Review of Orders Dismissing or Defaulting For Discovery Violations: The Evolution of the Abuse of Discretion Standard
Most of us are familiar with the abuse of discretion standard of review often employed by Florida’s appellate courts. For certain types of orders, however, knowing only that the court will review for an abuse of discretion will do little to inform you and your client as to how that order will fare on appeal. One such situation is when a trial court dismisses a case or defaults a defendant as a sanction for a failure to abide by an order compelling discovery.
Trial courts have broad discretion to impose a wide variety of sanctions for a party’s failure to comply with an order compelling discovery. The extreme option is dismissal of a plaintiff’s case, or the defaulting of a defendant.1 While such orders have always been reviewed for abuse of discretion, what constitutes an abuse of discretion in these cases has evolved considerably over the years. This article explores the evolution of the abuse of discretion standard in this context.
Discovery violations can come in many forms. Spoliation of evidence, for example, is a common ground for the imposition of sanctions. Courts generally agree that if a party has lost evidence that is critical to proving an opposing party’s claim or defense, dismissal or default is justified regardless of whether the loss is willful or merely negligent.2 This standard is relatively well-defined, probably because the destruction of evidence provides a reasonably tangible justification for sanctions, including resort to dismissal or default.3
Another situation that typically prompts harsh sanctions is when a party works a fraud on the court. In evaluating whether dismissal or default is warranted due to a fraud on the court, some courts have determined that “[t]he requisite fraud on the court occurs where it can be demonstrated, clearly and convincingly, that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate a matter by improperly influencing the trier of fact or unfairly hampering the presentation of the opposing party’s claim or defense.”4
The standard for dismissal based on fraud on the court is rather similar to the standard for a general failure to comply with a discovery order. Nonetheless, the same feature that distinguishes spoliation from general noncompliance is also applicable where fraud on the court is at issue. Fraud on the court — like spoliation — is an affirmative action that amounts to an affront to the judicial system. Orders resulting from those tangible examples of misconduct are less likely to result in an abuse of discretion.
The question then arises as to when, if ever, inaction — that is, the “mere” failure to abide by a court order — will justify dismissal or default. The language of the applicable Rule of Procedure 1.380 requires only a party’s “fail[ure] to obey an order to provide or permit discovery” in order to trigger the trial court’s authority to impose any number of sanctions, up to and including dismissal or default.5 As is often the case, decisional law has expounded on the rule’s minimal requirement and added conditions that must also be satisfied before an order of dismissal or default will be upheld on appeal.
The seminal case first expanding Rule 1.380 is Mercer v. Raine, 443 So. 2d 944 (Fla. 1983), in which the Florida Supreme Court held that the mere failure to comply with a discovery order is, by itself, insufficient to justify a default or dismissal. The court began by recognizing that such a sanction “should be employed only in extreme circumstances.”6 The court then announced the following standard: “A deliberate and contumacious disregard of the court’s authority will justify application of this severest of sanctions, as will bad faith, willful disregard or gross indifference to an order of the court, or conduct which evinces deliberate callousness.”7
In a later decision, the court clarified that, although no “magic words” are required to justify the trial court’s imposition of a dismissal or default in the face of a failure by a party to abide by a discovery order, the sanctions order must include a finding of willfulness or deliberate disregard.8 The failure to include at least a written order with findings of fact reflecting that standard will result in an automatic reversal. Thus, after Mercer and its progeny, the mere failure to abide by a discovery order will not justify the dismissal of a case; a trial court abuses its discretion if it enters a dismissal or default order that lacks written findings of a deliberate and willful disregard of the court’s authority.
