DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

DOROTHY CHAPPELLE, CALVIN JOHNSON and EVELYN WILLIAMS,

Appellants,

v.

SOUTH FLORIDA GUARDIANSHIP PROGRAM, INC.,

Appellee.

No. 4D13-2613

[July 22, 2015]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, 

Broward County; Robert A. Rosenberg, Judge; L.T. Case No. 

CACE07031447.

Robert P. Bissonnette, Fort Lauderdale, for appellants.

William Jay Palmer of Shutts & Bowen LLP, Miami, for appellee.

MAY, J.

In an action alleging elder exploitation and fraud, the defendants appeal 

an order sanctioning them with entry of a judicial default and a final 

judgment for compensatory and punitive damages. They argue the trial 

court erred in entering the default without making required findings under 

Kozel v. Ostendorf, 629 So. 2d 817 (Fla. 1993). We agree and reverse.

The dispute is between the ward’s guardian and the ward’s relatives. 

The guardian is the ward’s son. He was appointed as the ward’s emergency 

temporary guardian and plenary guardian due to the ward’s incapacity. 

Two of the defendants, Dorothy and Evelyn, are the ward’s sisters. A third 

defendant, Calvin, is Dorothy’s son and the ward’s nephew.

In 1994, the ward’s husband won the lottery, receiving millions of 

dollars. Upon his death, most of his assets went into a marital trust. The 

ward and guardian were co-trustees of the marital trust. 

In November 2007, the guardian filed a verified complaint against the 

ward’s two sisters, her nephew, daughter, and the ward’s niece. The 

complaint alleged counts for: (1) elderly exploitation pursuant to section 
2

415.111, Florida Statutes, and fraud against the defendants; and (2) 

undue influence against the ward’s sister Dorothy. The defendants

answered the complaint pro se.

1 The ward’s daughter and the ward’s niece

are not involved in this appeal. 

On February 9, 2012, the trial court entered a judicial default against 

the defendants. The trial court found: 

[T]he Defendants and counsel previously failed to respond to 

discovery in this case and had to have orders entered against 

them compelling them to respond to discovery; the Defendants 

(and counsel for Defendants) failed to appear at a Courtordered mediation on December 5, 2011, and this Court has 

already entered an Order sanctioning the Defendants for 

failing to appear at mediation; now Defendants (and counsel 

for Defendants) have failed to appear for calendar call in direct 

contravention of this Court’s October 20, 2010, Trial Order . . 

. . Based upon this judicial default, the allegations of the 

Complaint in this action are deemed to be true and a finding 

of liability is entered against each of the defaulted Defendants 

as to the allegations in the Complaint. Plaintiff’s damages are 

unliquidated and therefore a hearing/trial to establish the 

amount of damages will still be required . . . .

The following day, the defendants moved, through counsel, for 

reconsideration, arguing they made numerous offers to settle; counsel 

failed to schedule the calendar call due to oversight, but intended to 

appear at the upcoming mediation; and they did not intentionally fail to 

appear. 

The trial court held a hearing, but denied the motion.

A careful review of the record finds [the defendants’] conduct 

has been egregious including missed mediation sessions, 

failure to provide discovery, failure [to] attend court 

proceedings, previous contempt actions and a disregard and 

disrespect for the court process. The court thus makes an 

explicit finding of willful noncompliance with orders and 

directives, and an inexcusable pattern of inappropriate 

1 Three different attorneys represented the defendants at various times. The 

attorney who represented the defendants when the default was entered appeared 

on behalf of all defendants on May 4, 2010. The defendants’ current attorney

made his appearance during the evidentiary hearings on damages. 
3

behavior. 

The defendants again moved to set aside the judicial default, which the 

trial court denied after a hearing. That order did not include any findings.

New counsel filed a notice of appearance for the defendants during the 

damages hearings, and again moved for reconsideration. Counsel argued 

that entry of a judicial default was tantamount to dismissal—the most 

severe sanction. Imposing such a sanction required the trial court to 

conduct an evidentiary hearing for consideration of the Kozel factors in 

light of prior counsel’s conduct. 

The trial court once again denied the motion. The court first found the 

motion untimely and unauthorized. Then, 

[a]fter considering the decision in Kozel . . . and the factors 

enumerated, the court [found] no basis to grant the motion. 

Rather, the motion, and the affidavits attached, [were]

contrary to Dorothy[’s] . . . own statements and previously 

stated positions, and largely, and breathtakingly, 

disingenuous. Accordingly the court reject[ed] the arguments 

presented in the motion as not only unpersuasive, but directly 

contrary to record evidence. Further hearing on this matter 

[was] unnecessary.

In a footnote, the court further wrote:

The record in this matter reflects that all factors militate 

against the movants. Indeed, movants were personally 

engaged in protracting matters, misleading the Court, and 

causing prejudice to the opposing party. Moreover, the 

explanation offered is contrary to evidence in the record, and 

wholly unreasonable. The conduct of movants was calculated, 

and created significant problems of judicial administration 

and the swift administration of justice. 

The trial court subsequently held an evidentiary hearing on damages. 

Notes from those proceedings indicate that Dorothy, Calvin, and the 

guardian testified. The court entered final judgment, making extensive 

findings of fact on both compensatory and punitive damages.

The trial judge who entered the default, held the evidentiary hearings, 

and denied the defendants’ three prior motions for rehearing or 

reconsideration retired. The defendants moved for rehearing after the final 
4

judgment, which was denied by the successor judge.

2 From the final 

judgment and the order denying rehearing the defendants now appeal.

