          DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

 DOROTHY CHAPPELLE, CALVIN JOHNSON and EVELYN WILLIAMS,
                       Appellants,

                                     v.

           SOUTH FLORIDA GUARDIANSHIP PROGRAM, INC.,
                           Appellee.

                              No. 4D13-2613

                              [July 22, 2015]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Robert A. Rosenberg, Judge; L.T. Case No.
CACE07031447.

   Robert P. Bissonnette, Fort Lauderdale, for appellants.

   William Jay Palmer of Shutts & Bowen LLP, Miami, for appellee.

MAY, J.

   In an action alleging elder exploitation and fraud, the defendants appeal
an order sanctioning them with entry of a judicial default and a final
judgment for compensatory and punitive damages. They argue the trial
court erred in entering the default without making required findings under
Kozel v. Ostendorf, 629 So. 2d 817 (Fla. 1993). We agree and reverse.

   The dispute is between the ward’s guardian and the ward’s relatives.
The guardian is the ward’s son. He was appointed as the ward’s emergency
temporary guardian and plenary guardian due to the ward’s incapacity.
Two of the defendants, Dorothy and Evelyn, are the ward’s sisters. A third
defendant, Calvin, is Dorothy’s son and the ward’s nephew.

   In 1994, the ward’s husband won the lottery, receiving millions of
dollars. Upon his death, most of his assets went into a marital trust. The
ward and guardian were co-trustees of the marital trust.

  In November 2007, the guardian filed a verified complaint against the
ward’s two sisters, her nephew, daughter, and the ward’s niece. The
complaint alleged counts for: (1) elderly exploitation pursuant to section
415.111, Florida Statutes, and fraud against the defendants; and (2)
undue influence against the ward’s sister Dorothy. The defendants
answered the complaint pro se.1 The ward’s daughter and the ward’s niece
are not involved in this appeal.

   On February 9, 2012, the trial court entered a judicial default against
the defendants. The trial court found:

       [T]he Defendants and counsel previously failed to respond to
       discovery in this case and had to have orders entered against
       them compelling them to respond to discovery; the Defendants
       (and counsel for Defendants) failed to appear at a Court-
       ordered mediation on December 5, 2011, and this Court has
       already entered an Order sanctioning the Defendants for
       failing to appear at mediation; now Defendants (and counsel
       for Defendants) have failed to appear for calendar call in direct
       contravention of this Court’s October 20, 2010, Trial Order . .
       . . Based upon this judicial default, the allegations of the
       Complaint in this action are deemed to be true and a finding
       of liability is entered against each of the defaulted Defendants
       as to the allegations in the Complaint. Plaintiff’s damages are
       unliquidated and therefore a hearing/trial to establish the
       amount of damages will still be required . . . .

    The following day, the defendants moved, through counsel, for
reconsideration, arguing they made numerous offers to settle; counsel
failed to schedule the calendar call due to oversight, but intended to
appear at the upcoming mediation; and they did not intentionally fail to
appear.

    The trial court held a hearing, but denied the motion.

       A careful review of the record finds [the defendants’] conduct
       has been egregious including missed mediation sessions,
       failure to provide discovery, failure [to] attend court
       proceedings, previous contempt actions and a disregard and
       disrespect for the court process. The court thus makes an
       explicit finding of willful noncompliance with orders and
       directives, and an inexcusable pattern of inappropriate

1 Three different attorneys represented the defendants at various times. The
attorney who represented the defendants when the default was entered appeared
on behalf of all defendants on May 4, 2010. The defendants’ current attorney
made his appearance during the evidentiary hearings on damages.

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      behavior.

    The defendants again moved to set aside the judicial default, which the
trial court denied after a hearing. That order did not include any findings.

    New counsel filed a notice of appearance for the defendants during the
damages hearings, and again moved for reconsideration. Counsel argued
that entry of a judicial default was tantamount to dismissal—the most
severe sanction. Imposing such a sanction required the trial court to
conduct an evidentiary hearing for consideration of the Kozel factors in
light of prior counsel’s conduct.

  The trial court once again denied the motion. The court first found the
motion untimely and unauthorized. Then,

      [a]fter considering the decision in Kozel . . . and the factors
      enumerated, the court [found] no basis to grant the motion.
      Rather, the motion, and the affidavits attached, [were]
      contrary to Dorothy[’s] . . . own statements and previously
      stated    positions,   and    largely, and      breathtakingly,
      disingenuous. Accordingly the court reject[ed] the arguments
      presented in the motion as not only unpersuasive, but directly
      contrary to record evidence. Further hearing on this matter
      [was] unnecessary.

In a footnote, the court further wrote:

      The record in this matter reflects that all factors militate
      against the movants.      Indeed, movants were personally
      engaged in protracting matters, misleading the Court, and
      causing prejudice to the opposing party. Moreover, the
      explanation offered is contrary to evidence in the record, and
      wholly unreasonable. The conduct of movants was calculated,
      and created significant problems of judicial administration
      and the swift administration of justice.

   The trial court subsequently held an evidentiary hearing on damages.
Notes from those proceedings indicate that Dorothy, Calvin, and the
guardian testified. The court entered final judgment, making extensive
findings of fact on both compensatory and punitive damages.

   The trial judge who entered the default, held the evidentiary hearings,
and denied the defendants’ three prior motions for rehearing or
reconsideration retired. The defendants moved for rehearing after the final

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judgment, which was denied by the successor judge.2 From the final
judgment and the order denying rehearing the defendants now appeal.

