Kozel v. Ostendorf
| Decision Date | 28 October 1993 |
| Docket Number | No. 80380,80380 |
| Citation | 629 So.2d 817 |
| Parties | 18 Fla. L. Weekly S557, 19 Fla. L. Weekly S31 Carolann D. KOZEL, Petitioner, v. D. Steven OSTENDORF, D.P.M., Respondent. |
| Court | Florida Supreme Court |
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. 1 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.
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. 2 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...
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...courts customarily grant anywhere from ten to thirty days to amend a complaint that does not state a cause of action. See Kozel v. Ostendorf, 629 So.2d 817 (Fla.1993) (noting that the plaintiff was granted twenty days to amend the complaint); Rogers v. First Nat'l Bank at Winter Park, 232 S......
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...lengthy order with detailed findings of fact and conclusions of law, including a review of the six factors outlined in Kozel v. Ostendorf, 629 So.2d 817, 818 (Fla.1993). In its order, the trial court concluded that the Defendants' conduct warranted the most severe sanction available and tha......
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...determination of every action"), as they have been contemplated by this Court and other Florida appellate courts. See Kozel v. Ostendorf, 629 So.2d 817, 818 (Fla.1993) (identifying purpose as "encourag[ing] the orderly movement of litigation"); Mercer v. Raine, 443 So.2d 944, 946 (Fla.1983)......
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...as a sanction, the trial court must conduct an evidentiary hearing and make specific findings as to the six Kozel [v. Ostendorf, 629 So. 2d 817 (Fla. 1993)] factors in to determine if dismissal with prejudice is Roy Davis v. Integon Nat'l Ins. Co., No. 21-CV-62170 (U.S.D.C. for S.D. Fla., J......
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Case Law: Select Decisions Through January 18, 2022
...as a sanction, the trial court must conduct an evidentiary hearing and make specific findings as to the six Kozel [v. Ostendorf, 629 So. 2d 817 (Fla. 1993)] factors in to determine if dismissal with prejudice is Roy Davis v. Integon Nat'l Ins. Co., No. 21-CV-62170 (U.S.D.C. for S.D. Fla., J......
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...v. City of Tarpon Springs, 802 So. 2d 473 (Fla. 2d DCA 2001) (reversed and remanded for evidentiary hearing).[132] Kozel v. Ostendorf, 629 So. 2d 817 (Fla. 1994).[133] The Second District Court of Appeal has held that the Kozel factors need only be considered on a dismissal with prejudice o......
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...and addresses that other reasons may be negligence and inadvertence. However, there are even more explanations. In Kozel v. Ostendorf, 629 So. 2d 817, 818 (Fla. 1993), the Florida Supreme Court set out the appropriate inquiry to be made before a trial court determines that an attorney’s dis......
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...v. City of Tarpon Springs, 802 So. 2d 473 (Fla. 2d DCA 2001) (reversed and remanded for evidentiary hearing).[172] Kozel v. Ostendorf, 629 So. 2d 817 (Fla. 1994).[173] However, the Second District Court of Appeal has held that the Kozel factors need only be considered on a dismissal with pr......