AILEEN D. SHORTALL, APPELLANT,
v.
WALT DISNEY WORLD HOSPITALITY, ETC., APPELLEE
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Aileen Shortall appeals the dismissal of her case against Walt Disney World Hospitality for failure to comply with discovery requests and a pretrial order. The appellate court reversed, holding that the trial court failed to apply the required Kozel factors before imposing the severe sanction of dismissal with prejudice.
The trial court erred by dismissing the complaint with prejudice without considering the Kozel factors. Before dismissing a complaint based on failure to follow a court order, the trial court must analyze six specific factors to determine whether dismissal is warranted or whether a less severe sanction would be appropriate.
[1] A trial court must consider the factors set forth in Kozel v. …
[2] The Kozel factors include whether the attorney's disobedience was willful, deliberate, or contumacious, whether the attorney has been previously sanctioned, whether the c…
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Join FLexlaw to unlock all legal intelligence“Before dismissing a complaint based on the failure to follow a court order, the trial court must consider the factors set forth in Kozel.”
Establishes the mandatory requirement that trial courts apply the Kozel test before imposing dismissal sanctions
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Join FLexlaw to unlock all legal intelligenceShortall failed to respond to four discovery requests and failed to comply with several aspects of the trial court's pretrial order. The trial court d…
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PER CURIAM.
Aileen Shortall appeals an order dismissing her case with prejudice based on the trial court’s finding that she failed to respond to four discovery requests and failed to comply with several aspects of its pretrial order. Ms. Shortall argues that the trial court erred by imposing this sanction without considering the factors set forth in Kozel v. Ostendorf, 629 So. 2d 817 (Fla.1994). We agree, and reverse.
The law is well-settled that “[before dismissing a complaint based on the failure to follow a court order, the trial court must consider the factors set forth in Kozel.” Scallan v. Marriott Int’l, Inc., 995 So. 2d 1066 (Fla. 5th DCA 2008) (citing Pixton v. Williams Scotsman, Inc., 924 So. 2d 37, 39 (Fla. 5th DCA 2006)). In Kozel, our supreme court stated:
To assist the trial court in determining whether dismissal with prejudice is warranted, we have adopted the following set of 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 noneompliance; 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.
629 So. 2d at 818. This Court has recognized that “[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.” Pixton, 924 So. 2d at 39^10 (emphasis added). Disney’s counsel correctly and admirably concedes that the trial court did not consider the Kozel factors before striking Ms. Shortall’s pleadings and dismissing her case with prejudice. Accordingly, a reversal is required. Id. Additionally, the record below does not evidence any involvement by the client in counsel’s failure to respond to discovery and does not evidence prejudice to Disney. Had the trial court simply imposed a lesser sanction and proceeded to trial, there would have been no delay in this matter. Under these circumstances, it appears that counsel’s failures did not “rise to the level of egregiousness required to merit the extreme sanction of dismissal” under Kozel. See Scallan, 995 So. 2d at 1068.
Accordingly, we reverse the order on appeal, and remand for further proceedings, including a new hearing on Disney’s motion for sanctions.
REVERSED AND REMANDED.
TORPY, LAWSON and EVANDER, JJ., concur.
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Nationstar Mortg., LLC v. Hogan, 186 So. 3d 1134 (Fla. 5th DCA 2016)…failure to file it within the time allotted in a prior order. Hogan properly concedes error. Accordingly, we reverse the order dismissing the amended complaint and remand for consideration under Kozel. See Shortall v. Walt Disney World Hospitality, 997 So. 2d 1203, 1204 (Fla. 5th DCA 2008) (“The law is well-settled that ‘[b]e-fore dismissing a complaint based on the failure to follow a eourt order, the trial court must consider the factors set forth in Kozel.’ ” (quoting Scallan v. Marriott Int’l, Inc., 995 S…
Authorities Cited
- Carolann D. Kozel v. Ostendorf, 629 So. 2d 817 (Fla. 1993)
- Lashawn D. Brown v. State, 924 So. 2d 37 (Fla. 1st DCA 2006)
- Scallan v. Marriott Int'l, Inc., 995 So. 2d 1066 (Fla. 5th DCA 2008)