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reversing final default judgment and order striking pleadings where the court failed to consider and apply all six Kozel factors
Summary of this case from U.S. Bank Nat'l Ass'n v. WhyteOpinion
No. 3D10-898.
January 26, 2011.
Appeal from the Circuit Court, Miami-Dade County, Victoria S. Sigler, J.
Patrick J. Goggins, for appellant.
Miller Kagan Rodriguez Silver and Jeffrey D. Swartz, Coral Gables, for appellee.
Before CORTIÑAS and SALTER, JJ., and SCHWARTZ, Senior Judge.
We reverse the trial court's final default judgment and order striking pleadings as a sanction for failure to comply with certain disclosure deadlines. "Because dismissal is the ultimate sanction in the adversarial system, 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). To ensure that the sanction of dismissal is prudently applied, trial courts must first make certain preliminary findings of fact. Alvarado v. Snow White the Seven Dwarfs, Inc., 8 So.3d 388 (Fla. 3d DCA 2009); Tianvan v. AVCO Corp., 898 So.2d 1208, 1209 (Fla. 4th DCA 2005). These findings must address:
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.
Kozel, 629 So.2d at 818.
Here, the trial court did not make the preliminary findings of fact concerning each of the Kozel factors. Accordingly, we reverse the final default judgment and order striking pleadings and remand to the trial court to consider all six Kozel factors. If, after considering the six factors, the trial court determines that no less severe sanction is appropriate, and again dismisses the case with prejudice, the trial court shall include in its order of dismissal findings of fact and conclusions of law with respect to each of the Kozel factors. See Smith v. City of Panama, 951 So.2d 959, 962 (Fla. 1st DCA 2007).
Reversed and remanded.