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).
