Heritage Circle Condominium Ass'n v. State, Florida Department of Business & Professional Regulation, Division of Condominiums, Timeshares & Mobile Homes
121 So. 3d 1141
| Fla. Dist. Ct. App. | 2013Background
- Division investigated Heritage Circle Condominium Association for failure to prepare annual financial statements and fund reserves.
- Heritage failed to produce requested documents for about a year and a half; Division petitioned to compel compliance.
- Division amended its complaint, adding statutory violation claims and seeking penalties and compliance.
- Division repeatedly sought production; after promised but unfulfilled compliance, a hearing ordered production within 20 days.
- Heritage’s response to production request was incomplete; Division moved to enforce discovery and sought default as sanction.
- Trial court granted default and struck pleadings without a hearing; Division then obtained a default judgment for penalties and fees without a hearing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court erred by imposing sanctions without a hearing. | Division argues Kozel factors must be considered at a hearing. | Heritage contends hearing not held and Kozel factors not applied, so sanction improper. | Yes, court erred; remand for hearing under Kozel and Ham. |
| Whether the extreme sanction of default/dismissal was appropriate. | Division maintains sanctions justified due to repeated discovery failures. | Heritage argues lesser sanctions or a hearing could suffice; there was no basis for default without Kozel factors. | No, sanctions lacked required Kozel-based justification; remand for proper consideration. |
| Whether damages and attorney’s fees were properly awarded without an evidentiary hearing. | Division seeks liquidated penalties and fees without need for evidence on damages. | Heritage asserts penalties unliquidated and require evidence of numbers and mitigation. | No; damages and penalties require an evidentiary hearing. |
Key Cases Cited
- Kozel v. Ostendorf, 629 So.2d 817 (Fla.1993) (established Kozel factors for sanctions)
- Ham v. Dunmire, 891 So.2d 492 (Fla.2004) (record must show Kozel factors before extreme sanctions)
- Fisher v. Prof'l Adver. Dirs. Co., 955 So.2d 78 (Fla.4th DCA 2007) (strike is the most severe penalty; require express findings)
- Commonwealth Fed. Sav. & Loan Ass’n v. Tubero, 569 So.2d 1271 (Fla.1990) (requires willful disobedience findings)
- Alsina v. Gonzalez, 88 So.3d 962 (Fla.4th DCA 2012) (express consideration of Kozel factors required)
- Bennett ex rel. Bennett v. Tenet St. Mary’s, Inc., 67 So.3d 422 (Fla.4th DCA 2011) (emphasizes Kozel-factor analysis)
- Cook v. Custom Marine Distrib., Inc., 29 So.3d 462 (Fla.4th DCA 2010) (requires express Kozel consideration)
- Wilson v. Form Works, Inc., 894 So.2d 1078 (Fla.4th DCA 2005) (Kozel factors and sanctions discussed)
- Bank One, N.A. v. Harrod, 873 So.2d 519 (Fla.4th DCA 2004) (sanctions require appropriate record)
- Deutsche Bank Nat’l Trust Co. v. Waldorf, 92 So.3d 857 (Fla.2d DCA 2012) (Kozel factors under review by appellate court)
- Deutsche Bank Nat’l Trust Co. v. Lippi, 78 So.3d 81 (Fla.5th DCA 2012) (Kozel framework applied)
- Smith v. City of Panama City, 951 So.2d 959 (Fla.1st DCA 2007) (Kozel-based sanctions analysis cited)