Bank of New York Mellon v. Timothy M. Clark, Sanctuary at Redfish Condominium Association, Inc. Excuisite Builders, LLC Beach Community Bank Unknown Occupant 1 Unknown Occupant 2 Unknown Spouce of Timothy M. Clark

183 So. 3d 1271

• Court: District Court of Appeal of Florida
• Decided: February 4, 2016
• Docket: 1D15-2250
• Status: Published

Opinions

PER CURIAM.

Appellant argues the trial court abused its discretion when it dismissed appellant’s foreclosure claim with prejudice as a sanction for counsel’s discovery violations without making explicit written findings .pursuant to Kozel v. Ostendoyf, 629 So.2d 817 (Fla.1993). We agree and. reverse and remand for the trial court to consider the six factors outlined in Kozel and whether a sanction less severe than dismissal with prejudice is a viable alternative in light of those factors. If, after considering these factors, the trial court concludes that the conduct of appellant and/or its counsel warrants dismissal of the action-with prejudice, the court shall enter an order containing explicit findings of fact and conclusions of law with respect to each of the six Kozel factors and with respect to the determination that no less severe sanction would be a viable alternative under .the circumstances. See Smith v. City of Panama. City, 951 So.2d 959, 962 (Fla. 1st DCA 2007).

REVERSED and REMANDED with instructions.

ROBERTS, C.J., and WOLF, J., concur; THOMAS, J., specially concurring with opinion.