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. 5D 17

- 1080

MV TRANSPORTATION, INC.

, Appellee

. ________________________________/

Opinion filed April 1 3, 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)

. B ecause the trial court

fa iled to properly consider the Kozel 1 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 MV T , and MVT filed a motion to

dismiss the complaint

. Upon the request of the parties, the trial court entered an a greed

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

without pre judice and granting Wilkerson ten days from the date of the entry of th e orde r

to amend the complaint.

Twenty

- one days later, Wilkerson filed a second

- am ended complaint. MVT filed a

motion to dismiss the complaint, arguing that dismissal was warranted because the court

mandated deadline had passed by the time the complaint was filed . The trial court

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

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

entered. Notwithstanding this representation, t he trial court struck Wilkerson's second

amended complaint

, grant ed 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:

T he 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 ] . Th e 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) wheth er the delay prejudiced the opposing party through undue expense, loss of evidence, or in some other3 fashion; 5) whether the attorney offered reasonable justification for noncompliance; and 6) whether the delay created significant problems of judicial admi nistration.

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

.
Ac cordingly, 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.