Posted by Nydia Streets of Streets Law in Florida Family Law Procedure
What is a dismissal with prejudice in a Florida family law case? This means the case is dismissed and cannot be filed again. So the claims are forever barred. This is one of the harshest penalties in litigation, so it must be used sparingly and with specific considerations. This was an issue in the case Chesterson Capital, LLC v. Yancy, 2D22-3628 (Fla. 2d DCA January 19, 2024).
Although not a family law case, the holding of this case is relevant to a possible occurrence in a family law case. The appellant sought to reverse an order that dismissed its case with prejudice based on discovery violations and "nine years of repeated failures to comply with [the trial court's] orders." The appellant argued the dismissal was error where the trial court did not consider the six factors specified in Kozel v. Ostendorf, 629 So. 2d 817, 818 (Fla. 1993).
The appellate court agreed, citing the six factors: “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. Upon consideration of these factors, if a sanction less severe than dismissal with prejudice appears to be a viable alternative, the trial court should employ such an alternative.”
The court concluded “While the trial court has broad discretion to enter sanctions for repeated discovery violations and for failing to comply with court orders, the record before us does not reflect that the trial court considered the six Kozel factors. Accordingly, we reverse and remand for the trial court to make written findings of fact on each of the six Kozel factors.”
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