IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT, WEST PALM BEACH, FLORIDA

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1 E-Copy Received Nov 15, :08 PM IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT, WEST PALM BEACH, FLORIDA DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR AMERICAN HOME MORTGAGE BACKED PASS- THROUGH CERTIFICATES, SERIES , Appellant/Petitioner -vs.- REBECCA FINGER, et al, Case No. 4D L.T. No.: 09-CA Appellee/Respondent. On appeal from the Circuit Court of the Fifteenth Judicial Circuit in and for Palm Beach County, Florida Case No CA XXXXMB The Hon. Robin L. Rosenberg APPELLANT S INITIAL BRIEF Jeremy W. Harris, Esq., Florida Bar No Masimba M. Mutamba, Esq., Florida Bar No Khari E. Taustin, Esq., Florida Bar No MORRIS, LAING, EVANS, BROCK & KENNEDY, CHTD South Shore Blvd., Suite 210 Wellington, FL Telephone: (561) Facsimile: (561) jharris@morrislaing.com mmutamba@morrislaing.com ktaustin@morrislaing.com

2 Designated for Service: Attorneys for Appellant Deutsche Bank National Trust Company As Trustee for American Home Mortgage Backed Pass-Through Certificates, Series

3 TABLE OF CONTENTS TABLE OF CITATIONS... ii I. STATEMENT OF THE CASE AND FACTS... 1 II. SUMMARY OF THE ARGUMENT... 5 III. STANDARD OF REVIEW... 6 IV. ARGUMENT... 8 A. The Trial Court Abused Its Discretion When It Granted Defendant s Motion in Limine and Denied Deutsche s Ore Tenus Motion to Continue the Trial B. The Trial Court Abused Its Discretion When It Entered Involuntary Dismissal as a Sanction V. CONCLUSION...17 CERTIFICATE OF SERVICE...19 CERTIFICATE OF FONT SIZE...20 i

4 Cases TABLE OF CITATIONS Aarmada Protection Systems 2000, Inc. v. Yandell, 73 So.3d 893, 898 (Fla. 4 th DCA 2011)... 6 Asper v. Maxy Aviation Servs., L.C., 915 So.2d 271, 273 (Fla. 4 th DCA 2005) , 14 Beauchamp v. Collins, 500 So.2d 294, (Fla. 3d DCA 1986), Bennett ex. rel. Bennett v. Tenet St. Mary s, Inc., 67 So.3d 422, 426 (Fla. 4 th DCA 2011) Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla. 1980) Dailey v. Multicon Development, Inc., 417 So.2d 1106, 1107 (Fla. 4 th DCA 1982) , 9 Dos Santos v. Carlson, 806 So.2d 539, 541 (Fla. 3d DCA 2002) , 16 Edwards v. State, 39 So.3d 447, 448 (Fla. 4 th DCA 2010) Hawthorne v. Wesley, 82 So.3d 1183, 1184 (Fla. 2d DCA 2012) Kozel v. Ostendorf, 629 So.2d 817, 817 (Fla. 1983) , 14, 18 Kirkland s Stores, Inc. v. Felicetty, 931 So.2d 1013, 1015 (Fla. 4 th DCA 2006)... 7 ii

5 Michalak v. Ryder Truck Rental, Inc., 923 So.2d 1277, 1280 (Fla. 4 th DCA 2006) Pixton v. Williams Scotsman, Inc., 924 So.2d 37, 40 (Fla. 5 th DCA 2006) Rice v. Kelly, 483 So.2d 559, 559 (Fla. 4 th DCA 1986) Statutes Fla. R. Civ. P (b)...11 Fla. R. App. P Fla. R. App. P iii

