Shifting Requirements for Preservation of Error: Retreat from Reviewability Under Kozel v. Ostendorf.

• Author: Weinstein, Morgan L.
• Position: Florida

In 1993, the Florida Supreme Court announced its opinion in Kozel v. Ostendorf, 629 So. 2d 817 (Fla. 1993), setting out the parameters for dismissing a case with prejudice, or entering a similar sanction, for noncompliance with a court order. In Kozel, the court noted that "dismissal is the ultimate sanction in the adversarial system" and reasoned that dismissal "should be reserved for those aggravating circumstances in which a lesser sanction would fail to achieve a just result." (1) The court then laid out six factors to be considered by the trial judge in such cases and instructed that a less severe sanction should be employed if such a lesser sanction would be a viable alternative. (2)

Since the court's opinion, the scope of orders subject to a Kozel analysis has been discussed and clarified. However, the district courts of appeal appeared to maintain uniformity regarding the preservation of error in cases demonstrating a failure to make Kozel findings. In such instances, because the error appeared on the face of the order, it was reviewable even in the absence of a transcript or a motion for rehearing or clarification.

Now, the district courts of appeal may be reshaping the Kozel analysis, at least insofar as preservation of error is concerned. Specifically, there has been a trend toward requiring appellants in Kozel appeals to provide either a transcript demonstrating that appellants raised Kozel issues at the relevant hearings, a motion for rehearing or clarification directed to orders that fail to contain Kozel findings, or both. This trend may undermine the purpose of Kozel and presents an ambiguity as to the reviewability of certain deficient final orders.

The History of Kozel v. Ostendorf

Prior to the case reaching the Florida Supreme Court, the Second District Court of Appeal issued its opinion in Kozel v. Ostendorf, 603 So. 2d 602 (Fla. 2d DCA 1992). The appellant had appealed the dismissal of her claim for medical malpractice. (3) The complaint had been dismissed for failure to state a cause of action by an order that provided appellant with 21 days to file an amended complaint. (4) Following an extension of time, appellant failed to file an amended complaint. (5) Due to appellant's failure to amend the complaint, the trial court dismissed the case, with prejudice. (6) The court stated it believed that "it is within the discretion of a trial court to dismiss a complaint when the plaintiff fails to timely file an amendment after being directed to do so." (7)

The Second District Court of Appeal affirmed the trial court's dismissal. However, Judge Altenbernd issued a dissent that would form much of the basis for the Florida Supreme Court's opinion. (8) Ultimately, the dissent was concerned with two major problems. First, the dissent addressed whether the sanction was proportional to the offense. Second, the dissent discussed the inimical result of unduly punishing a litigant for a violation committed by counsel.

As to this second problem, the dissent noted that it was appellant's counsel, not the appellant herself, who had failed to timely file the

amended complaint. (9) Citing Clay v. City of Margate, 546 So. 2d 434 (Fla. 4th DCA 1989), the dissent reasoned that it would be inappropriate to disproportionately punish a litigant for a failure on the part of her counsel. (10) With regard to the ability of a trial court to dismiss a case with prejudice for failure to timely file an amended complaint, the dissent analyzed the development of the issue in Florida, concluding that "older cases" imbue the trial court with discretion to dismiss such a case. (11) However, the dissent then discussed cases in which appellate courts reversed the imposition of the severe sanction of dismissal with prejudice due to a lack of proportionality with the offense that led to the dismissal. (12)

Based on this analysis, the dissent concluded that a trial court should consider at least five factors before dismissing a case due to an attorney's misconduct: 1) whether the attorney's disobedience was willful, deliberate, or contumacious; 2) whether the attorney has failed to learn from prior sanctions; 3) whether the client was personally involved in the act of disobedience; 4) whether there was delay that prejudiced defendant; and 5)...