BAC HOME LOANS SERVICING, L.P., APPELLANT,
v.
DONALD H. ELLISON, ET AL., APPELLEES
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BAC Home Loans Servicing challenged a trial court's dismissal of its case for failure to appear at a hearing. The appellate court reversed, holding that the trial court failed to apply the required Kozel factors before dismissing and remanded for proper consideration of whether the failure to appear was willful.
The trial court's dismissal was reversible error because it failed to apply the Kozel factors and hold an evidentiary hearing to determine whether appellant's failure to appear was a willful violation of the court's order. Dismissal based solely on counsel's neglect, without considering the Kozel factors, improperly punishes the litigant.
[1] A trial court's sua sponte order of dismissal for failure to appear at a hearing is reversible error if the court fails to consider the factors set forth in Kozel v. …
[2] 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.
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Join FLexlaw to unlock all legal intelligence“Failure to apply the Kozel factors constitutes reversible error.”
Establishes the legal standard that courts must apply the Kozel factors when considering dismissal as a sanction
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Join FLexlaw to unlock all legal intelligenceBAC Home Loans Servicing did not appear at a May 6, 2013 hearing before the trial court. The trial court had issued a sua sponte order setting the hea…
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In this appeal, BAC Home Loans Servicing, L.P., challenges a final order of dismissal without prejudice for failure to appear at a hearing set by the trial court and subsequent denial of a Motion for Rehearing. We reverse.
Appellant alleges that no one appeared at a May 6, 2013, hearing on behalf of appellant because the trial court sent its sua sponte order to a different address than the address on record. Appellant argues that the trial court erred in dismissing the case without considering the appropriate factors set forth in Kozel v. Ostendorf, 629 So.2d 817 (Fla.1993).
In a Motion for Rehearing, appellant argued that dismissal for failing to comply with the court’s order to appear at hearing was too severe a sanction where the record is devoid of evidence showing counsel’s failure to appear was a willful or flagrant disregard of the court’s authority. Specifically, counsel alleged that they had no record of ever receiving the order.1
*1291Failure to apply the Kozel factors constitutes reversible error. See, e.g., Ham v. Dunmire, 891 So.2d 492, 500 (Fla.2004) (“[Fjailure to consider the Kozel factors in determining whether dismissal was appropriate is, by itself, a basis for remand for application of the correct standard.”); Fla. Nat’l Org. for Women, Inc. v. State, 832 So.2d 911, 914 (Fla. 1st DCA 2002) (holding that the trial court should not have dismissed the complaint without specifically addressing the Kozel factors); Crews v. Shadburne, 637 So.2d 979, 981 (Fla. 1st DCA 1994) (“ ‘[T]o dismiss the case based solely on the attorney’s neglect unduly punishes the litigant and espouses a policy that this Court does not wish to promote.’ ” (quoting Kozel, 629 So.2d at 818)); and Gaines v. Placilla, 634 So.2d 711 (Fla. 1st DCA 1994) (remanding for the trial court to reconsider the motion to dismiss in light of the Kozel factors).
In the instant case, an evidentiary hearing should have been held to determine whether appellant’s failure to appear was a willful violation of the court’s order.
We therefore REVERSE and REMAND for further proceedings consistent with this opinion.
LEWIS, C.J., and WETHERELL, J., concur.
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Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
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)
- Fla. Nat'l Org. FOR Women, Inc. v. State, 832 So. 2d 911 (Fla. 1st DCA 2002)
- Crews v. Shadburne, 637 So. 2d 979 (Fla. 1st DCA 1994)
- Amos Gaines and Louie Gaines v. William J. Placilla, M.D., 634 So. 2d 711 (Fla. 1st DCA 1994)