Summary
reversing order dismissing foreclosure complaint without prejudice due to non-compliance with an order setting trial because findings of fact were not entered as required by Kozel
Summary of this case from Collins Asset Grp., LLC v. Prop. Asset Mgmt., Inc.Opinion
No. 3D14–1392.
2015-05-06
FEDERAL NATIONAL MORTGAGE ASSOCIATION, Appellant, v. Frederick W. WILD, et al., Appellees.
Shapiro, Fishman & Caché, and Kimberly N. Hopkins and Ronald M. Caché , Tampa, for appellant. Hoffman, Larin & Agnetti, and Martin L. Hoffman , North Miami Beach, for appellees.
Shapiro, Fishman & Caché, and Kimberly N. Hopkins and Ronald M. Caché, Tampa, for appellant.Hoffman, Larin & Agnetti, and Martin L. Hoffman, North Miami Beach, for appellees.
Before SHEPHERD, C.J., and SUAREZ and , JJ.
, J.
Federal National Mortgage Association (“FNMA”) appeals an order dismissing FNMA's foreclosure complaint for non-compliance with an order setting trial. FNMA also appeals the order denying rehearing of that order. Although the initial order stated that the dismissal was “without prejudice,” it is clear from this record that the dismissal was ordered as a sanction and that FNMA'S right to pursue its claims required the filing of a new case. Under those circumstances, the orders were appealable. Al–Hakim v. Big Lots Stores, Inc., 161 So.3d 568, 39 Fla. L. Weekly D2262 (Fla. 2d DCA Oct. 29, 2014).
The orders do not satisfy the requirements for such a sanction as detailed in Kozel v. Ostendorf, 629 So.2d 817 (Fla.1993). The compliance evidenced in the record, the chronology of the case as reflected in the docket and pleadings, and the continuing efforts to establish a mutually-convenient mediation date or otherwise settle the case, do not establish the extreme circumstances that would warrant dismissal. See Dave's Aluminum Siding, Inc. v. C & M Ventures, 582 So.2d 147 (Fla. 3d DCA 1991).
The appellee's reliance on Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979), is misplaced. The orders were not the product of an evidentiary hearing, no findings of fact were entered as required by Kozel, and only legal issues are before us on review. See Rollet v. de Bizemont, 159 So.3d 351 (Fla. 3d DCA 2015).
The orders below are reversed, and the case is remanded to the trial court with directions to reinstate the action for further proceedings.