       Third District Court of Appeal
                               State of Florida

                        Opinion filed November 19, 2014.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D11-2586
                         Lower Tribunal No. 10-47730
                             ________________


  U.S. Bank National Association, as Trustee for CSF Heat 2006-6,
                                    Appellant,

                                        vs.

                            Patrick Whyte, et al.,
                                    Appellees.



     A Appeal from a non-final order from the Circuit Court for Miami-Dade
County, Amy Steele Donner, Judge.

     Marinosci Law Group, and Bart Heffernan, (Fort Lauderdale), for appellant.

     Peter Kneski, for appellees.


Before WELLS and SUAREZ, JJ., and LEVY, Senior Judge.

     WELLS, Judge.
      In this mortgage foreclosure action, U.S. Bank National Association, as

Trustee for CSFB Heat 2006-6 (“U.S. Bank”), the plaintiff below, appeals from an

order striking its pleadings and dismissing this case with prejudice for failure to

comply with a discovery order. For the following reasons, we reverse.

      Patrick Whyte allegedly defaulted on his home mortgage in May 2010 and

has not made a payment thereon since. On September 1, 2010, as the holder of the

original note and mortgage, U.S. Bank filed this foreclosure action against him

seeking the $109,472.79 in principal then due and owing on the loan. Defense

counsel moved to dismiss the complaint and propounded discovery on the Bank,

including a request for production.1    In May of 2011, when the Bank, then

represented by the Law Offices of David J. Stern, P.A., did not respond to the

discovery requests, defense counsel filed a motion to compel.

      On June 9, 2011, the trial court entered an order granting the motion to

compel, ordering the Bank to serve and file a formal response to the request for

production within ten days and to produce all documents requested. The trial court

also awarded defense counsel $500 in attorney’s fees as a sanction to be paid by

the Bank. At some point after the June 9, 2011 order was entered, the Bank




1 The record does not reflect whether the trial court ever ruled on the motion to
dismiss. However, it is clear that Whyte never filed an answer to the complaint in
this matter.

                                        2
retained new counsel, the Marinosci Law Group, P.C., to replace the Law Offices

of David J. Stern.2

         On June 23, 2011, Whyte filed his first Motion to Strike Pleadings, for

Sanctions and for Entry of Judgment in Favor of Defendant for failure to comply

with the June 9, 2011 order. Several days later, the Bank’s new counsel responded

to Whyte’s document request.         The hearing on the motion to strike and for

sanctions was cancelled with the trial court entering an agreed order on August 7,

2011, giving the Bank until August 15th to pay the $500 sanction previously

ordered.

         When the $500 was not paid by August 15th, Whyte renewed his motion to

strike, for sanctions, and for entry of judgment. The motion was noticed for

hearing on September 1st. However, before the hearing could take place, on

August 22nd, an associate lawyer for the Marinosci Law Group overnighted a $500

check to defense counsel and also sent correspondence requesting that the motion

to strike be cancelled.

         Although the $500 check was received on August 23rd thereby satisfying the

sanction order, albeit a few days late, and well before the September 1st hearing set

on the motion to compel compliance, Whyte neither cancelled the hearing as




2   David J. Stern has since been disbarred by the Florida Bar.

                                           3
requested nor notified counsel for the Bank that he was moving forward on his

sanction request.

      Believing that the sanction had been satisfied and that no hearing would take

place, no one from the Marinosci Law Group appeared at the September 1st

hearing at which an order striking the Bank’s pleadings and entering judgment in

Whyte’s favor was entered “for [the Bank’s] failure to comply with court order.”3

      As this court has stated on more than one occasion, dismissal of an action as

a sanction for failure to comply with discovery orders must be reserved for only

the most extreme circumstances. See Ledo v. Seavie Resources, LLC, 39 Fla. L.

Weekly D1994 (Fla. 3d DCA Sep. 17, 2014) (confirming that while the imposition

of sanctions is discretionary, dismissal of an action for failure to comply with

orders compelling discovery should be reserved for only the most extreme

circumstances); Toll v. Korge, 127 So. 3d 883, 887 (Fla. 3d DCA 2013)

(“Dismissing an action for failure to comply with discovery orders is ‘the most

3 Because the Bank did not receive the dismissal order until after the time for filing
a Florida Rule of Civil Procedure 1.530 motion had expired, it filed a Florida Rule
of Civil Procedure 1.540 motion seeking relief from the order of dismissal. In that
motion, the Marinosci Law Group advised the trial court that “due to a mistake
and/or excusable neglect counsel missed the hearing on this matter.” More
particularly, affidavits from two attorneys at the Marinosci Law Group confirmed
that because of miscommunication, the partner tasked with attending the
September 1st hearing believed that it had been cancelled upon payment of the
$500 sanction. On September 30, 2011, the Bank appealed from the order of
dismissal. The Rule 1.540 motion remains pending. See Kennedy v. Alberto, 649
So. 2d 286, 287 (Fla. 4th DCA 1995) (confirming that an appeal from a final order
abandons only pending motions that toll rendition).