Nonetheless, the Mercer standard ultimately requires only a showing that the party’s violation was willful. In accord with that understanding of Mercer, several decisions — some very recent — appear to have affirmed a trial court’s imposition of a dismissal or default as a sanction for a discovery violation solely on the basis that sufficient evidence existed to support the trial court’s conclusion that the violation was willful or deliberate.9
Some post- Mercer decisions, however, began to add requirements above Mercer ’s willfulness requirement. For example, in reviewing the trial court’s imposition of a dismissal or default, several decisions have taken into account whether a lesser sanction was available to remedy the discovery violation.10 Also, some districts began requiring a showing that the opposing party was prejudiced by the misconduct in order to uphold an order imposing a default or dismissal as a sanction for discovery violations.11
Interestingly, a case out of the Fourth District explicitly states that prejudice, or at least the lack of prejudice, is irrelevant in determining whether default or dismissal is warranted. In U.S.B. Acquisition Co., Inc. v. U.S. Block Corp., 564 So. 2d 221 (Fla. 4th DCA 1990), the court stated that “[l]ack of prejudice is irrelevant[,] for the purpose of reposing in the trial court the authority to dismiss is to ensure compliance with its order, not to punish or penalize.”12 So, according to the Fourth District, the point of vesting the trial courts with the power to impose discovery sanctions is to make sure the offending party turns over the requested discovery in order to facilitate the resolution of the case.13 Under this rationale, lack of prejudice to a party is not necessarily a valid reason to withhold the imposition of a dismissal or default.
As interesting as this potential district split may have been, in 2004, the Florida Supreme Court appears to have put the question to rest in Ham v. Dunmire, 891 So. 2d 492, 499 (Fla. 2004), where it explicitly stated that “dismissal is far too extreme as a sanction in those cases where discovery violations have absolutely no prejudice to the opposing party.”14
In Ham, the trial court had dismissed an action with prejudice for counsel’s failure to comply with the trial court’s discovery orders.15 On review, the court recognized that the trial judge had made the requisite finding of willfulness.16 Nonetheless, reversal was required because the trial court failed to expressly consider the test for whether a dismissal with prejudice is justified in response to an attorney’s misconduct.17 According to the court, “[i]t is imperative that trial courts strike the appropriate balance between the severity of the infraction and the impact of the sanction when exercising their discretion to discipline parties to an action. The factors articulated in Kozel [ Kozel v. Ostendorf, 629 So. 2d 817, 818 (Fla. 1993)] provide a framework for achieving that balance.”18
The Kozel test, to which the court was referring in Ham, requires the trial court to consider 1) 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;19 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.20
Once those factors have been analyzed, “if a sanction less severe than dismissal with prejudice appears to be a viable alternative, the trial court should employ such an alternative.”21 The Ham court was careful to note that client misconduct, although an important factor, is not necessary to support a dismissal or default.22
In looking at the Ham decision by itself, there might be some question as to whether it requires that the Kozel factors, in addition to the Mercer standard, be considered when a client, rather than the attorney, is the primary offender. Some factors in support of that distinction include: 1) Ham and Kozel involve situations where the attorney was wholly at fault for the violation;23 2 ) the Kozel test was fashioned as a means to determine whether dismissal or default is “a warranted response to an attorney’s behavior”;24 and 3) some of the factors of the Kozel test explicitly focus on the actions of the attorney, such as the evaluation of “the attorney’s disobedience” and whether “the attorney offered a reasonable justification.”25
One justification for the distinction could be that, where the client is primarily at fault for the violation of the court order, the client should not be able to take advantage of what might be considered a more deferential Ham standard. Any basis for a distinction would have fallen away had the Ham court simply replaced the word “attorney” with the word “party” when it announced the standard. Be that as it may, the distinction may be mere semantics because the Ham / Kozel test, in its application, may do little more than expand on Mercer ’s “deliberate and contumacious” requirement.
