        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                          RACHEL SHELSWELL,
                              Appellant,

                                      v.

                           PIERRE BOURDEAU,
                                Appellee.

                               No. 4D17-174

                            [February 21, 2018]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Michael L. Gates, Judge; L.T. Case No. 12-34886 (12).

   Brian J. Glick of Glick Law Firm, P.A., Boca Raton, for appellant.

   W. Tucker Craig and Scott C. Cochran of Billing, Cochran, Lyles, Mauro
& Ramsey, P.A., Fort Lauderdale, for appellee.

PER CURIAM.

   Appellant Rachel Shelswell appeals a final order effectively dismissing
her negligence suit with prejudice due to her prior counsel’s failure to
appear at a case management conference. Shelswell argues that her
counsel’s failure to appear was the result of mistake, inadvertence, or
excusable neglect, and that the final order was deficient for failing to
include an express finding that her counsel’s failure to appear was willful
and contumacious. We reject both arguments on appeal and affirm.

    It is well-settled that a final order dismissing a case with prejudice,
because counsel failed to attend a case management conference, must
include a factual finding that the failure to attend was “willful, deliberate,
or contumacious, rather than an act of negligence or inexperience.” Kozel
v. Ostendorf, 629 So. 2d 817, 818 (Fla. 1993); see also Kaufman ex rel.
Yelnick v. FS Tenant Pool III Tr., 87 So. 3d 1228, 1229 (Fla. 4th DCA 2012)
(“Failure to include a finding of such willful and contumacious behavior in
its order dismissing the case with prejudice is an abuse of discretion by
the trial court.”). The final order in this case was deficient as it failed to
address the Kozel factors.
    However, it is equally “well settled that the rule of preservation applies
to the improper dismissal of a complaint with prejudice.” Vorbeck v.
Betancourt, 107 So. 3d 1142, 1147 (Fla. 3d DCA 2012). In Bank of
America, N.A. v. Ribaudo, 199 So. 3d 407 (Fla. 4th DCA 2016), we refused
to reverse a final order that failed to address the necessary Kozel factors
because the appellant bank “did not raise [the issue] at the hearing on the
motion to dismiss or by subsequently filing a motion for rehearing or
reconsideration.” Id. at 409; see also Gozzo Dev., Inc. v. Prof’l Roofing
Contractors, Inc., 211 So. 3d 145, 146 (Fla. 4th DCA 2017) (Lee, J.,
concurring) (“[A]ppellant cannot now be heard to complain about the trial
court’s not making findings pursuant to Kozel when appellant failed to
request the trial court to do so.”); Bank of N.Y. Mellon v. Sandhill, 202 So.
3d 944, 945 (Fla. 5th DCA 2016) (“[I]n order to preserve as error the failure
of the trial court to set forth its Kozel analysis in the order of dismissal,
the Appellant was obligated to bring the matter to the trial court’s attention
by filing a timely motion for rehearing or clarification with a specific
request for inclusion of the Kozel factor analysis in an amended order.”).

    Here, Shelswell, by way of her replacement trial attorney, did not raise
the Kozel issue at any point in the proceedings below, such as through a
motion for rehearing or clarification filed within fifteen days of the trial
court’s order. Fla. R. Civ. P. 1.530(b). Instead, Shelswell’s counsel filed
an appeal with this Court and then failed to take the opportunity to move
for relinquishment of jurisdiction to the trial court. In this appeal, we are
urged to consider an affidavit purporting to excuse the initial counsel’s
failure to attend the case management conference. But, because the
document “was never submitted to the trial court and is not part of the
record, its inclusion in the appendix was improper.” Sandefur v. RVS
Capital, LLC, 183 So. 3d 1258, 1260 n.3 (Fla. 4th DCA 2016).

    “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.” Kozel, 629 So. 2d at 818. By failing to first
attend the case management conference, and then failing to file a motion
for rehearing or clarification or relinquishment, Shelswell’s attorneys’
conduct ran contrary to the interests of their client, a minor child who had
been involved in a car accident. Thus, as in Ribaudo, “despite the trial
court’s clear errors, we are unable to address them on appeal.” Ribaudo,
199 So. 3d at 409. Accordingly, we affirm the trial court’s order of
dismissal.

   Affirmed.

TAYLOR, FORST and KLINGENSMITH, JJ., concur.

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Not final until disposition of timely filed motion for rehearing.




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