Federal National Mortgage Ass'n v. Wild

Third District Court of Appeal
State of Florida
Opinion filed May 6, 2015.
Not final until disposition of timely filed motion for rehearing.
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No. 3D14-1392
Lower Tribunal No. 13-159M
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Federal National Mortgage Association,
Appellant,
vs.
Frederick W. Wild, et al.,
Appellees.
An Appeal from the Circuit Court for Monroe County, David J. Audlin, Jr.,
Judge.
Shapiro, Fishman & Caché, and Kimberly N. Hopkins and Ronald M. Caché
(Tampa) for appellant.
Hoffman, Larin & Agnetti, and Martin L. Hoffman, for appellees.
Before SHEPHERD, C.J., and SUAREZ and SALTER, JJ.
SALTER, 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., 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, 40 Fla. L.
Weekly D627 (Fla. 3d DCA Mar. 11, 2015).
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The orders below are reversed, and the case is remanded to the trial court
with directions to reinstate the action for further proceedings.
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