Nonetheless, at least two cases out of the Fifth District have explicitly acknowledged this distinction. In Pixton v. Williams Scotsman, Inc., 924 So. 2d 37, 40 (Fla. 5th DCA 2006), the court explained that, “[i]f this was a case in which only the [clients], and not their counsel, had engaged in wrongdoing or noncompliance with the rules, Kozel would not apply.”26 Similarly, in Levine v. Del American Properties, Inc., 642 So. 2d 32, 34 (Fla. 5th DCA 1994) — a pre- Ham case — the court determined that, “[s]ince the litigant committed the disruptive behavior in this case and not the lawyer, Kozel does not apply.”27 Oddly enough, a more recent decision out of the Fifth District reversed an order dismissing a case, in part, because the trial court failed to consider the Kozel factors in a situation where the violation was almost exclusively the result of the client’s actions.28
The majority of post- Ham decisions do not appear to seize on such a distinction, at least in the sense that most have required consideration of the Kozel factors without explicitly addressing whether the primary fault lay with the attorney or the client.29 Thus, with the Ham decision, the trial court’s written order must employ the Kozel balancing test, or be reversed as an abuse of discretion.30
In sum, the application of the abuse of discretion standard has evolved from the language of Rule 1.380, which requires only a violation of a discovery order; to the requirement of a written order with findings of a deliberate and contumacious disregard for the court’s authority; to now also requiring express consideration of the multi-factor Kozel test. The imposition of increasing conditions appears to be a natural outgrowth of Florida’s strong preference for trials on the merits.31 Also implicated is the general notion of Florida jurisprudence that the sanction must be commensurate with the offense.32 A dismissal or default prior to the merits often stands in stark contrast to these bedrock principles. Add to that the deferential review that the appellate courts must employ in reviewing dismissal and default orders—abuse of discretion—and there is little wonder as to why the appellate courts have, over the years, added so many hoops through which a trial court must jump for an order of dismissal or default to hold up on appeal.
For all the concern over the severity of the sanction and the development of a comprehensive test to determine when dismissal or default is warranted, one could argue that a trial court should not be reversed if there is any logical basis for the exercise of the trial court’s discretion.33 If the trial court tracks the language of the prevailing standard for dismissal or default and makes reasonably detailed findings of fact, one would expect that the trial court’s order should be upheld on appeal.34 Even under the abuse of discretion standard, however, one does not have to look far to find numerous decisions reversing a trial court’s imposition of a dismissal or default.35
The bottom line is that the appellate courts do not apply the abuse of discretion standard with the usual deference in an appeal of an order dismissing the case or defaulting a defendant for a failure to comply with a discovery order. The order will be reversed if it lacks written findings of willfulness or it fails to examine and consider the Kozel factors. Even if the order on review does contain such findings, appellate courts are often willing to stretch the boundaries of the otherwise highly deferential abuse of discretion standard when reviewing orders imposing the ultimate sanction of dismissal or default.36
1 See Fla. R. Civ. P. 1.380(b).
2 See Nationwide Lift Trucks, Inc. v. Smith, 832 So. 2d 824 (Fla. 4th D.C.A. 2002); DeLong v. A-Top Air Conditioning Co., 710 So. 2d 706, 707 (Fla. 3d D.C.A. 1998); Sponco Manufacturing, Inc. v. Alcover, 656 So. 2d 629, 631 (Fla. 3d D.C.A. 1995); DePuy, Inc. v. Eckes, 427 So. 2d 306, 308 (Fla. 3d D.C.A.1983).
