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Kozel v. Ostendorf

Supreme Court of Florida
Jan 13, 1994
629 So. 2d 817 (Fla. 1994)

Summary

finding dismissal with prejudice would in effect punish the litigant instead of his counsel, who was neglectful

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Opinion

No. 80380.

October 28, 1993. As Clarified January 13, 1994.

Appeal from the Circuit Court, Lee County, James H. Seals, J.

Kelley A. Finn of Kelley Finn Law Offices, P.A., Miami, for petitioner.

Gerald W. Pierce of Henderson, Franklin, Starnes Holt, P.A., Fort Myers, for respondent.


We review Kozel v. Ostendorf, 603 So.2d 602 (Fla. 2d DCA 1992), which directly conflicts with Clay v. City of Margate, 546 So.2d 434 (Fla. 4th DCA), review denied, 553 So.2d 1164 (Fla. 1989). We have jurisdiction pursuant to article V, section 3(b)(3) of the Florida Constitution. We quash Kozel.

Carolann Kozel filed a medical malpractice complaint against Steven Ostendorf on July 25, 1989 in the circuit court of Lee County. Ostendorf filed a motion to dismiss on the grounds that the complaint failed to state a cause of action and that Kozel failed to comply with section 766.205, Florida Statutes (1989). The court granted Ostendorf's motion to dismiss and granted Kozel twenty days to amend her complaint. By agreement of the parties, the time period to amend the complaint was extended another ten days. Kozel's attorney, Kelley A. Finn, did not file the complaint until July 23, 1990, over five months past the due date. On Ostendorf's motion the circuit court then dismissed the complaint with prejudice and the district court affirmed.

The district court properly recognized that the trial court has the discretionary power to dismiss a complaint if the plaintiff fails to timely file an amendment. Although such broad power is vested in the trial court, it is not necessary or beneficial for that power to be exercised in all situations. We concur with Judge Altenbernd's suggestion that the trial courts need a meaningful set of guidelines to assist them in their task of sanctioning parties and attorneys for acts of malfeasance and disobedience. Kozel, 603 So.2d at 605 (Altenbernd, J., dissenting). Without such a framework, trial courts have no standard by which to judge the severity of the party's action or the type of sanction that should be imposed.

New River Yachting, Inc. v. Bacchiocchi, 407 So.2d 607 (Fla. 4th DCA 1981), review denied, 415 So.2d 1360 (Fla. 1982); Neida's Boutique, Inc. v. Gabor and Co., 348 So.2d 1196 (Fla. 3d DCA 1977), cert. denied, 366 So.2d 883 (Fla. 1978); Reynolds v. Deep South Sports, Inc., 211 So.2d 37 (Fla. 2d DCA 1968).

In the instant case, the trial court acted within the boundaries of the law. In our view, though, the court's decision to dismiss the case based solely on the attorney's neglect unduly punishes the litigant and espouses a policy that this Court does not wish to promote. The purpose of the Florida Rules of Civil Procedure is to encourage the orderly movement of litigation. Fla.R.Civ. Pro. 1.010. This purpose usually can be accomplished by the imposition of a sanction that is less harsh than dismissal and that is directed toward the person responsible for the delayed filing of the complaint. Clay.

Dismissal "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. We are not unmindful of the rule that counsel is the litigant's agent and that his acts are the acts of the principal, but since the rule is primarily for the governance of counsel, dismissal "with prejudice" would in effect punish the litigant instead of his counsel.
Beasley v. Girten, 61 So.2d 179, 181 (Fla. 1952). Because dismissal is the ultimate sanction in the adversarial system, it should be reserved for those aggravating circumstances in which a lesser sanction would fail to achieve a just result.

This Court is vitally concerned with the swift administration of justice at both the trial and appellate levels. 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. To assist the trial court in determining whether dismissal with prejudice is warranted, we have adopted the following set of factors set forth in large part by Judge Altenbernd: 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. Upon consideration of these factors, if a sanction less severe than dismissal with prejudice appears to be a viable alternative, the trial court should employ such an alternative.

According to rule 1.500(c), Florida Rules of Civil Procedure, "[a] party may plead or otherwise defend at any time before default is entered." If a party against whom affirmative relief is sought has filed any paper in a civil action, the court cannot enter a default for failure to file an answer unless the defendant has been served with notice that a default may be entered. Fla. R.Civ.Pro. 1.500(b). However, when the circumstances involve the dismissal of the plaintiff's complaint, there are no similar notice requirements. The rules of civil procedure do not require the defendant to file a motion for default or the court to notify the plaintiff that an application for default is pending. Granted, the plaintiff is aware of the filing deadlines and is responsible for the action that she initiates. Nevertheless, dismissal is an unusually harsh sanction when neither the court nor the defendant is required to notify the plaintiff that dismissal is pending.

