U.S. Bank National Ass'n v. Rodriguez
206 So. 3d 734
Fla. Dist. Ct. App.2016Background
- U.S. Bank filed a mortgage foreclosure complaint in 2009; extensive discovery followed and the court imposed sanctions on the Bank’s prior counsel for discovery noncompliance.
- The predecessor judge orally ordered at an in-court deposition that the Bank must call Roberto Montoya to testify at the trial date set for April 8, 2014; that oral order was not reduced to writing.
- The trial was reset multiple times; each reset required new witness lists 15 days before trial. The Bank filed amended witness lists and ultimately identified Sony Prudent — not Montoya — as its corporate representative with the most knowledge.
- At the bench trial before a successor judge on November 13, 2014, the Bank called Prudent; Borrower objected, arguing the Bank violated the predecessor judge’s oral order and that she was prejudiced.
- The successor judge found most Kozel factors satisfied, excluded Prudent, and dismissed the foreclosure without prejudice under Kozel; the Bank appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Bank violated the predecessor judge’s oral order requiring Montoya to testify | The oral in-court order required Montoya to be the Bank’s trial witness regardless of later scheduling changes | The oral order applied only to the then-scheduled April 2014 trial and did not survive subsequent resets; the Bank timely filed updated witness lists | Court held the oral order applied only to the specific trial date and did not bar the Bank from naming Prudent after subsequent resets |
| Whether Borrower was prejudiced by the Bank switching witnesses | Borrower: prepared to cross-examine Montoya and was surprised by Prudent; thus prejudiced | Bank: timely provided final witness list naming Prudent; Borrower had opportunity to depose Prudent but did not; no surprise about existence or likely testimony | Court held record did not support prejudice — Borrower had notice and made no effort to depose Prudent |
| Whether dismissal under Kozel was an appropriate sanction | Borrower: severe sanction justified given prior discovery noncompliance by Bank’s counsel and witness-change prejudice | Bank: dismissal disproportionate; record lacks support for key factual findings (violation and prejudice); lesser sanctions available | Court reversed dismissal as unsupported by the record and ordered remand for further proceedings |
| Jurisdiction to hear appeal from a dismissal "without prejudice" | Borrower implicitly argued dismissal could be non-final | Bank argued order was functionally final because it required refiling (practical effect) | Court found order was final for appeal because context made refiling necessary and exercised jurisdiction |
Key Cases Cited
- Kozel v. Ostendorf, 629 So. 2d 817 (Fla. 1993) (creates six-factor test for dismissal as discovery sanction)
- Prater v. Comprehensive Health Ctr., LLC, 185 So. 3d 559 (Fla. 3d DCA 2016) (reversal where record lacked support for Kozel factors and sanction was disproportionate)
- Deutsche Bank Nat’l Trust Co. v. Perez, 180 So. 3d 1186 (Fla. 3d DCA 2015) (no prejudice where borrower had notice of bank’s corporate representative and did not depose that person)
- Al-Hakim v. Big Lots Stores, Inc., 161 So. 3d 568 (Fla. 2d DCA 2014) (discusses when dismissal "without prejudice" can be final)
- Fed. Nat’l Mortg. Ass’n v. Wild, 164 So. 3d 94 (Fla. 3d DCA 2015) (order dismissing without prejudice is final if record makes refiling necessary)
- Gomez-Bonilla v. Apollo Ship Chandlers, Inc., 650 So. 2d 116 (Fla. 3d DCA 1995) (reversal where record did not show willful disregard supporting dismissal)
- Commonwealth Fed. Savs. & Loan Ass’n v. Tubero, 569 So. 2d 1271 (Fla. 1990) (trial-court discretion in sanctions and standard of appellate review)
Reversed and remanded for further proceedings consistent with the opinion.