   The defendants argue the trial court erred by entering a judicial default
against them without considering the factors enumerated in Kozel v.
Ostendorf, 629 So. 2d 817 (Fla. 1993). They argue the court failed to hold
an evidentiary hearing on the matter and consider their counsel’s conduct.
They suggest a proper consideration of the Kozel factors does not warrant
judicial default because the responsibility for the disobedient acts
belonged to their counsel.

   The guardian responds that because the defendants do not allege any
basis for reversing the judicial default as to Calvin and Evelyn, they have
abandoned the issue as to them. Noting that the trial court held two
evidentiary hearings, the guardian argues that Kozel does not apply
because the sanction was entered against the defendants for their
misconduct, not their counsel’s. Lastly, the guardian argues the trial court
did consider Kozel before issuing the order on the third motion for
reconsideration.

   The defendants reply that Kozel is applicable and required the trial
court to conduct an evidentiary hearing for consideration of the factors
before entering a judicial default, not after the fact. They further assert
their prior counsel’s misconduct is apparent from the record, and he was
previously sanctioned for not appearing at a mediation.

   We review sanctions orders for an abuse of discretion. Bennett ex rel.
Bennett v. Tenet St. Mary’s, Inc., 67 So. 3d 422, 426 (Fla. 4th DCA 2011);
Precision Tune Auto Care, Inc. v. Radcliffe, 804 So. 2d 1287, 1290 (Fla. 4th
DCA 2002).

   “Before a court may dismiss a cause as a sanction, it must first consider
the six factors delineated in Kozel v. Ostendorf, 629 So. 2d 817 (Fla. 1993),
and set forth explicit findings of fact in the order that imposes the sanction
of dismissal.” Bennett ex rel. Bennett, 67 So. 3d at 426 (citation omitted).
Those factors are whether:



2 The successor judge was the Honorable William W. Haury, Jr. He denied
rehearing because “a successor judge may not correct errors of law committed by
his predecessor and hence he cannot review and reverse on the merits and on
the same facts the final orders and decrees of his predecessor.” Drdek v. Drdek,
79 So. 3d 216, 219 (Fla. 4th DCA 2012) (quoting Groover v. Walker, 88 So. 2d
312, 313 (Fla. 1956)).

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    1. the attorney’s disobedience was willful, deliberate, or contumacious,
       rather than an act of neglect or inexperience;
    2. the attorney has been previously sanctioned;
    3. the client was personally involved in the act of disobedience;
    4. the delay prejudiced the opposing party through undue expense,
       loss of evidence, or in some other fashion;
    5. the attorney offered reasonable justification for noncompliance; and
    6. the delay created significant problems of judicial administration.

Kozel, 629 So. 2d at 818.

   “After considering these factors, if there is a less-severe sanction
available than dismissal with prejudice, the court should use it.” Bennett
ex rel. Bennett, 67 So. 3d at 427 (citing Ham v. Dunmire, 891 So. 2d 492,
496 (Fla. 2004)). ‘‘[A] trial court’s failure to consider the Kozel factors in
determining whether dismissal was appropriate is, by itself, a basis for
remand for application of the correct standard.” Ham, 891 So. 2d at 500.

    “We have consistently required the record to show an express
consideration of the Kozel factors.” Vista St. Lucie Ass’n v. Dellatore, 40
Fla. L. Weekly D1192, D1193 (Fla. 4th DCA May 20, 2015) (citation
omitted) (internal quotation marks omitted). “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.’”
Ham, 891 So. 2d at 495 (quoting Commonwealth Fed. Sav. & Loan Ass’n
v. Tubero, 569 So. 2d 1271, 1273 (Fla. 1990)).

   Here, a judicial default was entered against the defendants, which is
comparable to, or perhaps more harsh than, the dismissal of a plaintiff’s
complaint. Kozel has been applied to a default judgment sanction for
discovery violations. See Toll v. Korge, 127 So. 3d 883, 887 (Fla. 3d DCA
2013).

    The record3 before us reveals the trial court: (1) failed to consider Kozel
prior to entry of the default, and (2) failed to make explicit findings on each
factor. Only the third order denying reconsideration referred to Kozel, but
still failed to articulate findings on all the factors.

   The order entering the judicial default contained a finding that the
defendants and their counsel failed to timely respond to discovery. The

3Unfortunately, we did not have the benefit of reviewing transcripts from the two
hearings. Thus, our review is limited to the information within the motions and
orders.

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court also found that the defendants and their counsel failed to appear at
a court-ordered mediation. In each instance, the court awarded monetary
sanctions against them. The court also found they all failed to appear at
a calendar call. These findings clearly indicate that counsel contributed
to the misconduct.

    “Where counsel is ‘involved in the conduct to be sanctioned, a Kozel
analysis is required before dismissal is used as a sanction.’” Bennett ex
rel. Bennett, 67 So. 3d at 427 (emphasis added) (citation omitted). Thus,
the trial court should have made explicit findings as to each Kozel factor
before entering judicial default. Failure to consider the Kozel factors is, by
itself, a basis for remand. Dellatore, 40 Fla. L. Weekly at D1193 (citing
Ham, 891 So. 2d at 500).

   We therefore reverse the final judgment and the order entering the
judicial default. The successor judge is no longer on the bench, so this
matter will have to be considered by a new judge as to the Kozel factors
and the appropriate sanction, if any. For this reason, we also reverse the
award of compensatory and punitive damages.

   Reversed and Remanded.

STEVENSON and KLINGENSMITH, JJ., concur.

                            *         *         *

   Not final until disposition of timely filed motion for rehearing.




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