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The Florida Bar Journal
November, 2017 Volume 91, No. 9
Shifting Requirements for Preservation of Error: Retreat from Reviewability Under Kozel v. Ostendorf

by Morgan L. Weinstein and Alexis Fields

Page 40


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) whether there was delay that caused significant problems for judicial administration.13 Pursuant to the dissent’s analysis, a complaint should be dismissed “only if the trial court determines that a lesser punishment would fail to achieve a just result in light of these factors.” 14

As a matter of public policy, Judge Altenbernd reasoned that two outcomes are possible upon a dismissal arising out of the neglect of plaintiff’s counsel: 1) The plaintiff never gets a day in court; or 2) the plaintiff gets a day in court, but against that plaintiff’s attorney, rather than the adverse party.15 Because a malpractice suit is complex and difficult, and the original defendant’s conduct is still at issue, it would be more equitable and proper to both the plaintiff and his or her attorney for the underlying case to proceed instead.16

The appellant challenged the district court’s majority opinion, based upon direct conflict with Clay v. City of Margate, 546 So. 2d 434 (Fla. 4th DCA 1989), which was relied upon in the dissent by Judge Altenbernd.17 The Florida Supreme Court quashed Kozel.18 The court reasoned that dismissal of a case, based solely on an attorney’s neglect, unduly punishes the litigant whose case is dismissed.19 The court found its basis in public policy; although the trial court had acted within the boundaries of the law, it espoused a policy that the court did not wish to promote.20 The court sought to avoid dismissal as a sanction, where possible.21 The court then fashioned a six-pronged test to determine whether dismissal with prejudice is warranted.22 The court held: “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.”23 The subject factors were based on the test set forth by Judge Altenbernd, and included questions as to whether it was counsel, rather than the litigant, who was at fault.24

In quashing the district court’s opinion, the court approved Clay.25 The court held that the record must demonstrate evidence reflecting willful disregard or a deliberate and contumacious disregard of a court order.26 In other words, Clay required a record displaying particular facts regarding noncompliance in order to affirm an order of dismissal, rather than a record demonstrating a lack of such particular noncompliance in order to reverse a dismissal.27 Reversal is the default position in which a lesser sanction could be fashioned. This same burden is involved in Kozel, inasmuch as the default position is that dismissal is not the appropriate remedy.28 Dismissal only becomes warranted following consideration of the relevant factors.29

Traditional Reviewability of the Kozel Analysis
With respect to the types of sanctions that trial courts may enter, district courts of appeal have treated Kozel with circumspection. Kozel applies only when a trial court dismisses a case or claim, enters a default, or strikes a pleading.30 Kozel does not apply when expenses or fees are assessed.31 The Kozel factors are also not relevant to discovery violations committed by pro se litigants.32 Further, the Kozel analysis is irrelevant in a case in which a case or claim is dismissed for repeated failure to state a cause of action, which is not considered a violation of a court order.33

Until recently, appellate courts had considered an analysis of the Kozel factors as an independent condition of the validity of an order imposing sanctions, regardless of whether there was a contemporaneous objection to the sanctions. A Kozel analysis was an express requirement,34 and trial courts were required to make specific findings as to each factor.35 This made a trial court’s failure to consider the Kozel factors, and to make preliminary findings of fact as to each factor, an independent basis for reversal.36 Thus, appellate courts “consistently required the record to show an express consideration of the Kozel factors.”37

Preservation of Error in the Absence of a Transcript or Motion for Rehearing or Clarification
Typically, an appellant’s failure to provide a transcript or statement of the evidence or proceedings results in the absence of a record sufficient for review.38 However, this is not universally true. A transcript is not required for review of an order entered on a motion for summary judgment, because a motion for summary judgment presents a pure question of law.39

Likewise, a transcript had not been required for review of an order entering an ultimate sanction. In Alsina v. Gonzalez, 83 So. 3d 962, 965 (Fla. 4th DCA 2012), appellees argued that an order striking pleadings should be affirmed because appellants had not provided a transcript of the hearing in which the Kozel factors would have been considered. The court disagreed, holding that, when the order itself is devoid of consideration of the factors, it is inappropriate for the trial court to strike a party’s pleadings as a sanction.40 The court noted that, in Ham v. Dunmire, 891 So. 2d 492 (Fla. 2004), no transcript of the proceedings was available, either, and the order even contained language finding willful conduct.41 Nevertheless, the Florida Supreme Court remanded, requiring the trial court to conduct a Kozel analysis.42 This Kozel requirement was subject to review, even in the absence of a transcript, because it presented an error on the face of the order.43

