DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR SOUNDVIEW HOME LOAN TRUST 2006-WF2, APPELLANT,
v.
WILLIAM WALDORF, A/K/A WILLIAM D. WALDORF, APPELLEE

Fla. 2d DCA | 2012-06-22
No. 2D11-1971
NORTHCUTT and BLACK, JJ„ Concur.
92 So. 3d 857 Florida District Court of Appeal, Second District (2012) Positive Treatment
Cited by 5 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Deutsche Bank appealed the dismissal with prejudice of its foreclosure action against William Waldorf for failure to provide a summary final judgment package before the summary judgment hearing. The court reversed, holding that dismissal with prejudice is an extreme sanction that requires the trial court to apply the six-factor Kozel test and consider less severe alternatives before imposing it.


Holding

Dismissal with prejudice is an extreme sanction that should only be used in aggravating circumstances where lesser sanctions would fail to achieve a just result. The trial court must apply the six-factor Kozel test and consider whether sanctions less severe than dismissal are viable before imposing dismissal with prejudice.


Headnotes

[1] Dismissal is the ultimate sanction in the adversarial system and should be reserved for aggravating circumstances where a lesser sanction would fail to achieve a just res…

[2] Before imposing dismissal as a sanction, trial courts must make preliminary findings of fact addressing whether the attorney's disobedience was willful, deliberate, or co…

Previewing 2 of 6 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.

Join FLexlaw to unlock all legal intelligence

Key Quotes

“Dismissing a case with prejudice is the ultimate sanction and should only be used in "those aggravating circumstances in which a lesser sanction would fail to achieve a just result."”

Establishes that dismissal with prejudice is the most extreme sanction and requires exceptional circumstances for its use.

Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.

Join FLexlaw to unlock all legal intelligence

Facts & Procedural History

Deutsche Bank filed a foreclosure complaint in January 2008. Waldorf defaulted and later filed for bankruptcy, which was dismissed approximately one y…

The full statement of facts, procedural history, and disposition for this case are member content.

Join FLexlaw to unlock all legal intelligence

© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.


Opinion of the Court
WHATLEY, Judge.

WHATLEY, Judge.

Deutsche Bank National Trust Company appeals the order dismissing its case to foreclose William Waldorf s mortgage with prejudice for failure to provide the court a summary final judgment package1 prior to *858the hearing on the Bank’s motion for summary judgment. We reverse and remand for further proceedings.

The Bank filed its foreclosure complaint in January 2008. Waldorf did not respond and assert any defenses, and a default was entered against him. Soon thereafter, he filed for bankruptcy. Approximately a year later, the bankruptcy was dismissed. The Bank then filed a motion for summary judgment with an affidavit of amounts due and owing in its foreclosure action. A hearing was scheduled for the motion, but the Bank requested that it be' cancelled. Pursuant to a case management conference in late 2010, on January 31, 2011, the trial court issued an order directing the Bank to schedule its motion for summary judgment within sixty days. The Bank complied. After the hearing, the trial court dismissed the Bank’s case with prejudice because the Bank failed to provide the court with a summary final judgment package prior to the hearing.

In Kozel v. Ostendorf, 629 So.2d 817, 818 (Fla.1993), the supreme court set forth the following six-factor test to be used in determining whether a dismissal with prejudice is an appropriate response to an attorney’s behavior:

1) whether the attorneys’ 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 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.

A trial court’s failure to consider these factors in determining whether dismissal is appropriate is a basis for remand for application of the factors. Ham v. Dunmire, 891 So.2d 492, 500 (Fla.2004).

Dismissing a case with prejudice is the ultimate sanction and should only be used in “those aggravating circumstances in which a lesser sanction would fail to achieve a just result.” Kozel v. Ostendorf, 629 So.2d 817, 818 (Fla.1993).
After considering [the Kozel ] 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. Sanctions short of dismissing a case with prejudice are appropriate when the errors are made by the attorney and not the client. Am. Express Co. v. Hickey, 869 So.2d 694, 695 (Fla. 5th DCA 2004). Although no “magic words” are required when a court dismisses a case with prejudice, the court must find the conduct leading to the order was willful or constituted a deliberate disregard of the court’s directives. Commonwealth Fed. Sav. & Loan Ass’n v. Tubero, 569 So.2d 1271, 1273 (Fla.1990).

Deutsche Bank Nat’l Trust Co. v. Lippi, 78 So.3d 81, 85-86 (Fla. 5th DCA 2012); see Ham, 891 So.2d at 499 (“It is imperative that trial courts strike the appropriate balance between the severity of the infraction and the impact of the sanction when exercising their discretion to discipline parties to an action.”).

We reverse the order of dismissal and remand for the trial court to consider the Kozel factors in determining what sanction, other than dismissal, is appropriate. Ham, 891 So.2d at 501 (reversing district court’s affirmance of trial court’s dismissal *859with prejudice for violation of discovery-orders because neither court applied Kozel factors and remanding to the district court to remand to the trial court “for a determination of what sanctions, short of dismissal, are appropriate for the discovery violations in this matter”).

Reversed and remanded.

NORTHCUTT and BLACK, JJ„ Concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Heritage Circle Condo. Ass'n, Inc. v. State, 121 So. 3d 1141 (Fla. 4th DCA 2013)
    …1078, 1078-79 (Fla. 4th DCA 2005); Bank One, N.A. v. Harrod, 873 So. 2d 519, 520-21 (Fla. 4th DCA 2004). Other courts have agreed that the trial court must make express factual findings on the Kozel factors. Deutsche Bank Nat’l Trust Co. v. Waldorf, 92 So. 3d 857, 858 (Fla. 2d DCA 2012); Deutsche Bank Nat’l Trust Co. v. Lippi, 78 So. 3d 81, 85-86 (Fla. 5th DCA 2012); Smith v. City of Panama City, 951 So. 2d 959, 961-62 (Fla. 1st DCA 2007). Neither the trial court’s order striking Heritage’s pleadings and en…
  • Fed. Nat'l Mortg. Ass'n v. Linner, 193 So. 3d 1010 (Fla. 2d DCA 2016)
    …. 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); see also Montage Grp., Ltd. v. Athle-Tech Comput. Sys., Inc., 889 So. 2d 180,…
  • Jensen v. Pinellas Cnty., 293 So. 3d 1076 (Fla. 2d DCA 2020)
    …Kozel factors, nor does the record show such aggravating factors as would justify the ultimate sanction of dismissal based on the plaintiff's conduct. See Kozel v. Ostendorf, 629 So. 2d 817, 818 (Fla. 1993); Deutsche Bank Nat'l Tr. Co. v. Waldorf, 92 So. 3d 857, 858 (Fla. 2d DCA 2012). Next, we consider the court's statement that the complaint remains "vague and abstract." [W]here a complaint contains sufficient allegations to acquaint the defendant with the plaintiff's charge of wrongdoing so that the def…

Authorities Cited

Full citator, related cases, and AI research tools

Open in FLexlaw