Martha A. Thomas and Archibald Johns Thomas, III, Esquire v. Cyprex Holdings, LLC, and Turnkey Asset Management & Maintenance, Inc.

FIFTH DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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Case No. 5D2025-2070
LT Case No. 55-2021-CA-1298
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MARTHA A. THOMAS and
ARCHIBALD JOHN THOMAS, III,
ESQUIRE,

Appellants,

v.

CYPRESS HOLDINGS, LLC, and
TURNKEY ASSET MANAGEMENT &
MAINTENANCE, INC.,

Appellees.
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On appeal from the Circuit Court for St. Johns County.
Howard Mason Maltz, Judge.

Archibald J. Thomas, III, of Archibald J. Thomas, III, P.A.,
Jacksonville Beach, for Appellants.

No Appearance for Appellees.

May 22, 2026

PER CURIAM.

Martha A. Thomas and Archibald J. Thomas, III
(“Appellants”) appeal the trial court’s dismissal of their second
amended complaint without prejudice. Appellants contend that
the record is insufficient to support the ultimate sanction of
dismissal. They argue the trial court erred by failing to evaluate
the factors established in Kozel v. Ostendorf, 629 So. 2d 817 (Fla.
1993), to determine if the sanction was justified and, if so, whether
a less severe alternative would have been more appropriate. We
agree and reverse.

I.

On November 16, 2021, Appellants initiated an action by
filing a complaint against two Defendants, DGG Re Investments,
LLC d/b/a Guardian Asset Management (“DGG”) and Cyprex
Holdings, LLC (“Cyprex”). The complaint alleged various causes of
action against the Defendants for breaking into Appellants’ beach
home multiple times without Appellants’ knowledge or consent
and otherwise without legal justification. Specifically, Appellants
alleged that on various dates beginning on December 11, 2020,
employees and agents of Defendants broke into a residence owned
by Appellants and either removed or destroyed most of the
furniture and personal property located inside the residence. It
appears from the pleadings that the Defendants went to
Appellants’ home by mistake as they were hired to clean up a bank
foreclosed property next door but instead broke into Appellants’
home. On December 30, 2022, Cyprex’s legal counsel withdrew,
and on January 25, 2024, a judicial default was entered against
Cyprex due to its failure to retain substitute counsel.

Subsequently, a Second Amended Complaint was filed by
written consent adding Turnkey Asset Management &
Maintenance, Inc. (“Turnkey”) as another party. Mediation was
conducted in July 2024 between Appellants and DGG; however,
Cyprex failed to appear. Turnkey had not yet been served with the
Second Amended Complaint at the time of mediation and did not
participate in this mediation. Based on the mediation, DGG and
Appellants settled and a voluntary dismissal was filed dismissing
DGG from the case. The court indicated it would set a case
management conference after the window for service on Turnkey
expired. Appellants struggled to serve Turnkey as they alleged
Turnkey was avoiding service of process. However, after a lengthy
process, Turnkey was served with the Second Amended Complaint

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and added as a party. Six days after service of process on Turnkey,
an order was entered scheduling the trial, directing certain
pretrial procedures, and setting a docket sounding for June 9,
2025.

Appellants’ counsel failed to appear for the docket sounding,
but Turnkey’s counsel appeared at the docket sounding.
Subsequently, the trial court entered an order dismissing the case
for Appellants’ failure to appear at the docket sounding. The order
stated the purpose of the docket sounding was to determine the
parties’ readiness for trial and to provide a specific time and date
for the trial. The order also noted that Appellants’ counsel failed to
appear for the docket sounding and was not excused from
attendance. The court dismissed the action without prejudice and
ordered the case closed.

Appellants filed a motion for rehearing and set a hearing on
their motion. Appellants asserted in the motion that the Kozel
factors did not warrant dismissal as a sanction. Appellants alleged
the failure to appear was not willful or deliberate but was due to a
calendar error. Further, Appellants’ counsel alleged he had never
been sanctioned; the clients were not personally involved in the
failure to appear; the delay did not prejudice the opposing party;
and the delay hopefully did not create significant problems for
judicial administration.

The trial court denied Appellants’ motion for rehearing
without conducting the previously set hearing. In its order, the
trial court did not make any written findings of fact supporting the
conclusion that the failure to obey the court order demonstrated
willful or deliberate disregard. Nor did the court make any specific
findings regarding the Kozel factors with the possible exception of
whether the delay created significant problems for judicial
administration. For this finding the court stated: “[t]he failure to
have mediated the case and then failing to appear at docket
sounding has created significant problems with judicial
administration. To reset this case for trial yet again, will hinder
this Court’s ability to efficiently handle the nearly three thousand
other cases pending before this Court, of which hardly any, if any,
are as old as this case.” This timely appeal follows.

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II.

