CHRISTOPHER C. COLE, APPELLANT,
v.
BAYLEY PRODUCTS, INC., A MICHIGAN CORPORATION, QUALIFIED TO DO BUSINESS IN THE STATE OF FLORIDA, D/B/A SAILFISH MARINA, APPELLEE
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Cole sued Bayley Products for damages, and the trial court struck defendant's affirmative defenses and counterclaim, entering default judgment on liability due to repeated discovery violations. The appellate court reversed, holding that default judgment was too harsh a sanction when the violations were attributable to defendant's attorney rather than the defendant himself, and remanded for reconsideration under the Kozel factors.
Default judgment on liability is too harsh a sanction when discovery violations are attributable to defendant's attorney rather than the defendant. The trial court must reconsider the sanction under the six Kozel factors and impose a less severe alternative if viable.
[1] A default judgment on liability is too harsh a sanction for discovery violations when the derelictions are attributable to the defendant's lawyer, not the defendant.
[2] When determining whether to dismiss a case with prejudice due to an attorney's noncompliance, courts should consider factors including willfulness, prior sanctions, clien…
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Join FLexlaw to unlock all legal intelligence“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”
Establishes the principle that sanctions should target attorneys, not clients, when the attorney is responsible for procedural violations
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Join FLexlaw to unlock all legal intelligenceDefendant Bayley Products, through its attorney, committed repeated discovery violations in a lawsuit brought by plaintiff Cole. The trial court respo…
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KLEIN, Judge.
The trial court, because of repeated discovery violations, struck defendant’s affirmative defenses, as well as his counterclaim, and entered a default judgment on liability in favor of plaintiff. We reverse the default judgment on liability, because we conclude that this remedy is too harsh in light of the derelictions, which were all attributable to defendant’s lawyer. We have no jurisdiction on this non-final appeal to review the order striking defendant’s compulsory counterclaim. S.L.T. Warehouse v. Webb, 304 So. 2d 97 (Fla.1974); Cohen, Scherer & Cohen, P.A. v. Pac. Employers Ins. Co., 654 So. 2d 282 (Fla. 4th DCA 1995).
In Kozel v. Ostendorf, 629 So. 2d 817 (Fla. 1993), plaintiffs medical malpractice action had been dismissed with prejudice by the trial court after plaintiff had failed to file an amended complaint for over five months beyond the due date for the amended complaint. The second district affirmed, Kozel v. Ostendorf, 603 So. 2d 602 (Fla. 2d DCA 1992), with Judge Altenbernd dissenting, and the supreme court reversed, stating:
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. (Footnote omitted).
Kozel, 629 So. 2d at 818.
Our review of the record leads us to conclude that every one of the several incidents which led up to the sanction order was the fault of defendant’s former lawyer, rather than defendant himself and, under Kozel, the default judgment was too severe. We therefore reverse the default judgment on liability and remand for further proceedings consistent with Kozel.
DELL and SHAHOOD, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Schlitt v. Currier, 763 So. 2d 491 (Fla. 4th DCA 2000)…xcusable. Nevertheless, we reverse, as this court has interpreted Kozel as mandating reversal of such extreme sanctions, as an abuse of discretion, where the actions were the fault of the attorney and not the party. See Cole v. Bayley Prods., Inc., 661 So. 2d 1299 (Fla. 4th DCA 1995); accord Elder v. Norton, 711 So. 2d 586 (Fla. 2d DCA 1998); Walicki v. Waste Management, Inc., 703 So. 2d 1095 (Fla. 2d DCA 1997). Here, Schlitt presented an affidavit swearing to complete ignorance of his attorney’s actions. The…
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Rose v. Michael W. Fiedler, M.D., 855 So. 2d 122 (Fla. 4th DCA 2003)…xcusable. Nevertheless, we reverse, as this court has interpreted Kozel as mandating reversal of such extreme sanctions, as an abuse of discretion, where the actions were the fault of the attorney and not the party. See Cole v. Bayley Prods., Inc., 661 So. 2d 1299 (Fla. 4th DCA 1995); accord Elder v. Norton, 711 So. 2d 586 (Fla. 2d DCA 1998); Walicki v. Waste Management, Inc., 703 So. 2d 1095 (Fla. 2d DCA 1997). Here, Schlitt presented an affidavit swearing to complete ignorance of his attorney’s actions. Id…
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Jimenez v. Simon, 879 So. 2d 13 (Fla. 2d DCA 2004)…be read as a requirement that the client must personally be involved in the failure to comply in order for the sanction of dismissal to be imposed. See also Schlitt v. Currier, 763 So. 2d 491, 492-93 (Fla. 4th DCA 2000); Cole v. Bayley Prods., Inc., 661 So. 2d 1299, 1300 (Fla. 4th DCA 1995). Under Elder, the absence of a showing in the record that the client had some direct personal responsibility for the discovery violations requires that the dismissal of the client’s claims be reversed. See also Rose v. Fie…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- S. L. T. Warehouse Co. v. Wilmott Webb, 304 So. 2d 97 (Fla. 1974)
- Carolann D. Kozel v. Ostendorf, 629 So. 2d 817 (Fla. 1993)
- Carolann D. Kozel v. Ostendorf, 603 So. 2d 602 (Fla. 2d DCA 1992)
- Cohen, Scherer & Cohen, P.A. v. Pac. Emp'rs Ins. Co., 654 So. 2d 282 (Fla. 4th DCA 1995)