Reversal of Dismissal as Sanction for Litigation Misconduct – Deutsche Bank National Trust Company v. Cagigas

In this case, the trial court dismissed the bank’s complaint with prejudice as a sanction for “misconduct” during the litigation.  The order did not make express findings as to the nature of the misconduct.  Citing Kozel v. Ostendorf, 629 So. 2d 817, 818 (Fla. 1993), the appellate court remanded to the trial court to consider the following “Kozel factors”: “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.”

Deutsche Bank National Trust Company v.  Cagigas, 37 Fla. L. Weekly D903a (Fla. 3d DCA Apr. 18, 2012)