to
justify the trial court’s involuntary dismissal based on the inability make
a prima facie case fails.

    Likewise, the title owner’s reliance on Binger v. King Pest Control, 401
So. 2d 1310 (Fla. 1981), as support for dismissal fails because Binger
addresses the exclusion of evidence, not flat out dismissal. In the instant
appeal, the Bank challenges the abrupt dismissal of its case during its
direct examination of its first witness. The Bank does not challenge the
exclusion of any of its evidence or testimony. The Binger court held that
“a trial court can properly exclude the testimony of a witness whose name
has not been disclosed in accordance with a pretrial order.” Id. at 1313.
Applying Binger, the exclusion of a witness for nondisclosure would justify
dismissal at trial due to insufficient evidence only where a party had a
single witness at trial. That was not the situation in this case. Thus,
reliance on Binger does not justify the dismissal in this case.

   For the reasons discussed above, we quash the trial court order
granting involuntary dismissal. Because the legal basis for the involuntary
dismissal is unclear, we give two instructions on remand. If the
involuntary dismissal was granted as a sanction for noncompliance with
one or more court orders, we remand for the trial court to enter an
appropriate order.      If involuntary dismissal was granted due to
insufficiency of evidence, we remand for a new trial.


                                       7
   Reversed and remanded with instructions.

CIKLIN and KLINGENSMITH, JJ., concur.

                          *         *         *

   Not final until disposition of timely filed motion for rehearing.




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