DEUTSCHE BANK NATIONAL TRUST COMPANY, as indenture trustee for American Home Mortgage Investment Trust 2007-2, Appellant,
GREGORY A. BENNETT; MARY J. BENNETT; UNKNOWN TENANT 1; UNKNOWN TENANT 2; UNKNOWN TENANT 3; UNKNOWN TENANT 4, THE NAMES BEING FICTITIOUS TO ACCOUNT FOR PARTIES IN POSSESSION, Appellees.
FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Pinellas County; Jack R. St.
Kimberly S. Mello and Vitaliy Kats of Greenberg Traurig,
P.A., Tampa, for Appellant.
M. Conklin, Clearwater, for Appellees Gregory A. Bennett and
Mary J. Bennett.
appearance for remaining Appellees.
KHOUZAM, Chief Judge.
Bank National Trust Company filed a foreclosure action
against Gregory Bennett, Mary Bennett, and other unknown
parties. The trial court dismissed the action without
prejudice as a sanction for untimely and incomplete
production of documents. The Bank appeals, arguing that the
trial court erred in failing to make findings of willful
disregard of a trial court order. Accepting this argument,
the Bennetts concede error. But because the court's
dismissal was without prejudice, findings of willful
disregard were not required. Accordingly, we decline to
accept the concession of error, and we affirm the court's
lower court's decision to impose sanctions is reviewed
under an abuse of discretion standard." Boca Burger,
Inc. v. Forum, 912 So.2d 561, 573 (Fla. 2005) (citing
Harless v. Kuhn, 403 So.2d 423, 425 (Fla. 1981)).
The Bank cites Hawthorne v. Wesley, 82 So.3d 1183,
1185 (Fla. 2d DCA 2012), for the proposition that "it is
an abuse of the trial court's discretion to dismiss an
action without making [']express written findings of fact
supporting the conclusion that the failure to obey the court
order demonstrated willful or deliberate disregard.[']
" Id. (quoting Ham v.
Dunmire, 891 So.2d 492, 495 (Fla. 2004)); see also
Plantilla v. Plantilla, 777 So.2d 978, 979-80 (Fla. 2d
DCA 2000) (same); Nat'l City Bank v. White, 112
So.3d 663, 667 (Fla. 4th DCA 2013) (same). This is because
"dismissal is the ultimate sanction in the adversarial
system, [and] it should be reserved for 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).
it is true that the trial court made neither oral nor written
findings of willful disregard of a court order when imposing
the sanction of dismissal, both parties overlook that the
case was dismissed without prejudice. Therefore,
failure to consider the factors laid out in Kozel,
including "whether the attorney's disobedience was
willful, deliberate, or contumacious," id.,
does not warrant reversal. See Fed. Nat'l Mortg.
Ass'n v. Linner, 193 So.3d 1010, 1013 (Fla. 2d DCA
2016) ("It is not reversible error for a trial court to
fail to consider the Kozel factors before dismissing
a case without prejudice."); SRMOF II
2012-1 Tr. v. Garcia, 209 So.3d 681, 681 (Fla. 5th DCA
2017) (same). Far from suffering the ultimate sanction, the
Bank was free to refile its case for about eight months, the
time remaining under the statute of limitations for a
December 2013 default after the March 2018 dismissal.
See § 95.11(2)(c), Fla. Stat. (2013).
did in Linner, we certify conflict with the First
District and the Third District on the application of
Kozel to dismissals without prejudice. HSBC Bank
USA v. Cook, 178 So.3d 548 (Fla. 1st DCA 2015); BAC
Home Loans Servicing L.P. v. Parrish, 146 So.3d 526
(Fla. 1st DCA 2014); BAC Home Loans Servicing, L.P. v.
Ellison, 141 So.3d 1290 (Fla. 1st DCA 2014); Fed.
Nat'l Mortg. Ass'n v. Wild, 164 So.3d 94 (Fla.
3d DCA 2015).
VILLANTI and SLEET, JJ., Concur.