### D ISTRICT 

### C OURT 

### O F 

### A PPEAL 

### O F 

### T HE 

### S TATE 

### O F 

### F LORIDA

F OURTH D ISTRICT

VISTA ST. LUCIE ASSOCIATION, INC.
,

Appellant,

v.

CAROL A. DELLATORE, a/k/a CAROL M. DELLATORE, individually, RONALD GABBARD, individually, and CAROL A. DELLATORE a/k/a

CAROL M. DELLATORE and RONALD GABBARD, as co

- trustees of THE BILLY A. GABBARD TRUST, UTD 30 DAY OF OCTOBER, 1997
, Appellee s

.

No. 4D 13

- 3906

[ May 20, 2015 ]

Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St. Lucie County ; Dan L. Vaughn , Judge; L.T. Case N o. 562010CA004753

.

Robert G. Rydzewski, Jr., of Becker & Poliakoff, P.A., Stuart, for appellant.

Carolyn M. Dellatore, Somerset, NJ, for appellees.

M AY
, J.

A condominium association appeals the denial of its motion for rehearing of two order s. The fir st order dismissed its complaint with prejudice , and the second awarded attorney’s fees and costs against it for

non

- compliance with a court order compelling discovery. It argues the trial court erred by failing to consider the required factors set forth in Kozel v. Ostendorf

, 629 So. 2d 817 (Fla. 1993) , and in failing to make the requisite findings . We agree and reverse.

A trust owned a unit in Vista St. Lucie . On September 2, 2010, the

association filed a two

- count complaint against the co

- t rustees of the
trust, alleging claims for breach of contract and unjust enrichment based

on the co

- t rustees’ failure to reimburse the a ssociation for mold remediation performed. The co

- t rustees filed a counterclaim alleging

tortious interference with a contract.

The co

- t rustees served the a ssociation with discovery requests on April2

4, 2011. On May 10, 20 11, the a ssociation moved f or a thirty

- day extension of time to respond, admitting that it was already late. The co

trustees subsequently moved to compel discovery because t he association had not responded . On July 11, 2011, without conducting a hearing, the

trial court e ntered an order compelling the a ssociation to answer the discovery w ithin thirty days of the order

.

On August 15, 2011, the c o

- t rustees moved to dismiss the complaint with prejudice due to the a ssociation’s failure to comply with the trial court’s order compelli ng discovery. The c o

- t rustees also requested

sanctions “for [the association’s] recalcitrant behavior in continuing to refuse to provide . . . responses to validly served discovery requests.” T he

co

- t rustees requested reasonable attorney’s fees and costs

.

The co

- trustees attached an affidavit of the ir attorney in support of their motion for attorney ’ s fees and costs. The affidavit attested to the facts

, the expenditure of time, the hourly billing rate, and the total amount of fees requested. They a ttached an invoice detailing the hours expended

.

W ithout a hearing, t he trial court entered an Order of Dismissal with Prejudice and an Order of Attorney’s Fees. The order dismissing the complaint indicated that the “[association] failed to comply [sic] the Rules of Discovery and likewise failed to abide by this Court’s Order to Produce Discovery, dated July 11, 2011.” The trial court awarded $6,916.15 in

fees.

T he a ssociation moved for rehearing

, arguing it had faxed the answers to interrogatories an d requests for admission to its counsel on August 5,

2011. T he a ssociation’s counsel represented that his office inadvertently failed to mail the discovery to the co

- trustees ’ counsel while he was on

vacation. The association’s c ounsel took the blame for his failure to respond upon his ret urn from vacation. The association argued the orders

should be vacated because the trial court failed to conduct the required

six

- factor analysis in ordering sanctions required by Kozel v. Ostendorf

, 629 So. 2d 817 (Fla . 1993)

. 1

Almost two years after the association moved for rehearing, and after retaining new counsel, it moved for a case management conference. It requested the confe rence to allow the parties to “coordinate the pending motion,” attend a mediation conference, and set discovery deadlines to

1 On December 7, 2011, while the motion for rehearing was pending, the parties entered a joint stipulation and dismissed with prejudice the c o

- t rustees’

counterclaim.3

resolve the case.

T he trial court denied the a ssociation’s motion . The order stated: “The case was dismissed with prejudice over 18 months ago. [T]here is no reason to have a case management conference on a case that is no longer pending.” Days later, the trial court denied the a ssociation’s motion for rehearing . That order stat ed :

This case has been pending an incredible 1112 days

– more than three (3) years. On November 14, 2011, Circuit Judge Dan Vaughn entered an order dismissing the case with prejudice. That order was entered 674 days ago

– over 22 months ago. There was no appeal filed. A motion for rehearing was filed, but it was never set for h earing. On December 9, 2011 a joint stipulated motion to dismiss the

counter

- claim was entered. For all intents and purposes, the case has been closed for 21 months. On September 12, 2013, plaintiff’s counsel sent correspondence inviting this court to

u ndo Judge Vaughn’s order.

The trial court reasoned that it would not undo the work of Judge Vaughn

and denied the motion. 2 The trial court did not a ddress the merits of the motion for rehearing. From this order, the a ssociation now appeals.

