Martin v. Maroone Chevrolet of Delray, LLC

Full title: JANUARY MARTIN, individually and on behalf of a class of all others…

Court: DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT

Date published: Apr 25, 2012

No. 4D10-5006 (Fla. Dist. Ct. App. Apr. 25, 2012)

Opinion

No. 4D10-5006

04-25-2012

JANUARY MARTIN, individually and on behalf of a class of all others similarly situated, Appellant, v. MAROONE CHEVROLET OF DELRAY, LLC., a Florida limited liability corporation, and AUTONATION FINANCIAL SERVICES CORP., a foreign corporation, Appellees.

Marsha L. Lyons and Douglas S. Lyons of Lyons & Farrar, P.A., Tallahassee, for appellant. Nancy W. Gregoire of Kirschbaum, Birnbaum, Lippman & Gregoire, PLLC, Fort Lauderdale, and Richard A. Ivers of Law Offices of Richard Ivers, Coral Springs, for appellees.

PER CURIAM

.

After January Martin and her attorney failed to attend a status conference, the trial court entered an order striking Martin's pleadings. The court found, inter alia, that Martin and her attorney refused to appear, that this was part of a pattern of behavior, and that Maroone Chevrolet and AutoNation Financial Services Corp., the defendants below, were prejudiced. Because the written order does not make it apparent that the court considered all the factors set out in Kozel v. Ostendorf, 629 So. 2d 817 (Fla. 1993), we reverse. See Bennett v. Tenet St. Mary's, Inc., 67 So. 3d 422 (Fla. 4th DCA 2011); Cook v. Custom Marine Distrib., Inc. 29 So. 3d 462 (Fla. 4th DCA 2010). The remaining claim raised by Martin has no merit and we do not address it.

Before a court may strike a party's pleadings as a sanction, the court must consider the following factors:

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; 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.

Kozel, 629 So. 2d at 818.

The court must also consider whether a lesser sanction would be a "viable alternative." Id. Whether the litigant was involved in the misconduct is a factor to be weighed in the Kozel analysis, but does not weigh more heavily than the other factors. See Ham v. Dunmire, 891 So. 2d 492, 497 (Fla. 2004). "The Kozel criteria with an emphasis on whether prejudice has occurred control." Id. at 502.

Upon remand, the court must make the required findings, and explain the nature of the prejudice to the defendants. The court may again strike the pleadings or impose a lesser sanction after considering the Kozel factors and upon appropriate findings. Otherwise, the court must vacate the final judgment and the order striking the pleadings.

Reversed and remanded for proceedings in accordance with this opinion. POLEN, HAZOURI and LEVINE, JJ., concur.

* * *

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Jack S. Cox, Judge; L.T. Case No. 2006CA002750.

Marsha L. Lyons and Douglas S. Lyons of Lyons & Farrar, P.A., Tallahassee, for appellant.

Nancy W. Gregoire of Kirschbaum, Birnbaum, Lippman & Gregoire, PLLC, Fort Lauderdale, and Richard A. Ivers of Law Offices of Richard Ivers, Coral Springs, for appellees.

Not final until disposition of timely filed motion for rehearing.