6 I. Statement of the Case and Facts The Plaintiff, Deutsche Bank National Trust Company as Trustee for American Home Mortgage Assets Trust Mortgage-Backed Pass-Through Certificates, Series ( Deutsche or Plaintiff ) filed the initial mortgage foreclosure Complaint in this matter on November 4, (R. Vol. 1, ) The Complaint contained two counts the first for foreclosure based upon default according to a Note and Mortgage executed on December 21, 2006 by the Defendant, Rebecca Finger ( Finger or Defendant ), and the second to reestablish a lost note. (Id. at ) Attached to the Complaint as exhibits were the Mortgage executed by Defendant, Adjustable Rate Rider, PrePayment Rider, and Adjustable Rate Note. (Id. at ) Defendant filed a Motion to Dismiss on December 1, (R. Vol. 1, ) The Motion to Dismiss primarily alleged that Deutsche did not have standing to pursue the foreclosure. Defendant s Motion was denied on February 3, (R. Vol. 1, 0052.) Thereafter, Defendant filed her Answer and Affirmative Defenses on February 23, (Id. at ) Deutsche filed its Reply to Affirmative Defenses of Defendant on March 2, (Id. at ) On November 9, 2010, Deutsche filed a Motion for Summary Judgment along with a notice of hearing on that Motion set for December 7, (App. 1.) Filed contemporaneously was an Affidavit in support of the Motion stating that 1

7 Deutsche was the owner and holder of the Note and had been since the inception of the action, and that American Home Mortgage Servicing, Inc. was the servicing agent for the Mortgage who regularly recorded acts, transactions, payments, escrow account activity, disbursements and events with respect to the mortgage. The Affidavit further indicated that the loan was in default and that Finger had been provided with a notice of default and intent to accelerate letter as required by the mortgage. (App. 2.) Defendant s Memorandum in Opposition to the Motion for Summary Judgment and Affidavit in Support were filed on December 6, (R. Vol.1, ) The trial court denied Deutsche s Motion after a hearing on December 7, (R. Vol. 1, ; 224.) On March 9, 2010, Deutsche filed its responses to Defendant s First Request for Production of Documents. (App. 3.) In response to the requests, Deutsche produced copies of the Note, Mortgage, and Assignment of Mortgage, along with a copy of the Demand Letter sent to Defendant and the Loan Payment History applicable to Defendant s mortgage. Defendant further indicated that the original Note was located at the office of Deutsche s counsel. In addition, Deutsche provided Defendant with the web address of the Pooling and Servicing Agreement applicable to her Note and Mortgage. On or about March 16, 2010, Deutsche served its Response to Defendant s First Set of Interrogatories. (App. 4.) Again, the responses referred Defendant to the copies of the Note, Mortgage and 2

8 Assignment of Mortgage that had been provided, as well as the Pooling and Servicing Agreement, Demand Letter and Loan Payment History. After a fairly protracted and contested discovery process, the matter came before the trial court on an Order Setting Case Management Conference for June 27, (R ) The next day, the trial court entered an Order Setting Residential Foreclosure Non-Jury Trial and Directing Pretrial Procedures, indicating that the action was set for bench trial on August 21, (R ) ( Pretrial Order ). The Pretrial Order stated [t]he parties shall immediately exchange lists of all trial exhibits, names and addresses of all trial witnesses, and names and addresses of all expert witnesses. (R. at 0238.) The Pretrial Order further indicated that [a]ll discovery must be completed no later than ten (10) days before the date set for trial, and that [a]t trial, the parties shall be strictly limited to exhibits and witnesses disclosed and objections previously preserved. (Id. at ) Finally, the Order contained a statement that NONCOMPLIANCE WITH ANY PORTION OF THIS ORDER MAY RESULT IN THE DISMISSAL OR STRIKING OF THE CASE, WITNESSES OR EXHIBITS, OR IMPOSITION OF SUCH OTHER SANCTIONS AS ARE JUST. (R ) (emphasis in original). Twenty days prior to trial, Deutsche filed an Amended Witness List naming Shannon Childs as a witness it intended to call at trial. (App. 5.) The list 3

9 indicated that Ms. Childs would testify concerning Deutsche s business records, the default on the loan, Deutsche s standing to pursue the foreclosure, and the servicing history of Defendant s loan. Defendant s witness list was filed on the same day as Deutsche s initial witness list, August 1, (App. 8.) One week prior to trial, Deutsche filed a second Amended Witness List, this time naming Joachim Vent as the witness it intended to call at trial. (App. 6; R. Vol. 1, ) Despite the change in name, the second witness list indicated that Mr. Vent would testify as to the same information that was disclosed on the original witness list: Deutsche s business records, the default on the loan, Deutsche s standing to pursue the foreclosure, and the servicing history of Defendant s loan. Defendant filed a Motion to Strike/Motion in Limine on August 19, 2013, requesting that the trial court exclude the testimony of Mr. Vent because Deutsche had failed to timely file its witness and exhibit list pursuant to the trial order, and because Deutsche had listed a previously unnamed witness. (Id.) The trial court heard argument on that Motion to Strike/Motion in Limine on August 21, 2013, the same day the trial was scheduled to begin. (Id.) After hearing the matter, the trial court entered an Order granting Defendant s motion and excluding the testimony of Mr. Vent. (Id.) The trial court stated that allowing Mr. Vent to testify would be a trial by surprise and that Defendant would be greatly prejudiced should the Plaintiff be allowed to present Mr. Joachim Vent as a witness at Trial as the 4

