DEUTSCHE BANK NATIONAL TRUST COMPANY, AS INDENTURE TRUSTEE, FOR THE BENEFIT OF THE HOLDER OF AAMES MORTGAGE INVESTMENT TRUST 2005-4 MORTGAGE BACKED NOTES, APPELLANT,
v.
AISA CAGIGAS, ET AL., APPELLEES
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Deutsche Bank appealed the trial court's dismissal of its mortgage foreclosure complaint as a sanction for alleged misconduct. The appellate court reversed, holding that the trial court failed to make the required express findings of fact regarding the six Kozel factors before imposing the severe sanction of dismissal with prejudice.
The trial court's dismissal order must be reversed because the court failed to make express findings of fact addressing each of the six Kozel factors. On remand, if the trial court determines dismissal is appropriate after properly considering the Kozel factors, it must include written findings of fact with respect to each factor in its order.
[1] A trial court must consider six specific factors delineated in Kozel v. …
[2] A trial court must make express findings of fact concerning each of the six Kozel factors when dismissing a case as a sanction.
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Join FLexlaw to unlock all legal intelligence“a court must first consider each of the following six factors delineated in Kozel v. Ostendorf, 629 So.2d 817, 818 (Fla.1993), before dismissing a case as a sanction”
Establishes the mandatory legal standard for imposing dismissal as a sanction for attorney misconduct
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Join FLexlaw to unlock all legal intelligenceDeutsche Bank filed a complaint, apparently in a mortgage foreclosure action against Aisa Cagigas and others. The trial court dismissed the complaint …
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CONFESSION OF ERROR
Appellant Deutsche Bank National Trust Company appeals an order dismissing its complaint with prejudice as a sanction for misconduct. We agree with appel-lees’ confession of error that the trial court’s order must be reversed.
It is well settled that a court must first consider each of the following six factors delineated in Kozel v. Ostendorf, 629 So.2d 817, 818 (Fla.1993), before dismissing a case as a sanction:
1. whether the attorney’s disobedience was willful, deliberate, or contumacious, *1182rather 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 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.
Buroz-Henriquez v. De Buroz, 19 So.3d 1140, 1141 (Fla. 3d DCA 2009); accord Ham v. Dunmire, 891 So.2d 492, 496 (Fla. 2004); see Arkiteknic, Inc. v. United Glass Laminating, Inc., 53 So.3d 366, 367 (Fla. 3d DCA 2011); Alvarado v. Snow White & the Seven Dwarfs, Inc., 8 So.3d 388 (Fla. 3d DCA 2009); Alsina v. Gonzalez, 83 So.3d 962 (Fla. 4th DCA 2012); Hawthorne v. Wesley, 82 So.3d 1183 (Fla. 2d DCA 2012). In so doing, the trial court must make express findings of fact concerning each of the Kozel factors. “Express findings are required to ensure that the trial judge has consciously determined that the failure was more than a mistake, neglect, or inadvertence, and to assist the reviewing court to the extent the record is susceptible to more than one interpretation.” Ham, 891 So.2d at 496; see also Buroz-Henriquez, 19 So.3d at 1142; Alvarado, 8 So.3d at 388; Hawthorne, 82 So.3d at 1184.
. Here, the trial court dismissed Deutsche Bank’s complaint as a sanction. However, the order does not reflect that the trial court considered the Kozel factors or that the trial court made the required written findings of fact addressing each factor. Accordingly, we reverse the order of dismissal and remand for consideration of those factors. If, on remand, the trial court determines, after considering the Kozel factors, that dismissal is appropriate the trial court shall include in its written order findings of fact with respect to each factor. See Arkiteknic, Inc., 53 So.3d at 367; Buroz-Henriquez, 19 So.3d at 1142; Alvarado, 8 So.3d at 389.
Reversed and remanded for further proceedings consistent with this opinion.
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Toll v. Korge, 127 So. 3d 883 (Fla. 3d DCA 2013)…ther 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. See also Deutsche Bank Nat Trust Co. v. Cagigas, 85 So. 3d 1181 (Fla. 3d DCA 2012). The Kozel factors ensure that a sanction is directed towards the party responsible for the error or misconduct and that dismissal is “reserved for those aggravating circumstances in which a lesser sanction would fail to achieve a…
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Deutsche Bank Nat'l Tr. Co. v. Avila-Gonzalez, 164 So. 3d 90 (Fla. 3d DCA 2015)…dministration. 127 So. 3d 883, 887 (Fla. 3d DCA 2013) (iciting Kozel v. Ostendorf, 629 So. 2d 817, 818 (Fla.1993)). This Court has also recognized that such findings must be included in the trial court’s order. Deutsche Bank Nat’l Trust v. Cagigas, 85 So. 3d 1181, 1182 (Fla. 3d DCA 2012) (“If, on remand, the trial court determines, after considering the Kozel factors, that dismissal is appropriate the trial court shall include in its written order findings of fact with respect to each factor.”). The Borrowe…
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Deutsche Bank v. Sombrero Beach Road, 260 So. 3d 424 (Fla. 3d DCA 2018)…o. 3d 962, 964 (Fla. 4th DCA 2012) (citations omitted). 6 Kozel, 629 So.2d at 818. In conducting this analysis, the trial court “must make express findings of fact concerning each of the Kozel factors.” Deutsche Bank Nat’l Trust Co. v. Cagigas, 85 So. 3d 1181, 1182 (Fla. 3d DCA 2012); see also Deutsche Bank Nat’l Trust Co. v. Avila-Gonzalez, 164 So. 3d 90, 93 (Fla. 3d DCA 2015) (“This Court has also recognized that [Kozel] findings must be included in the trial court’s order.”). This generally requir…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Carolann D. Kozel v. Ostendorf, 629 So. 2d 817 (Fla. 1993)
- HAM v. Dunmire, 891 So. 2d 492 (Fla. 2004)
- Alsina v. Gonzalez, 83 So. 3d 962 (Fla. 4th DCA 2012)
- Arkiteknic, Inc. v. United Glass Laminating, Inc., 53 So. 3d 366 (Fla. 3d DCA 2011)
- Yalila Alvarado and Wilfredo Alvarado, Jr. v. Snow White & the Seven Dwarfs, Inc., 8 So. 3d 388 (Fla. 3d DCA 2009)
- Sanchez v. Brink's Inc., 19 So. 3d 1140 (Fla. 3d DCA 2009)
- Reynaldo Buroz-Henriquez v. Rocio Mata de Buroz, 19 So. 3d 1140 (Fla. 3d DCA 2009)
- Hawthorne v. Scotty J. Wesley, 82 So. 3d 1183 (Fla. 2d DCA 2012)