ARTHUR COOK AND SOUTHERN CROSS YACHTS INTERNATIONAL, INC., A FLORIDA CORPORATION, APPELLANTS,
v.
CUSTOM MARINE DISTRIBUTING, INC. AND MARINE YACHT SPECIALTIES, INC., APPELLEES
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Southern Cross Yachts International and Arthur Cook appealed a final judgment entered against them after their answer was stricken as a sanction for discovery misconduct. The Fourth District Court of Appeal reversed, holding that the trial court failed to make the required findings under the legal standard for striking pleadings and remanded for proper consideration of applicable factors.
The court reversed because the trial court's order contained no indication that it considered the required factors for striking pleadings. The court held that absent proper findings supporting the striking of pleadings under the established Kozel factors, the judgment must be reversed and remanded for the trial court to either enter an order based on those factors or vacate the judgment.
[1] Striking a party's pleadings as a sanction for discovery misconduct is the most severe penalty and should only be employed in extreme circumstances.
[2] Striking a party's pleadings is justified only where there is a deliberate and contumacious disregard of the court's authority.
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Join FLexlaw to unlock all legal intelligence“The striking of pleadings, though, is 'the most severe of penalties and must be employed only in extreme circumstances.'”
Establishes the stringent legal standard that must be met before striking pleadings as a sanction
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Join FLexlaw to unlock all legal intelligenceAppellants Southern Cross Yachts International and Arthur Cook engaged in discovery misconduct in a lawsuit against Custom Marine Distributing Inc. an…
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Southern Cross Yachts International Tnc., and Arthur Cook, appeal from a final judgment in favor of Custom Marine Distributing Inc., and Marine Yacht Specialties, Inc. The final judgment was rendered against the appellants as a result of their answer being stricken as a sanction for discovery misconduct. We reverse.
Pursuant to Florida Rule of Civil Procedure 1.380, the striking of a party’s pleadings as a sanction for discovery misconduct is authorized. “The striking of pleadings, though, is ‘the most severe of penalties and must be employed only in extreme circumstances.’ ” Fisher v. Prof'l Adver. Dirs. Co., Inc., 955 So.2d 78, 79 (Fla. 4th DCA 2007) (quoting Poling v. Palm Coast Abstract & Title, Inc., 882 So.2d 483, 486 (Fla. 5th DCA 2004) (citing Mercer v. Raine, 443 So.2d 944 (Fla.1983))). This court further found in Fisher:
The striking of a party’s pleadings is justified only where there is “ ‘a deliberate and contumacious disregard of the court’s authority.’ ” Barnett v. Barnett, 718 So.2d 302, 304 (Fla. 2d DCA 1998) (quoting Mercer, 443 So.2d at 946). In assessing whether the striking of a party’s pleadings is warranted, courts are to look to the following factors: *4631) 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 the noncompliance; and 6) whether the delay created significant problems of judicial administration.
Kozel v. Ostendorf, 629 So.2d 817, 818 (Fla.1993). The emphasis should be on the prejudice suffered by the opposing party. See Ham v. Dunmire, 891 So.2d 492, 502 (Fla.2004); [citation omitted]. After considering these factors, if a sanction less severe than the striking of a party’s pleadings is “a viable alternative,” then the trial coiut should utilize such alternatives. Kozel, 629 So.2d at 818. “The purpose of the Florida Rules of Civil Procedure is to encourage the orderly movement of litigation” and “[t]his purpose usually can be accomplished by the imposition of a sanction that is less harsh than dismissal” or the striking of a party’s pleadings. Id.
Fisher, 955 So.2d at 79-80.
There is nothing in the trial court’s order to indicate these factors were considered. Therefore, the failure to make the required findings in the order requires reversal. See Bank One, N.A. v. Harrod, 873 So.2d 519, 521 (Fla. 4th DCA 2004) (citing Fla. Nat’l Org. for Women v. State, 832 So.2d 911, 914 (Fla. 1st DCA 2002)); see also Carr v. Reese, 788 So.2d 1067, 1072 (Fla. 2d DCA 2001) (holding that trial court’s failure to consider all of the factors as shown by final order requires reversal). We reverse and remand and direct the trial court to enter an order based on the factors outlined in Kozel, to support the striking of the appellants’ pleadings, or, absent that, the trial court should vacate the final judgment. We do not preclude the trial court from imposing a lesser sanction than striking of the pleadings should it determine a lesser sanction to be more appropriate.
Reversed and Remanded with Directions.
MAY and DAMOORGIAN, JJ., concur.
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Siobhan G. Tobin v. Tobin, 117 So. 3d 893 (Fla. 4th DCA 2013)…striking of pleadings is the severest of penalties and should only be exercised under “extreme circumstances.” America’s Yate de Costa Rica v. Armco Mfg., Inc., 82 So. 3d 882, 885-86 (Fla. 4th DCA 2011) (quoting Cook v. Custom Marine Distrib., Inc., 29 So. 3d 462, 462 (Fla. 4th DCA 2010)). If the trial court can impose a less severe sanction as a viable alternative, then it should use the alternative. Id. In any case, the trial court should have granted the request by the wife’s counsel to hold an evidentia…
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Heritage Circle Condo. Ass'n, Inc. v. State, 121 So. 3d 1141 (Fla. 4th DCA 2013)…o show an express consideration of the Kozel factors. See Alsina v. Gonzalez, 88 So. 3d 962, 964-65 (Fla. 4th DCA 2012); Bennett ex rel. Bennett v. Tenet St. Mary’s, Inc., 67 So. 3d 422, 427 (Fla. 4th DCA 2011); Cook v. Custom Marine Distrib., Inc., 29 So. 3d 462, 463 (Fla. 4th DCA 2010); Wilson v. Form Works, Inc., 894 So. 2d 1078, 1078-79 (Fla. 4th DCA 2005); Bank One, N.A. v. Harrod, 873 So. 2d 519, 520-21 (Fla. 4th DCA 2004). Other courts have agreed that the trial court must make express factual finding…
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America's Yate de Costa Rica v. Armco Mfg., Inc., 82 So. 3d 882 (Fla. 4th DCA 2011)…endant’s motion for relief from the earlier order striking [*886] the defendant’s pleadings. “The striking of pleadings ... is ‘the most severe of penalties and must be employed only in extreme circumstances.’ ” Cook v. Custom Marine Distrib., Inc., 29 So. 3d 462, 462 (Fla. 4th DCA 2010) (citations omitted). “[I]f a sanction less severe than the striking of a party’s pleadings is ‘a viable alternative,’ then the trial court should utilize such [an alternative].” Id. at 463 (citations omitted). Here, by the t…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Mercer v. J.D. Raine, Sr., 443 So. 2d 944 (Fla. 1983)
- Carolann D. Kozel v. Ostendorf, 629 So. 2d 817 (Fla. 1993)
- HAM v. Dunmire, 891 So. 2d 492 (Fla. 2004)
- Fla. Nat'l Org. FOR Women, Inc. v. State, 832 So. 2d 911 (Fla. 1st DCA 2002)
- Barnett v. Barnett, 718 So. 2d 302 (Fla. 2d DCA 1998)
- Bank ONE, N.A. v. Harrod, 873 So. 2d 519 (Fla. 4th DCA 2004)
- Carr v. Reese, 788 So. 2d 1067 (Fla. 2d DCA 2001)
- Poling v. Palm Coast Abstract & Title, Inc., 882 So. 2d 483 (Fla. 5th DCA 2004)
- Fisher v. Prof'l Advertising Directors Co., Inc., 955 So. 2d 78 (Fla. 4th DCA 2007)