10 disclosure of Mr. Vent was made after the discovery cut-off deadline as set forth in Trial Order. (Id.) Plaintiff thereafter made an ore tenus motion to continue the trial due to the fact that its sole witness was unable to testify. The trial court denied that motion and ordered Plaintiff to proceed. (R. Vol. 1, 0271.) When Deutsche was unable to proceed without its witness, the trial court entered an Order of Involuntary Dismissal against Deutsche. (Id.) The trial court s Order stated Case is Involuntarily dismissed for willful failure by Plaintiff to follow trial and pre-trial procedures order. (Id.) Thereafter, Deutsche filed its timely Notice of Appeal to this Court, appealing both the trial court s Order granting Defendant s Motion to Strike/Motion in Limine and the Order denying Plaintiff s Ore Tenus Motion to Continue, Order of Involuntary Dismissal. (App. 7.) II. Summary of the Argument The trial court abused its discretion when it granted Defendant s Motion in Limine and then sua sponte entered an Order of involuntary dismissal after Deutsche was unable to produce a witness. Motions in Limine are not a substitute for summary judgment or a motion to dismiss under Florida law, yet the trial court s actions here effectively transformed Defendant s Motion in Limine into a motion to dismiss. Trial courts generally have the authority to issue sanctions for 5

11 failure to follow trial court orders, but that authority has limitations. Involuntary dismissal, in particular, is the most extreme form of sanction available, and Florida courts have not condoned its use in anything but the most extreme of circumstances. Here, the circumstances of this case did not warrant such an extreme sanction. Nothing in the record indicates a willful disregard on Deutsche s part of the trial court order. To the contrary, the record demonstrates Deutsche s attempt to comply with the trial court s order by amending its disclosures where it became appropriate. Further, the record does not demonstrate the extreme prejudice to Defendant that the trial court supposedly found. What the record demonstrates is that although the name of Deutsche s witness changed, the substance of the purported testimony did not. No prejudice would have resulted to Defendant from this change, or at the very least none that would justify the remedy the trial court chose to employ. The trial court stepped outside of the bounds of its discretion in this case, and its decision should be reversed. III. Standard of Review The appeal from the trial court s Order granting Defendant s Motion in Limine is an appeal from a non-final order over which this Court has jurisdiction pursuant to Fla. R. App. P The standard of review of a trial court s ruling on a motion in limine is abuse of discretion. Aarmada Protection Systems 2000, 6

12 Inc. v. Yandell, 73 So.3d 893, 898 (Fla. 4 th DCA 2011) (citing Golden Yachts, Inc. v. Hall, 920 So.2d 777, 780 (Fla. 4 th DCA 2006); Edwards v. State, 39 So.3d 447, 448 (Fla. 4 th DCA 2010)). The appeal from the trial Court s Order denying Deutsche s ore tenus motion for a continuance and ordering an involuntary dismissal is an appeal from a final Order over which this Court has jurisdiction pursuant to Fla. R. App. P The involuntary dismissal in this case was entered as a sanction for Deutsche s alleged willful failure to properly identify its trial witnesses in disregard of the lower court s trial order. The proper standard of review for the imposition of sanctions is abuse of discretion. Kirkland s Stores, Inc. v. Felicetty, 931 So.2d 1013, 1015 (Fla. 4 th DCA 2006) (citing Boca Burger, Inc. v. Forum, 912 So.2d 561, 573 (Fla. 2005)). In Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla. 1980), the Florida Supreme Court held: In reviewing a true discretionary act, the appellate court must fully recognize the superior vantage point of the trial judge and should apply the reasonableness test to determine whether the trial judge abused his discretion. If reasonable men could differ as to the propriety of the action taken by the trial court, then the action is not unreasonable and there can be no finding of an abuse of discretion. The discretionary ruling of the trial judge should be disturbed only when his decision fails to satisfy this test of reasonableness. (quoted in Kirkland s Stores, Inc. v. Felicetty, 931 So.2d at ). 7

