Third DCA
The First Baptist Church of Greater Miami v. Miami Baptist Association, Inc.
3d DCA
3/15/23, Judge Emas
Topics: Discovery (Sanctions/Violations)
A trial court dismissed First Baptist’s action against the Miami Baptist Association due to its failure to comply with a discovery order. The DCA reversed and remanded because the trial court failed to make express findings regarding each of the six factors set forth in Kozel v. Ostendorf, 629 So. 2d 817 (Fla. 1993).
To impose the ultimate sanction of dismissal with prejudice for a discovery violation, trial courts must expressly make findings on EVERY FACTOR as to 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.
Interestingly, the DCA was unimpressed by the fact that the trial court entered a written order addressing Kozel. The judge’s oral findings were vague, and the written order “was submitted by the Association’s counsel, unsolicited by the court, and addressed only five of the six Kozel factors, failing to address ‘whether the client was personally involved in the act of disobedience.’” Distinguishing between the actions of the client and actions of the attorney is critically important. If the client is not to blame, a lesser sanction “that is directed toward the person responsible for the” delay is more appropriate. A “fine, public reprimand, or contempt order may” be appropriate to impose on the attorney if the client is not responsible.
In regard to the order prepared by the appellee, I finish this summary with a full quote from footnote three of the opinion, which comments on the practice of counsel sending orders to the trial court:
- In light of our remand for further proceedings, we raise one additional issue. The day following the hearing, the Association’s counsel sent a six-page order containing findings of fact purporting to address five of the six Kozel factors. The trial court signed that order two hours after counsel sent it—as proposed, without addition, deletion or correction. While a trial court’s verbatim adoption of a proposed order does not by itself constitute reversible error, see, e.g., Certain Underwriters at Lloyd’s London v. Candelaria, 339 So. 3d 463 (Fla. 3d DCA 2022); Kendall Healthcare Grp., Ltd. v. Madrigal, 271 So. 3d 1120 (Fla. 3d DCA 2020), a party’s proposed order “cannot substitute for a thoughtful and independent analysis of the facts, issues, and law by the trial judge.” Perlow v. Berg-Perlow, 875 So. 2d 383, 390 (Fla. 2004). The circumstances presented here merits reaffirming the need for a trial court’s order to reflect its thoughtful and independent analysis of the facts, issues, and law, especially where a trial court is affirmatively required to address the Kozel factors and make express findings of fact as to each before imposing the ultimate sanction of dismissal with prejudice. Moreover, to the extent that a trial court directs one party to prepare a proposed order, the opposing party must be given a meaningful opportunity to comment or object prior to entry of the order. (Counsel for the Association emailed its proposed order to counsel for First Baptist, advising First Baptist it had a four-hour window within which to offer suggested revisions before the proposed order would be forwarded to the trial judge.) And, finally, as observed by the Florida Supreme Court, “the better practice would be for the judge to make some pronouncements on the record of his or her findings and conclusions in order to give guidance for preparation of the final judgment.” Perlow, 875 So. 2d at 390
https://supremecourt.flcourts.gov/content/download/863284/opinion/212311_DC08_03152023_100528_i.pdf
Terry P. Roberts
Terry@YourChampions.com
Director of Appellate Practice Fischer Redavid PLLC
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