Bank of America, N.A. v. Ribaudo
199 So. 3d 407
| Fla. Dist. Ct. App. | 2016Background
- Bank of America (BOA) and Maria Ribaudo were litigants in a foreclosure action; the trial court ordered exchange of witness and exhibit lists within ten days and warned of dismissal/striking for noncompliance.
- BOA served disclosures late — well after the ten-day deadline and only three days before the non-jury trial.
- The trial court struck BOA’s sole witness for willful noncompliance and dismissed the case with prejudice.
- Ribaudo conceded on appeal that the trial court erred by not making explicit Kozel findings and agreed the case should be remanded on that basis.
- The appellate court found BOA had not preserved the trial court’s errors for appellate review because BOA failed to raise Kozel or related Binger issues at the dismissal hearing or via timely motion for rehearing/reconsideration.
- Because the preservation requirement was not met, the appellate court affirmed the dismissal despite recognizing the trial court’s substantive error in failing to make Kozel findings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether dismissal required Kozel findings before imposition | Ribaudo argued dismissal was proper given BOA’s willful noncompliance and prejudice | BOA conceded Kozel error and sought remand for findings | Court agreed Kozel findings were not made but remand was barred by preservation failure; affirmed |
| Whether trial court properly sanctioned by striking witness | Ribaudo argued striking was appropriate as sanction for ambush and prejudice | BOA argued for continuance to decide merits | Court noted Binger factors were not considered and BOA failed to preserve this claim; affirmed |
| Whether BOA preserved appellate review of discovery-sanction errors | Ribaudo maintained proper procedure was followed; BOA failed to timely raise Kozel/Binger below | BOA did not raise the issues at hearing or in a motion for rehearing/reconsideration | Court held errors were unpreserved, so appellate review was precluded |
| Whether prejudice warranted dismissal vs. lesser sanction | Ribaudo asserted prejudice from late disclosures justified dismissal | BOA asked for continuance to avoid dismissal and decide merits | Court observed prejudice and willfulness but could not remedy unpreserved error; affirmed |
Key Cases Cited
- Kozel v. Ostendorf, 629 So.2d 817 (Fla. 1993) (establishes six-factor test and requirement for explicit findings before dismissal as discovery sanction)
- Binger v. King Pest Control, 401 So.2d 1310 (Fla. 1981) (sets factors for imposing discovery sanctions short of dismissal)
- PNC Bank, NA v. Duque, 137 So.3d 476 (Fla. 4th DCA 2014) (standard of review for dismissal for discovery noncompliance)
- Chappelle v. S. Fla. Guardianship Program, Inc., 169 So.3d 291 (Fla. 4th DCA 2015) (reiterating requirement to expressly consider Kozel factors)
- Vista St. Lucie Ass’n v. Dellatore, 165 So.3d 731 (Fla. 4th DCA 2015) (same)
- Sunset Harbour Condo. Ass’n v. Robbins, 914 So.2d 925 (Fla. 2005) (preservation rule for appellate review of issues)
- Tillman v. State, 471 So.2d 32 (Fla. 1985) (preservation principle for appellate review)