HSBC BANK USA, AS TRUSTEE FOR OMAC 2005-1, APPELLANT,
v.
ELMER L. COOK, II A/K/A ELMER L. COOK: ET AL., APPELLEE
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HSBC Bank sought to reverse a trial court's dismissal of its mortgage foreclosure action against Elmer Cook II. The appellate court affirmed the dismissal because HSBC failed to provide a hearing transcript, and the record demonstrated the trial court implicitly considered relevant dismissal factors despite nearly three years of delays and inactivity by HSBC.
The appellate court affirmed the dismissal because HSBC failed to provide a transcript of the hearing, making it impossible to demonstrate reversible error. Additionally, the order reflected that the trial court implicitly considered the totality of circumstances and relevant dismissal factors before dismissing the action without prejudice.
[1] An appellate court cannot review a trial court's decision for reversible error without a transcript of the hearing at which the decision was made.
[2] A trial court's order dismissing a case without prejudice will be affirmed if the appellate record is insufficient to demonstrate reversible error.
Previewing 2 of 4 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“Without a hearing transcript, the record on appeal is not sufficient to demonstrate reversible error.”
Establishes that HSBC's failure to provide a transcript is independently sufficient to affirm the dismissal.
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Join FLexlaw to unlock all legal intelligenceHSBC filed a mortgage foreclosure action against Cook on February 8, 2010. Cook filed a motion to dismiss in June 2011. The trial court dismissed the …
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The order on appeal in this case dismisses, without prejudice, the mortgage foreclosure action HSBC Bank'USA (“HSBC*) filed against Elmer Cook, II (“Cook”) on February 8, 2010. HSBC asks us to reverse the order, arguing that the trial court failed. to consider the factors set forth in Kozel v. Ostendorf, 629 So.2d 817 (Fla.1993). We affirm .because HSBC has failed to provide this court with a transcript of the hearing during which the trial court • considered -whether there were grounds for dismissal. As reflected in the order on appeal, HSBC “failed to present any .evidence or to have a court reporter present” at the hearing. Without a hearing transcript, the record on appeal is not sufficient to demonstrate reversible error. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979). In any event, the order on appeal details nearly three years’ worth of continuances, delays and unexplained inactivity by HSBC in response to Cook’s June 2011 motion to dismiss, and reflects that the court considered the totality of circumstances before dismissing the foreclosure action without prejudice. Thus, while Ko-zel is not specifically cited in the order, it appears the court conducted the necessary inquiry into whether dismissal was justified. Cf. BAC Home Loans Serv., L.P. v. Ellison, 141 So.3d 1290, 1291 (Fla. 1st DCA 2014) (reversing order dismissing foreclosure action without prejudice for counsel’s failure to appear at hearing where court failed to hold hearing to determine whether counsel acted willfully and failed to consider Kozel factors before dismissing action).
AFFIRMED. .
LEWIS, MARSTILLER and ■ OSTERHAUS, JJ., concur..
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Fed. Nat'l Mortg. Ass'n v. Linner, 193 So. 3d 1010 (Fla. 2d DCA 2016)…A 2000) (applying Kozel to a final judgment entered as a sanction). However, 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 w…1 / 2
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Deutsche Bank Nat'l Tr. Co. v. Bennett, 291 So. 3d 605 (Fla. 2d DCA 2020)
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Srmof II 2012-1 Tr. v. Garcia, 209 So. 3d 681 (Fla. 5th DCA 2017)…held that an involuntary dismissal without prejudice does not require a consideration of the Kozel factors. Accordingly, like the Second District, we certify conflict with the First District and Third District on this matter. 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); Fed. Nat’l Mortg. Ass’n v. Wild, 164 So. 3d 94, 95 (Fla. 3d DCA 2015).…
Authorities 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)
- 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)