AMOS GAINES AND LOUIE GAINES, APPELLANTS,
v.
WILLIAM J. PLACILLA, M.D., APPELLEE
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The Florida First District Court of Appeal reversed a trial court's dismissal with prejudice of a medical malpractice action for failure to serve the defendant within 120 days, holding that Rule 1.070(i) requires dismissal without prejudice absent good cause, and remanding for reconsideration under the Kozel factors to avoid manifest injustice.
The trial court erred in dismissing with prejudice. Rule 1.070(i) requires dismissal without prejudice when service is not made within 120 days and no good cause is shown. On remand, the trial court must reconsider the motion to dismiss under the six-factor test from Kozel v. Ostendorf to determine if manifest injustice would otherwise result.
[1] A dismissal for failure to serve process within 120 days must be without prejudice unless good cause for the delay is shown.
[2] A trial court must consider the six Kozel factors when determining whether to dismiss an action with prejudice for failure to timely serve process.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“If service of the initial process and initial pleading is not made upon a defendant within 120 days after filing of the initial pleading and the party on whose behalf service is required does not show good cause why service is not made within that time, the action shall be dismissed without prejudice or that defendant dropped as a party on the court's own initiative after notice or on motion.”
The text of Rule 1.070(i) establishing the requirement that dismissal be without prejudice absent good cause for delay
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Join FLexlaw to unlock all legal intelligenceAmos and Louie Gaines filed a medical malpractice action against Dr. William J. Placilla. The trial court dismissed the action with prejudice under Fl…
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JORGENSON, Associate Judge.
The appellants, Amos and Louie Gaines, initiated a medical malpractice action against Dr. William J. Placilla, the appellee. The case was dismissed with prejudice by the trial court under Florida Rule of Civil Procedure 1.070(i) (formerly rule 1.070(j)), the 120-day service rule. Before us is the order of the trial court dismissing with prejudice.
Rule 1.070(i) provides:
If service of the initial process and initial pleading is not made upon a defendant within 120 days after filing of the initial pleading and the party on whose behalf service is required does not show good cause why service is not made within that time, the action shall be dismissed without prejudice or that defendant dropped as a party on the court’s own initiative after notice or on motion.
The rule requires that an action be dismissed without prejudice where service is not made upon a defendant within 120 days after filing the initial pleading where there is no showing of good cause for the delay. The trial court dismissed this action below with prejudice. We reverse based on the plain language of the rule.
On remand we direct the trial court to reconsider the motion to dismiss in light of the six-factor test laid down in Kozel v. Os-tendorf, 629 So. 2d 817 (Fla.1993). The six factors are:
1) whether the attorney’s disobedience was willful, deliberate, or contumacious, rather than an act of neglect of 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.
Our conclusion that the Kozel factors should be applied rests upon our firm conviction that to do otherwise in this case would result in a manifest injustice. See Hernandez v. Page, 580 So. 2d 793, 795 (Fla. 3d DCA 1991) (Schwartz, C.J., specially concurring).
BARFIELD and BENTON, JJ., concur.
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BAC Home Loans Servicing L.P. v. Parrish, 146 So. 3d 526 (Fla. 1st DCA 2014)…o. 3d 1290 (Fla. 1st DCA 2014) (citing Ham v. Dunmire, 891 So. 2d 492, 500 (Fla.2004); Fla. Nat’l Org. for Women, Inc. v. State, 832 So. 2d 911, 914 (Fla. 1st DCA 2002); Crews v. Shadbume, 637 So. 2d 979, 981 (Fla. 1st DCA 1994); Gaines v. Placilla, 634 So. 2d 711 (Fla. 1st DCA 1994)). Just as in Ellison, before dismissing Appellant’s case, the trial court should have conducted an evidentiary hearing to determine whether counsel’s failure to appear was a willful violation of the court’s order. III. Accordin…
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BAC Home Loans Servicing, L.P. v. Ellison, 141 So. 3d 1290 (Fla. 1st DCA 2014)…79, 981 (Fla. 1st DCA 1994) (“ ‘[T]o 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.’ ” (quoting Kozel, 629 So. 2d at 818)); and Gaines v. Placilla, 634 So. 2d 711 (Fla. 1st DCA 1994) (remanding for the trial court to reconsider the motion to dismiss in light of the Kozel factors). In the instant case, an evidentiary hearing should have been held to determine whether appellant’s failure to appear was a willfu…
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Warren v. Shands Teaching Hosp. & Clinics, Inc., 700 So. 2d 702 (Fla. 1st DCA 1997)…v. Shadburne, 637 So. 2d 979 (Fla. 1st DCA 1994), this court discussed the rationale outlined in Kozel v. Ostendorf, 629 So. 2d 817 (Fla.1994), with regard to the question of good cause for failure to timely serve a complaint. In Gaines v. Placilla, 634 So. 2d 711 (Fla. 1st DCA 1994), [*705] after reversing a dismissal with prejudice for failure to comply with the 120-day rule, because the plain language of the rule called for dismissal without prejudice, this court directed the trial court on remand to consi…
Authorities Cited
- Carolann D. Kozel v. Ostendorf, 629 So. 2d 817 (Fla. 1993)
- Hernandez v. Page, 580 So. 2d 793 (Fla. 3d DCA 1991)