Deutsche Bank Nat'l Trust Co. v. Cagigas

Full title: Deutsche Bank National Trust Company, as Indenture Trustee, for the…

Court: Third District Court of Appeal State of Florida

Date published: Apr 18, 2012

No. 3D11-1744 (Fla. Dist. Ct. App. Apr. 18, 2012)

Opinion

No. 3D11-1744 Lower Tribunal No. 08-35679

04-18-2012

Deutsche Bank National Trust Company, as Indenture Trustee, for the Benefit of the Holder of Aames Mortgage Investment Trust 2005-4 Mortgage Backed Notes, Appellant, v. Aisa Cagigas, et al., Appellees.

Lapin & Leichtling and Adam B. Leichtling and Anne Janet De Ases, for appellant. Daniel M. Keil, for appellees Aisa Cagigas and Amauri Izquierdo.

LAGOA

An appeal from the Circuit Court for Miami-Dade County, Pedro P. Echarte, Jr., Judge.

Lapin & Leichtling and Adam B. Leichtling and Anne Janet De Ases, for appellant.

Daniel M. Keil, for appellees Aisa Cagigas and Amauri Izquierdo. Before WELLS, C.J., and RAMIREZ and LAGOA, JJ.

CONFESSION OF ERROR

LAGOA, J.

Appellant Deutsche Bank National Trust Company appeals an order dismissing its complaint with prejudice as a sanction for misconduct. We agree with appellees' confession of error that the trial court's order must be reversed.

It is well settled that a court must first consider each of the following six factors delineated in Kozel v. Ostendorf, 629 So. 2d 817, 818 (Fla. 1993), before dismissing a case as a sanction:

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.

Buroz-Henriquez v. De Buroz, 19 So. 3d 1140, 1141 (Fla. 3d DCA 2009); accord Ham v. Dunmire, 891 So. 2d 492, 496 (Fla. 2004); see Arkiteknic, Inc. v. United Glass Laminating, Inc., 53 So. 3d 366, 367 (Fla. 3d DCA 2011); Alvarado v. Snow White & the Seven Dwarfs, Inc., 8 So. 3d 388 (Fla. 3d DCA 2009); Alsina v. Gonzalez, 37 Fla. L. Weekly D685 (Fla. 4th DCA Mar. 21, 2012); Hawthorne v. Wesley, 37 Fla. L. Weekly D653 (Fla. 2d DCA Mar. 16, 2012). In so doing, the trial court must make express findings of fact concerning each of the Kozel factors. "Express findings are required to ensure that the trial judge has consciously determined that the failure was more than a mistake, neglect, or inadvertence, and to assist the reviewing court to the extent the record is susceptible to more than one interpretation." Ham, 891 So. 2d at 496; see also Buroz-Henriquez, 19 So. 3d at 1142; Alvarado, 8 So. 3d at 388; Hawthorne, 37 Fla. L. Weekly at D654.

Here, the trial court dismissed Deutsche Bank's complaint as a sanction. However, the order does not reflect that the trial court considered the Kozel factors or that the trial court made the required written findings of fact addressing each factor. Accordingly, we reverse the order of dismissal and remand for consideration of those factors. If, on remand, the trial court determines, after considering the Kozel factors, that dismissal is appropriate the trial court shall include in its written order findings of fact with respect to each factor. See Arkiteknic, Inc., 53 So. 3d at 367; Buroz-Henriquez, 19 So. 3d at 1142; Alvarado, 8 So. 3d at 389.

Reversed and remanded for further proceedings consistent with this opinion.