U.S. Bank National Ass'n v. Rodriguez , 2016 Fla. App. LEXIS 10687 ( 2016 )

Third District Court of Appeal
State of Florida
Opinion filed July 13, 2016.
Not final until disposition of timely filed motion for rehearing.
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No. 3D14-2993
Lower Tribunal No. 09-66920
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U.S. Bank National Association, etc.,
Appellant,
vs.
Lourdes M. Rodriguez, etc.,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Beatrice
Butchko, Judge.
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. 1983). 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.
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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
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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 Montayo was ordered to appear
was ultimately reset.
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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
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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;
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(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
1 Recently, the Second District concluded that Kozel applies to dismissals “with
prejudice” and their functional equivalent, but not dismissals “without prejudice.”
Fed. Nat’l Mortg. Ass’n v. Linner, 41 Fla. L. Weekly D1348 (Fla. 2d DCA June 3,
2016). It explained that the functional equivalent of a dismissal with prejudice
exists where “the trial court dismisses a case without prejudice, but the . . . statute
of limitations has run.” Id. at D1349 n.5 (quotations omitted).
In this case, we do not reach the issue of whether the statute of limitations had run
on the Bank’s foreclosure claim in order to determine whether the dismissal
“without prejudice” was, in effect, a dismissal “with prejudice.” We decline to
reach those issues because both parties agreed, in the trial court and on appeal, that
Kozel is applicable here.
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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 predecessor
judge.
When read in context, the verbal order required the Bank to call Montoya to
testify at a trial date scheduled for April 2014. The order did not indicate that it
continued to apply if the trial date was reset. Moreover, each time the predecessor
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and successor trial judges subsequently reset the trial, they required the filing of
new witness lists—something that would not be necessary if the parties were
limited to presenting only the witnesses previously listed or deposed. The Bank
duly filed new witness lists, and, in doing so, changed the names of its identifying
officials, apparently based on the ability of the named official to appear at the new
trial dates. Nothing in the record or these subsequent orders indicates that the Bank
was limited to, or required to, call Montoya at trial. Nor does the record indicate
any bad faith on the part of the Bank’s counsel in changing its trial witness from
Montoya to Prudent.2
The record also fails to support a finding of prejudice to the Borrower. The
Bank, in compliance with a pretrial order, timely provided the Borrower with a
witness list fifteen days prior to trial. The list notified the Borrower of the Bank’s
decision to call Prudent to testify as the corporate representative with “the most
knowledge” of the relevant documents. The Borrower’s counsel chose not to
depose Prudent. Instead, counsel waited until the day of trial to object to Prudent’s
testimony. When asked to explain why the Borrower would be prejudiced by
2 To the extent that the Bank’s change in witnesses improperly caused the
Borrower to incur unnecessary costs and attorney’s fees, the ordinary remedy
would be an award of those costs and fees—not the dismissal of the case. See
generally Deutsche Bank Nat’l Trust Co. v. Avila-Gonzalez, 164 So. 3d 90, 92
(Fla. 3d DCA 2015) (“When such negligence causes the opposing side to incur
unnecessary attorney’s fees, the proper and normal remedy for that injury is a
compensating award of attorney’s fees . . . .”).
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Prudent’s testimony, counsel argued that he prepared for trial based upon his belief
that Montoya was the Bank’s sole trial witness. But, the Bank’s final witness list
clearly notified the Borrower that Prudent was the Bank’s sole witness. The Bank’s
first and penultimate witness lists also indicated that Prudent would testify
regarding the relevant documents produced during discovery. Yet, the record does
not reflect any attempt by the Borrower to depose Prudent. Nor does the record
reflect any reason why the Borrower could not depose Prudent in time for trial.
In Deutsche Bank Nat’l Trust Co. ex rel. LSF MRA Pass-Through Trust v.
Perez, 180 So. 3d 1186 (Fla. 3d DCA 2015), this court held that no prejudice was
demonstrated in similar circumstances. In Perez, a bank appealed an order
dismissing its foreclosure action against the borrower due to its failure to provide
the name of its corporate representative who would testify at trial. Although the
bank failed to specifically name its corporate representative in compliance with the
trial court’s pretrial order, the borrower was, at the very least, on notice that the
bank intended to call its corporate representative. Yet, the borrower made no
attempt to secure the identity of the bank’s witness or depose that person before
trial. This court held that, under these circumstances, the record failed to support a
finding of prejudice. “In short, there was no showing of surprise in fact as to the
existence of a witness or as to how the witness would testify.” Id. at 1190 (citations
and quotation omitted).
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Similarly, the record here fails to support a showing of prejudice to the
Borrower because there was no showing of surprise as to the existence of Prudent
or as to how Prudent would testify. In fact, the Bank went beyond the actions of
the bank in Perez because the Bank here named its trial witness in compliance with
a pretrial order, in addition to identifying him as the corporate representative with
“the most knowledge” of the relevant documents produced during discovery. Thus,
the trial court should not have excluded this witness from testifying. Nor should
the case have been dismissed.
In reaching this conclusion, we note that our decision should not be
construed, in any way, to excuse the actions of the Bank’s previous counsel, who
failed to comply with court orders. We merely hold that absent justification for the
trial court’s primary reason for dismissing the case, and in light of all the other
circumstances in this case, the record does not support the trial court’s decision to
impose the severe sanction of a dismissal. See Prater, 185 So. 3d at 560 (reversing
a dismissal pursuant to Kozel where reasons for the dismissal were not supported
by the record and the imposition of dismissal was not commensurate with the
violation at issue).
Reversed and remand for further proceedings consistent with this opinion.
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