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.
Denied March 13, 2020.
decision is not final until time expires to file motion for
rehearing and, if filed, determined.
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.
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)).
This court and others have found such an abuse where a trial
judge dismisses an action with prejudice "without making
`express written findings of fact supporting the conclusion
that the failure to obey the court order demonstrated willful
or deliberate disregard.'" Hawthorne v.
Wesley, 82 So.3d 1183, 1185 (Fla. 2d DCA 2012) (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); see also Commonwealth Fed.
Sav. & Loan Ass'n v. Tubero, 569 So.2d 1271,
1273 (Fla. 1990) ("[I]t is for the very reason that the
trial judge is granted so much discretion to impose this
severe sanction that we have determined that the subject
order should contain an explicit finding of willful
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
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.
did in Linner, we certify conflict with the First District
and the Third District on the application of Kozel to
dismissals without prejudice. See 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 ...