Deutsche Bank National Trust Co. v. Waldorf
2012 Fla. App. LEXIS 10116
| Fla. Dist. Ct. App. | 2012Background
- Bank filed foreclosure in Jan 2008; Waldorf defaulted after not answering and defenses were not raised.
- Waldorf later filed then dismissed bankruptcy; bankruptcy stayed and later discharged.
- Bank moved for summary judgment with amounts affidavit; hearing scheduled but canceled.
- Trial court ordered Bank to schedule motion within 60 days; Bank complied.
- Hearing occurred and court dismissed action with prejudice for failing to file a summary final judgment package before the hearing.
- Court reversed and remanded to apply Kozel v. Ostendorf factors to determine sanction less than dismissal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether dismissal with prejudice was appropriate | Waldorf | Waldorf relies on Kozel factors to assess sanctions | Remand to apply Kozel factors; not dispositive for dismissal. |
| Whether the trial court erred by not considering Kozel factors | Bank argues factors compel lesser sanction | Court failed to weigh factors properly | Remand to consider Kozel factors and select appropriate sanction. |
| Whether sanctions short of dismissal are appropriate for attorney misconduct | Misconduct was attributable to Bank’s attorney | Alternatives exist if impact less severe | Sanction less than dismissal may be appropriate on remand. |
Key Cases Cited
- Kozel v. Ostendorf, 629 So.2d 817 (Fla.1993) (six-factor test for dismissal with prejudice)
- Ham v. Dunmire, 891 So.2d 492 (Fla.2004) (requires considering factors before harsh sanctions)
- American Express Co. v. Hickey, 869 So.2d 694 (Fla.5th DCA 2004) (sanctions short of dismissal when errors are by attorney)
- Commonwealth Fed. Sav. & Loan Ass’n v. Tubero, 569 So.2d 1271 (Fla.1990) (willful conduct required for dismissal)
- Deutsche Bank Nat’l Trust Co. v. Lippi, 78 So.3d 81 (Fla.5th DCA 2012) (balance between severity and sanction impact)