As a practical matter, it is impossible to know, without a transcript, whether an appellant made a Kozel-based objection to the imposition of a sanction. Under Alsina, however, it would appear that a contemporaneous objection is unnecessary to preserve the requirement of Kozel findings for appellate review because the face of the order entering an ultimate sanction is enough to demonstrate the requisite error.44

Treating the Kozel analysis as an independent and facial precondition to the validity of the order makes sense in the context of administering proportional sanctions. It makes even more sense in attempting to ensure that a litigant is not unduly prejudiced by the failures of his or her counsel. If counsel fails to raise an objection regarding the Kozel analysis at the hearing or fails to file a motion for rehearing or reconsideration, that, too, would be counsel’s fault, and not the fault of the litigant. It would undermine the purpose of Kozel to prohibit a litigant from seeking appellate review of an order that failed to make a finding as to whether the litigant was blameless just because the litigant’s counsel was to blame for an additional preservation error.

Recent Developments
Of late, the Fourth and Fifth district courts of appeal45 have been holding that a trial court’s failure to conduct a Kozel analysis or to make Kozel findings in an order entering an ultimate sanction is an error that is not automatically preserved. Beginning with Bank of Am., N.A. v. Ribaudo, 199 So. 3d 407 (Fla. 4th DCA 2016), the Fourth District addressed the reviewable limits of Kozel. The Fourth District held that dismissing a case as a discovery sanction without conducting a Kozel analysis is reversible error “provided that the error has been preserved” in the form of raising the issue at the hearing or filing a motion for reconsideration.46

On this point, the Fourth District cited to Chappelle v. S. Fla. Guardianship Program, Inc., 169 So. 3d 291 (Fla. 4th DCA 2015). However, Chappelle did not state that preservation was an issue in dispute.47 Chappelle considered a motion for judicial default, the order on which was taken up for reconsideration at the trial court level.48 The Chappelle court’s analysis did not require a motion for reconsideration. Rather, the opinion advised that “the trial court should have made explicit findings as to each Kozel factor before entering judicial default.”49

In Bank of N.Y. Mellon v. Sandhill, 202 So. 3d 944 (Fla. 5th DCA 2016), the Fifth District appears to have taken the Ribaudo requirement a step further. Pursuant to Sandhill, it may be insufficient for a party to raise a Kozel issue at the hearing that leads to the ultimate sanction. Instead, an appellant is “obligated to bring the matter to the trial court’s attention by filing a timely motion for rehearing or clarification.”50 The Fifth District’s position on this obligation is unclear, however, because the court later notes that no transcript of the proceeding was provided for the record on appeal.51

Most recently, the Fourth District, in Gozzo Dev., Inc. v. Prof’l Roofing Contractors, Inc., 211 So. 3d 145 (Fla. 4th DCA 2017), issued a per curiam affirmance on a similar preservation issue. Judge Lee, in a special concurrence, explained that an appellant cannot be heard on appeal on the issue of Kozel findings unless the findings were requested at the trial-court level.52

These opinions present a paradigm shift regarding the preservation of error in cases requiring a Kozel analysis. Although the default position may remain that an ultimate sanction is not warranted, the recent opinions on the matter may prevent litigants from arguing this position at the appellate level should counsel fail to preserve the issue.

Conclusion
It is uncontroversial at this point that a litigant whose counsel is the cause of noncompliance with a court order should not be unduly punished. However, in light of recent opinions on the preservation of Kozel errors, should that litigant’s counsel replicate error and fail to raise the issue at a hearing or file an appropriate motion before seeking appellate review, the litigant may be penalized twice: In the first place, they have been erroneously subjected to an ultimate sanction and, in the second place, they are cut off from appellate review of the initial error. The recent line of cases requiring a transcript demonstrating a request for Kozel findings, a motion for rehearing or clarification, or both, may create ambiguity and inconsistent opinions at the trial-court level. The standard set thereby may also unduly prejudice litigants.


1 Kozel v. Ostendorf, 629 So. 2d at 818.

2 Id.

3 Kozel v. Ostendorf, 603 So. 2d at 602.

4 Id. at 602-03.

5 Id.

6 Id. (noting that “dismissal is a harsh sanction”).

7 Id. at 603.

8 Id. at 603-06.

9 Id. at 603-04 (conceding “[T]he failure of Ms. Kozel’s counsel…may well warrant a substantial sanction against the attorney.”).

