202 So. 3d 932
Fla. Dist. Ct. App.2016Background
- EMM Enterprises Two, LLC and individual partners sued Fromberg, Perlow & Kornik, P.A. and Jeffrey Perlow arising from a real-estate investment transaction.
- Perlow served a request for production; EMM did not timely respond, so Perlow moved ex parte to compel; the court ordered EMM to respond within ten days.
- After the deadline, Perlow moved to hold EMM in contempt and to strike its pleadings; EMM then produced the discovery and agreed to pay attorney’s fees.
- A hearing on fees was scheduled but EMM’s counsel failed to appear; EMM later explained the failures were due to secretarial diary errors and submitted affidavits supporting that claim.
- The trial court found EMM’s conduct willful and struck the complaint, dismissing the action with prejudice; the court denied EMM’s rehearing motion and EMM appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether dismissal with prejudice was an appropriate sanction for discovery noncompliance | EMM: failures were inadvertent secretarial errors, discovery was produced and fees offered; dismissal was too severe | Perlow: EMM willfully failed to comply and failed to appear, justifying dismissal | Reversed: trial court failed to apply and make findings on all Kozel factors; dismissal was excessive |
| Whether the trial court made adequate findings under Kozel | EMM: court did not address each Kozel factor or assess credibility of affidavits | Perlow: court found willful noncompliance sufficiently | Reversed: court only explicitly addressed willfulness and failed to make required findings on each factor |
| Whether lesser sanctions were available and adequate | EMM: fees and contempt alternatives were sufficient given compliance and remediation | Perlow: dismissal justified by willfulness and nonappearance | Reversed: record shows fees would have sufficed; dismissal is the most severe sanction and was not justified |
| Whether EMM’s post-order compliance precluded dismissal | EMM: remedied the disobedience before dismissal, making dismissal inappropriate | Perlow: post-compliance did not cure willful conduct | Reversed: dismissal generally inappropriate where party remedied the disobedience |
Key Cases Cited
- Kozel v. Ostendorf, 629 So.2d 817 (Fla. 1993) (establishes six-factor test for dismissal as sanction)
- Ham v. Dunmire, 891 So.2d 492 (Fla. 2004) (dismissal is the most severe sanction and appropriate only in extreme circumstances)
- Mercer v. Raine, 443 So.2d 944 (Fla. 1983) (discusses severity of dismissal sanction)
- Bennett ex rel. Bennett v. Tenet St. Mary’s, Inc., 67 So.3d 422 (Fla. 4th DCA 2011) (court must consider Kozel factors and make explicit findings)
- Chappelle v. S. Fla. Guardianship Program, Inc., 169 So.3d 291 (Fla. 4th DCA 2015) (reiterates need for explicit Kozel-factor findings)