WEST REHABILITATION CENTER OF MIAMI INC

v.

FLORIDA HOME BOUND MENTAL HEALTH AGENCY

Before ZAYAS, SANTOVENIA and ZILBER, H. SANTOVENIA, Judge. We reverse the trial court's dismissal with prejudice of appellanfs case for failure to comply with three discovery orders. “Because dismissal is the ultimate sanction in the [*2] ——-—r+-er?-. F l adversarial system, it should be reserved for those aggravating circumstances in which a lesser SHT'|(‘.1'ifl1'\ would fail tn achieve 2 inqt 1'P.q11lt” Ynval /'1 r n7 rf H75) Qn ')rl Q17 R152 (Fla 1! K‘ OM II _-.___--_.__ .._.._.___ __.-- v-V WI%ll—l%I§ -J-.-.1-, Lt!-l\II1-II .51-\fbI'\Il4 v- \.1uwv|vv~v|J, van, n-'\_!A 4..-.1 \Il.I, u.-.v \=. “~- 1993). Further, the Supreme Court in Kozel has explained that: [d]ismissal “with prejudice” in effect disposes of the case, not for any dereliction on the part of the litigant, but on the part of his counsel.. .. In the interest of an efficient judicial system and in the interest of clients, it is essential that attorneys adhere to filing deadlines and other procedural requirements. However, a fine, public reprimand, or contempt order may often be the appropriate sanction to impose on an attorney in those situations where the attorney, and not the client, is responsible for the error. Id. at 818 (footnote omitted). certain preliminary fmdings of fact. Tianvan v. AVCO Corp, 898 So. 2d 1208, 1209 (Fla. 4th To ensure that the sanction of dismissal is prudently applied, trial courts must first make 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 ofjudicial administration. Kozel, supra, 629 So. 2d at 818. In Ham v. Dunmire, 891 So. 2d 492, 496 (Fla. 2004), the Supreme Court stated the rationale for the express fmdings required ofthe trial court, as follows: 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. While no magic words are required, the trial court must make a finding that the conduct upon which the order is based was equivalent to willfulness or deliberate disregard. [*3] l il E ,. l ll ‘i i |. l l l l Moreover, to ensure that a litigant is not unduly punished for failures of counsel, the trial court must consider whether dismissal with prejudice is warranted. The court is mindful that the expenditure of judicial resources which was necessitated below could have been obviated by plaintiffs timely response to two discovery requests. Notwithstanding, there is no record addressing either whether the failure to respond to the CF‘,_.|(T I-FC iiClit :- adII?‘5 -:nr\r\-rrcaucr 1nlf\/'|1Ir\r1 n '!I1r\r\| v11: -‘ A‘. --- A L,‘-. : -1--.__

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..: .._ __. ._ ..1-§1.' _-. fauna -/_ —/1 --C diouuvurj requests was willful U1 wlictnei it was afiiihuta ‘ uiiitatiuii Center U1 Miami, Inc., its attorney, or both. Where, as here, there is no showing that the trial court made preliminary findings of fact concerning each of the Kozel factors, the case law is clear that reversal is warranted. See Toll v. Korge, 127 So. 3d 883, 887 (Fla. 3d DCA 20l3)(“Where a trial court fails to make express written findings of fact to support a conclusion that a party's failure to obey court orders demonstrates willful or deliberate disregard, the dismissal of such action constitutes an abuse of discretion”); Alvarado v. Snow White and Seven Dwarfs, Inc, 8 So. 3d 388, 389 (Fla. 3d DCA 2009). Contrast Leda v. Seavie Resources, LLC, 149 So. 3d 707 (Fla. 3d DCA 2014) (affirmed summary judgment following order striking Ledo’s pleadings where record clearly reflected that failure to respond to interrogatories was personally attributable to Ledo rather than to his attorney, was the result of willful and deliberate disregard of court’s orders, and was not due to mistake, neglect or inadvertence). A Accordingly, We reverse the order of dismissal with prejudice and remand to the trial court to consider all six Kozel factors. -If, after considering the six factors, the trial court detennines 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 [*4] law with respect to each of the Kozel factors. See Smith v. City ofPanama, 951 So. 2d 959, 962 (Fla. 1st DCA 2007). REVERSED and REMANDED. ZAYAS and ZILBER, JJ, Concur.