10 Id.

11 Id. at 604-05.

12 Id.

13 Id. at 605.

14 Id.

15 Id. at 605-06.

16 Id.

17 See Kozel v. Ostendorf, 629 So. 2d 817 (Fla. 1993).

18 Id.

19 Id. at 818.

20 Id.

21 Id. (reasoning that “[b]ecause dismissal is the ultimate sanction in the adversarial system, it should be reserved for those aggravating circumstances in which a lesser sanction would fail to achieve a just result”).

22 Id. (fashioning the test out of Judge Altenbernd’s dissent in the district court case).

23 Id.


24 Id.

25 See id.


26 Clay, 546 So. 2d at 435.

27 See id. at passim.

28 Kozel, 629 So. 2d at 818.

29 Id. at 818.

30 Griffith v. Ramzey’s A Plus, Inc., 186 So. 3d 629, 630 (Fla. 5th DCA 2016).

31 Id.

32 Sukonik v. Wallack, 178 So. 3d 455, 457 n.2 (Fla. 3d DCA 2015); Ledo v. Seavie Res., LLC, 149 So. 3d 707, 710 (Fla. 3d DCA 2014); see also Levine v. Del Am. Properties, 642 So. 2d 32, 33-34 (Fla. 5th DCA 1994) (reasoning that Kozel does not apply where it is shown that the litigant and not the attorney is responsible for the misconduct).

33 Myers v. Highway 46 Holdings, L.L.C., 65 So. 3d 58 at passim (Fla. 5th DCA 2011).

34 Id. at 61-62 (holding that “a Kozel analysis had to have been performed”).

35 Gordon v. Gatlin Commons Prop. Owners Ass’n, 199 So. 3d 1120, 1124 (Fla. 4th DCA 2016).

36 Ham v. Dunmire, 891 So. 2d 492, 499-500 (Fla. 2004); Portofino Prof’l Ctr. v. Prime Homes at Portofino, 133 So. 3d 1112, 1114 (Fla. 3d DCA 2014).

37 Heritage Circle Condo. Ass’n, Inc. v. State, 121 So. 3d 1141, 1144 (Fla. 4th DCA 2013); see also Gordon, 199 So. 3d at 1124 (reversing where order of dismissal did not address Kozel factors).

38 See Fla. R. App. P. 9.200(b).

39 See Seal Prods. v. Mansfield, 705 So. 2d 973, 975 (Fla. 3d DCA 1998).

40 Id.

41 Id.

42 See id.

43 Celebrity Cruises, Inc. v. Fernandes, 149 So. 3d 744, 749-50 (Fla. 3d DCA 2014) (citing Alsina v. Gonzalez, 83 So. 3d 962, 965 (Fla. 4th DCA 2012)).

44 See id.

45 It also appears the First District has taken a similar position in declining to address a Kozel argument without evidence of preservation. See HSBC Bank USA ex rel. OMAC 2005-1 v. Cook, 178 So. 3d 548 (Fla. 1st DCA 2015) (affirming when appellant “failed to provide this court with a transcript of the hearing during which the trial court considered whether there were grounds for dismissal”); but see id. (“[W]hile Kozel is not specifically cited in the order, it appears the court conducted the necessary inquiry into whether dismissal was justified.”).

46 Ribaudo, 199 So. 3d at 408.

47 Chappelle, 169 So. 3d at passim.

48 Id.

49 Id. at 295.

50 Sandhill, 202 So. 3d at 945-56.

51 See id. at 956.

52 Gozzo Dev., Inc., 42 Fla. L. Weekly D 344 at *2.


Morgan L. Weinstein is the founding partner of Weinstein Law, P.A., where he practices in the areas of appellate law, litigation and trial support, and commercial litigation. He obtained his J.D. from the University of Florida Levin College of Law.

Alexis Fields is a partner at Kopelowitz, Ostrow, Ferguson, Weiselberg, Gilbert, in which she focuses her practice primarily in the areas of commercial and constitutional litigation, as well as appellate law. She earned her J.D. from Florida International University College of Law.

This column is submitted on behalf of the Appellate Practice Section, Kristin A. Norse, chair, and Brandon Christian and Thomas Seider, editors.

[Revised: 10-26-2017]