       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                            FOURTH DISTRICT

                           JOSEPH VENTO,
                              Appellant,

                                   v.

                   BALBOA INSURANCE COMPANY,
                             Appellee.

                            No. 4D17-3342

                         [ December 12, 2018 ]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Michael L. Gates, Judge; L.T. Case No. 14-018329CACE
12 and 14-022454CACE.

   David B. Pakula of David B. Pakula, P.A., Pembroke Pines, and David
A. Neblett and James M. Mahaffey of Perry & Neblett, P.A., Miami, for
appellant.

  Robert T. Vorhoff and Joseph Gelli of Garrison, Yount, Forte &
Mulcahy, LLC, Tampa, for appellee.

TAYLOR, J.

   Joseph Vento appeals a final judgment dismissing with prejudice his
amended complaint in one of two consolidated insurance cases because
he failed to comply with a previous court order requiring him to file a
second amended complaint as to that case. Because we find that the
record does not support the extreme sanction of dismissal, we reverse.

   This case arises out of two property damage claims that appellant
asserted under a lender-placed homeowner’s insurance policy issued by
Balboa Insurance Company.

   In September 2014, appellant filed a breach of contract action against
Balboa in Broward Circuit Court under Case Number 14-18329, alleging
that Balboa failed to pay a covered loss to his home occurring on
September 12, 2011.

   A few months earlier, appellant had filed a similar breach of contract
action against Balboa in Miami-Dade Circuit Court, alleging that Balboa
failed to pay a covered loss to his home occurring on May 1, 2011. That
case was transferred to Broward Circuit Court and was assigned Case
Number 14-22454.

   The two cases were eventually consolidated. The consolidation order
required that all papers submitted in Case Number 14-18329 “shall
display a caption containing both case numbers and the parties in both
cases.”

   Appellant filed a seven-count amended complaint in each case, adding
appellant’s mortgage lender, Bank of America, as a defendant. Counts I–
IV were against Balboa, while Counts V–VII were against Bank of America.
Balboa moved to dismiss multiple counts of the amended complaints.

  In October 2016, the trial court entered an order granting Balboa’s
motion to dismiss Counts I and IV, abating Counts II and III, and giving
appellant 20 days to amend.

   In December 2016, Balboa filed a motion for entry of a final judgment
dismissing appellant’s amended complaints with prejudice. Balboa argued
that the trial court should dismiss Counts I–IV with prejudice because
appellant had failed to amend his operative complaint in either action
within 20 days as required by the court’s October 2016 order.

   In February 2017, appellant filed a second amended complaint,
asserting a count for breach of contract and a count for declaratory relief
against Balboa and two counts against Bank of America. However, the
second amended complaint contained the following errors: (1) it listed only
Case Number 14-18329 in the caption; (2) it referenced only the September
12, 2011 date of loss related to Case Number 14-18329; and (3) it
referenced only the claim number related to Case Number 14-22454. In
other words, the second amended complaint failed to mention Case
Number 14-22454 or the May 1, 2011 date of loss associated with that
case number.

   Balboa moved to dismiss the two counts against it in the second
amended complaint, arguing that appellant failed to state a cause of
action. In the alternative, Balboa requested the trial court to direct
appellant “to provide a more definite statement to accurately reflect the
appropriate claim number with the correct alleged date of loss so that
[Balboa] can properly respond.”

   The trial court held a hearing on Balboa’s motion for entry of final

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judgment and motion to dismiss the second amended complaint. At the
hearing, Balboa argued that Case Number 14-22454 should be dismissed
with prejudice because appellant did not comply with the court order
requiring him to file a second amended complaint as to that case.
However, Balboa presented no evidence in support of its argument that
dismissal was warranted as a sanction for appellant’s noncompliance with
the court order.

   Appellant’s counsel then argued: “We did file a second amended
complaint. I believe we didn’t include the second case number, these cases
had been consolidated, so when we filed the second amended complaint
we believed that it was filed for both actions, as the actions had been
consolidated together.” Appellant’s counsel added that “dismissal with
prejudice for failure to amend is a very extreme standard.”

   Following the hearing, the trial court entered an order denying Balboa’s
motion for entry of final judgment and an order denying Balboa’s motion
to dismiss the second amended complaint. The orders gave Balboa 20
days to file an answer.

   Balboa moved for reconsideration of the order denying its motion for
entry of final judgment, arguing that the second amended complaint
“references only a single claim number with a single date of loss” and
“contains only a single count for breach of contract and a single count for
declaratory relief against Balboa.” Balboa asserted that it could not
comply with the court’s order because there was no second amended
complaint in Case Number 14-22454 for it to answer. Balboa requested
entry of a final judgment dismissing Case Number 14-22454 with
prejudice due to appellant’s failure to file a second amended complaint for
that case in compliance with the court’s October 2016 order.

