BANK OF AMERICA, N.A., APPELLANT,
v.
MARIA RIBAUDO, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Bank of America failed to comply with a trial court discovery order requiring timely disclosure of witness and exhibit lists in a foreclosure action. Although the trial court committed clear legal errors by dismissing the case and striking BOA's only witness without considering required statutory factors, the appellate court affirmed because BOA failed to preserve these errors by raising them in a motion for reconsideration or rehearing.
The appellate court affirmed the dismissal despite finding that the trial court committed clear legal errors. Although dismissals for discovery violations ordinarily constitute reversible error when the trial court fails to consider and explicitly set forth findings regarding the Kozel factors, such errors are only reviewable if preserved through a timely motion for reconsideration or rehearing, which BOA did not file.
[1] A trial court must consider the Kozel factors and make explicit findings before dismissing an action as a sanction for a discovery violation.
[2] Failure to preserve a trial court's error by raising it in a timely motion for rehearing or reconsideration precludes appellate review of that error.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“before a case can be dismissed as a sanction for a discovery violation, the trial court must consider the six factors established in Kozel to determine if dismissal is appropriate, and set forth explicit findings of fact in the order that imposes the sanction of dismissal”
Establishes the mandatory legal standard for dismissal sanctions in discovery violations
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceThe trial court issued a discovery order requiring BOA and Ribaudo to exchange witness and exhibit lists within ten days, with a warning that noncompl…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Willful Disregard Of Court Orders cases and more on FLexlaw
In this foreclosure action, Bank of America, N.A. (“BOA”) failed to comply with the trial court’s discovery order directing the parties to exchange witness and exhibit lists within ten days. The order warned that noncompliance could result in dismissal or striking of the' ease, witnesses, or exhibits. After BOA submitted its disclosures to Maria Ribaudo well after the ten-day period, and only three days before the scheduled non-jury trial, the trial court struck BOA’s only witness due to its disregard for the discovery order, and dismissed the case with prejudice.
Ribaudo agrees with BOA that the trial court erred by failing to make required findings pursuant to Kozel v. Ostendorf, 629 So.2d 817, 818 (Fla.1993), prior to dismissing the action, and concedes that the case should be remanded. Regardless of her concession on the Kozel issue, BOA has failed to preserve the trial court’s errors for appeal. Therefore, we affirm.
“We review dismissals for failing to comply with discovery orders for an abuse of discretion.” PNC Bank, NA v. Duque, 137 So.3d 476, 478 (Fla. 4th DCA 2014).
Ribaudo argued below that dismissal was appropriate because there was no justification for BOA’s non-compliance with the discovery order, BOA’s tactics amounted to trial by ambush, and she had been prejudiced by the late disclosure. BOA responded by requesting that the court grant a continuance so the case could be decided on the merits. The trial judge expressed frustration over the fact that BOA (and other lenders) had repeatedly demonstrated an indifference towards discovery orders in other cases, noted the prejudice to Ribaudo occasioned by the late disclosure in this case, and granted the motion to dismiss based on BOA’s willful disregard of the court’s order. This timely appeal followed.
We have held time and time again (and apparently must do so once more) that before a case can be dismissed as a sanction for a discovery violation, the trial court must consider the six factors established in Kozel to determine if dismissal is appropriate, and set forth explicit findings of fact in the order that imposes the sanction of dismissal. See, e.g., Chappelle v. S. Fla. Guardianship Program, Inc., 169 So.3d 291, 294 (Fla. 4th DCA 2015) (“We have consistently required the record to show an express consideration of the Kozel factors.” (quoting Vista St. Lucie Ass’n v. Dellatore, 165 So.3d 731, 735 (Fla. 4th DCA 2015))).
Ordinarily, a trial court’s failure to address the Kozel factors would constitute reversible error, provided that the error has been preserved. See id. at 293-95 (reversing and remanding for failure to consider Kozel factors where issue was raised in timely motion for reconsideration); see also Dellatore, 165 So.3d at 733-36 (reversing and remanding in part for failure to consider Kozel factors where issue was raised in timely motion for rehearing); Heritage Circle Condo. Ass’n v. State, Fla. Dep’t of Bus. & Prof'l Regulation, Div. of Condos., Timeshares & Mobile Homes, 121 So.3d 1141, 1144 n. 1 (Fla. 4th DCA 2013) (concluding that the appellant had sufficiently preserved the Kozel issue where, despite the fact that there was never a hearing on appellee’s motion for default for failure to comply with discovery requests, appellant had “raise[d] Kozel factual matters” in a timely motion for rehearing).
