DEUTSCHE BANK NATIONAL TRUST COMPANY AS TRUSTEE ON BEHALF OF THE HARBOR VIEW MORTGAGE TRUST 2006-9 TRUST FUND, APPELLANT,
v.
LGC AS TRUSTEE OF TRUST 3104 UNDER TRUST AGREEMENT DATED SEPTEMBER 19, 2006, LEN GALE, AND UNKNOWN TENANTS/OWNERS N/K/A CLAUDIA LOPEZ AND JOSE TABRA, APPELLEES

Fla. 2d DCA | 2013-02-13
No. 2D12-863
ALTENBERND, J„ Concurs., VILLANTI, J., Concurs with opinion.
107 So. 3d 486 Florida District Court of Appeal, Second District (2013) Positive Treatment
Cited by 6 cases

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Synopsis

Deutsche Bank appealed the dismissal with prejudice of its foreclosure action against LGC for violating a discovery order. The Second District Court of Appeal reversed, holding that dismissal with prejudice was an abuse of discretion as an excessive sanction for a single discovery violation without evidence of prejudice to the defendants.


Holding

Dismissal with prejudice was an abuse of discretion. Although trial courts have broad discretion to impose sanctions, dismissal with prejudice is the most severe sanction and should be reserved only for extreme circumstances. Here, a single discovery violation without evidence of prejudice to the defendants did not warrant such harsh treatment.


Headnotes

[1] Dismissal with prejudice is the most severe discovery sanction and should be employed only in extreme circumstances.

[2] Dismissal with prejudice as a discovery sanction is generally disfavored unless there is intentional defiance and contumacious disregard of the court's authority.

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Key Quotes

“dismissing an action for failure to comply with orders compelling discovery is 'the most severe of all sanctions which should be employed only in extreme circumstances.'”

Establishes the legal standard that dismissal with prejudice is the harshest discovery sanction

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Facts & Procedural History

Deutsche Bank filed a foreclosure complaint in February 2009. After discovery disputes, the trial court granted a motion to compel on November 22, 201…

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Opinion of the Court
KHOUZAM, Judge.

KHOUZAM, Judge.

Deutsche Bank National Trust Company appeals an order dismissing with prejudice its foreclosure action against LGC and others due to a single violation of a discovery order. Because the trial court abused its discretion in employing such a harsh sanction, we reverse the order and remand the case for further proceedings.

The procedural history of this case is somewhat unusual. On February 17, 2009, Deutsche Bank filed a two-count complaint against LGC and others to collect on a note and foreclose a mortgage.- The defendants filed a motion to dismiss on July 24, 2009, arguing that Deutsche Bank failed to attach necessary documents to the complaint. The parties then began the discovery process, and although the extent of that discovery is not clear, our record demonstrates that Deutsche Bank participated by responding to at least one request for production and serving at least one set of answers to the defendants’ interrogatories. Thereafter, a discovery dispute arose and LGC filed on September 1, 2010, a motion to compel the production of documents. The defendants twice amended their motion to dismiss, and by October 29, 2010, it included allegations that the court lacked subject matter jurisdiction to hear the case and that Deutsche Bank had committed fraud upon the court.

On November 22, 2010, a hearing was held on both the motion to compel and the *488amended motion to dismiss. At the hearing, the trial court orally denied the motion to dismiss and orally granted the motion to compel. But our record does not indicate any further action from either party or the court until September 21, 2011, when Deutsche Bank filed a motion for summary judgment. Six days later, on September 27, 2011, the trial court entered two orders memorializing its oral rulings made in November 2010. One denied the defendants’ amended motion to dismiss and the other granted the September 1, 2010, motion to compel and allowed Deutsche Bank 45 days from the entry of the order to comply.

Deutsche Bank did not comply with the order to compel within the time provided. Consequently, on December 29, 2011, LGC filed a motion to dismiss the case for noncompliance -with the discovery order. A hearing on the motion to dismiss was held on January 12, 2012, and five days later the trial court entered an order granting the motion and dismissing the case with prejudice.

