Nationstar Mortgage, LLC v. Hogan

186 So. 3d 1134, 2016 Fla. App. LEXIS 4227, 2016 WL 1062898

• Court: District Court of Appeal of Florida
• Decided: March 18, 2016
• Docket: No. 5D14-1789
• Status: Published

Opinion

PER CURIAM.

Nationstar Mortgage, LLC, appeals the trial court’s order dismissing-its foreclosure case against John F. Hogan. Na-tionstar argues that the trial court erred by failing to consider the required factors set forth in Kozel v. Ostendorf, 629 So.2d 817, 819 (Fla.1993), and failing to make the requisite express factual findings, before dismissing its second amended complaint with prejudice as a sanction for its counsel’s failure to file it within the time allotted in a prior order. Hogan properly concedes error. Accordingly, we reverse the order dismissing the amended complaint and remand for consideration under Kozel. See Shortall v. Walt Disney World Hospitality, 997 So.2d 1203, 1204 (Fla. 5th DCA 2008) (“The law is well-settled that ‘[b]e-fore dismissing a complaint based on the failure to follow a eourt order, the trial court must consider the factors set forth in Kozel.’ ” (quoting Scallan v. Marriott Int’l, Inc., 995 So.2d 1066, 1067 (Fla. 5th DCA 2008))); see also Ham v. Dunmire, 891 So.2d 492, 496 (Fla.2004) (“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.”); Alvarado v. Snow White & Seven Dwarfs, Inc., 8 So.3d 388, 388-89 (Fla. 3d DCA 2009) (citing Smith v. City of Panama City, 951 So.2d 959, 962 (Fla. 1st DCA 2007)).

REVERSED AND'REMANDED.

LAWSON, C.J., BERGER and ' EDWARDS, JJ., concur.