Kozel v. Ostendorf, 629 So. 2d 817 (Fla. 1994). · Go Syfert
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Kozel v. Ostendorf, 629 So. 2d 817 (Fla. 1994). Cases Citing This Book View Copy Cite
Quick Summary

A trial court should reserve dismissal with prejudice for aggravating circumstances and must employ a less severe sanction if a viable alternative exists to avoid unduly punishing a litigant.

After a plaintiff's attorney failed to file an amended complaint by the court-ordered deadline, the trial court dismissed the medical malpractice complaint with prejudice. The question is whether dismissal with prejudice is the appropriate sanction for an attorney's neglect. The court holds that because dismissal is the ultimate sanction in the adversarial system, it should be reserved for aggravating circumstances where lesser sanctions would fail to achieve a just result. If a less severe sanction is a viable alternative, the trial court should employ that alternative rather than punishing the litigant for the attorney's error.

463 citation events (420 in the last 25 years) across 4 distinct courts.
Strongest positive: Christy Green v. Isaac Mann, 420 So. 3d 501 (Fla. 4th DCA 2025)
Treatment trajectory · 1994 → 2026 · click a year to view as-of
1994 2010 2026
How cited ↗
Cited for
At page 818 Guidelines for trial courts sanctioning attorney misconduct99 citing cases“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.”17 citing courts quote it · 49 listed here
  • Christy Green v. Isaac Mann, 420 So. 3d 501 (Fla. 4th DCA 2025). 2 cites
    (whether the client was personally involved in the act of disobedience)
  • Randy Rhoades, III Vs Lilmissette Rodriguez, 359 So. 3d 359 (Fla. 5th DCA 2023). 3 cites
    (In our view . . . the court’s decision to dismiss the case based solely on the attorney’s neglect unduly punishes the litigant and espouses a policy that this Court does not wish to promote.)
  • Martha A. Thomas & Archibald Johns Thomas, III, Esquire v. Cyprex Holdings, LLC, & Turnkey Asset Mgmt. & Maint., Inc., No. 5D2025-2070 (Fla. 5th DCA May 22, 2026).
    Kozel, 629 So. 2d at 818 (Fla. 1993).
  • Rachkov, Best Future Homes, Inc. v. Medvednik, Medvedniks, 432 So. 3d 658 (Fla. 2d DCA 2026). 2 cites
    On appeal, Rachkov and Best Future argue that the trial court erred in striking their pleadings without considering and making written findings on the factors set forth in Kozel v. Ostendorf, 629 So. 2d 817, 818 (Fla. 1993).
  • Nguyen, Nguyen v. Williams, 429 So. 3d 1105 (Fla. 2d DCA 2026). 2 cites
    The Nguyens also sought clarification of the order of dismissal because it did not expressly state that it was "with prejudice." The 4 Nguyens acknowledged that the trial court was not required to consider the six factors described in Koze…
  • Norka Rodriguez v. Bryant Permit Serv., No. 3D2025-0308 (Fla. 3d DCA Jan. 7, 2026).
    Co. v. Hickey, 869 So. 2d 694, 694 (Fla. 5th DCA 2004) (“[W]hile we recognize that the trial court has the discretionary power to dismiss a complaint if the plaintiff fails to timely file an 4 It appears that Rodriguez’s counsel misapprehe…
  • Genaro Javier v. Behar, Gutt & Glazer, P.A., No. 3D2024-1937 (Fla. 3d DCA Dec. 10, 2025).
    Even accepting the distinction, however, a dismissal with prejudice for failure to obey a court order (in this case by a delay of two days) is a sufficiently severe sanction as to require the trial court to conduct an analysis of the viola…
  • Leslie Castro v. Heritage Prop. & Cas. Ins. Co., No. 3D2024-0519 (Fla. 3d DCA Oct. 8, 2025).
    Ass’n. v. Robbins, 914 So. 2d 925, 928 (Fla. 2005) (same); Bank of New York Mellon v. Sandhill, 202 So. 3d 944 , 945-46 n. 1 (Fla. 5th DCA 2016) (“[I]n order to preserve as error the failure of the trial court to set forth its Kozel [v. Os…
