HSBC Bank USA v. Cook

Full title: HSBC BANK USA, as Trustee for OMAC 2005–1, Appellant, v. Elmer L. COOK, II…

Court: District Court of Appeal of Florida, First District.

Date published: Nov 19, 2015

178 So. 3d 548 (Fla. Dist. Ct. App. 2015)

Opinion

No. 1D14–3054.

11-19-2015

HSBC BANK USA, as Trustee for OMAC 2005–1, Appellant, v. Elmer L. COOK, II a/k/a Elmer L. Cook: et al., Appellee.

Kimberly Nolen Hopkins of Shapiro, Fishman & Gache, LLP, Tampa, for Appellant. Michael Wm. Mead, Fort Walton Beach, for Appellee.

PER CURIAM.

Kimberly Nolen Hopkins of Shapiro, Fishman & Gache, LLP, Tampa, for Appellant.

Michael Wm. Mead, Fort Walton Beach, for Appellee.

Opinion

PER CURIAM.

The order on appeal in this case dismisses, without prejudice, the mortgage foreclosure action HSBC Bank USA (“HSBC”) filed against Elmer Cook, II (“Cook”) on February 8, 2010. HSBC asks us to reverse the order, arguing that the trial court failed to consider the factors set forth in Kozel v. Ostendorf, 629 So.2d 817 (Fla.1993). We affirm because HSBC has failed to provide this court with a transcript of the hearing during which the trial court considered whether there were grounds for dismissal. As reflected in the order on appeal, HSBC “failed to present any evidence or to have a court reporter present” at the hearing. Without a hearing transcript, the record on appeal is not sufficient to demonstrate reversible error. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979). In any event, the order on appeal details nearly three years' worth of continuances, delays and unexplained inactivity by HSBC in response to Cook's June 2011 motion to dismiss, and reflects that the court considered the totality of circumstances before dismissing the foreclosure action without prejudice. Thus, while Kozel is not specifically cited in the order, it appears the court conducted the necessary inquiry into whether dismissal was justified. Cf. BAC Home Loans Serv., L.P. v. Ellison, 141 So.3d 1290, 1291 (Fla. 1st DCA 2014) (reversing order dismissing foreclosure action without prejudice for counsel's failure to appear at hearing where court failed to hold hearing to determine whether counsel acted willfully and failed to consider Kozel factors before dismissing action).

AFFIRMED.

LEWIS, MARSTILLER and OSTERHAUS, JJ., concur.