                                          4
severe of all sanctions which should be employed only in extreme circumstances’”

(quoting Ham v. Dunmire, 891 So. 2d 492, 495 (Fla. 2004))).

      In this case, the trial court dismissed the Bank’s action for an eight day delay

in complying with an order requiring payment of a $500 fine imposed for a

discovery violation. Where a court sanctions a party for its own failure to comply

with court orders, the court must expressly determine and find willful or deliberate

disregard of its authority:

      The dismissal of an action based on the violation of a discovery order
      will constitute an abuse of discretion where the trial court fails to
      make express written findings of fact supporting the conclusion that
      the failure to obey the court order demonstrated willful or deliberate
      disregard. See Commonwealth Fed. Savings & Loan Ass'n v. Tubero,
      569 So. 2d 1271 (Fla.1990). Express findings are required to ensure
      that the trial judge has consciously determined that the failure was
      more than a mistake, neglect, or inadvertence, and to assist the
      reviewing court to the extent the record is susceptible to more than
      one interpretation. See id. at 1273.

Ham, 891 So. 2d at 495, 496 (Fla. 2004). Here, the failure is neither an extreme

circumstance nor conduct which rises to the level of willful, deliberate,

contumacious behavior that would justify imposition of such a sanction. See

Aurora Loan Servs., LLC v. Ramirez, 120 So. 3d 1260, 1260 (Fla. 3d DCA 2013)

(reversing sanction for a discovery violation in part because the record did not

“support a conclusion that the discovery violation was a willful and deliberate one

as required by law”). For this reason alone, we must reverse.




                                          5
      Moreover, to the extent the Bank’s attorneys were responsible for the failure

to comply with the discovery orders, neither the record nor the order on appeal

demonstrate that the trial court considered the factors mandated by Kozel v.

Ostendorf, D.P.M., 629 So. 2d 817, 818 (Fla. 1994), before what that Court

described as the “ultimate sanction” reserved for “those aggravating circumstances

in which a lesser sanction would fail to achieve a just result,” might be imposed:

      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. Upon
      consideration of these factors, if a sanction less severe than dismissal
      with prejudice appears to be a viable alternative, the trial court should
      employ such an alternative.

Failure to address the Kozel factors when sanctioning a party for the misconduct of

its attorney mandates reversal. See Deutsche Bank Nat’l Trust Co. v. Parada, 139

So. 3d 406, 406 (Fla. 3d DCA 2014) (finding the trial court erred in dismissing a

foreclosure action as a sanction for discovery violations “because the trial court

failed to make the express factual findings required under Kozel” and because “the

factors of willfulness, responsibility and prejudice” were not considered);

Portofino Prof’l Ctr. v. Prime Homes at Portofino, 133 So. 3d 1112, 1114 (Fla. 3d

DCA 2014) (concluding that “a court must first consider each of the Kozel factors



                                         6
before it may dismiss a cause as a sanction,” and then should “include in its written

order findings of fact with respect to each factor”); Arkiteknic, Inc. v. United Glass

Laminating, Inc., 53 So. 3d 366, 367 (Fla. 3d DCA 2011) (reversing final default

judgment and order striking pleadings where the court failed to consider and apply

all six Kozel factors).

      Finally, and again as the Florida Supreme Court has made clear, “dismissal

is far too extreme as a sanction in those cases where discovery violations have

absolutely no prejudice to the opposing party.” Ham, 891 So. 2d at 499. In this

case, neither the Bank’s failure to timely respond to discovery nor its failure to

timely pay the monetary fine imposed because of that failure prejudiced Whyte in

any manner. Whyte got the money; Whyte has never answered the complaint;

Whyte is living “rent free” in a home financed by the Bank and for which it has

allegedly received no payments since at least September 2010; and Whyte has not

claimed, nor did the court below find, that Whyte could not respond to the Bank’s

complaint because the Bank either failed to timely respond to discovery or failed to

pay the $500 fine.

      Accordingly, the order on appeal is reversed.




                                          7