Initially we note that the trial court dismissed the case
without prejudice. However, a dismissal without prejudice
operates as a dismissal with prejudice when the statute of
limitations period has run. Totura & Co. v. Williams, 754 So. 2d
671, 677 (Fla. 2000). As Appellants point out, the limitations
period has run on their action and thus, the order issued is
equivalent to a dismissal with prejudice. See Townhouses at
Jacaranda v. Crain Atlantis, 186 So. 3d 569 n.1 (Fla. 4th DCA
2016).

When the dismissal of a complaint with prejudice is based on
non-compliance with a court order, the order of dismissal is subject
to an abuse of discretion standard of review. Erdman v. Bloch, 65
So. 3d 62, 65 (Fla. 5th DCA 2011) (citing Bank One, N.A. v. Harrod,
873 So. 2d 519, 520 (Fla. 4th DCA 2004)). The Florida Supreme
Court has noted that it is concerned with the “swift administration
of justice” at the trial level. Kozel, 629 So. 2d at 818 (Fla. 1993). As
such, “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.” Id. Accordingly,
Florida Rule of Civil Procedure 1.200(c) provides that if a party
fails to attend either a pretrial or case management conference,
the court may “dismiss the action, strike the pleadings, limit proof
or witnesses, or take any other appropriate action.” U.S. Bank
Nat’l Ass’n v. Martinez, 188 So. 3d 107, 108 (Fla. 5th DCA 2016).

While sanctions are within a trial court’s discretion, it is also
well established that dismissing an action for failure to comply
with court orders is the most severe of all sanctions which should
be employed only in extreme circumstances. Ham v. Dunmire, 891
So. 2d 492, 495 (Fla. 2004). “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.” Id. at
496. In this regard, the Florida Supreme Court has articulated a
test identifying six pertinent factors in the determination of
whether a dismissal with prejudice is a warranted response to an
attorney's behavior. Id. These factors which are commonly known
as the Kozel factors require a trial court to consider:

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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.

Based on these factors, express findings are required to
ensure the trial judge has consciously determined 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. Ham, 891 So. 2d at 496. “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.’” Id. (quoting Commonwealth
Fed. Savings & Loan Ass’n v. Tubero, 569 So. 2d 1271, 1273 (Fla.
1990)). Therefore, the dismissal of a complaint will constitute an
abuse of discretion where the trial court fails to make express
written findings of fact supporting the conclusion that the failure
to obey the court order demonstrated willful or deliberate
disregard and thus, necessitates reversal. Id. See also Pixton v.
Williams Scotsman, Inc., 924 So. 2d 37, 39-40 (Fla. 5th DCA 2006)
(“[a] trial court’s failure to consider the Kozel factors in
determining whether dismissal is appropriate is, by itself, a basis
for remand for application of the correct standard.”); see also Smith
v. City of Panama, 951 So. 2d 959, 962 (Fla. 1st DCA 2007) (holding
that if the trial court concludes on remand that the conduct of the
appellants or their counsel warrants dismissal of the action with
prejudice, it shall enter an order containing findings of fact and
conclusions of law with respect to each of the Kozel factors); see
U.S. Bank Nat’l Ass’n v. Cowell, 86 So. 3d 1214, 1215 (Fla. 3d DCA
2012) (holding that if a trial court dismisses a case without
prejudice due to counsel’s failure to follow a court order, but the
dismissal acts as a dismissal with prejudice because the statute of

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limitations has run, the trial court should conduct an analysis
under Kozel).

As Appellants argue, the trial court failed to make written
findings regarding the Kozel factors to determine whether the
dismissal was warranted in response to their attorney’s failure to
attend the docket sounding. In addition, the court did not make an
express finding that the conduct was willful or deliberate.
Therefore, on this basis alone, the court abused its discretion and
reversal is required.

We also note that counsel pled this was a mere calendaring
error. There is nothing in the record to show trial counsel had
previously committed this act. In fact, the record provided showed
that legal counsel was faithful in following all previous court
orders. Nor is there anything in the record to show this was willful
or deliberate. Therefore, we find the court abused its discretion and
reverse the trial court’s order dismissing the Appellant’s complaint
and order that the complaint be reinstated. See Garland v. Dixie
Ins. Co., 495 So. 2d 785 (Fla. 4th DCA 1986) (holding dismissal of
complaint for failure of counsel to appear at pretrial conference
was too severe a sanction where the record did not show willful or
intentional disregard of trial court’s order); Little v. Turnbow, 379
So. 3d 581, 584 (Fla. 5th DCA 2024) (finding plaintiffs’ counsel’s
failure to attend scheduled case management conference was not
willful, flagrant, deliberate, or otherwise aggravated, warranting
relief from order dismissing plaintiffs’ action due to counsel’s
failure to attend conference, where counsel’s failure to attend was
due to a clerical or calendaring error or mistake). However, this
reversal is without prejudice to the entry of a lesser sanction
against counsel if appropriate. Id.

REVERSED and REMANDED with instructions.

LAMBERT, SOUD, and BOATWRIGHT, JJ., concur.

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_____________________________

Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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