The trial court explained in its order that this sanction was warranted because, inter alia, the plaintiff, but not the plaintiffs attorney, was directly involved in the violation; the plaintiff failed to offer any explanation for the noneompliance; the failure to produce directly prejudiced the defendants because it went to the issue of standing; the noncompliance constituted a willful or deliberate disregard; and dismissal with prejudice was the only appropriate remedy to protect the integrity of the judicial system. See Kozel v. Ostendorf, 629 So.2d 817, 818 (Fla.1993) (delineating the factors a trial court must consider in determining whether dismissing a case with prejudice is appropriate). Deutsche Bank timely appealed, arguing that it was error to dismiss the case with prejudice.

We review the trial court’s order for an abuse of discretion. Morgan v. Campbell, 816 So.2d 251, 253 (Fla. 2d DCA 2002). It is well established that in imposing sanctions trial courts possess broad discretion. Id. However, it is also well settled that “dismissing an action for failure to comply with orders compelling discovery is ‘the most severe of all sanctions which should be employed only in extreme circumstances.’ ” Ham v. Dunmire, 891 So.2d 492, 495 (Fla.2004) (quoting Mercer v. Raine, 443 So.2d 944, 946 (Fla.1983)).

As it is “the ultimate sanction in the adversarial system,” dismissal with prejudice “should be reserved for those aggravating circumstances in which a lesser sanction would fail to achieve a just result.” Kozel, 629 So.2d at 818. Because the purpose of discovery sanctions is to ensure compliance with the trial court’s order rather than to punish, Carr v. Reese, 788 So.2d 1067, 1072 (Fla. 2d DCA 2001), dismissal with prejudice “as a sanction for failing to comply with a court order has generally been frowned upon by the courts, except in the most egregious circumstances of intentional defiance and contumacious disregard of the court’s authority,” Wheeler v. Hajianpour, 688 So.2d 423, 424 (Fla. 4th DCA 1997). Consequently, “if a sanction less severe than dismissal with prejudice appears to be a viable alternative, the trial court should employ such an alternative.” Kozel, 629 So.2d at 818.

Here, the trial court abused its discretion in dismissing the case with prejudice. Although the trial court had the discretion and authority to sanction Deutsche Bank for its failure to comply with the order to compel,1 dismissal with *489prejudice was too harsh a penalty under these circumstances. In addition to the fact that Deutsche Bank violated only a single discovery order, there is no indication that the violation resulted in any prejudice to the defendants. See Ham, 891 So.2d at 499 (noting that dismissal with prejudice “is far too extreme as a sanction in those cases where discovery violations have absolutely no prejudice to the opposing party”). Indeed, after the motion to compel was orally granted, the case sat idle for nine months during which time the defendants did not take a single action on the case, and LGC has not alleged in this appeal any prejudice beyond general inconvenience. Moreover, a dismissal with prejudice here could act as a substantial monetary penalty.2

Under these circumstances, the trial court should have employed a sanction less harsh than dismissal with prejudice. As the Florida Supreme Court observed in Ham, “[t]his is simply not a case involving a protracted history of discovery abuses, numerous motions to compel, prior sanctions by the trial court, patent prejudice to the opposing party, or other circumstances that would in any way warrant imposition of the ultimate sanction of dismissal.” Id. Consequently, the order dismissing the case must be reversed and the case remanded for further proceedings.

Reversed and remanded.

ALTENBERND, J„ Concurs.

VILLANTI, J., Concurs with opinion.

VILLANTI, Judge,

Concurring.

