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Florida Fifth DCA reverses trial court's dismissal of complaint based on late filing by plaintiff of court ordered amendment, remands for evaluation of Kozel factors

On April 13, 2018, in Wilkerson v. MV Transportation, Np. 5D17-1080, the Florida Fifth DCA reversed a trial court’s dismissal of a plaintiff’s negligence complaint. The trial court had granted the plaintiff ten days to amend her complaint at a hearing on defendant’s motion to dismiss the complaint. Plaintiff’s counsel filed the amendment 21 days later, resulting in the dismissal. The Fifth DCA concluded that the trial court had dismissed the complaint without the necessary consideration of the factors set forth in Kozel v. Ostendorf, 629 So. 2d 817 (Fla. 1993) that apply in the case of attorney error, namely: 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. See also Bank of New York Mellon v. Danhill, 202 So. 3d 944, 945 (Fla. 5th DCA 2016).