          DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                               FOURTH DISTRICT

                  VISTA ST. LUCIE ASSOCIATION, INC.,
                               Appellant,

                                       v.

 CAROL A. DELLATORE, a/k/a CAROL M. DELLATORE, individually,
 RONALD GABBARD, individually, and CAROL A. DELLATORE a/k/a
  CAROL M. DELLATORE and RONALD GABBARD, as co-trustees of
 THE BILLY A. GABBARD TRUST, UTD 30 DAY OF OCTOBER, 1997,
                         Appellees.

                               No. 4D13-3906

                               [May 20, 2015]

  Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St.
Lucie County; Dan L. Vaughn, Judge; L.T. Case No. 562010CA004753.

  Robert G. Rydzewski, Jr., of Becker & Poliakoff, P.A., Stuart, for
appellant.

   Carolyn M. Dellatore, Somerset, NJ, for appellees.

MAY, J.

    A condominium association appeals the denial of its motion for
rehearing of two orders. The first order dismissed its complaint with
prejudice, and the second awarded attorney’s fees and costs against it for
non-compliance with a court order compelling discovery. It argues the
trial court erred by failing to consider the required factors set forth in Kozel
v. Ostendorf, 629 So. 2d 817 (Fla. 1993), and in failing to make the
requisite findings. We agree and reverse.

   A trust owned a unit in Vista St. Lucie. On September 2, 2010, the
association filed a two-count complaint against the co-trustees of the
trust, alleging claims for breach of contract and unjust enrichment based
on the co-trustees’ failure to reimburse the association for mold
remediation performed. The co-trustees filed a counterclaim alleging
tortious interference with a contract.

   The co-trustees served the association with discovery requests on April
4, 2011. On May 10, 2011, the association moved for a thirty-day
extension of time to respond, admitting that it was already late. The co-
trustees subsequently moved to compel discovery because the association
had not responded. On July 11, 2011, without conducting a hearing, the
trial court entered an order compelling the association to answer the
discovery within thirty days of the order.

   On August 15, 2011, the co-trustees moved to dismiss the complaint
with prejudice due to the association’s failure to comply with the trial
court’s order compelling discovery.         The co-trustees also requested
sanctions “for [the association’s] recalcitrant behavior in continuing to
refuse to provide . . . responses to validly served discovery requests.” The
co-trustees requested reasonable attorney’s fees and costs.

   The co-trustees attached an affidavit of their attorney in support of their
motion for attorney’s fees and costs. The affidavit attested to the facts, the
expenditure of time, the hourly billing rate, and the total amount of fees
requested. They attached an invoice detailing the hours expended.

   Without a hearing, the trial court entered an Order of Dismissal with
Prejudice and an Order of Attorney’s Fees. The order dismissing the
complaint indicated that the “[association] failed to comply [sic] the Rules
of Discovery and likewise failed to abide by this Court’s Order to Produce
Discovery, dated July 11, 2011.” The trial court awarded $6,916.15 in
fees.

    The association moved for rehearing, arguing it had faxed the answers
to interrogatories and requests for admission to its counsel on August 5,
2011. The association’s counsel represented that his office inadvertently
failed to mail the discovery to the co-trustees’ counsel while he was on
vacation. The association’s counsel took the blame for his failure to
respond upon his return from vacation. The association argued the orders
should be vacated because the trial court failed to conduct the required
six-factor analysis in ordering sanctions required by Kozel v. Ostendorf,
629 So. 2d 817 (Fla. 1993).1

   Almost two years after the association moved for rehearing, and after
retaining new counsel, it moved for a case management conference. It
requested the conference to allow the parties to “coordinate the pending
motion,” attend a mediation conference, and set discovery deadlines to

1On December 7, 2011, while the motion for rehearing was pending, the parties
entered a joint stipulation and dismissed with prejudice the co-trustees’
counterclaim.

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resolve the case.

   The trial court denied the association’s motion. The order stated: “The
case was dismissed with prejudice over 18 months ago. [T]here is no
reason to have a case management conference on a case that is no longer
pending.” Days later, the trial court denied the association’s motion for
rehearing. That order stated:

      This case has been pending an incredible 1112 days – more
      than three (3) years. On November 14, 2011, Circuit Judge
      Dan Vaughn entered an order dismissing the case with
      prejudice. That order was entered 674 days ago – over 22
      months ago. There was no appeal filed. A motion for
      rehearing was filed, but it was never set for hearing. On
      December 9, 2011 a joint stipulated motion to dismiss the
      counter-claim was entered. For all intents and purposes, the
      case has been closed for 21 months. On September 12, 2013,
      plaintiff’s counsel sent correspondence inviting this court to
      undo Judge Vaughn’s order.