*409Here, it is clear that the trial court never considered the Kozel factors on the record or in its final order. Additionally, we also note that the court struck BOA’s only witness without considering any of the factors set forth in Binger v. King Pest Control, 401 So.2d 1310, 1313-14 (Fla. 1981). However, BOA did not raise either of these issues at the hearing on the mo.tion to dismiss or by subsequently filing a motion for rehearing or reconsideration.
As such, despite the trial court’s clear errors, we are unable to address them on appeal. See, e.g., Sunset Harbour Cpndo. Ass’n v. Robbins, 914 So.2d 925, 928 (Fla. 2005) (“In order to be preserved for further review by a higher court, an issue must be presented to the lower court and the specific legal argument or ground to be argued on appeal or review must be part of that presentation if it is to be considered preserved.” (quoting Tillman, v. State, 471 So.2d 32, 35 (Fla.1985))). Accordingly, we affirm the trial court’s order of dismissal.
Affirmed.
GROSS and FORST, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (13 total)
-
Carrol Y. Cherry Eaton v. Eaton, 293 So. 3d 567 (Fla. 1st DCA 2020)…here are many legal requirements of which a trial court is presumably aware, yet appellate courts have held that a trial court’s errors in failing to comply with those requirements must still be preserved. See, e.g. Bank of America, N.A. v. Ribaudo, 199 So. 3d 407, 408-09 (Fla. 4th DCA 2016) (concluding that “despite the trial court’s clear errors” in failing to make the findings required by Kozel v. Ostendorf, 629 So. 2d 817, 818 (Fla. 1993), before dismissing the case, the issue was unpreserved because it w…
-
The Bank OF NEW York Mellon v. Sandhill, 202 So. 3d 944 (Fla. 5th DCA 2016)…t’s attention by filing a timely motion for rehearing or clarification with a specific request for inclusion of the Kozel factor analysis in an amended order. The Fourth District addressed this preservation issue in Bank of America, N.A. v. Ribaudo, 199 So. 3d 407 [*946] (Fla. 4th DCA 2016). “Ordinarily, a trial court’s failure to address the Kozel factors would constitute reversible error, provided that the error has been preserved.” Ribaudo, 199 So. 3d at 408. In Ribaudo, when plaintiffs complaint was dismi…
-
Shelswell v. Bourdeau, 239 So. 3d 707 (Fla. 4th DCA 2018)…2 However, it is equally “well settled that the rule of preservation applies to the improper dismissal of a complaint with prejudice.” Vorbeck v. Betancourt, 107 So. 3d 1142, 1147 (Fla. 3d DCA 2012). In Bank of America, N.A. v. Ribaudo, 199 So. 3d 407 (Fla. 4th DCA 2016), we refused to reverse a final order that failed to address the necessary Kozel factors because the appellant bank “did not raise [the issue] at the hearing on the motion to dismiss or by subsequently filing a motion for rehea…
Previewing 3 of 13 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Tillman v. State, 471 So. 2d 32 (Fla. 1985)
- Carolann D. Kozel v. Ostendorf, 629 So. 2d 817 (Fla. 1993)
- Binger v. King Pest Control, 401 So. 2d 1310 (Fla. 1981)
- Sunset Harbour Condo. Ass'n v. Robbins, 914 So. 2d 925 (Fla. 2005)
- Chappelle v. S. Fla. Guardianship Program, Inc., 169 So. 3d 291 (Fla. 4th DCA 2015)
- Vista ST. Lucie Ass'n, Inc. v. Dellatore, 165 So. 3d 731 (Fla. 4th DCA 2015)
- Heritage Circle Condo. Ass'n, Inc. v. State, 121 So. 3d 1141 (Fla. 4th DCA 2013)
- Uriyaal Abdullah Mustafa v. Crews, 121 So. 3d 1141 (Fla. 1st DCA 2013)
- PNC Bank, NA v. Isidro A. Duque and Teresa A. Thomas, 137 So. 3d 476 (Fla. 4th DCA 2014)