PHYLLIS WALICKI, INDIVIDUALLY, AND AS THE PERSONAL REPRESENTATIVE OF THE ESTATE OF LEO WALICKI, APPELLANT,
v.
WASTE MANAGEMENT, INC.; JOSEPH CHAPPELL; HILLSBOROUGH COUNTY SHERIFF'S DEPARTMENT; AND ALLSTATE INSURANCE COMPANY, APPELLEES

Fla. 2d DCA | 1997-10-24
No. 96-03509
NORTHCUTT, J., concurs., SCHOONOVER, A.C.J., concurs in part and dissents in part with opinion.
703 So. 2d 1095 Florida District Court of Appeal, Second District (1997) Positive Treatment
Cited by 23 cases

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Synopsis

Phyllis Walicki appealed the dismissal with prejudice of her wrongful death action against Waste Management and others. The trial court dismissed the complaint as a sanction for her attorney's failure to timely file letters of administration. The appellate court reversed, holding that dismissal as a sanction cannot be based solely on attorney misconduct without evidence that the client personally participated in the misconduct and without proper application of the Kozel factors.


Holding

A trial court abuses its discretion by dismissing a complaint as a sanction based solely on attorney noncompliance when there is no evidence that the client personally engaged in misconduct. If attorney conduct serves as the basis for dismissal, the trial court must make affirmative findings under the six factors set forth in Kozel v. Ostendorf and must not punish the client for the attorney's malfeasance absent client involvement.


Headnotes

[1] A trial court abuses its discretion by dismissing a complaint with prejudice as a sanction for attorney noncompliance when there is no evidence that the client personally…

[2] When a trial court dismisses a complaint with prejudice based on attorney misconduct, it must make an affirmative finding that dismissal is warranted by considering facto…

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Key Quotes

“Appellant should not be made to suffer the loss of viable claims due to her attorney's malfeasance where there is no evidence in the record to indicate that she personally engaged in misconduct.”

Establishes the core principle that clients cannot be sanctioned with dismissal for attorney misconduct without evidence of personal client involvement

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Facts & Procedural History

Walicki filed her original complaint on August 6, 1990, and filed a sixth amended complaint by September 26, 1995. The trial court ordered her attorne…

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Opinion of the Court
QUINCE, Judge.

QUINCE, Judge.

Phyllis Walicki, individually and as personal representative of the Estate of Leo Wal-icki, challenges a final order dismissing her complaint with prejudice. The original complaint in this action was filed on August 6, 1990. On September 26, 1995, the Hillsbor-ough County Sheriffs Department (the sheriff) moved to dismiss appellant’s sixth amended complaint alleging Walicki failed to annex relevant documents to the complaint, including the letters of administration.

The trial court denied the motion to dismiss pending filing of the letters of administration, and ordered that the letters be filed no later than September 23, 1995. The letters were ultimately filed on July 12, 1996, and the action was dismissed with prejudice on July 19,1996.

Although the sheriff moved to dismiss the action on several grounds, the parties agree that the action was dismissed (at least in part) as a sanction for Attorney Solomon’s failure to file letters of administration within the period specified by the court. The trial court’s order does not state the basis for dismissal. We are aware that trial court orders need not state with particularity the grounds for dismissal with prejudice; however, in cases such as this, where a complaint is challenged on several grounds, the better practice is to apprise the parties and the reviewing court the reason for dismissal. May v. Holley, 59 So. 2d 636 (Fla.1952); Ko-vach v. McLellan, 564 So. 2d 274 (Fla. 5th DCA 1990); City of Gainesville Code of Enforcement Bd. v. Lewis, 586 So. 2d 1148 (Fla. 1st DCA 1988). Moreover, if Attorney Solomon’s conduct did in fact serve as the basis for dismissal, the trial court was obliged to make an affirmative finding that dismissal was warranted based on the following inquiry set forth by the supreme court in Kozel v. Ostendorf, 629 So. 2d 817, 818 (Fla.1994):

1) whether the attorney’s disobedience was willful, deliberate or contumacious;

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.

The record evidences seven years of dilatory conduct on the part of appellant’s counsel; however, it does not show that appellant personally contributed to the delayed filing or the protracted course of this litigation. Appellant should not be made to suffer the loss of viable claims due to her attorney’s malfeasance where there is no evidence in the record to indicate that she personally engaged in misconduct. Absent such evidence, it was an abuse of discretion to dismiss the complaint as a sanction based solely on Attorney Solomon’s noncompliance. See Kozel, 629 So. 2d at 818; Earp v. Winters, 693 So. 2d 621 (Fla. 2d DCA 1997).

Accordingly, we reverse and remand the case for an evidentiary hearing to determine whether dismissal was warranted based on considerations outlined in Kozel.

NORTHCUTT, J., concurs.

SCHOONOVER, A.C.J., concurs in part and dissents in part with opinion.

Other
SCHOONOVER, Acting Chief Judge,

SCHOONOVER, Acting Chief Judge,

concurring in part and dissenting in part.

Based upon the record presented to us, I agree that the trial court abused its discretion in dismissing the appellant’s action. I disagree, however, with that portion of the majority opinion which reverses and remands with instructions to hold another hearing. In the absence of a finding that any one of the parties was prohibited from presenting any evidence they wanted to submit at the first hearing, I see no reason to provide them another opportunity. I would reverse and remand with instructions to reinstate the action and allow the matter to proceed. See Earp v. Winters, 693 So. 2d 621 (Fla. 2d DCA 1997).


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Citator

Cited By (12 total)

  • Bank ONE, N.A. v. Harrod, 873 So. 2d 519 (Fla. 4th DCA 2004)
    …gestion in the record that appellant (as opposed to its counsel) was at fault. The absence of this factor is then a second independent ground for reversal. See Rose, 855 So. 2d at 127; see also Carr, 788 So. 2d at 1071; Walicki v. Waste Mgmt., Inc., 703 So. 2d 1095, 1096 (Fla. 2d DCA 1997) (seven years of dilatory conduct on part of counsel insufficient where no showing that client personally contributed to delayed filings or protracted course of litigation). As to the fourth factor, there is no indication in…
  • Schlitt v. Currier, 763 So. 2d 491 (Fla. 4th DCA 2000)
    …se 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 issue of Schlitt’s complicity is one of fact. Accordingly, on remand, the trial court shall conduct an evidentiary hearing on the…
  • Carr v. Reese, 788 So. 2d 1067 (Fla. 2d DCA 2001)
    …inciple that “[a party] should not be made to suffer the loss of viable claims due to [its] attorney’s malfeasance where there is no evidence in the record to indicate that [the party] personally engaged in misconduct.” Walicki v. Waste Mgmt., Inc., 703 So. 2d 1095, 1096 (Fla. 2d DCA 1997). This misdirected punishment requires reversal of the default judgment. Third, there is no indication in the record that the trial court considered all of the factors that should be considered before sanctions are imposed.…

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