  • Canstar Int'l, Inc., Etc. v. WC WH Holdings, LLC, Etc., No. 3D2024-1506 (Fla. 3d DCA Sept. 3, 2025).
    Affirmed. 1 Kozel v. Ostendorf, 629 So. 2d 817, 818 (Fla. 1993). 2
  • Goldstein v. Khullar, No. 24-01337 (Bankr. S.D. Florida May 27, 2025).
    P. 1.380 (Failure to Make Discovery; Sanctions). 15 629 So. 2d 817, 818 (Fla. 1993); see also Chappelle v. S. Fla. Guardianship Program, Inc., 169 So. 3d 291, 294 (Fla. 4th DCA 2015) (“Before a court may dismiss a cause as a sanction, it m…
Show 39 more citing cases
  • 940 Ocean Drive, LLC v. Sobe USA, LLC, No. 3D2022-2238 (Fla. 3d DCA Jan. 29, 2025).
    We therefore reject the Landlord’s argument that the trial court was required to consider the factors set forth in Kozel v. Ostendorf, 629 So. 2d 817, 818 (Fla. 1993), which apply “in those situations where the attorney, and not the client…
  • Taraneisha Burgess v. Quessie Campbell, No. 4D2023-2281 (Fla. 4th DCA Jan. 8, 2025).
    (indentations added)
  • Pierre Marc Malek v. Marguerite Malek, 388 So. 3d 956 (Fla. 3d DCA 2024).
    (setting forth six factors a trial court should consider before dismissing a case with prejudice based on attorney misconduct or error)
  • Shekeara Admore v. Hospice of Palm Beach Cnty. Inc., No. 22-12280 (11th Cir. Feb. 1, 2024).
    Kozel v. Ostendorf, 629 So. 2d 817, 818 (Fla. 1993); see also, e.g., Lindsey v. King, 894 So. 2d 1058, 1061 (Fla. 1st DCA 2005); Williams v. Udell, 690 So. 2d 732, 733 (Fla. 4th DCA 1997).
  • Chesterton Capital, LLC v. Charles Yancy, No. 22-3628 (Fla. 2d DCA Jan. 19, 2024).
    Chesterton Capital, LLC, appeals the trial court's order dismissing with prejudice this case based upon Chesterton Capital's discovery violations and "nine years of repeated failures to comply with [the trial court's] orders." Chesterton C…
  • State Farm Mut. Auto. Ins. Co. v. Nob Hill Fam. Chiropractic a/k/a Michael J. Cohen, D.c., P.A. a/a/o Kenrick Grant, 328 So. 3d 1 (Fla. 4th DCA 2021).
    The trial court rejected Insurer’s response, finding deliberate violations of trial court orders due to Insurer’s late responses to Provider’s discovery requests and its ultimate provision of “inaccurate information.” The court concluded t…
  • Raziel Ofer v. Michael I. Bernstein, Esq., 327 So. 3d 901 (Fla. 3d DCA 2021).
    We are compelled to reverse and remand for further proceedings under Kozel v. Ostendorf, 629 So. 2d 817, 818 (Fla. 1993). 1 At the hearing on their motion to strike the complaint which led to the order at issue, Appellees’ counsel admitted…
  • Alba C. Arriechi, Ricardo J. Blanco & Little Wonders Preschool, Ll. v. Jose Bianchi, 318 So. 3d 4 (Fla. 4th DCA 2021).
    (providing factors to “assist the trial court in determining whether dismissal with prejudice is warranted)
  • Tuyuana L. Morris, etc. v. Orlando S. Muniz, M.D., 252 So. 3d 1143 (Fla. 2018).
    “it should be reserved for those aggravating circumstances in which a lesser sanction would fail to achieve a just result”
  • Faris v. S.-Owners Ins. Co., 240 So. 3d 848 (Fla. 5th DCA 2018).
    Thus, 1 Kozel v. Ostendorf, 629 So. 2d 817, 818 (Fla. 1993).
  • Rachel Shelswell v. Pierre Bourdeau, 239 So. 3d 707 (Fla. 4th DCA 2018).
    “willful, deliberate, or contumacious, rather than an act of negligence or inexperience”
  • Hanna-Mack v. Bank of Am., N.A., 218 So. 3d 971 (Fla. 3d DCA 2017).
    Ms. Hanna-Mack’s pro se brief argues that the trial court’s refusal to vacate the order of dismissal with prejudice and to allow her to amend was an impermissible sanction under Kozel v. Ostendorf, 629 So.2d 817, 818 (Fla. 1993).
  • ICMfg & Assocs., Inc. v. The Bare Bd. Grp., Inc., 238 So. 3d 326 (Fla. 2d DCA 2017).
    Mercer v. Raine, 443 So. 2d 944, 946 (Fla. 1983); Bailey v. Woodlands Co., Inc., 696 So. 2d 459 (Fla. 1st DCA 1997) (affirming dismissal of party's pleading based on finding a pattern of willful noncompliance or disregard of the rules of c…
