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Deutsche Bank National Trust Co. v. Bennett

Florida Court of Appeals, Second District

January 15, 2020

DEUTSCHE BANK NATIONAL TRUST COMPANY, as indenture trustee for American Home Mortgage Investment Trust 2007-2, Appellant,
v.
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.

         NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

          Appeal from the Circuit Court for Pinellas County; Jack R. St. Arnold, Judge.

          Kimberly S. Mello and Vitaliy Kats of Greenberg Traurig, P.A., Tampa, for Appellant.

          Leslie M. Conklin, Clearwater, for Appellees Gregory A. Bennett and Mary J. Bennett.

          No appearance for remaining Appellees.

          KHOUZAM, Chief Judge.

         Deutsche 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 order.

         "A 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.['] "[1] 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).

         While 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).

         As we 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).

         Affirmed; conflict certified.

          VILLANTI and SLEET, JJ., Concur.

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