GOZZO DEVELOPMENT, INC., APPELLANT,
v.
PROFESSIONAL ROOFING CONTRACTORS, INC., ANNE M. ESKER, CLAY LAKE RENTAL LIMITED PARTNERSHIP, A NEVADA LIMITED PARTNERSHIP, BRENT G. WOLMER, P.A., ROBERT M. WEINBERGER, P.A., KENNETH J. SCHERER, P.A., DAVID B. NORRIS, P.A., LAW OFFICES OF FRED C. COHEN, P.A., D/B/A COHEN, NORRIS, SCHERER, WEINBERGER & WOLMER, TURQUIOSE CONSULTING, INC., COASTAL WINDOWS AND DOORS, INC., STONE IMAGE, INC., AND BULLDOG FENCE, INC., APPELLEES

Fla. 4th DCA | 2017-02-08
No. 4D15-1896
Ciklin, C.J., and Taylor, J., concur., Lee, Robert W., Associate Judge, concurs specially with opinion.
211 So. 3d 145 Florida District Court of Appeal, Fourth District (2017) Positive Treatment
Cited by 5 cases
Topics
Willful Noncompliance Striking Pleadings Preservation Of Error Preservation Of Error For Appeal

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Opinion of the Court
Per Curiam.

Per Curiam.

Affirmed.

Ciklin, C.J., and Taylor, J., concur.

Lee, Robert W., Associate Judge, concurs specially with opinion.

Lee, Robert W., Associate Judge,

concurring.

In this case, the appellant, Gozzo Development, Inc., failed to attend court-ordered mediation and filed in the court record a false certificate concerning the mediation. In the evidentiary sanctions hearing that followed, appellant gave false testimony to the court concerning appel*146lant’s failure to comply -with the mediation order. The court found that the misrepresentations, as well as the failure to comply with the trial court’s mediation order, were willful. As a result, the court struck the appellant’s pleadings as a sanction, resulting in a dismissal of the case. At no point did appellant request that the trial court make any findings pursuant to Kozel v. Ostendorf, 629 So.2d 817, 818 (Fla. 1993), assuming such findings might have been required. While reasonable minds might differ as to whether dismissal was the appropriate sanction, I conclude that the trial court’s order to dismiss was well within its discretion. Moreover, appellant cannot now be heard to complain about the trial court’s not making findings pursuant to Kozel when appellant failed to request the trial court to do so. As a result, I concur in the panel’s decision to affirm. See Bank of America, N.A. v. Ribaudo, 199 So.3d 407, 408-09 (Fla. 4th DCA 2016) (when complaining party failed to move trial court to correct perceived error in not making Kozel findings, party failed to preserve the issue for appellate review); see also Levine v. Del Am. Props., Inc., 642 So.2d 32, 34 (Fla. 5th DCA 1994) (“Since the litigant committed the disruptive behavior in this case and not the lawyer, Kozel does not apply.”).

Concurrence
Lee, Robert W., Associate Judge,

Lee, Robert W., Associate Judge,

concurring.

In this case, the appellant, Gozzo Development, Inc., failed to attend court-ordered mediation and filed in the court record a false certificate concerning the mediation. In the evidentiary sanctions hearing that followed, appellant gave false testimony to the court concerning appel lant’s failure to comply -with the mediation order. The court found that the misrepresentations, as well as the failure to comply with the trial court’s mediation order, were willful. As a result, the court struck the appellant’s pleadings as a sanction, resulting in a dismissal of the case. At no point did appellant request that the trial court make any findings pursuant to Kozel v. Ostendorf, 629 So. 2d 817, 818 (Fla. 1993), assuming such findings might have been required. While reasonable minds might differ as to whether dismissal was the appropriate sanction, I conclude that the trial court’s order to dismiss was well within its discretion.

Moreover, appellant cannot now be heard to complain about the trial court’s not making findings pursuant to Kozel when appellant failed to request the trial court to do so. As a result, I concur in the panel’s decision to affirm. See Bank of America, N.A. v. Ribaudo, 199 So. 3d 407, 408-09 (Fla. 4th DCA 2016) (when complaining party failed to move trial court to correct perceived error in not making Kozel findings, party failed to preserve the issue for appellate review); see also Levine v. Del Am. Props., Inc., 642 So. 2d 32, 34 (Fla. 5th DCA 1994) (“Since the litigant committed the disruptive behavior in this case and not the lawyer, Kozel does not apply.”).

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  • Shelswell v. Bourdeau, 239 So. 3d 707 (Fla. 4th DCA 2018)
    …ctors because the appellant bank “did not raise [the issue] at the hearing on the motion to dismiss or by subsequently filing a motion for rehearing or reconsideration.” Id. at 409; see also Gozzo Dev., Inc. v. Prof’l Roofing Contractors, Inc., 211 So. 3d 145, 146 (Fla. 4th DCA 2017) (Lee, J., concurring) (“[A]ppellant cannot now be heard to complain about the trial court’s not making findings pursuant to Kozel when appellant failed to request the trial court to do so.”); Bank of N.Y. Mellon v. Sandhi…
  • Gozzo Dev., Inc. v. Anne M. Esker, 231 So. 3d 4 (Fla. 4th DCA 2017)
    …epositions taken in advance; of the contempt hearing. The defendants-appealed the portion of the order striking the pleading. This court affirmed the imposition of the sanction. See Gozzo Development, Inc. v. Professional Roofing Contractors, Inc., 211 So. 3d 145 (Fla. 4th DCA 2017). A successor judge presided over the hearing on the plaintiffs attorney’s fees and costs. That judge entered judgment for $122,518.78 in attorney’s fees and $32,735.91 in costs, plus pre-judgment interest. A, trial court .whose…

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