Kruger v. Kruger
124 So. 3d 1033
| Fla. Dist. Ct. App. | 2013Background
- Joel R. Kruger sued Harriet Kruger, Wells Fargo Advisors, LLC and others for alleged manipulation of an insurance policy beneficiary designation and negligent payment of death benefits.
- Wells Fargo entities argued the dispute was governed by an account agreement requiring arbitration and moved to compel arbitration and to dismiss.
- Harriet Kruger moved to dismiss for Kruger’s failure to attach the policy to the complaint.
- At a September 13, 2011 hearing, the court orally granted Harriet’s motion to dismiss and gave Kruger 30 days to amend, attaching the policy or stating lack of possession; arbitration issue remained under advisement.
- No written order on either motion was entered; Kruger contends the court implied he could wait to amend until after ruling on arbitration, whereas Harriet claims no such statement was made.
- In July 2013, during a status hearing, the court sua sponte dismissed with prejudice all claims against Harriet for failure to amend, without a separate order or notice that dismissal would be with prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether dismissal with prejudice was proper after leave to amend. | Kruger argues no separate notice or explicit order tied failure to amend to prejudice. | Harriet maintains the prior order implicitly allowed dismissal with prejudice for failure to amend. | Dismissal with prejudice reversed; not proper without proper notice/order. |
| Whether the trial court complied with Kozel factors before dismissing with prejudice. | Kruger contends Kozel factors show not willful delay or prejudice and no justification for prejudice. | Harriet contends sanction was appropriate under the procedural posture. | Court held Kozel factors not satisfied; extreme sanction was improper. |
| Whether independent notice or explicit order was required for dismissal with prejudice after leave to amend. | Kruger relies on Neu and Nezelek requiring explicit notice or a specific order. | Harriet asserts no such requirement was necessary here due to the prior rulings. | Remanded to determine appropriate sanction short of dismissal with prejudice. |
Key Cases Cited
- Kozel v. Ostendorf, 629 So.2d 817 (Fla.1993) (dismissal with prejudice is extreme and requires strong showing)
- Sekot Labs., Inc. v. Gleason, 585 So.2d 286 (Fla.3d DCA 1990) (leave to amend does not require subsequent prejudice for delay; separate notice required)
- Neu v. Turgel, 480 So.2d 216 (Fla.3d DCA 1985) (timing of dismissal after leave to amend requires explicit notice)
- Edward L. Nezelek, Inc. v. Sunbeam Television Corp., 413 So.2d 51 (Fla.3d DCA 1982) (leave to amend does not compel amendment; separate notice standard discussed)
- McMillan v. Horan, 632 So.2d 1091 (Fla.5th DCA 1994) (final dismissal must comport with Ko zel factors; efficiency emphasizes alternatives to prejudice)
- Hunter v. Montalvo, 661 So.2d 123 (Fla.3d DCA 1995) (trial court abuse in dismissing for failure to amend after leave to amend)