Federal National Mortgage Ass'n v. Wild

164 So. 3d 94, 2015 WL 2089098

• Court: District Court of Appeal of Florida
• Decided: May 6, 2015
• Docket: 3D14-1392
• Status: Published

Opinion

SALTER, J.

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.