13 IV. Argument A. The Trial Court Abused Its Discretion When It Granted Defendant s Motion in Limine and Denied Deutsche s Ore Tenus Motion to Continue the Trial. Motions in limine are designed to prevent the introduction of improper evidence at trial, evidence that would be prejudicial even if briefly mentioned. Dailey v. Multicon Development, Inc., 417 So.2d 1106, 1107 (Fla. 4 th DCA 1982). Accordingly, notice is not always required for a party to file a motion in limine, if that motion could be considered as an objection to the evidence presented during trial. (Id.) Motions in limine are not, however, intended to be used as substitutes for a motion to dismiss or motion for summary judgment. In Dailey, this Court considered a motion in limine made during trial to exclude any evidence presented by the plaintiff as to the cost to repair a wall in his condominium, on the grounds that only the condominium association was responsible for those repairs. (Id.) The action was appealed after the trial court granted the motion and excluded the evidence. On appeal, this Court reversed the order, and observed The problem here is that the motion in limine was used for more than its purpose of merely excluding irrelevant or improper prejudicial evidence. Appellee, by way of its motion in limine, attempted to summarily dismiss a portion of appellant s case. Appellee s action is comparable to a motion for summary judgment, but without 8

14 the notice provisions and other requirements of Florida Rule of Civil Procedure (Id.) Similarly, in Rice v. Kelly, this Court found clear error where a trial court refused to allow testimony from the plaintiff that his second fall was caused by injuries that occurred during his first fall at the defendant s business. 483 So.2d 559, 559 (Fla. 4 th DCA 1986). The court observed: In Dailey v. Multicon Development, Inc., we condemned the use of motions in limine to summarily dismiss a portion of a claim. That is precisely what occurred here by the use of an oral motion made without notice on the first day of trial. The trial court granted the motion because there was no specific allegation in the complaint stating that the second fall was caused by the first. We are unaware of such a requirement. In addition, the record reflects that Rice claimed in deposition and other discovery taken two years before trial that the second fall was caused by the first, and that a pretrial stipulation was filed several months before trial specifically stating that Rice was claiming the second fall was caused by the first. As in Dailey, we caution trial courts not to allow motions in limine to be used as unwritten and unnoticed motions for partial summary judgment or motions to dismiss. (Id.) (internal citations omitted) (emphasis added). Here, the trial court s treatment of Defendant s Motion in Limine to exclude the testimony of Plaintiff s witness Joachim Vent effectively transformed it into a motion to dismiss the case. Plaintiff s Amended Witness List that was the subject of Defendant s Motion in Limine was filed one week prior to trial. Defendant s Motion was filed on August 19, 2013, just two days before trial was set to begin. The Motion was not heard until August 21, the day of trial. Essentially, Deutsche 9

15 had no opportunity to respond to the allegations made by Defendants and no opportunity to pursue alternative solutions at the point where the trial judge decided to grant the Motion. When the trial court determined that Deutsche must either proceed without its witness or accept an Order of Involuntary Dismissal, the trial court effectively entered dismissal or summary judgment against Deutsche without giving Deutsche any notice or opportunity to be heard on the matter. Deutsche s ore tenus motion to continue the trial should have been granted, to allow Deutsche an opportunity to present the original witness named in its pretrial disclosures. At the very least, the trial court should have held a separate hearing on the matter of whether Deutsche s action should be involuntarily dismissed as a sanction for disobeying a trial court order. That was not done. The procedure used by the trial court does not comport with the purpose of a motion in limine, and it was clear error for the trial court to have treated Defendant s motion in limine here as a basis for a dismissal of Deutsche s case. B. The Trial Court Abused Its Discretion When It Entered Involuntary Dismissal as a Sanction. In Kozel v. Ostendorf, the Florida Supreme Court recognized that a trial court has the power to dismiss a complaint where a plaintiff has failed to timely follow a trial court s order. 629 So.2d 817, 817 (Fla. 1983). Nevertheless, the Court cautioned [a]lthough such broad power is vested in the trial court, it is not necessary or beneficial for that power to be exercised in all situations. (Id. at 818.) 10

