IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO

 FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED

MARY WILKERSON,

Appellant,

v. Case No. 5D17-1080

MV TRANSPORTATION, INC., 

Appellee.

________________________________/

Opinion filed April 13, 2018

Appeal from the Circuit Court 

for Orange County,

Janet C. Thorpe, Judge.

Desiree Ellison Bannasch, of Desiree E. 

Bannasch, PA, Orlando, for Appellant.

Michael R D'Lugo, of Wicker Smith O'Hara 

McCoy & Ford, PA, Orlando, for Appellee.

PALMER, J.

Mary Wilkerson appeals the final order entered by the trial court dismissing her 

negligence complaint filed against MV Transportation, Inc. (MVT). Because the trial court 

failed to properly consider the Kozel1 factors before entering the dismissal order, we 

reverse.

 1 Kozel v. Ostendorf, 629 So. 2d 817 (Fla. 1993).
2

Wilkerson filed a negligence complaint against MVT, and MVT filed a motion to 

dismiss the complaint. Upon the request of the parties, the trial court entered an agreed 

order on the pending motion to dismiss, ruling that the dismissal motion was granted 

without prejudice and granting Wilkerson ten days from the date of the entry of the order 

to amend the complaint.

Twenty-one days later, Wilkerson filed a second-amended complaint. MVT filed a 

motion to dismiss the complaint, arguing that dismissal was warranted because the courtmandated deadline had passed by the time the complaint was filed. The trial court 

conducted a hearing on the motion. During the hearing, counsel for Wilkerson indicated 

that she did not receive the agreed order in the mail until eleven days after the order was 

entered. Notwithstanding this representation, the trial court struck Wilkerson's secondamended complaint, granted MVT's motion to dismiss, and entered a final order of 

dismissal. 

Wilkerson argues that the trial court abused its discretion by dismissing her 

complaint without first considering the Kozel factors. We agree. 

In Bank of New York Mellon v. Sandhill, we explained:

The Florida Supreme Court laid out six factors for a trial court 

to consider in determining whether dismissal is the 

appropriate sanction “in those situations where the attorney, 

and not the client, is responsible for the error.” [Kozel, 629 So. 

2d at 818]. The Kozel factors are:

1) [W]hether 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 
3

fashion; 5) whether the attorney offered 

reasonable justification for noncompliance; and 

6) whether the delay created significant 

problems of judicial administration.

Id. Before ordering dismissal, the trial court must consider all 

of the Kozel factors . . . .

202 So. 3d 944, 945 (Fla. 5th DCA 2016). 

MVT concedes that a reversal for consideration of the Kozel factors would be 

warranted if the issue had been properly preserved below, but argues that the issue was 

not properly preserved. We disagree. During the hearing, counsel for Wilkerson 

preserved the argument that the Kozel factors needed to be considered before dismissal 

was granted. 

Accordingly, we reverse the dismissal order and remand for the trial court to apply

the Kozel factors in deciding whether Wilkerson’s second-amended complaint should be 

dismissed.

REVERSED and REMANDED.

ORFINGER and EVANDER, JJ., concur.