The trial court reasoned that it would not undo the work of Judge Vaughn
and denied the motion.2 The trial court did not address the merits of the
motion for rehearing. From this order, the association now appeals.

   The association argues the trial court abused its discretion in
dismissing the complaint with prejudice because the trial court failed to
analyze the issue and make the findings required by Kozel v. Ostendorf,
629 So. 2d 817 (Fla. 1993). It also argues the ultimate discovery violation
was the fault of its counsel and it should not have been sanctioned,
certainly not with the dismissal of its complaint with prejudice. The co-
trustees respond that the trial court did not err because the association
flaunted the rules and acted in bad faith. They argue that Kozel does not
apply. We agree with the association and reverse.

   “It is well settled that determining sanctions for discovery violations is
committed to the discretion of the trial court, and will not be disturbed
upon appeal absent an abuse of the sound exercise of that discretion.”
Bennett ex rel. Bennett v. Tenet St. Mary’s, Inc., 67 So. 3d 422, 426 (Fla.
4th DCA 2011). “Before a court may dismiss a cause as a sanction, it
must first consider the six factors delineated in Kozel . . . , and set forth
explicit findings of fact in the order that imposes the sanction of dismissal.”

2The record reveals that Judge Vaughn dismissed the complaint with prejudice,
but Judge Belanger denied the motion for rehearing.

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Id. This is especially true where counsel is responsible for the conduct to
be sanctioned. Id. at 427.

   Kozel sets forth the following factors which must be considered:

      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. “After considering these factors, if there is a
less-severe sanction available than dismissal with prejudice, the court
should use it.” Bennett ex rel. Bennett, 67 So. 3d at 427. “Ultimately, the
lower 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.” Heritage Circle Condo. Ass’n v. State,
Fla. Dep’t of Bus. & Prof’l Regulation, Div. of Condos., Timeshares & Mobile
Homes, 121 So. 3d 1141, 1143–44 (Fla. 4th DCA 2013); see, e.g., Bennett
ex rel. Bennett, 67 So. 3d at 427; Alsina v. Gonzalez, 83 So. 3d 962, 964–
65 (Fla. 4th DCA 2012).

   Here, the association correctly argues the trial court failed to consider
the Kozel factors when it dismissed the complaint with prejudice. The
dismissal order contains NO written findings and simply dismisses the
complaint due to the association’s failure to abide by its order compelling
discovery. Although the trial court inserted language that the dismissal
was based on the reasons set forth in the co-trustees’ motion, it did not
conduct the required analysis under Kozel.

  We have previously remanded cases to allow a court to consider the
Kozel factors. Here, however, the facts are undisputed, and they do not
warrant the severe sanction of dismissal with prejudice. We therefore

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reverse both the order dismissing the complaint with prejudice and the
order awarding attorney’s fees. We remand the case for reinstatement of
the complaint. The court may re-consider the co-trustees’ motion in light
of the Kozel factors, taking into consideration that the fault appears to lie
with the association’s counsel. It may then fashion a less harsh sanction,
if warranted. Just as the supreme court found in Ham, “[t]his is simply
not a case involving a protracted history of discovery abuses, numerous
motions to compel, prior sanctions by the trial court, patent prejudice to
the opposing party, or other circumstances that would in any way warrant
imposition of the ultimate sanction of dismissal.” Ham, 891 So. 2d at 499.

   Because we are reversing and remanding the case, we also address the
association’s argument that the trial court erred in its award of attorney’s
fees and costs because it did not make express findings on the number of
hours reasonably expended and the reasonable hourly rate, and did not
require expert testimony in support of the award. The co-trustees respond
that the trial court properly awarded attorney’s fees pursuant to the
Florida Rules of Civil Procedure.

    “An award of attorney’s fees must be supported by substantial
competent evidence and contain express findings regarding the number of
hours reasonably expended and a reasonable hourly rate for the type of
litigation involved.” Tutor Time Merger Corp. v. MeCabe, 763 So. 2d 505,
506 (Fla. 4th DCA 2000). “Additionally, the award must be supported by
expert evidence, including the testimony of the attorney who performed
the services.” Id.

   Here, the order awarding attorney’s fees suffers from three fatal flaws.
First, there is no finding of the reasonableness of the hours expended.
Second, there is no finding of the reasonableness of the hourly rate
charged. Third, no expert testified to the reasonableness of either the
hourly rate or the rate charge. The three-strike rule applies, and the order
awarding attorney’s fees must be reversed. See DeMello v. Buckman, 991
So. 2d 907, 909–10 (Fla. 4th DCA 2008).

   For the foregoing reasons, the orders are reversed and the case is
remanded to the trial court for proceedings consistent with this opinion.

   Reversed and Remanded.

DAMOORGIAN, C.J., and TAYLOR, J., concur.

                            *         *        *


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Not final until disposition of timely filed motion for rehearing.




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