BAC HOME LOANS SERVICING L.P. F/K/A COUNTRYWIDE HOME LOANS SERVICING L.P., APPELLANT,
v.
JEFFREY ROBERT PARRISH A/K/A JEFFREY PARRISH AND JESSICA ANN PARRISH A/K/A JESSICA A. PARRISH A/K/A JESSICA PARRISH; ET AL., APPELLEES
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BAC Home Loans Servicing sought to foreclose on a mortgage but the trial court dismissed the action because BAC's counsel failed to appear at trial. The appellate court reversed, holding that the trial notice violated the 30-day notice requirement and that the trial court failed to determine whether the non-appearance was willful before imposing dismissal as a sanction.
The court reversed and remanded because the trial court's order violated Rule 1.440(c) by setting trial only 28 days after notice, and because the trial court failed to conduct an evidentiary hearing to determine whether the failure to appear was willful before dismissing the case as a sanction.
[1] A trial court commits reversible error by setting a trial date less than thirty days from the service of the notice for trial, in violation of Florida Rule of Civil Proce…
[2] Before dismissing a case as a sanction for failure to appear, a trial court must determine whether the failure to appear was willful.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Rule 1.440(c) requires that orders fixing trial dates "shall be set not less than 30 days from the service of the notice for trial."”
Establishes the statutory requirement that BAC's trial notice violated by being set only 28 days in advance.
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Join FLexlaw to unlock all legal intelligenceBAC filed a foreclosure complaint in November 2009 against the Parrishes. On March 14, 2013, the trial court issued an order setting trial for April 1…
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Under review is a final order dismissing a foreclosure action without prejudice based on Appellant’s failure to appear on the trial date fixed by the court. We reverse because the notice fixing the trial date failed to comply with the thirty-day requirement set forth in Florida Rule of Civil Procedure 1.440(c) and because the trial court failed to determine whether Appellant’s failure to appear was willful.
I.
In November 2009, Appellant filed a complaint to foreclose on Appellee’s mortgage.' On March 14, 2013, the trial court rendered a sua, sponte “Order Setting Trial or Final Hearing” for April 11, 2013. The court’s order evidently was not served on Appellant’s counsel and no one appeared for Appellant on the scheduled trial date.1 As a consequence, the trial court dismissed the case. Upon learning of the dismissal, Appellant filed a timely motion for rehearing with evidence that counsel’s *527failure to appear was based not on willful disregard of the trial court’s order, but because the court failed to serve Appellant with the notice. But rehearing was summarily denied.
II.
We now reverse and remand for two reasons. First, the order setting trial violated the requirements of Florida Rule of Civil Procedure 1.440(c). Rule 1.440(c) requires that orders fixing trial dates “shall be set not less than 30 days from the service of the notice for trial.” Fla. R. Civ. P. 1.440(c). In this case, the order setting the trial was rendered on March 14, 2013, only twenty-eight days before the scheduled date for trial. This constitutes reversible error. Rivera v. Rivera, 562 So.2d 833, 834 (Fla. 1st DCA 1990); see also 4 Fla. Prac., Civil Procedure § 1.440:8 (“A court’s failure to give the minimum 30-day notice required by subdivision (c) of the rule similarly renders any judgment entered defective.”).
Second, the trial court’s order did not apply the requisite standards set forth in Kozel v. Ostendorf, 629 So.2d 817 (Fla.1993), for determining whether dismissal as a sanction was appropriate. See, e.g., BAC Home Loans Servicing, L.P. v. Ellison, 141 So.3d 1290 (Fla. 1st DCA 2014) (citing Ham v. Dunmire, 891 So.2d 492, 500 (Fla.2004); Fla. Nat’l Org. for Women, Inc. v. State, 832 So.2d 911, 914 (Fla. 1st DCA 2002); Crews v. Shadbume, 637 So.2d 979, 981 (Fla. 1st DCA 1994); Gaines v. Placilla, 634 So.2d 711 (Fla. 1st DCA 1994)). Just as in Ellison, before dismissing Appellant’s case, the trial court should have conducted an evidentiary hearing to determine whether counsel’s failure to appear was a willful violation of the court’s order.
III.
Accordingly, we REVERSE and REMAND for further proceedings consistent with this opinion.
LEWIS, C.J., and THOMAS, J., concur.
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Gawker Media, LLC v. Bollea, 170 So. 3d 125 (Fla. 2d DCA 2015)…available at 2012 WL 2428282); Tucker v. Bank of N.Y. Mellon, — So. 3d-, 2014 WL 1491630, 39 Fla. L. Weekly D789 (Fla. 3d DCA Apr. 16, 2014); Lurtz v. Bank of N.Y. Mellon, 162 So. 3d 11 (Fla. 4th DCA 2014); BAC Home Loans Servicing L.P. v. Parrish, 146 So. 3d 526 (Fla. 1st DCA 2014); Genuine Parts Co. v. Parsons, 917 So. 2d 419 (Fla. 4th DCA 2006); Precision Constructors, Inc. v. Valtec Constr. Corp., 825 So. 2d 1062 (Fla. 3d DCA 2002); Dep’t of Revenue v. Marcovitch, 765 So. 2d 944 (Fla. 5th DCA 2000); Card…
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Fed. Nat'l Mortg. Ass'n v. Linner, 193 So. 3d 1010 (Fla. 2d DCA 2016)…it appears that the First District applies the Kozel factors when dismissal is entered as a sanction, even if the dismissal is mthout prejudice. See HSBC Bank USA v. Cook, 178 So. 3d 548 (Fla. 1st DCA 2015); BAC Home Loans Servicing L.P. v. Parrish, 146 So. 3d 526 (Fla. 1st DCA 2014); BAC Home Loans Servicing, L.P. v. Ellison, 141 So. 3d 1290 (Fla. 1st DCA 2014). The Third District has also applied the Kozel factors to a dismissal without prejudice entered as a sanction where the sanctioned party was required…1 / 2
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Deutsche Bank Nat'l Tr. Co. v. Bennett, 291 So. 3d 605 (Fla. 2d DCA 2020)
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Carolann D. Kozel v. Ostendorf, 629 So. 2d 817 (Fla. 1993)
- HAM v. Dunmire, 891 So. 2d 492 (Fla. 2004)
- Fla. Nat'l Org. FOR Women, Inc. v. State, 832 So. 2d 911 (Fla. 1st DCA 2002)
- Rivera v. Lucinda Elaine Rivera, 562 So. 2d 833 (Fla. 1st DCA 1990)
- Crews v. Shadburne, 637 So. 2d 979 (Fla. 1st DCA 1994)
- Fla. Wildlife Fed'n, Inc. v. Dep't of Env't Prot., 141 So. 3d 1290 (Fla. 1st DCA 2014)
- BAC Home Loans Servicing, L.P. v. Ellison, 141 So. 3d 1290 (Fla. 1st DCA 2014)
- Amos Gaines and Louie Gaines v. William J. Placilla, M.D., 634 So. 2d 711 (Fla. 1st DCA 1994)