U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE, IN TRUST FOR THE HOLDERS OF CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP. HOME EQUITY ASSET TRUST 2003-3, HOME EQUITY PASS-THROUGH CERTIFICATES, SERIES 2003-3, APPELLANT,
v.
KEITH CROTEAU, ET AL., APPELLEE
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The appellate court reversed a trial court's dismissal of a foreclosure suit, finding the dismissal was an abuse of discretion. The court held that dismissal as a sanction was too extreme given the circumstances and that the case was not properly "at issue" for trial.
Yes, the dismissal was an abuse of discretion. The case was not "at issue" because a default had not been entered against the defendants, and dismissal is an extreme sanction reserved for flagrant violations, which was not warranted here.
[1] A case cannot be set for trial when it is not "at issue" due to a failure to obtain a default against a party who failed to answer the complaint.
[2] Dismissal of a suit is an extreme sanction that should be reserved for cases involving flagrant violations of procedural rules.
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Join FLexlaw to unlock all legal intelligence“The dismissal was an abuse of the trial court’s discretion.”
Establishes the appellate court's main conclusion regarding the trial court's action.
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Join FLexlaw to unlock all legal intelligenceThe plaintiff sought to continue a foreclosure trial to amend the complaint and name additional defendants, citing health issues of the defendants' co…
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In this appeal, the plaintiff challenges an order dismissing its foreclosure suit as a sanction for its failure to be ready for trial. In the weeks prior to the trial date, plaintiff sought to continue the case, citing its desire to amend the complaint to name additional defendants, including the homeowners’ association, and the recent health problems of defendants’ counsel. The day before, .trial, defendants’ counsel filed his own motion to continue the case due to his recent hospitalization. Neither the defendants nor their counsel appeared for the trial. The trial court, however, refused to continue the case and, instead, dismissed the suit as a sanction for the plaintiffs failure to be ready for trial. The dismissal was an abuse of the trial court’s discretion. '
First, Florida Rule of Civil Procedure 1.440 permits a case to be set for trial when it is “at issue.” Here, although the Croteaus failed to answer the complaint, the bank never obtained a default. This failure prevented the action from being “at issue.” Ocean Bank v. Garcia-Villalta, 141 So.3d 256, 257-58 (Fla. 3d DCA 2014); Bennett v. Cont’l Chems., Inc., 492 So.2d 724, 727 n. 1 (Fla. 1st DCA 1986). Second, dismissal is considered the most extreme of sanctions and “should be reserved for cases involving flagrant violations of procedural rules.” . Goldberg v. Law Office, of Sara Lawrence, P.A., 150 So,3d 862, 864 (Fla. 4th DCA 2014). Such an extreme sanction was not warranted under the facts of this case. See also Krock v, Ro-zinsky, 78 So.3d 38, 41 (Fla. 4th DCA 2012) (recognizing factors to be considered in assessing whether denial of motion for continuance was an abuse of discretion are (1) whether denial creates injustice for moving party; (2) whether cause of request was unforeseeable by moving party and not result of dilatory practices; and (3) whether opposing, party would suffer prejudice or inconvenience).
Accordingly, the order’ of dismissal is reversed and the matter is remanded for further proceedings.
Reversed and Remanded.
STEVENSON, CIKLIN and KLINGENSMITH, JJ., concur.
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Citator
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Reilly v. U.S. Bank Nat'l Ass'n for JP Morgan Tr. 2007-S1, 185 So. 3d 620 (Fla. 4th DCA 2016)…tt v. Cont'l Chems., Inc., 492 So. 2d 724, 727 n. 1 (Fla. 1st DCA 1986)). Thus, where a defendant has not yet answered the complaint, and the plaintiff has failed to obtain a default, the action is not yet at issue. U.S. Bank Nat’l Ass’n v. Croteau, 183 So. 3d 1089 (Fla. 4th DCA 2015). U.S. Bank did;not obtain a default against Mr. Reilly. Nor did Mr. Reilly file an answer. Therefore, the action was not at issue, either when the trial court set the trial date or when the trial itself was held. This is reversi…
Authorities Cited
- Rodger H. Bennett v. Cont'l Chems., Inc., 492 So. 2d 724 (Fla. 1st DCA 1986)
- Krock v. Irwin Rozinsky & State Farm Mut. Auto. Ins. Co., 78 So. 3d 38 (Fla. 4th DCA 2012)
- Ocean Bank v. Garcia-Villalta, 141 So. 3d 256 (Fla. 3d DCA 2014)
- Goldberg v. LAW Off. OF Sara Lawrence, P.A., 150 So. 3d 862 (Fla. 4th DCA 2014)