EUMELIA HERNANDEZ v. CITIZENS PROPERTY INSURANCE CORPORATION

Third District Court of Appeal
State of Florida

Opinion filed December 29, 2021.
Not final until disposition of timely filed motion for rehearing.

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No. 3D20-1105
Lower Tribunal No. 19-25652
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Eumelia Hernandez,
Appellant,

vs.

Citizens Property Insurance Corporation,
Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Pedro P.
Echarte, Jr., Judge.

MSPG Law Group, P.A., and Analise Perales and Leo A. Manzanilla,
for appellant.

Roig Lawyers, and Veresa Jones Adams and Abbi Freifeld Carr and
Jeffrey R. Geldens (Deerfield Beach), for appellee.

Before EMAS, GORDO and BOKOR, JJ.

BOKOR, J.
 Appellant Eumelia Hernandez appeals the dismissal with prejudice of

her complaint against Appellee Citizens Property Insurance Corporation

based on her filing of an amended complaint six days after the court-ordered

deadline to amend. We reverse and remand for the trial court to conduct an

evidentiary hearing pursuant to Kozel v. Ostendorf, 629 So. 2d 817 (Fla.

1993).

“[T]he trial court has the discretionary power to dismiss a complaint if

the plaintiff fails to timely file an amendment” after a dismissal with leave to

refile. Id. at 817. However, “[b]ecause dismissal is the ultimate sanction in

the adversarial system, it should be reserved for those aggravating

circumstances in which a lesser sanction would fail to achieve a just result.”

Id. at 818. This Court has found that before a trial court may dismiss an action

with prejudice as a sanction, the trial court must conduct an evidentiary

hearing and make specific findings as to the six Kozel factors in to determine

if dismissal with prejudice is warranted. Deutsche Bank Nat’l Tr. Co. v.

Sombrero Beach Road, LLC, 260 So. 3d 424, 428 (Fla. 3d DCA 2018).1

1 Kozel provides a bright-line test. However, we note that this is consistent
with our pre-Kozel jurisprudence. In similar circumstances, this Court
reversed dismissals where a plaintiff filed an amended complaint “late by a
relatively small amount of time,” absent a showing of prejudice to the
defendants or significant inconvenience to the trial court. See Araujo-
Sanchez v. Amoon, 513 So. 2d 1307, 1308 (Fla. 3d DCA 1987) (reversing
order of dismissal and remanding with instructions to permit filing of the third

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“Express findings are required to ensure that the trial judge has consciously

determined that the failure was more than a mistake, neglect, or

inadvertence, and to assist the reviewing court to the extent the record is

susceptible to more than one interpretation.” Deutsche Bank Nat’l Tr. Co. v.

Cagigas, 85 So. 3d 1181, 1182 (Fla. 3d DCA 2012) (quoting Ham v.

Dunmire, 891 So. 2d 492, 496 (Fla. 2004) (“While no ‘magic words’ are

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

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

Because the trial court dismissed the action without conducting the

Kozel analysis, we vacate the final order of dismissal and remand for further

proceedings consistent with this opinion.

amended complaint where plaintiff filed a third amended complaint 14 days
late due to miscalendaring and there was no evidence of prejudice or
significant inconvenience); see also D'Best Laundromat, Inc. v. Janis, 508
So. 2d 1325 (Fla. 3d DCA 1987) (reversing dismissal where plaintiff filed four
days late); Kerry's Bromeliad Nursery, Inc. v. Reiling, 561 So. 2d 1305 (Fla.
3d DCA 1990) (reversing dismissal where plaintiff filed five days late).

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