Cardelle v. HSBC Bank USA, NA

Third District Court of Appeal
State of Florida
Opinion filed August 16, 2017.
Not final until disposition of timely filed motion for rehearing.
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No. 3D16-2768
Lower Tribunal No. 16-19084
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Idelfonso Cardelle,
Appellant,
vs.
HSBC Bank USA, NA,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Michael A.
Hanzman, Judge.
Idelfonso Cardelle, Jr., in proper person.
McGuire Woods, Sara F. Holladay-Tobias and Emily Y. Rottmann
(Jacksonville), for appellee.
Before EMAS, SCALES and LUCK, JJ.
PER CURIAM.
Appellant, Idelfonso Cardelle, appeals from the trial court’s order which 1)
vacated an earlier default entered against appellee, HSBC Bank USA; and 2)
dismissed Cardelle’s complaint with prejudice.
We affirm without further discussion the trial court’s order insofar as it
vacated the default previously entered against HSBC Bank, as appellant has failed
to demonstrate that the trial court grossly abused its discretion. See M.W. v. SPCP
Grp. V, LLC, 163 So. 3d 518 (Fla. 3d DCA 2015).
However, we find merit in Cardelle’s claim that the trial court, at that same
hearing, erred in dismissing Cardelle’s complaint with prejudice. The trial court
entered its order of dismissal sua sponte, at a hearing that was scheduled for the
purpose of addressing the default and the request for entry of a default final
judgment. Cardelle would have no reason to anticipate (and was provided no
notice) that the hearing would include consideration of dismissal of Cardelle’s
complaint. The sua sponte dismissal of the complaint, in the absence of proper
notice, violated Cardelle’s due process rights by expanding the scope of the
hearing and making a determination on matters not noticed for that hearing. See
Pinnock v. Whyte, 209 So. 3d 71 (Fla. 3d DCA 2016); Shah v. Shah, 178 So. 3d
70 (Fla. 3d DCA 2015); Epic Metals Corp. v. Samari Lake East Condo. Ass’n,
Inc., 547 So. 2d 198 (Fla. 3d DCA 1989).
2
We therefore affirm the trial court’s order insofar as it vacated the default
against HSBC Bank, but reverse the trial court’s order insofar as it dismissed
Cardelle’s complaint with prejudice.1
Affirmed in part, reversed in part, and remanded for further proceedings
consistent with this opinion.
1We do not reach the merits of the trial court’s basis for dismissing the complaint
with prejudice.
3