16 The Court felt this to be particularly true in cases where the delay or disobedience in question was caused by a party s attorney, rather than the party himself. In order to ensure that an order of dismissal did not unfairly punish the client for the acts of the attorney, the Court established six factors to be considered prior to entry of an order of dismissal: 1) whether the attorney s disobedience was willful, deliberate or contumacious, rather than an act of negligence or inexperience; 2) whether the attorney has been previously sanctioned; 3) whether the client was personally involved in the act of disobedience; 4) whether the delay prejudiced the opposing party through undue expense, loss of evidence or in some other fashion; 5) whether the attorney offered reasonable justification for noncompliance; and 6) whether the delay created significant problems of judicial administration. (Id.) The Court ultimately cautioned that [u]pon consideration of these factors, if a sanction less severe than dismissal with prejudice appears to be a viable alternative, the trial court should employ such an alternative. (Id.) A trial court s failure to consider the six Kozel factors prior to entering an order of dismissal under Fla. R. Civ. P (b) for failure to obey a court order is an abuse of discretion. Hawthorne v. Wesley, 82 So.3d 1183, 1184 (Fla. 2d DCA 2012). Here, the trial court s Order entering involuntary dismissal simply states that Deutsche s case was dismissed for willful failure by Plaintiff to follow trial and pre-trial procedures order. (R. Vol. 1, 0271.) While this may evidence consideration of the first Kozel factor, there is no indication here that the trial court 11

17 considered the remaining five factors. In fact, nothing in the record would have supported an order of dismissal under the other five factors. There is no indication in the record that Deutsche s attorneys had been previously sanctioned, and certainly no indication that the client was personally involved in the disobedience to the court. As will be discussed in further depth below, there is no indication that allowing the testimony of Deutsche s witness would have prejudiced Finger in any way. There is no indication that Deutsche s attorney was allowed to give an explanation for noncompliance with the court order, or that the court considered that explanation if it was given. Finally, there is nothing in the record that indicates that allowing the testimony of Deutsche s witness would have created significant problems of judicial administration. Moreover, nothing in the record here supports a finding of willful, deliberate or contumacious behavior on the part of Deutsche. The Trial Order at issue required parties to exchange their witness and exhibit lists for trial immediately. (R. Vo1. 1, 0238.) The Trial Order was filed on June 28, Twenty days prior to the trial on August 1, 2013, Deutsche filed its first witness and exhibit list naming Shannon Childs as a witness and describing the substance of her testimony. (R ) Defendant s witness list was filed on the same day, August 1, (App. 8.) One week prior to trial, Deutsche filed a second witness and exhibit list naming Joachim Vent as a witness, but listing the substance of his 12

18 testimony as being the same as that offered by Shannon Childs. Nothing here indicates that Deutsche was being deliberately deceptive with its trial tactics. The fact that Deutsche filed a second witness list indicates that it was trying to comply with the trial court s order and to make a full and fair disclosure of the witnesses that it would be able to present at the trial. For a court to enter an order dismissing a case due to the party s failure to comply with a court order, the record must demonstrate that the party was willfully non-compliant. This is true because [d]ismissal or striking of pleadings and entry of default is the most severe sanction available and must be commensurate with the violation. Asper v. Maxy Aviation Servs., L.C., 915 So.2d 271, 273 (Fla. 4 th DCA 2005) (citing Zafirakopoulous v. So. Miami Int l Crabhouse Corp., 513 So.2d 1353, 1354 (Fla. 3d DCA 1987)). In Asper, this Court found willful disregard and contumacious behavior where Asper had been given three opportunities to comply with the trial court s order, plus a grace period, and had never offered a credible explanation for his disregard of the court s orders. (Id.) Those facts are in sharp contrast to those found in this case. Deutsche was given no warning and no second chance for what the court believed was its disobedience of a court order; Deutsche was not even given an opportunity to be heard on the matter prior to the dismissal. The sanction given by the trial court here was not commensurate with the 13

