Erdman v. Bloch
65 So. 3d 62
Fla. Dist. Ct. App.2011Background
- Erdman sued Coll. Appellees for medical malpractice after discovery over about a year, with a March 2, 2009 expert disclosure deadline that Erdman missed by one week (disclosed March 9, 2009).
- Appellees moved to strike and compel expert discovery; case was continued and a new deadline of September 14, 2009 was set for expert disclosure.
- At a November 4, 2009 hearing, Erdman sought a 60-day extension to locate a new expert, acknowledging the prior expert’s disappearance.
- The court stated a drop-dead date of 60 days for an expert or involuntary dismissal would follow; an order contemplated involuntary dismissal if no expert by January 15, 2010.
- Erdman failed to disclose an expert by January 15, 2010; Appellees sought involuntary dismissal; final dismissal with prejudice was entered January 20, 2010.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether dismissal with prejudice was proper under Kozel factors | Erdman contends dismissal was improper without explicit Kozel findings. | Appellees argue the case was properly dismissed as a sanction for noncompliance. | Reversed and remanded for Kozel-based findings. |
| Whether the trial court erred in not making written Kozel findings | Erdman argues the court failed to issue required written findings of willful conduct. | Appellees contend the conduct was sanctionable without Kozel findings. | Remand required for proper written Kozel findings (or a Kozel hearing). |
Key Cases Cited
- Kozel v. Ostendorf, 629 So.2d 817 (Fla. 1993) (six-factor test for dismissal with prejudice when attorney fault)
- Ham v. Dunmire, 891 So.2d 492 (Fla. 2004) (requires express written findings to support willful/disregard dismissal)
- Arkiteknic, Inc. v. United Glass Laminating, Inc., 53 So.3d 366 (Fla. 3d DCA 2011) (Kozel findings required in dismissal orders)
- Sanders v. Gussin, 30 So.3d 699 (Fla. 5th DCA 2010) (Kozel factors and written findings emphasis)
- Smith v. City of Panama, 951 So.2d 959 (Fla. 1st DCA 2007) (Kozel factors and written findings emphasis)
- Pixton v. Williams Scotsman, Inc., 924 So.2d 37 (Fla. 5th DCA 2006) (Kozel framework applied to dismissal orders)
- Rohlwing v. Myakka River Real Props., Inc., 884 So.2d 402 (Fla. 2d DCA 2004) (Kozel-era discussions on sanctions)
- Fla. Nat’l Org. for Women, Inc. v. State, 832 So.2d 911 (Fla. 1st DCA 2002) (Kozel-related appellate review standards)