For the foregoing reasons, we quash the district court's decision, approve Clay, and remand the case with directions that the trial court be ordered to reconsider in light of the new factors established in this opinion.

It is so ordered.

BARKETT, C.J., and OVERTON, SHAW, GRIMES, KOGAN and HARDING, JJ., concur.


Summaries of

Kozel v. Ostendorf

Supreme Court of Florida
Jan 13, 1994
629 So. 2d 817 (Fla. 1994)

finding dismissal with prejudice would in effect punish the litigant instead of his counsel, who was neglectful

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adopting six factors that must be considered before deciding case warrants imposition of severe sanctions

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noting that the plaintiff was granted twenty days to amend the complaint

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identifying purpose as "encourag[ing] the orderly movement of litigation"

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providing factors to "assist the trial court in determining whether dismissal with prejudice is warranted"

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In Kozel v. Ostendorf, 629 So.2d 817 (Fla. 1993), the supreme court "articulated a test identifying six factors pertinent in the determination of whether a dismissal with prejudice is a warranted response to an attorney's behavior."

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In Kozel, the Florida Supreme Court explained that "the trial courts need a meaningful set of guidelines to assist them in their task of sanctioning parties and attorneys for acts of malfeasance and disobedience."

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requiring the trial court to conduct a six-factor analysis when determining whether dismissal with prejudice is an appropriate sanction for the misconduct of trial counsel

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In Kozel, the trial court had dismissed the complaint for failure to state a cause of action and granted ten days to amend.

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In Kozel, the trial court had dismissed the complaint for failure to state a cause of action and granted ten days to amend.

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enumerating factors to be assessed when considering dismissal with prejudice as a sanction; ultimately quashing such an order in that particular case

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In Kozel, the Florida Supreme Court expressed concern that dismissing a complaint without leave to amend as a result of an attorney's failure to comply with court deadlines may needlessly punish a litigant, rather than counsel.

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In Kozel, 629 So. 2d 817 (Fla. 1993), the Florida Supreme Court set forth a "meaningful set of guidelines to assist [trial courts] in their task of sanctioning parties and attorneys for acts of malfeasance and disobedience."

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delineating the factors a trial court must consider in determining whether dismissing a case with prejudice is appropriate

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In Kozel, the Florida Supreme Court explained that dismissal with prejudice for the failure of the party's attorney to comply with court orders or deadlines may punish the litigant, rather than the counsel who had been derelict.

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In Kozel v. Ostendorf, 629 So.2d 817 (Fla. 1993), the supreme court said that a dismissal "based solely on the attorney's neglect" in a manner that unduly punishes the litigant "espouses a policy that this Court does not wish to promote."

Summary of this case from Erdman v. Bloch

In Kozel, the court observed that where the attorney alone is responsible for the non-compliance with a court order, "a fine, public reprimand, or contempt order may often be the appropriate sanction."

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noting that "the trial court has the discretionary power to dismiss a complaint if the plaintiff fails to timely file an amendment"

Summary of this case from Hastings v. Hastings

In Kozel v. Ostendorf, 629 So.2d 817, 818 (Fla. 1993), the supreme court addressed the dismissal of a complaint for failure to timely amend, and found that "the trial courts need a meaningful set of guidelines to assist them in their task of sanctioning parties and attorneys for acts of malfeasance and disobedience."

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In Kozel v. Ostendorf, 629 So.2d 817, 818 (Fla. 1994), the Florida Supreme Court listed six criteria in deciding whether and to what extent to sanction the parties for discovery violations.

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In Kozel v. Ostendorf, 629 So.2d 817, 818 (Fla. 1993), the plaintiff suffered dismissal of her action as a result of the amended complaint being filed five months after the agreed deadline.

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In Kozel, counsel for the plaintiff failed to file an amended complaint within the time frame ordered by the trial court; consequently, the trial judge dismissed the plaintiff's case with prejudice.

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In Kozel, dismissal was imposed for counsel's failure to file an amended complaint until more than five months after the due date.

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In Kozel, our supreme court addressed a situation where the attorney for the plaintiff failed to file an amended complaint within the time parameters ordered by the trial court.

Summary of this case from Rose v. Fiedler

In Kozel v. Ostendorf, 629 So.2d 817 (Fla. 1993), the supreme court adopted a set of factors trial courts should consider in determining whether dismissal with prejudice is warranted where an attorney fails to adhere to a filing deadline.

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Case details for

Kozel v. Ostendorf

Case Details

Full title:CAROLANN D. KOZEL, PETITIONER, v. D. STEVEN OSTENDORF, D.P.M., RESPONDENT

Court:Supreme Court of Florida

Date published: Jan 13, 1994

Citations

629 So. 2d 817 (Fla. 1994)

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