The defendants argue the trial court erred by entering a judicial default 

against them without considering the factors enumerated in Kozel v. 

Ostendorf, 629 So. 2d 817 (Fla. 1993). They argue the court failed to hold 

an evidentiary hearing on the matter and consider their counsel’s conduct. 

They suggest a proper consideration of the Kozel factors does not warrant 

judicial default because the responsibility for the disobedient acts

belonged to their counsel.

The guardian responds that because the defendants do not allege any 

basis for reversing the judicial default as to Calvin and Evelyn, they have 

abandoned the issue as to them. Noting that the trial court held two 

evidentiary hearings, the guardian argues that Kozel does not apply 

because the sanction was entered against the defendants for their

misconduct, not their counsel’s. Lastly, the guardian argues the trial court

did consider Kozel before issuing the order on the third motion for 

reconsideration.

The defendants reply that Kozel is applicable and required the trial 

court to conduct an evidentiary hearing for consideration of the factors 

before entering a judicial default, not after the fact. They further assert 

their prior counsel’s misconduct is apparent from the record, and he was 

previously sanctioned for not appearing at a mediation.

We review sanctions orders for an abuse of discretion. Bennett ex rel. 

Bennett v. Tenet St. Mary’s, Inc., 67 So. 3d 422, 426 (Fla. 4th DCA 2011); 

Precision Tune Auto Care, Inc. v. Radcliffe, 804 So. 2d 1287, 1290 (Fla. 4th 

DCA 2002). 

“Before a court may dismiss a cause as a sanction, it must first consider 

the six factors delineated in Kozel v. Ostendorf, 629 So. 2d 817 (Fla. 1993), 

and set forth explicit findings of fact in the order that imposes the sanction 

of dismissal.” Bennett ex rel. Bennett, 67 So. 3d at 426 (citation omitted). 

Those factors are whether:

2 The successor judge was the Honorable William W. Haury, Jr. He denied 

rehearing because “a successor judge may not correct errors of law committed by 

his predecessor and hence he cannot review and reverse on the merits and on 

the same facts the final orders and decrees of his predecessor.” Drdek v. Drdek, 

79 So. 3d 216, 219 (Fla. 4th DCA 2012) (quoting Groover v. Walker, 88 So. 2d 

312, 313 (Fla. 1956)).
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1. the attorney’s disobedience was willful, deliberate, or contumacious, 

rather than an act of neglect or inexperience; 

2. the attorney has been previously sanctioned; 

3. the client was personally involved in the act of disobedience;

4. the delay prejudiced the opposing party through undue expense, 

loss of evidence, or in some other fashion; 

5. the attorney offered reasonable justification for noncompliance; and

6. the delay created significant problems of judicial administration.

Kozel, 629 So. 2d at 818. 

“After considering these factors, if there is a less-severe sanction 

available than dismissal with prejudice, the court should use it.” Bennett 

ex rel. Bennett, 67 So. 3d at 427 (citing Ham v. Dunmire, 891 So. 2d 492, 

496 (Fla. 2004)). ‘‘[A] 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, 891 So. 2d at 500. 

“We have consistently required the record to show an express 

consideration of the Kozel factors.” Vista St. Lucie Ass’n v. Dellatore, 40 

Fla. L. Weekly D1192, D1193 (Fla. 4th DCA May 20, 2015) (citation 

omitted) (internal quotation marks omitted). “While no ‘magic words’ are 

required, the trial court must make a ‘finding that the conduct upon which 

the order is based was equivalent to willfulness or deliberate disregard.’” 

Ham, 891 So. 2d at 495 (quoting Commonwealth Fed. Sav. & Loan Ass’n 

v. Tubero, 569 So. 2d 1271, 1273 (Fla. 1990)).

Here, a judicial default was entered against the defendants, which is 

comparable to, or perhaps more harsh than, the dismissal of a plaintiff’s 

complaint. Kozel has been applied to a default judgment sanction for 

discovery violations. See Toll v. Korge, 127 So. 3d 883, 887 (Fla. 3d DCA 

2013). 

The record3 before us reveals the trial court: (1) failed to consider Kozel

prior to entry of the default, and (2) failed to make explicit findings on each 

factor. Only the third order denying reconsideration referred to Kozel, but 

still failed to articulate findings on all the factors. 

The order entering the judicial default contained a finding that the 

defendants and their counsel failed to timely respond to discovery. The 

3 Unfortunately, we did not have the benefit of reviewing transcripts from the two 

hearings. Thus, our review is limited to the information within the motions and 

orders. 
6

court also found that the defendants and their counsel failed to appear at 

a court-ordered mediation. In each instance, the court awarded monetary 

sanctions against them. The court also found they all failed to appear at 

a calendar call. These findings clearly indicate that counsel contributed 

to the misconduct.

“Where counsel is ‘involved in the conduct to be sanctioned, a Kozel

analysis is required before dismissal is used as a sanction.’” Bennett ex 

rel. Bennett, 67 So. 3d at 427 (emphasis added) (citation omitted). Thus, 

the trial court should have made explicit findings as to each Kozel factor 

before entering judicial default. Failure to consider the Kozel factors is, by 

itself, a basis for remand. Dellatore, 40 Fla. L. Weekly at D1193 (citing 

Ham, 891 So. 2d at 500).

We therefore reverse the final judgment and the order entering the 

judicial default. The successor judge is no longer on the bench, so this 

matter will have to be considered by a new judge as to the Kozel factors 

and the appropriate sanction, if any. For this reason, we also reverse the 

award of compensatory and punitive damages.

Reversed and Remanded.

STEVENSON and KLINGENSMITH, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.