  • Bank of New York Mellon v. Pearson, 212 So. 3d 1071 (Fla. 3d DCA 2017).
    The required findings are set out in Kozel v. Ostendorf, 629 So.2d 817, 818 (Fla. 1993).
  • Gozzo Dev., Inc. v. Prof'l Roofing Contractors, Inc., 211 So. 3d 145 (Fla. 4th DCA 2017).
    At no point did appellant request that the trial court make any findings pursuant to Kozel v. Ostendorf, 629 So.2d 817, 818 (Fla. 1993), assuming such findings might have been required.
  • H&R Block Bank v. Perry, 205 So. 3d 776 (Fla. 2d DCA 2016).
    “whether the delay created significant problems of judicial administration”
  • H & R Block Bank v. Perry, 205 So. 3d 776 (Fla. 2d DCA 2016).
    “whether the delay created significant problems of judicial administration”
  • Bank of Am., N.A. v. Ribaudo, 199 So. 3d 407 (Fla. 4th DCA 2016).
    Ribaudo agrees with BOA that the trial court erred by failing to make required findings pursuant to Kozel v. Ostendorf, 629 So.2d 817, 818 (Fla.1993), prior to dismissing the action, and concedes that the case should be remanded.
  • Tuyuana L. Morris, as Pers. etc. v. Orlando S. Muniz, M.D., Marianna etc., 189 So. 3d 348 (Fla. 1st DCA 2016). 2 cites
    Thus, the record fails to show, and the trial court’s dismissal order fails to include the necessary findings under Kozel v. 10 Ostendorf, 629 So. 2d 817, 818 (Fla. 1993), that there was a violation of the trial court’s discovery order war…
  • Onewest Bank, FSB v. Gino Alessio a/k/a Gino Davide Alessio, Fernanda Alessio a/k/a Fernanda Lalia Cury, 182 So. 3d 855 (Fla. 4th DCA 2016).
    The Florida Supreme Court in Kozel v. Ostendorf, 629 So.2d 817, 818 (Fla.1993), identified factors for a trial court to consider “in determining whether dismissal with prejudice is warranted.” These six factors are: 1) whether' thé attorne…
  • Sukonik v. Wallack, 178 So. 3d 455 (Fla. 3d DCA 2015).
    Kozel v. Ostendorf, 629 So.2d 817, 818 (Fla.1993); see also Ham, 891 So.2d at 496 .
  • Green v. Lingle, 166 So. 3d 221 (Fla. 1st DCA 2015).
    In Pixton v. Williams Scotsman, Inc., 924 So.2d 37, 40 (Fla. 5th DCA 2006), the Fifth District reversed a trial court’s dismissal of a complaint after the statute of limitations had run for counsel’s failure to comply with rule 1.070(j) an…
  • Deutsche Bank Nat'l Trust Co. v. Avila-Gonzalez, 164 So. 3d 90 (Fla. 3d DCA 2015).
    As this Court stated in Toll v. Korge, The Supreme Court has articulated a six-factor analysis to determine whether a dismissal with prejudice is an appropriate sanction due to an attorney’s behavior: 1) Whether the attorney’s disobedience…
  • U.S. Bank Nat'l Ass'n v. Whyte, 150 So. 3d 1232 (Fla. 3d DCA 2014).
    Moreover, to the extent the Bank’s attorneys were responsible for the failure to comply with the discovery orders, neither the record nor the order on appeal demonstrate that the trial court considered the factors mandated by Kozel v. Oste…
  • Celebrity Cruises, Inc. v. Fernandes, 149 So. 3d 744 (Fla. 3d DCA 2014). 2 cites
    Moreover, to ensure that a litigant is not unduly punished for failures of counsel, a trial court must consider those factors delineated by the Florida Supreme Court in Kozel to determine whether dismissal or striking of a party’s pleading…
  • STO Corp., a foreign Corp. v. Greenhut Constr. Co., etc., 146 So. 3d 534 (Fla. 1st DCA 2014).
    Here, while petitioner asserts that the trial court departed from the essential requirements of law by failing to fully comply with the requirements of Kozel v. Ostendorf, 629 So.2d 817, 818 (Fla.1993), the petitioner fails to demonstrate…
  • Toll v. Korge, 127 So. 3d 883 (Fla. 3d DCA 2013).