3 See, e.g., Martino v. Wal-Mart Stores, Inc., 908 So. 2d 342, 347-50 (Fla. 2005) (Wells, J., specially concurring).
4 Kubel v. San Marco Floor & Wall, Inc., 967 So. 2d 1063, 1064 (Fla. 2d D.C.A. 2007) (quotation and marks omitted).
5 Fla. R. Civ. P. 1.380(b)(2).
6 Mercer, 443 So. 2d at 946.
7 Id. (citations omitted).
8 Commonwealth Fed. Sav. & Loan Ass’n v. Tubero, 569 So. 2d 1271, 1273 (Fla. 1990).
9 See, e.g., DYC Fishing, Ltd. v. Martinez, 994 So. 2d 461, 462 (Fla. 3d D.C.A. 2008); Nationwide Mut. Fire Ins. Co. v. Robinson, 915 So. 2d 262 (Fla. 4th D.C.A. 2005); Precision Tune Auto Care, Inc. v. Radcliffe, 804 So. 2d 1287, 1291 (Fla. 4th D.C.A. 2002) (finding no abuse of discretion where there was “substantial basis for finding that [defendant] exhibited deliberate and contumacious disregard for [the trial court’s] order”); Sinatra v. Ikaros Aviation, Inc., 723 So. 2d 358, 359 (Fla. 3d D.C.A. 1998); Mack v. Nat’l Constructors, Inc., 666 So. 2d 244, 245 (Fla. 3d D.C.A. 1996); McCormick v. Lomar Industries, Inc., 612 So. 2d 707, 708 (Fla. 4th D.C.A. 1993); Henry A. Knott Co. v. Redington Towers, Inc., 428 So. 2d 687, 688 (Fla. 2d D.C.A. 1983).
10 Time Int’l, S.A., Inc. v. Safilo U.S.A., Inc., 802 So. 2d 382, 383 (Fla. 3d D.C.A. 2001) (“Dismissal should be reserved for those aggravating circumstances in which a lesser sanction would fail to achieve a just result.”).
11 See, e.g., Owens v. Howard, 662 So. 2d 1325, 1327 (Fla. 2d 1995) (“This court has refused to approve of the dismissal of a cause of action as a sanction for discovery violations when the appellee had not shown prejudice.”); Neal v. Neal, 636 So. 2d 810, 812 (Fla. 1st D.C.A. 1994) (stating that “dismissal is inappropriate when the moving party is unable to demonstrate meaningful prejudice”); Beauchamp v. Collins, 500 So. 2d 294, 295 (Fla. 3d D.C.A.1986) (Dismissal or default “should not be imposed for failure to timely respond to a discovery order where defendants are unable to demonstrate that they were prejudiced in any meaningful way by plaintiffs’ tardiness.”).
12 U.S.B. Acqusitions, 564 So. 2d 221 (Fla. 4th D.C.A. 1990) (quotation and marks omitted).
13 See id.; see also Precision Tune Auto Care, Inc. v. Radcliffe, 804 So. 2d 1287, 1290 (Fla. 4th D.C.A. 2002); Carr v. Reese, 788 So. 2d 1067, 1072 (Fla. 2d D.C.A. 2001) (“The purpose of imposing sanctions for discovery violations is not to punish, but rather is to ensure compliance with the trial court’s order.”); Winn Dixie v. Teneyck, 656 So. 2d 1348, 1351 (Fla. 1st D.C.A. 1995) (“The principal purpose of discovery sanctions is to assure compliance with the rules in order to facilitate full adjudication, not to hinder it.”).
14 Ham, 891 So. 2d 492, 499 (Fla. 2004).
15 Id. at 495.
16 Id. at 501.
17 Id. at 500 (“The trial court’s failure to consider the Kozel factors in determining whether dismissal was appropriate is, by itself, a basis for remand for application of the correct standard.”).
18 Id. at 499-500.
19 Although a dismissal or default can be imposed where the client is not at fault, see Hussamy v. Rose, 916 So. 2d 785 (Fla. 2005), courts are particularly sensitive to this factor. See, e.g., Cruz v. Caribbean Spring Village, 944 So. 2d 1161, 1162 (Fla. 3d D.C.A. 2006) (“The trial court was eminently correct in setting aside the default final judgment where there was ample evidence to find that [the client] was not involved in any way in disobeying the court’s discovery orders.”).
20 Ham, 891 So. 2d at 496 (quoting Kozel, 629 So. 2d at 818).
21 Id. (quoting, Kozel, 629 So. 2d at 818).
22 Id. at 497.
23 Ham, 891 So. 2d at 495.
24 Id. at 496 (emphasis added).
26 Pixton, 924 So. 2d 37, 40 (Fla. 5th D.C.A. 2006).
27 Levine, 642 So. 2d 32, 34 (Fla. 5th D.C.A. 1994).
28 Scallan v. Marriott Intern., Inc., 995 So. 2d 1066, 1066-67 (Fla. 5th D.C.A. 2008); see also SPS Dev. Co., LLC v. DS Enters. of Palm Beaches, Inc., 970 So. 2d 495, 498 (Fla. 4th D.C.A. 2007) (rejecting, under the facts of that case, the argument that Kozal did not apply because “the dereliction in this case is that of the litigant rather than the attorney”).
