Bank of New York Mellon v. Sandhill
202 So. 3d 944
| Fla. Dist. Ct. App. | 2016Background
- The Bank of New York Mellon sued Sarah and Peter Sandhill on a mortgage foreclosure claim; discovery disputes arose after appellees served discovery requests.
- Appellant provided blanket objections, produced ~300 documents, and partial interrogatory answers; appellees moved to compel and the trial court granted the motion requiring supplemental responses.
- Appellant’s prior counsel failed to comply with the court’s orders; the trial court warned at a February 20, 2014 hearing that lack of adequate answers could lead to dismissal.
- After continued noncompliance, the trial court granted appellees’ motion to dismiss the foreclosure action on May 27, 2014.
- On appeal, Appellant argued the dismissal was defective because the trial court’s order did not expressly analyze the Kozel factors applicable when an attorney (not the client) causes the discovery violation.
- The Fifth District affirmed, holding Appellant failed to preserve the claimed Kozel-error by not seeking rehearing/clarification and by failing to supply the dismissal-hearing transcript, so the appellate court could not review what the trial court considered.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether dismissal for discovery noncompliance was proper | Bank argued dismissal was improper because the trial court’s order lacked an explicit Kozel-factor analysis | Sandhills argued repeated discovery violations justified dismissal | Affirmed dismissal; court noted dismissal can be warranted for repeated noncompliance but did not reach merits due to preservation failures |
| Whether absence of an express Kozel analysis in the dismissal order requires reversal | Bank argued lack of written Kozel findings mandates reversal under precedent | Sandhills argued Bank failed to preserve that error by not asking the trial court to amend or clarify the order | Reversal for lack of Kozel analysis is ordinarily required, but error was unpreserved here because Bank did not move for rehearing/clarification before appealing |
| Whether appellate review could consider the trial court’s reasoning without the hearing transcript | Bank implicitly relied on record to show error | Sandhills relied on absence of transcript and lack of trial-court findings | Court refused to address merits because appellee did not provide the hearing transcript and did not give trial court opportunity to correct the order |
Key Cases Cited
- Kozel v. Ostendorf, 629 So. 2d 817 (Fla. 1993) (sets six-factor test for dismissal when attorney, not client, is responsible for discovery failures)
- Deutsche Bank Nat’l Trust Co. v. Lippi, 78 So. 3d 81 (Fla. 5th DCA 2012) (trial court must consider Kozel factors before dismissing)
- Bank of America, N.A. v. Ribaudo, 199 So. 3d 407 (Fla. 4th DCA 2016) (failure to seek rehearing/clarification can forfeit appellate review of missing Kozel analysis)
- Sunset Harbour Condo. Ass’n v. Robbins, 914 So. 2d 925 (Fla. 2005) (appellate courts may decline to consider unpreserved trial-court errors)
- Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150 (Fla. 1979) (appellant’s burden to provide record/transcript to support appellate review)
- Ledo v. Seavie Resources, LLC, 149 So. 3d 707 (Fla. 3d DCA 2014) (repeated discovery failures can justify dismissal)
- Johnson v. Allstate Ins. Co., 410 So. 2d 978 (Fla. 5th DCA 1982) (dismissal may be appropriate for willful noncompliance)