    Utilizing the pertinent standard set forth in Mercer v. Raine, 443 So.2d 944, 946 (Fla.1983)—which, as opposed to the standard in Kozel v. Ostendorf, 629 So.2d 817, 818 (Fla.1993), applies when the discovery misconduct is attributable to t…
  • Heritage Circle Condo. Ass'n v. State, Florida Dep't of Bus. & Prof'l Reg., Div. of Condos., Timeshares & Mobile Homes, 121 So. 3d 1141 (Fla. 4th DCA 2013).
    The trial court granted a default judgment against appellant as a sanction for discovery violations without holding a hearing and without consideration of the factors in Kozel v. Ostendorf, 629 So.2d 817, 818 (Fla.1993), for determining wh…
  • Wells Fargo Bank, N.A. v. Chatham, 114 So. 3d 1062 (Fla. 1st DCA 2013). 2 cites
    (In the interest of an efficient judicial system and in the interest of clients, it is essential that attorneys adhere to filing deadlines and other procedural requirements.)
  • Nat'l City Bank v. White, 112 So. 3d 663 (Fla. 4th DCA 2013).
    Kozel v. Ostendorf, 629 So.2d 817, 818 (Fla.1993) (footnote omitted).
  • Deutsche Bank Nat'l Trust Co. v. Waldorf, 92 So. 3d 857 (Fla. 2d DCA 2012). 2 cites
    In Kozel v. Ostendorf, 629 So.2d 817, 818 (Fla.1993), the supreme court set forth the following six-factor test to be used in determining whether a dismissal with prejudice is an appropriate response to an attorney’s behavior: 1) whether t…
  • U.S. Bank Nat'l Ass'n v. Cowell, 86 So. 3d 1214 (Fla. 3d DCA 2012).
    Kozel v. Ostendorf, 629 So.2d 817, 818 (Fla.1993).
  • Deutsche Bank Nat'l Trust Co. v. Cagigas, 85 So. 3d 1181 (Fla. 3d DCA 2012).
    It is well settled that a court must first consider each of the following six factors delineated in Kozel v. Ostendorf, 629 So.2d 817, 818 (Fla.1993), before dismissing a case as a sanction: 1. whether the attorney’s disobedience was willf…
  • Hawthorne v. Wesley, 82 So. 3d 1183 (Fla. 2d DCA 2012).
    But we must reverse because the trial court failed to consider the factors set forth in Kozel v. Ostendorf, 629 So.2d 817, 818 (Fla.1993), for determining whether dismissal with prejudice was warranted.
  • Deutsche Bank Nat'l Trust Co. v. Lippi, 78 So. 3d 81 (Fla. 5th DCA 2012).
    “those aggravating circumstances in which a lesser sanction would fail to achieve a just result”
  • Arkiteknic, Inc. v. United Glass Laminating, Inc., 53 So. 3d 366 (Fla. 3d DCA 2011).
    “Because dismissal is the ultimate sanction in the adversarial system, it should be reserved for those aggravating circumstances in which a lesser sanction would fail to achieve a just result”
  • Park Adult Residential Facility, Inc. v. Dan Designs, Inc., 36 So. 3d 811 (Fla. 3d DCA 2010). 2 cites
    “based solely on the attorney’s neglect unduly punishes the litigant and espouses a policy that this Court does not wish to promote”
  • Cook v. Custom Marine Distrib., Inc., 29 So. 3d 462 (Fla. 4th DCA 2010).
    Kozel v. Ostendorf, 629 So.2d 817, 818 (Fla.1993).
  • Buroz-Henriquez v. De Buroz, 19 So. 3d 1140 (Fla. 3d DCA 2009).
    It is well established that before a court may dismiss a cause or default a party as a sanction, it must first consider each of the following six factors set forth in Kozel v. Ostendorf, 629 So.2d 817, 818 (Fla.1993): 1. whether the attorn…
At page 819 cited at this page1 citing case
  • Nationstar Mortg., LLC v. Hogan, 186 So. 3d 1134 (Fla. 5th DCA 2016).
    Na-tionstar argues that the trial court erred by failing to consider the required factors set forth in Kozel v. Ostendorf, 629 So.2d 817, 819 (Fla.1993), and failing to make the requisite express factual findings, before dismissing its sec…
Retrieving the full opinion text from the archive…
Carolann D. KOZEL, Petitioner,
v.
D. Steven OSTENDORF, D.P.M., Respondent.
80380.
Supreme Court of Florida.
Jan 13, 1994.
629 So. 2d 817
1993 WL 433791
McDonald.
Cited by 236 opinions  |  Published

