Michelle Gerbino v. Isle of Paradise B, Inc., Gus Nasiell, Jean-Paul and Marie Berthiaume, Kasey and Kevin McClung and Anthony Vitale

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
July Term 2014
MICHELLE GERBINO,
Appellant,
v.
ISLE OF PARADISE B, INC., GUS NASIELL, JEAN-PAUL AND MARIE
BERTHIAUME, KASEY AND KEVIN MCCLUNG, and ANTHONY
VITALE,
Appellees.
No. 4D12-4547
[August 20, 2014]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; David Krathen, Judge; L.T. Case No. 11-1970 CACE.
Lorenzo Jackson, Jr. of Jackson Law P.A., Miramar, for appellant.
Dennis S. Lefkowitz, Boca Raton, for appellee Isle of Paradise, B Inc.
Richard Birkebwald, North Miami Beach, for appellees Gus Nasiell,
Jean-Paul and Marie Berthiaume, Kasey and Kevin McClung, and Anthony
Vitale.
ON MOTION FOR REHEARING
WARNER, J.
We grant appellant’s motion for rehearing, withdraw our prior opinion
and substitute the following in its place.
Appellant challenges a final order dismissing her complaint for
declaratory judgment with prejudice after the court denied her request for
additional time to file an amended complaint. She claims that the court
failed to provide proper notice and did not conduct an analysis pursuant
to Kozel v. Ostendorf, 629 So. 2d 817 (Fla. 1993), to determine whether
dismissal was an appropriate sanction. We agree on both points and
reverse.
Appellant, acting pro se, filed a complaint for declaratory judgment in
county court to determine whether private docks were built on the
common property of her condominium association. She later retained an
attorney who moved to transfer the case to circuit court and to amend the
complaint. Appellees moved to dismiss the amended complaint for failure
to state a cause of action. The court granted the motion to dismiss,
pointing out that appellant’s causes of action for damages and injunctive
relief should be separately stated.
Appellant acquired new counsel who filed a second amended complaint,
which appellees also moved to dismiss. The court dismissed the second
amended complaint for failure to join indispensable parties. It granted
leave to amend. When the deadline for filing the third amended complaint
passed, appellees moved to dismiss the complaint with prejudice for failure
to timely file the third amended complaint. Appellant filed the complaint
shortly thereafter. Again, appellees moved to dismiss the complaint for
failure to state a cause of action and requested dismissal with prejudice.
The court, however, granted the motion to dismiss with leave to amend
within thirty days to specifically name individual defendants who were
indispensable parties.
The day before the amended complaint was due to be filed, appellant
filed a motion for extension of time to file the new complaint, proffering
that additional investigation needed to be done. Appellees objected,
contending that the excuse for failure to file was insufficient and that the
court had discretion to deny the extension. At the hearing on the motion,
the court denied the motion for extension and entered a final order
dismissing the complaint with prejudice. From that order, appellant files
this appeal.
We reverse the final order of dismissal for two reasons. First, the court
did not give the proper notice of its intent to dismiss with prejudice.
Second, the court failed to consider the factors of Kozel before entering the
ultimate sanction of dismissal with prejudice.
The court dismissed appellant’s complaint with prejudice without
notice and after a hearing in which the court denied the appellant’s motion
to extend the time for filing the fourth amended complaint.
Once a court has dismissed a complaint with leave to amend, it
cannot subsequently dismiss with prejudice for failure to timely
amend unless (1) separate notice is given to plaintiff of the
hearing on the motion to dismiss with prejudice, or (2) the order
dismissing the complaint with leave to amend specifically
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provides that on failure to amend within the stated time, the
cause will be dismissed without further notice.
Neu v. Turgel, 480 So. 2d 216, 217 (Fla. 3d DCA 1985), cause dismissed,
486 So. 2d 598 (Fla. 1986); accord Kruger v. Kruger, 124 So. 3d 1033,
1034-35 (Fla. 3d DCA 2013); Smith v. City of Panama City, 951 So. 2d 959,
960 (Fla. 1st DCA 2007); Sekot Labs., Inc. v. Gleason, 585 So. 2d 286, 287
(Fla. 3d DCA 1990); see also McMurray v. U-Haul Co., 425 So. 2d 1208,
1209 (Fla. 4th DCA 1983) (where trial court dismissed complaint with leave
to amend and plaintiff failed to amend within the time provided, it was
error to dismiss case with prejudice without giving notice to the plaintiff).
Here, neither alternative described in Neu was provided. Therefore,
procedurally the court erred.
More importantly, the court erred in failing to consider the Kozel factors
prior to dismissing the complaint with prejudice. In Kozel, the trial court
had dismissed the complaint for failure to state a cause of action and
granted ten days to amend. 629 So. 2d at 817. When the plaintiff did not
file an amended complaint until five months later, the defendant moved
the court to dismiss the complaint with prejudice, which the trial court
did. Id. On appeal, the second district determined that the trial court had
discretionary authority to dismiss a complaint if the plaintiff failed to file
a timely amendment. Kozel v. Ostendorf, 603 So. 2d 602, 603 (Fla. 2d
DCA 1992). But on review by the supreme court, the court held that such
discretionary authority cannot be exercised without the trial court’s
consideration of six factors to assure that the ultimate sanction of
dismissal will not be imposed on the client solely for the attorney’s neglect.
Kozel, 629 So. 2d at 818. Those factors are:
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.
Id. After considering these factors, if a sanction less severe than dismissal
of the suit is a viable alternative, then the court should employ such an
alternative. Id.; accord Kruger, 124 So. 3d at 1034-35; Smith, 951 So. 2d
at 960; Sekot, 585 So. 2d at 287; SPS Dev. Co., v. DS Enters. of the Palm
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Beaches, Inc., 970 So. 2d 495, 497 (Fla. 4th DCA 2007); Town of
Manalapan v. Fla. Power & Light Co., 815 So. 2d 670, 672 (Fla. 4th DCA
2002). In this case, the court failed to consider these factors in dismissing
the appellant’s complaint with prejudice.
Appellee contends that the order of dismissal does not mention
sanctions, and the trial court was simply dismissing the complaint for
failure to state a cause of action. First, the mere fact that “sanction” is not
mentioned is not dispositive. Second, the court had already granted leave
to amend to correct the pleading deficiencies, as it saw them. Thus, the
complaint could have stated a cause of action, and the court provided no
analysis of why it was dismissing the case with prejudice, other than the
fact that the plaintiff had not filed a timely amended complaint. Alone,
that reason is insufficient to warrant dismissal with prejudice. See Kozel,
629 So. 2d at 818. Moreover, without the trial court’s analysis of those
factors, we cannot review the discretionary decision of the trial court. See
Rohlwing v. Myakka River Real Props., Inc., 884 So. 2d 402, 405 (Fla. 2d
DCA 2004). The trial court must conduct the analysis before dismissing
the complaint with prejudice.
Reversed and remanded for further proceedings consistent with this
opinion.
DAMOORGIAN, C.J., and MAY, J., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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