29 See, e.g., Iaconis v. Ward, 989 So. 2d 687 (Fla. 4th D.C.A. 2008); Fisher v. Prof’l Adver. Dirs. Co., Inc., 955 So. 2d 78, 80 (Fla. 4th D.C.A. 2007); Smith v. City of Panama City, 951 So. 2d 959, 961 (Fla. 1st D.C.A. 2007); Coconut Grove Playhouse, Inc. v. Knight Ridder, Inc., 935 So. 2d 597 (Fla. 3d D.C.A. 2006); Stabak v. Tropical Breeze Estates, Inc., 925 So. 2d 1104, 1104-05 (Fla. 4th D.C.A. 2006); Michalak v. Ryder Truck Rental, Inc., 923 So. 2d 1277, 1280 (Fla. 4th D.C.A. 2006); Wilson v. Form Works, Inc., 894 So. 2d 1078 (Fla. 4th D.C.A. 2005).
30 See Shortall v. Walt Disney World Hospitality, 997 So. 2d 1203, 1204 (Fla. 5th D.C.A. 2008).
31 See N. Shore Hosp., Inc. v. Barber, 143 So. 2d 849, 853 (Fla. 1962); Thomas v. Feinberg, 745 So. 2d 500, 502 (Fla. 3d D.C.A. 1999) (“Florida has a long-standing policy in favor of trials on the merits”); United Servs. Auto. Ass’n v. Strasser, 492 So. 2d 399, 403 (Fla. 4th D.C.A. 1986) (“justice prefers decisions based on the merits to default judgments”).
32 See, e.g., Neal v. Neal, 636 So. 2d 810, 812 (Fla. 1st D.C.A. 1994); Beauchamp v. Collins, 500 So. 2d 294, 296 (Fla. 3d D.C.A. 1986).
33 See Mercer, 443 So. 2d at 946.
34 See, e.g., Kirkland’s Stores, Inc. v. Felicetty, 931 So. 2d 1013 (Fla. 4th D.C.A. 2006).
35 See, e.g., Shortall, 997 So. 2d at 1204; Scallan, 995 So. 2d at 1066-67; Burgess v. Pfizer, Inc., 990 So. 2d 1140 (Fla. 3d D.C.A. 2008); Harrell v. Mayberry, 754 So. 2d 742 (Fla. 2d D.C.A. 2000); Kilstein v. Enclave Resort, Inc., 715 So. 2d. 1165 (Fla. 5th D.C.A. 1998); Atala v. Kopelowitz, 664 So. 2d 1156 (Fla. 3d D.C.A. 1995); Kelley v. Schmidt, 613 So. 2d 918 (Fla. 5th D.C.A. 1993); Kleinschmidt v. Gator Office Supply & Furniture, Inc., 551 So. 2d 515 (Fla. 3d D.C.A. 1989); Bieling v. E.F. Hutton & Co., Inc., 552 So. 2d 878 (Fla. 2d D.C.A. 1988); United Servs. Auto. Ass’n v. Strasser, 492 So. 2d 399, 403 (Fla. 4th D.C.A. 1986).
36 See, e.g., Burgess, 990 So. 2d at 1143-44 (Ramirez, J., dissenting) (disagreeing with majority that sanction of dismissal was an abuse of discretion under the facts of the case).
Dean Morande practices with Carlton Fields in West Palm Beach and is a member of the firm’s appellate practice and trial support group. He clerked on the U.S. Court of Appeals for the 11th Circuit for Judge Edward E. Carnes after graduating with highest honors from the Florida State University College of Law.
A version of this article was published in the Spring 2008 issue of Trial Advocate Quarterly and is reprinted with permission.
This column is submitted on behalf of the Appellate Practice Section, Siobhan Helene Shea, chair, and Tracy R. Gunn, Kristin A. Norse, and Heather M. Lammers, editors.