JANUARY MARTIN, INDIVIDUALLY AND ON BEHALF OF A CLASS OF ALL OTHERS SIMILARLY SITUATED, APPELLANT,
v.
MAROONE CHEVROLET OF DELRAY, LLC., A FLORIDA LIMITED LIABILITY CORPORATION, AND AUTONATION FINANCIAL SERVICES CORP., A FOREIGN CORPORATION, APPELLEES
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The Fourth District Court of Appeal reversed a trial court's order striking the plaintiff's pleadings as a sanction for failure to appear at a status conference, holding that the trial court failed to adequately apply the required Kozel factors before imposing this severe sanction.
The trial court's order striking the pleadings must be reversed because the written order does not make it apparent that the court considered all the factors set out in Kozel v. Ostendorf. The court must on remand make specific findings regarding the Kozel factors, explain the nature of prejudice to defendants, and either impose a lesser sanction or vacate the order.
[1] A trial court must consider specific factors, including willfulness, prior sanctions, client involvement, prejudice to the opposing party, justification for noncompliance…
[2] Before striking a party's pleadings, a court must consider whether a lesser sanction would be a viable alternative.
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Join FLexlaw to unlock all legal intelligence“Before a court may strike a party's pleadings as a sanction, the court must consider the following 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 noncomplianee; and 6) whether the delay created significant problems of judicial administration.”
Establishes the mandatory Kozel factors that must be analyzed before striking pleadings as a sanction.
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Join FLexlaw to unlock all legal intelligenceJanuary Martin and her attorney failed to appear at a status conference in a case against Maroone Chevrolet and AutoNation Financial Services Corp. Th…
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After January Martin and her attorney failed to attend a status conference, the trial court entered an order striking Martin’s pleadings. The court found, inter alia, that Martin and her attorney refused to appear, that this was part of a pattern of behavior, and that Maroone Chevrolet and AutoNation Financial Services Corp., the defendants below, were prejudiced. Because the written order does not make it apparent that the court considered all the factors set out in Kozel v. Ostendorf, *1155629 So.2d 817 (Fla.1993), we reverse. See Bennett v. Tenet St. Mary’s, Inc., 67 So.3d 422 (Fla. 4th DCA 2011); Cook v. Custom Marine Distrib., Inc. 29 So.3d 462 (Fla. 4th DCA 2010). The remaining claim raised by Martin has no merit and we do not address it.
Before a court may strike a party’s pleadings as a sanction, the court must consider the following 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 noncomplianee; and 6) whether the delay created significant problems of judicial administration.
Kozel, 629 So.2d at 818.
The court must also consider whether a lesser sanction would be a “viable alternative.” Id. Whether the litigant was involved in the misconduct is a factor to be weighed in the Kozel analysis, but does not weigh more heavily than the other factors. See Ham v. Dunmire, 891 So.2d 492, 497 (Fla.2004). “The Kozel criteria with an emphasis on whether prejudice has occurred control.” Id. at 502.
Upon remand, the court must make the required findings, and explain the nature of the prejudice to the defendants. The court may again strike the pleadings or impose a lesser sanction after considering the Kozel factors and upon appropriate findings. Otherwise, the court must vacate the final judgment and the order striking the pleadings.
Reversed and remanded for proceedings in accordance with this opinion.
POLEN, HAZOURI and LEVINE, JJ„ concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Carolann D. Kozel v. Ostendorf, 629 So. 2d 817 (Fla. 1993)
- HAM v. Dunmire, 891 So. 2d 492 (Fla. 2004)
- Bennett v. Tenet ST. Mary's, Inc., 67 So. 3d 422 (Fla. 4th DCA 2011)
- Cook v. Custom Marine Distrib., Inc., 29 So. 3d 462 (Fla. 4th DCA 2010)