Kelley A. Finn of Kelley Finn Law Offices, P.A., Miami, for petitioner.

Gerald W. Pierce of Henderson, Franklin, Starnes & Holt, P.A., Fort Myers, for respondent.

McDONALD, Justice.

We review Kozel v. Ostendorf, 603 So.2d 602 (Fla. 2d DCA 1992), which directly conflicts with Clay v. City of Margate, 546 So.2d 434 (Fla. 4th DCA), review denied, 553 So.2d 1164 (Fla. 1989). We have jurisdiction pursuant to article V, section 3(b)(3) of the Florida Constitution. We quash Kozel.

Carolann Kozel filed a medical malpractice complaint against Steven Ostendorf on July 25, 1989 in the circuit court of Lee County. Ostendorf filed a motion to dismiss on the grounds that the complaint failed to state a cause of action and that Kozel failed to comply with section 766.205, Florida Statutes (1989). The court granted Ostendorf's motion to dismiss and granted Kozel twenty days to amend her complaint. By agreement of the parties, the time period to amend the complaint was extended another ten days. Kozel's attorney, Kelley A. Finn, did not file the complaint until July 23, 1990, over five months past the due date. On Ostendorf's motion the circuit court then dismissed the complaint with prejudice and the district court affirmed.

The district court properly recognized that the trial court has the discretionary power to dismiss a complaint if the plaintiff fails to timely file an amendment.[1] Although such broad power is vested in the trial court, it is not necessary or beneficial for that power to be exercised in all situations. We concur[*818] with Judge Altenbernd's suggestion that the trial courts need a meaningful set of guidelines to assist them in their task of sanctioning parties and attorneys for acts of malfeasance and disobedience. Kozel, 603 So.2d at 605 (Altenbernd, J., dissenting). Without such a framework, trial courts have no standard by which to judge the severity of the party's action or the type of sanction that should be imposed.

In the instant case, the trial court acted within the boundaries of the law. In our view, though, the court's decision to dismiss the case based solely on the attorney's neglect unduly punishes the litigant and espouses a policy that this Court does not wish to promote. The purpose of the Florida Rules of Civil Procedure is to encourage the orderly movement of litigation. Fla.R.Civ. Pro. 1.010. This purpose usually can be accomplished by the imposition of a sanction that is less harsh than dismissal and that is directed toward the person responsible for the delayed filing of the complaint. Clay.

Dismissal "with prejudice" in effect disposes of the case, not for any dereliction on the part of the litigant, but on the part of his counsel. We are not unmindful of the rule that counsel is the litigant's agent and that his acts are the acts of the principal, but since the rule is primarily for the governance of counsel, dismissal "with prejudice" would in effect punish the litigant instead of his counsel.

Beasley v. Girten, 61 So.2d 179, 181 (Fla. 1952). Because dismissal is the ultimate sanction in the adversarial system, it should be reserved for those aggravating circumstances in which a lesser sanction would fail to achieve a just result.

This Court is vitally concerned with the swift administration of justice at both the trial and appellate levels. In the interest of an efficient judicial system and in the interest of clients, it is essential that attorneys adhere to filing deadlines and other procedural requirements.[2] However, a fine, public reprimand, or contempt order may often be the appropriate sanction to impose on an attorney in those situations where the attorney, and not the client, is responsible for the error. To assist the trial court in determining whether dismissal with prejudice is warranted, we have adopted the following set of factors set forth in large part by Judge Altenbernd: 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.

For the foregoing reasons, we quash the district court's decision, approve Clay, and remand the case with directions that the trial court be ordered to reconsider in light of the new factors established in this opinion.

It is so ordered.

BARKETT, C.J., and OVERTON, SHAW, GRIMES, KOGAN and HARDING, JJ., concur.

1 New River Yachting, Inc. v. Bacchiocchi, 407 So.2d 607 (Fla. 4th DCA 1981), review denied, 415 So.2d 1360 (Fla. 1982); Neida's Boutique, Inc. v. Gabor and Co., 348 So.2d 1196 (Fla. 3d DCA 1977), cert. denied, 366 So.2d 883 (Fla. 1978); Reynolds v. Deep South Sports, Inc., 211 So.2d 37 (Fla. 2d DCA 1968).
2 According to rule 1.500(c), Florida Rules of Civil Procedure, "[a] party may plead or otherwise defend at any time before default is entered." If a party against whom affirmative relief is sought has filed any paper in a civil action, the court cannot enter a default for failure to file an answer unless the defendant has been served with notice that a default may be entered. Fla. R.Civ.Pro. 1.500(b). However, when the circumstances involve the dismissal of the plaintiff's complaint, there are no similar notice requirements. The rules of civil procedure do not require the defendant to file a motion for default or the court to notify the plaintiff that an application for default is pending. Granted, the plaintiff is aware of the filing deadlines and is responsible for the action that she initiates. Nevertheless, dismissal is an unusually harsh sanction when neither the court nor the defendant is required to notify the plaintiff that dismissal is pending.