FEDERAL NATIONAL MORTGAGE ASSOCIATION, APPELLANT,
v.
FREDERICK W. WILD, ET AL., APPELLEES
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The court held that the dismissal order, issued as a sanction for noncompliance with a trial setting order, was improper because it did not meet the requirements for such a severe sanction and was not preceded by an evidentiary hearing or findings of fact.
Federal National Mortgage Association (FNMA) appealed an order dismissing its foreclosure complaint for noncompliance with a trial setting order, and …
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Federal National Mortgage Association (“FNMA”) appeals an order dismissing FNMA’s foreclosure complaint for noncompliance 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.
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U.S. Bank Nat'l Ass'n v. Rodriguez, 206 So. 3d 734 (Fla. 3d DCA 2016)…e is not without exception. If a dismissal is “without prejudice” but it is clear from the context of the record that the plaintiffs right to pursue the case requires the filing of a new case, the order is final. See Fed. Nat’l Mortg. Ass’n v. Wild, 164 So. 3d 94, 95 (Fla. 3d DCA 2015); Al-Hakim, 161 So. 3d at 569; Gerber v. Vincent’s Men’s Hairstyling, Inc., 57 So. 3d 935, 937 (Fla. 4th DCA 2011); Hollingsworth v. Brown, 788 So. 2d 1078, 1079 n. 1 (Fla. 1st DCA 2001). [*737] In this case, the order on appea…
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Fed. Nat'l Mortg. Ass'n v. Linner, 193 So. 3d 1010 (Fla. 2d DCA 2016)…st 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 to file a new case in order to pursue its claims. See Fed. Nat'l Mortg. Ass'n v. Wild, 164 So. 3d 94, 95 (Fla. 3d DCA 2015). It is not reversible error for a trial court to fail to consider the Kozel factors before dismissing a case without prejudice. The factors set forth in Kozel apply to dismissals with prejudice because such dismissals dispose…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 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Pitcher v. Schneider (Fla. 5th DCA 2018)
- Albert v. Applegate et ux., 377 So. 2d 1150 (Fla. 1979)
- Carolann D. Kozel v. Ostendorf, 629 So. 2d 817 (Fla. 1993)
- Gilles Rollet v. Gwenaelle de Bizemont, 159 So. 3d 351 (Fla. 3d DCA 2015)
- Dave's Aluminum Siding, Inc. v. C & M Ventures, 582 So. 2d 147 (Fla. 3d DCA 1991)
- Marzuq Al-Hakim v. BIG Lots Stores, Inc., 161 So. 3d 568 (Fla. 2d DCA 2014)