Hawthorne v. Wesley
2012 Fla. App. LEXIS 4180
Fla. Dist. Ct. App.2012Background
- Hawthorne appeals a dismissal with prejudice of his complaint against Wes, Fire Equipment Service, and Gevity HR.
- The dismissal was entered after an ore tenus motion at the January 25, 2011 mediation hearing.
- The dismissal was framed as a failure to obey a court order under Fla. R. Civ. P. 1.420(b) (not lack of prosecution).
- The November 9, 2010 order gave Hawthorne 30 days to move the case forward or face dismissal with prejudice; the notice satisfies 1.420(b).
- The trial court did not make express findings of fact and did not apply the Kozel v. Ostendorf six-factor test before dismissing.
- The court ultimately granted the motion to dismiss for noncompliance, but the record showed insufficient application of the proper standard and lack of findings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether dismissal with prejudice was warranted under Kozel factors. | Hawthorne argues noncompliance and lack of proper analysis warrant remand. | Appellees contend dismissal was appropriate due to willful noncompliance with the order. | Reversed and remanded for proper Kozel application. |
| Whether the trial court failed to apply Kozel and make express factual findings. | Hawthorne contends the court did not consider Kozel or make required findings. | Appellees argue the record supports dismissal without detailed findings. | Remand required to apply Kozel with express findings. |
| Whether the November 9, 2010 warning satisfied 1.420(b) notice. | Hawthorne asserts notice sufficiency per 1.420(b). | Appellees rely on the warning as adequate notice. | Record supports need for proper application; remand to evaluate notice and standards. |
Key Cases Cited
- Kozel v. Ostendorf, 629 So.2d 817 (Fla.1993) (six-factor test for dismissal with prejudice)
- Ham v. Dunmire, 891 So.2d 492 (Fla.2004) (need for express findings supporting willfulness)
- Commonwealth Fed. Sav. & Loan Ass’n v. Tubero, 569 So.2d 1271 (Fla.1990) (requirement of findings that conduct equates to willfulness/disregard)
- Haas v. Roe, 704 So.2d 1117 (Fla.2d DCA 1998) (notice requirement of 1.420(b))
- Nezelek, Inc. v. Sunbeam Television Corp., 413 So.2d 51 (Fla.3d DCA 1982) (cited regarding notice and procedural requirements)