   Without holding a hearing, the trial court granted Balboa’s motion for
reconsideration and entered a final judgment dismissing appellant’s
amended complaint in Case Number 14-22454 with prejudice. The trial
court made no findings concerning the factors set forth in Kozel v.
Ostendorf, 629 So. 2d 817 (Fla. 1993).

   Appellant filed a motion for rehearing. In relevant part, appellant
argued that the extreme sanction of dismissal with prejudice for failure to
amend was improper for what amounted to a “technicality concerning the
pleadings.” He asserted that he was never on notice that dismissal with
prejudice was a possibility, because he believed that the second amended
complaint “did indeed satisfy the requirement for amendment based on
the consolidated nature of the cases.” Appellant maintained that there

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was a far less extreme remedy available—namely, granting him leave to
amend to address the scrivener’s error in the complaint and to accurately
reflect the appropriate claim number with the correct date of loss.
However, appellant did not specifically argue that the trial court erred in
failing to consider the Kozel factors. After the trial court denied appellant’s
motion for rehearing, he appealed.

   On appeal, appellant argues that the trial court reversibly erred by
dismissing Case Number 14-22454 with prejudice where the trial court
did not make the required finding of willfulness and failed to consider the
Kozel factors. Further, appellant argues that the record does not support
the ultimate sanction of dismissal with prejudice. Appellant maintains
that there is no indication in the record that the defects in the second
amended complaint were due to willful noncompliance with a court order.

   The dismissal of a complaint for failure to comply with a court order is
reviewed for an abuse of discretion. Bank One, N.A. v. Harrod, 873 So. 2d
519, 520 (Fla. 4th DCA 2004).

   In Kozel, the Florida Supreme Court explained 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.” 629 So. 2d at 818. The court articulated the following
factors to assist trial courts in determining whether dismissal with
prejudice is warranted as a sanction:

      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.


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Id. “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.” Id. A trial court’s decision to dismiss
a case “based solely on the attorney’s neglect unduly punishes the litigant
and espouses a policy that this Court does not wish to promote.” Id.

   “The trial court’s failure to consider the Kozel factors in determining
whether dismissal was appropriate is, by itself, a basis for remand for
application of the correct standard.” Ham v. Dunmire, 891 So. 2d 492, 500
(Fla. 2004).

   Here, while appellant’s motion for rehearing arguably raised Kozel
factual matters, appellant did not specifically mention Kozel or argue that
the trial court erred in failing to consider the Kozel factors. Thus, although
the trial court clearly erred by failing to make findings as to willfulness
and the other Kozel factors, it is unclear whether appellant adequately
preserved this error. Compare Shelswell v. Bourdeau, 239 So. 3d 707, 709
(Fla. 4th DCA 2018) (holding that a trial court’s failure to address the Kozel
factors is an error that cannot be addressed on appeal unless it is
preserved by raising the issue at the relevant hearing or in a motion for
rehearing or reconsideration), with Heritage Circle Condo. Ass’n, Inc. v.
State, Fla. Dep’t of Bus. & Prof’l Regulation, Div. of Condos., Timeshares &
Mobile Homes, 121 So. 3d 1141, 1144 & n.1 (Fla. 4th DCA 2013) (finding
issue preserved where appellant had raised “Kozel factual matters” in a
motion for rehearing even though the motion did not actually mention
Kozel).

   Nonetheless, we find it unnecessary to decide the issue of whether
appellant’s motion for rehearing was adequate to preserve the error
concerning the lack of Kozel findings. Regardless of the lack of Kozel
findings, we conclude that on this record the ultimate sanction of
dismissal with prejudice constituted an abuse of discretion. 1

   The record facts simply do not warrant the severe sanction of dismissal
with prejudice. At the hearing on Balboa’s motion for entry of a final
judgment, Balboa presented no evidence that the defects in the second
amended complaint were due to willful noncompliance or deliberate
disregard of a court order. The errors or omissions in the second amended
complaint were easily correctible by a simple amendment. Appellant’s
attorney had not been previously sanctioned. Nor is there record evidence

1This argument was preserved in appellant’s motion for rehearing, as appellant
specifically argued below that the sanction of dismissal with prejudice was an
extreme sanction that was improper under the circumstances.

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that appellant personally had any involvement in his attorney’s negligent
drafting of the second amended complaint. Balboa suffered no prejudice
apart from pointing out that there was no second amended complaint in
Case Number 14-22454 for it to answer. And there was a reasonable
justification for appellant’s counsel’s noncompliance—namely, that he
intended for the second amended complaint to apply to both consolidated
cases, but neglected to include both of the underlying losses and claim
numbers in that complaint. Finally, the delay at issue did not create
significant problems of judicial administration.

  Based on the foregoing, we reverse the dismissal in Case Number 14-
22454 and remand for further proceedings.

   Reversed and Remanded.

CONNER and KUNTZ, JJ., concur.

                          *         *        *

   Not final until disposition of timely filed motion for rehearing.




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