Toll v. Korge
2013 Fla. App. LEXIS 19272
Fla. Dist. Ct. App.2013Background
- Plaintiff Korge sued Toll and others alleging fraudulent misrepresentations and conversion related to investments in InnoVida; Toll was InnoVida’s CFO.
- The trial court ordered expedited discovery, including production of bank records and depositions of Toll and Osorio; defendants repeatedly failed to comply.
- Toll testified at deposition that he had limited access to InnoVida’s Cayman bank statements, first met prior counsel only the day before his deposition, and was not notified of several court orders. Prior counsel had jointly represented Toll and Osorio.
- The trial court held non‑evidentiary hearings, found willful discovery violations by the defendants collectively, and entered a final default judgment against all defendants for $4,012,500 based on a proposed order mirroring plaintiff’s draft.
- On appeal the majority vacated the final default judgment and remanded for an evidentiary hearing, concluding the trial court failed to make individualized findings or apply the Kozel/Ham factors; a dissent would have affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether striking pleadings and entering default was appropriate for discovery violations | Default justified because defendants willfully disobeyed multiple court orders and misled the court | Sanction was excessive without proof that Toll personally engaged in willful misconduct; failures may be attributable to counsel or co‑defendant | Vacated default; trial court abused discretion by imposing extreme sanction without required findings or evidentiary hearing |
| Whether the trial court needed to make express, individualized findings and analyze Kozel/Ham factors before dismissal | Collective findings were sufficient given repeated violations and prejudice | Court had to assess whether violations were attributable to Toll, counsel, or others and apply Kozel/Ham factors | Court must consider Kozel factors and make written findings linking misconduct to each sanctioned party and counsel before dismissal |
| Whether misconduct was attributable to the litigant (Mercer standard) or to counsel (Kozel standard) | Plaintiff argued individual defendants (including Toll) personally breached discovery obligations | Toll argued failures were due to counsel’s dual representation and lack of access to documents, so misconduct may not be personally attributable | Remand for evidentiary hearing to determine whether Mercer or Kozel framework applies and to attribute responsibility individually |
| Appropriate remedy and procedure on remand | Plaintiff sought reinstatement of default judgment | Defendant sought evidentiary hearing and reconsideration | Remand for evidentiary hearing; if dismissal is later imposed, court must enter written findings analyzing each Kozel factor and individualized facts for each party and counsel |
Key Cases Cited
- Ham v. Dunmire, 891 So.2d 492 (Fla. 2004) (requires express findings and consideration whether dismissal punishes client for counsel’s failures)
- Kozel v. Ostendorf, 629 So.2d 817 (Fla. 1993) (six‑factor test to determine if dismissal for discovery violations is appropriate)
- Mercer v. Raine, 443 So.2d 944 (Fla. 1983) (standard when discovery misconduct is attributable to the litigant)
- Commonwealth Fed. Sav. & Loan Ass’n v. Tubero, 569 So.2d 1271 (Fla. 1990) (dismissal requires express factual findings to show conduct was more than mistake or neglect)
- Deutsche Bank Nat. Trust Co. v. Cagigas, 85 So.3d 1181 (Fla. 3d DCA 2012) (applies Kozel factors in assessing sanctions for discovery failures)