The a ssoci ation argues the trial court abused its discretion in dismissing the complaint with prejudice because the trial court failed to analyze the issue and make the findings required by Kozel v. Ostendorf

, 629 So. 2d 817 (Fla. 1993). It also argues the ultimate discovery violation was the fault of its counsel and it should not have been sanctioned, certainly not with the dismissal of its complaint with prejudice. The co

trustees respond that the trial court did not err because the association

flaunted the rules and acted in bad faith

. They argue that Kozel d oes not apply. We agree with the association and reverse.

“It is well settled that determining sanctions for discovery violations is committed to the discretion of the trial court, and will not be disturbed upon appeal absent an abuse of the sound exercise of that discretion.”

Bennett ex rel. Bennett v. Tenet St . Mary’s, Inc. , 67 So. 3d 422, 426 (Fla. 4th DCA 2011)

. “Before a court may dismiss a cause as a sanction, it

must first consider the six factors delineated in Kozel

. . . , a nd set forth explicit findings of fact in the order that imposes the sanction of dismissal.”

2 The record reveals that Judge Vaughn dismissed the complaint with prejudice, but Judge Belanger denied the motion for re hearing.4

Id. This is especially true where counsel is responsible for the conduct to

be sanctioned. Id. at 427

.

Kozel sets forth the following factors which must be con sidered:

1. whether the attorney’s disobedience was willful, deliberate, or contumacious, rather than an act of neglect or inexperience;

2. whether the attorney has been previously sanctioned;

3. whether the client was personally involved in the act of

disobedie nce; 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.

Kozel , 629 So. 2d at 818. “After considering these factors, if there is a

less

- severe sanction available than dismissal with prejudice, the court
should use it.” Bennett ex rel. Bennett , 67 So. 3d at 427. “ Ultimately, the

lower court’s ‘ failure to consider the Kozel factors in determining whether dismissal was appropriate is, by itself, a basis for remand for application

of the correct standard. ’ ” Id. (quoting Ham v. Dunmire , 891 So. 2d 492,

500 (Fla. 2004) ).

We have “consistently required the record to show an express

consideration of the Kozel factors.” He ritage Circle Condo. Ass’n v. State,
Fla

. Dep ’ t of Bus. & Prof’l Regulation, Div. of Condos

. , Timeshares & Mobile

Homes , 121 So. 3d 1141, 1143

– 44 (Fla. 4th DCA 20 13); see, e.g. , Bennett
ex rel. Bennett , 67 So. 3d at 427; Alsina v. Gonzalez , 83 So. 3d 962, 964

– 65 (Fla. 4th DCA 2012)

.

Here, the a ssociation correctly argues the trial court failed to consider

the Kozel factors when it dismiss ed the complaint with prej udice. The

dismissal order contains NO written findings and simply dismisses the complaint due to the association’s failure to abide by its order compelling discovery. Although the trial court inserted language that the dismissal

was based on the reasons set forth in the co

- trustees ’ motion, it did not conduct the required analysis under Kozel

.

We have previously remanded cases to allow a court to consider the

Kozel factors. Here, how ever, the facts are undisputed, and they do not warrant the severe sanction of dismissal with prejudice. We therefore5

reverse both the order dismissing the complaint with prejudice and the order awarding attorney’s fees. We remand the case for reinstatement of the complaint. The court may re

- consider the co

- trustees ’ motion in light

of the Kozel factors, taking into consideration that the fault appears to lie with the association’s counsel. It may then fashion a less harsh sanction

, if warranted. J ust as the supreme court found in Ham

, “[t]h is 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 ultim ate sanction of dismissal .” Ham

, 891 So. 2d at 499.

Because we are reversing and remanding the case, we also address the association’s argument that the trial court erred in its award of attorney’s

fees and costs because it did not make express findings on the number of hours reasonably expended and the reasonable hourly rate , and did not require expert testimony in support of the award . The co

- t rustees respond that the trial court properly awarded attorney’s fees pursuant to the

Florida Rules of Civil Procedure.

“An award of attorney’s fees must be supported by substantial competent evidence and contain express findings regarding the number of hours reasonably expended and a reasonable hourly rate for the type of litigation involved.” Tutor Time Merger Corp. v. MeCabe

, 763 So. 2d 505,

506 (Fla. 4th DCA 2000)

. “Additionally, the award must be supported by expert evidence, including the testimony of the attorney who performed
the services.” Id.

Here, the order awarding attorney’s f ees suffers from three fatal flaws. First, there is no finding of the reasonableness of the hours expended. Second, there is no finding of the reasonableness of the hourly rate charged. Third, no expert testified to the reasonableness of either the

hour ly rate or the rate charge. The three

- strike rule applies, and the order awarding attorney’s fees must be reversed. See DeMello v. Buckman , 991 So. 2d 907, 909

– 10 (Fla. 4th DCA 2008)

.

For the foregoing reasons, the orders are reversed and the case is

re manded to the trial court for proceedings consistent with this opinion.

Reversed and Remanded

.

D AMOORGIAN
, C.J., and T AYLOR
, J., concur.

* * *6

Not final until disposition of timely filed motion for rehearing.