19 violation by Deutsche, and therefore the trial court abused its discretion in dismissing Deutsche s case. At a minimum, Deutsche should not be punished with a dismissal for actions that were taken by its attorneys. It is uniformly held that dismissal is a drastic remedy which courts should employ only in extreme situations and only when the violation requires such a sanction. Michalak v. Ryder Truck Rental, Inc., 923 So.2d 1277, 1280 (Fla. 4 th DCA 2006) (citing Asper v. Maxy Aviation Servs., L.C., 915 So.2d 271). Dismissal can be too harsh of a penalty if the misconduct is caused by the attorney, and the client is being punished for the attorney s actions. (Id.) (Citing Kozel v. Ostendorf, 629 So.2d at 818.) Here, if any violation occurred it was on the part of Deutsche s counsel, and not Deutsche itself. Lacking such involvement or complicity by the client, the attorney s misconduct should not result in a dismissal of the action. Pixton v. Williams Scotsman, Inc., 924 So.2d 37, 40 (Fla. 5 th DCA 2006). Accordingly, the trial court was bound to consideration of the Kozel factors, and dismissal was an inappropriate remedy. Finally, dismissal is inappropriate where no evidence on the record demonstrates that the opposing party would have suffered prejudice in the face of the failure to follow a court order. Florida courts have recognized that not every discovery violation should lead to the automatic exclusion of a witness. Dos Santos v. Carlson, 806 So.2d 539, 541 (Fla. 3d DCA 2002) (citing Binger v. King Pest 14

20 Control, 401 So.2d 1310 (Fla. 1981)). The trial court must find prejudice in the sense of surprise in fact of the objecting party. (Id.) The trial court must also examine: (i) the objecting party s ability to cure the prejudice or, similarly, his independent knowledge of the existence of the witness; (ii) the calling party s possible intentional, or bad faith, noncompliance with the pretrial order; and (iii) the possible disruption of the orderly and efficient trial of the case (or other cases). (Id.) (quoting Binger v. King Pest Control, 401 So.2d at 1314) (internal quotation marks omitted). In Binger, the Florida Supreme Court found prejudice where [t]he only justification for not disclosing [an expert witness s] name was a belief that [Binger] could impeach King Pest Control s expert as a surprise tactic. 401 So.2d at This is not a case of surprise, unlike Binger. Mr. Vent s name, while not disclosed initially, was disclosed a week prior to trial. It is difficult to ascertain what about that disclosure would have led the trial court to believe Deutsche was engaged in some willful deception. It is clear through an examination of the record here that no prejudice would have resulted to Defendant had Deutsche been allowed to call Mr. Vent to testify at trial. Mr. Vent was slated to testify about Deutsche s business records, the default on Defendant s loan, Deutsche s standing to bring the foreclosure and the servicing of Defendant s loan the same topics that Shannon Childs was slated to testify about. (See App. 5, 6.) Defendant was informed about the change in witnesses one 15

21 week prior to trial, which gave Defendant time to do background investigation on the witness if necessary. Further, Mr. Vent was scheduled to testify about the Note, Mortgage, Assignment of Mortgage, Loan Payment History and Default Letter, all of which were previously produced to Defendant during the discovery process. (See App. 3.) Exclusion of Mr. Vent s testimony in this case was a particular drastic remedy because: The right to call witnesses is one of the most important due process rights of a party; accordingly, the exclusion of the testimony of expert witnesses must be carefully considered and sparingly done. Furthermore, a trial court should exercise caution when the witness sought to be excluded is a party s only witness or one of the party s most important witnesses because if the witness is stricken, that party will be left unable to present evidence to support his or her theory of the case. Dos Santos v. Carlson, 806 So.2d at 541 (quoting Pascual v. Dozier, 771 So.2d 552, 554 (Fla. 3d DCA 2000)) (emphasis added). Mr. Vent was Deutsche s only witness in this case, and the trial court should have exercised extreme caution in excluding his testimony when that exclusion ultimately led to an involuntary dismissal of the case. The exclusion of Mr. Vent s testimony was unwarranted by the evidence, as was the ultimate sanction of an involuntary dismissal. In Beauchamp v. Collins, 500 So.2d 294, (Fla. 3d DCA 1986), the Third District held that the record could not support a finding of willful or flagrant disobedience where the plaintiff had complied with all of the defendant s discovery requests prior to trial. This was true even where the plaintiff s responses were 16