I fully concur in the majority opinion, but write to make one observation. Although a trial court is ordinarily not required to state its reasons for dismissing a case, a special rule applies when a case is dismissed with prejudice as a sanction. Under this circumstance, the trial court must make an express written finding of willful or deliberate violation of a discovery order supporting its imposition of the most severe sanction of dismissal. See, e.g., Urbanek v. R.D. Schmaltz, Inc., 573 So.2d 107, 108 (Fla. 4th DCA 1991). To its credit, the trial court in this case attempted to comply with this requirement by stating in its order that the plaintiff had willfully or deliberately disregarded a discovery order that went to the issue of whether the plaintiff had standing to file this foreclosure action. But, standing was a red herring in this case. Rather, it appears the issue was raised by the defendant in a prototypical motion to dismiss, despite the actual note being in the court file. In any event, it is clear that the court’s most serious findings, which might have justified dismissal with prejudice, were not supported by the record. As pointed out by the majority, only a simple, first time discovery violation occurred and, thus, dismissal with prejudice was not justified.

Concurrence
VILLANTI, Judge,

VILLANTI, Judge,

Concurring.

I fully concur in the majority opinion, but write to make one observation. Although a trial court is ordinarily not required to state its reasons for dismissing a case, a special rule applies when a case is dismissed with prejudice as a sanction. Under this circumstance, the trial court must make an express written finding of willful or deliberate violation of a discovery order supporting its imposition of the most severe sanction of dismissal. See, e.g., Urbanek v. R.D. Schmaltz, Inc., 573 So. 2d 107, 108 (Fla. 4th DCA 1991).

To its credit, the trial court in this case attempted to comply with this requirement by stating in its order that the plaintiff had willfully or deliberately disregarded a discovery order that went to the issue of whether the plaintiff had standing to file this foreclosure action. But, standing was a red herring in this case. Rather, it appears the issue was raised by the defendant in a prototypical motion to dismiss, despite the actual note being in the court file. In any event, it is clear that the court’s most serious findings, which might have justified dismissal with prejudice, were not supported by the record. As pointed out by the majority, only a simple, first time discovery violation occurred and, thus, dismissal with prejudice was not justified.


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Citator

Cited By

  • Stockinger v. Ulrike A. Zeilberger, 152 So. 3d 71 (Fla. 3d DCA 2014)
    …scovery violations. They merely sought a protective order. [*79] Further, the purpose of imposing a sanction for discovery violations is “to ensure compliance with the trial court’s order rather than to punish.” Deutsche Bank Nat’l Trust Co. v. LGC, 107 So. 3d 486, 488 (Fla. 2d DCA 2013). The trial court is undoubtedly aware that threatening Stock-inger and Haider with dismissal of their claims cannot encourage them to travel to Miami for the depositions because they are medically prohibited from doing so. Fu…
  • Fed. Nat'l Mortg. Ass'n v. Linner, 193 So. 3d 1010 (Fla. 2d DCA 2016)
    …ranscribed telephonic hearing, the trial court dismissed the action with prejudice. This court has consistently applied the Kozel factors to dismissals ivith prejudice or their functional equivalent. See, e.g., Deutsche Bank Nat’l Trust Co. v. LGC, 107 So. 3d 486, 487 (Fla. 2d DCA 2013); Deutsche Bank Nat’l Trust Co. v. Waldorf, 92 So. 3d 857, 857 (Fla. 2d DCA 2012); Hawthorne v. Wesley, 82 So. 3d 1183, 1184 (Fla. 2d DCA 2012); Rohlwing v. Myakka River Real Props., Inc., 884 So. 2d 402, 403 (Fla. 2d DCA 2004…
  • H & R Block Bank v. Perry, 205 So. 3d 776 (Fla. 2d DCA 2016)
    …rial court’s order dismissing an action under rule 1.420(b) as a sanction for noncompliance with the rules of civil procedure or a court order. Jimenez v. Simon, 879 So. 2d 13, 14-15 (Fla. 2d DCA 2004); see also Deutsche Bank Nat’l Trust Co. v. LGC, 107 So. 3d 486, 488 (Fla. 2d DCA 2013). H & R Block argues that dismissal was error in this case because (1) the untimely filing of the certification does not constitute a failure to attend mediation under rule 1.720(f), (2) dismissal is not authorized by rule 1.7…

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