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holding that the trial court failed to conduct the Kozel analysis and "remanding for the trial court to reconsider the order and make the appropriate written Kozel findings if dismissal is appropriate"
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Case No. 2D19-1509
07-29-2020
Desmond F. BALLARD, Appellant, v. BANK OF AMERICA, N.A.; Board of County Commissioners of Pinellas County, Florida; Unknown Tenant #1 n/k/a Kalotta Williams; and all Unknown Parties Claiming Interests by, Through, Under or Against a Named Defendant to this Action, or Having or Claiming to Have Any Right, Title or Interest in the Property Herein Described, Appellees.
Niles B. Whitten, Gainesville, for Appellant. Jacqueline Costoya Guberman of Kelley Kronenberg, P.A., Fort Lauderdale, for Appellee Bank of America, N.A. No appearance for remaining Appellees.
Niles B. Whitten, Gainesville, for Appellant.
Jacqueline Costoya Guberman of Kelley Kronenberg, P.A., Fort Lauderdale, for Appellee Bank of America, N.A.
No appearance for remaining Appellees.
KHOUZAM, Chief Judge. Desmond Ballard appeals the final summary judgment of foreclosure entered against him and in favor of Bank of America, N.A. (BOA), arguing that the trial court improperly entered a judicial default against him and struck his responsive pleadings. We agree that the trial court did not make the appropriate findings for such a sanction as required by Kozel v. Ostendorf, 629 So. 2d 817 (Fla. 1993). While the trial court did hear evidence of delay and bad faith that may indeed justify the default sanction, the court did not consider all of the six Kozel factors. Therefore, we reverse the default order and final judgment and remand for the trial court to reconsider the default sanction using the proper Kozel analysis with written findings of fact as to each factor.
The Florida Supreme Court set forth in Kozel "the appropriate inquiry to be made before a trial court determines that an attorney's conduct warrants dismissal or default." Carr v. Reese, 788 So. 2d 1067, 1071 (Fla. 2d DCA 2001). A judicial default against a defendant "is comparable to, or perhaps more harsh than, the dismissal of a plaintiff's complaint." Chappelle v. S. Fla. Guardianship Program, Inc., 169 So. 3d 291, 294 (Fla. 4th DCA 2015). Thus, the standard for imposing a judicial default as a sanction is the same as that for a dismissal with prejudice as a sanction. Id.; see also Carr, 788 So. 2d at 1071-72 (reversing default judgment for failure to make necessary Kozel findings); Arkiteknic, Inc. v. United Glass Laminating, Inc., 53 So. 3d 366, 367 (Fla. 3d DCA 2011) (same); Toll v. Korge, 127 So. 3d 883, 887-88 (Fla. 3d DCA 2013) (same). The Kozel factors are as follows:
1) whether the attorney's 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. Upon consideration of these factors, if a sanction less severe than dismissal with prejudice appears to be a viable alternative, the trial court should employ such an alternative.
Kozel, 629 So. 2d at 818.
"Where counsel is 'involved in the conduct to be sanctioned, a Kozel analysis is required before dismissal is used as a sanction.' " Chappelle, 169 So. 3d at 295 (quoting Bennett ex rel. Bennett v. Tenet St. Mary's, Inc., 67 So. 3d 422, 427 (Fla. 4th DCA 2011) ). "The trial court's 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." Ham v. Dunmire, 891 So. 2d 492, 500 (Fla. 2004). Importantly, the trial court is required to make findings on each Kozel factor and to "set forth explicit findings of fact in the order." Chappelle, 169 So. 3d at 294-95 (quoting Bennett ex rel. Bennett, 67 So. 3d at 426 ).
In this case, the trial court set a deadline for Ballard to file an answer and any affirmative defenses to BOA's 2016 amended complaint. This deadline expired on November 15, 2016. On December 6, 2016, BOA filed a motion for judicial default on the ground that Ballard had not responded to the amended complaint. Later that same day, Ballard filed his amended answer and affirmative defenses, now three weeks late. In addition to the default motion, BOA had also filed a motion for sanctions and to compel discovery. The motions, among others, were set for hearing, but Ballard and his counsel never appeared or filed any responses. The trial court entered a judicial default against Ballard and struck his pleadings as untimely. In a separate order from the same hearing, the trial court granted BOA's motion to compel discovery, finding that Ballard's counsel had adopted a bad faith strategy of delay.
Considering this and earlier events in the record, the trial court may very well have been justified in entering a judicial default based on a finding of bad-faith dilatory tactics. However, it does not appear that the trial court conducted the required Kozel analysis before entering the default. The court apparently considered only Ballard's failure to attend the default hearing. And while BOA did argue the Kozel factors at the hearing, that argument was in the context of seeking monetary sanctions under the motion to compel, incorrectly applying Kozel to a different issue. While we sympathize with the frustrations of the trial court, we also recognize that Kozel requires a trial court to consider six specific factors before imposing such a sanction. We therefore reverse the final judgment and the default order, remanding for the trial court to reconsider the order and make the appropriate written Kozel findings if dismissal is appropriate. See Carr, 788 So. 2d at 1071-72 ; Chappelle, 169 So. 3d at 295 ; Toll, 127 So. 3d at 888 ; Arkiteknic, 53 So. 3d at 367.
Reversed and remanded.
BLACK and LUCAS, JJ., Concur.