22 perhaps not quite as detailed as the defendant would have preferred. (Id. at 296 stating plaintiffs have essentially complied with all of defendants many discovery requests well in advance of trial. According to the record, plaintiffs supplied answers to defendants interrogatories, albeit tardy and not as complete as defendants might have liked. Additionally, plaintiffs supplied answers to expert witness interrogatories and defendants requests for production of documents. ) (Internal citations and quotation marks omitted.) Here, the record reflects that Deutsche supplied answers to Defendant s interrogatories and requests for production. (See App. 3, 4.) Although Defendant may argue those responses were not as complete as she would have liked, the fact remains that Deutsche provided all of the information that it intended to present at trial well in advance of the trial date. Mr. Vent was merely a vehicle for the presentation of that evidence. There simply is no indication here that Deutsche exhibited a willful and deliberate disregard for the trial court s authority. Dismissal was therefore an abuse of the trial court s discretion. V. Conclusion While a trial court has the authority to issue sanctions for non-compliance with a court order, it is firmly established under Florida law that dismissal of an action for failure to comply with a court s trial order is the most severe of all sanctions which should be employed only in extreme circumstances. Bennett ex. 17

23 rel. Bennett v. Tenet St. Mary s, Inc., 67 So.3d 422, 426 (Fla. 4 th DCA 2011) (citing Mercer v. Raine, 443 So.2d 944, 946 (Fla. 1983) (internal quotation marks omitted)). The trial court stepped outside of the boundaries of its authority here in several respects. First, the trial court erred in transforming Defendants motion in limine into a motion to dismiss. Second, the trial court erred when it failed to consider the factors established in Kozel to determine the appropriateness of a sanction in this case. Third, the trial court erred when it found prejudice to the Defendant where the record did not support that finding. Finally, the trial court erred in imposing the most extreme of sanctions, dismissal, where the evidence in the record clearly did not support imposition of that penalty. For those and the foregoing reasons discussed in this brief, Deutsche respectfully requests that the trial court s orders be reversed in their entirety. Dated: November 15, Respectfully submitted, MORRIS, LAING, EVANS, BROCK & KENNEDY, CHTD. /s/jeremy W. Harris Jeremy W. Harris, Esq. Florida Bar No Khari E. Taustin, Esq. Florida Bar No Masimba M. Mutamba, Esq. Florida Bar No South Shore Blvd., Suite 210 Wellington, FL Telephone: (561) Facsimile: (561)

24 Designated for Service: Attorneys for Appellant CERTIFICATE OF SERVICE I hereby certify that on this 15th day of November, 2013, I have caused a true and correct copy of Appellant s Initial Brief and Appendix to Appellant s Initial Brief be efiled with EDCA, Fourth District Court of Appeal, and true and correct copies of the foregoing were sent by and by U.S.P.S., regular mail, postage prepaid, on the 15 th day of November, 2013, to the parties as follows: By Danielle Salem, Esq. Shapiro, Fishman & Gaché, LLP 2424 North Federal Highway, Suite 360 Boca Raton, FL SFGBocaService@logs.com Geoffrey E. Sherman, Esq Weston Road, Suite 404 Weston, FL Geoffrey@oplaw.net Attorney for Defendant Rebecca Finger Dessa Lansen, Esq King Palm Drive Tampa, FL dessa.lansen@consuegralaw.com Attorney for National City Bank Cory B. Kravit, Esq. Bakallar & Associates, P.A. 150 S. Pine Island Road, Suite 540 Plantation, FL corykravit@kravitlaw.net Attorney for The Preserve at Boca HOA, Inc. 19

25 By U.S.P.S., regular mail: Unknown Parties in Possession #1 n/k/a Annlisa Gishen 5020 Northwest 24th Circle Boca Raton, FL /s/jeremy W. Harris Jeremy W. Harris, Esq. CERTIFICATE OF FONT SIZE I HEREBY CERTIFY that Appellant s Initial Brief has been submitted in Times New Roman 14-point type, a font that is proportionately spaced and complies with the font requirements of Florida Rules of Appellate Procedure 9.210(a)(2). /s/jeremy W. Harris Jeremy W. Harris, Esq. 20