Ocean Bank v. Garcia-Villalta , 141 So. 3d 256 ( 2014 )

Third District Court of Appeal
State of Florida
Opinion filed July 02, 2014.
Not final until disposition of timely filed motion for rehearing.
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No. 3D13-461
Lower Tribunal No. 11-21566
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Ocean Bank,
Appellant,
vs.
Maria E. Garcia-Villalta,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Jorge E. Cueto,
Judge.
Louis K. Nicholas II, for appellant.
Russo Appellate Firm, P.A., and Christopher J. Bailey, for appellee.
Before ROTHENBERG, SALTER, and FERNANDEZ, JJ.
ROTHENBERG, J.
Ocean Bank appeals the dismissal of its foreclosure action against Maria E.
Garcia-Villalta (“Garcia-Villalta”) without prejudice to refile based on Ocean
Bank’s failure to comply with the trial court’s Uniform Order Setting Cause for
Non-Jury Trial and Trial Instructions (“Uniform Order”). Because we find that the
trial court abused its discretion, we reverse the orders under review and remand for
reinstatement of the foreclosure action.
Ocean Bank filed a foreclosure action against Garcia-Villalta in July 2011,
but failed to serve her with the complaint either personally or by publication. In
August 2011, Garcia-Villalta moved to dismiss the action based on Ocean Bank’s
failure to serve the complaint. Although Garcia-Villalta did not file an answer, she
participated in the litigation through counsel by serving Ocean Bank with
interrogatories and requests for production on October 19, 2011. Ocean Bank
failed to respond, and therefore, the following month, Garcia-Villalta moved to
compel the pending discovery.
On November 20, 2012, the trial court sua sponte issued a Uniform Order,
which set Garcia-Villalta’s foreclosure case and approximately 80 other
foreclosure cases for a non-jury trial on January 11, 2013. The Uniform Order,
which was furnished by fax to the numerous plaintiffs’ attorneys, provided, in part,
as follows: “The movant shall IMMEDIATELY serve a true and correct copy of
this Order, by mail, facsimile, email or hand-delivery, to all parties/counsels of
record for whom service is not indicated by the accompanying 11th Circuit
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confirmation, and file proof of service with the Clerk of the Court.”
Ocean Bank served a copy of the Uniform Order on Garcia-Villalta’s trial
counsel on December 20, 2012—only twenty-two days prior to the scheduled non-
jury trial. On January 4, 2013, Garcia-Villalta moved to strike the matter from the
non-jury docket, arguing that Ocean Bank had not served Garcia-Villalta with the
Uniform Order at least thirty days before the scheduled trial as required by Florida
Rule of Civil Procedure 1.440(c). Thereafter, on January 7, 2013, Ocean Bank
moved to continue the trial because it had not properly served Garcia-Villalta with
the complaint, and, on the following day, Ocean Bank filed a motion for default
against another named defendant, Chase Bank USA, N.A. (“Chase Bank”).
The parties appeared before the trial court for the scheduled trial on January
11, 2013. Ocean Bank’s counsel explained that she did not immediately serve the
Uniform Order on Garcia-Villalta’s counsel because she mistakenly believed that
Garcia-Villalta’s counsel had received the Uniform Order via fax. However, once
she learned that Garcia-Villalta had not received the Uniform Order, she
immediately served Garcia-Villalta’s counsel with the Uniform Order on
December 20, 2012. Ocean Bank’s counsel described her delay as “an honest
error.”
The trial court dismissed Ocean Bank’s foreclosure action without prejudice
to refile based on Ocean Bank’s counsel’s failure to timely serve the Uniform
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Order and on the trial court’s finding of “further good cause.”1 Ocean Bank’s
appeal followed.
Ocean Bank contends the trial court abused its discretion in dismissing its
foreclosure action without prejudice to refile. See Bank One, N.A. v. Harrod, 873
So. 2d 519, 520 (Fla. 4th DCA 2004) (holding that the dismissal of an action for
failure to comply with a trial court’s order is reviewed for an abuse of discretion).
We agree.
Under the circumstances of this case, the trial court abused its discretion for
various reasons. First, the foreclosure case was not properly “at issue” when the
trial court issued its sua sponte order setting the case for trial because Garcia-
Villalta had not filed a responsive pleading, no default had been issued against
Garcia-Villalta, and the trial court had not ruled on Ocean Bank’s motion for
default against Chase Bank. See Fla. R. of Civ. P. 1.440(a); Tucker v. Bank of
New York Mellon, 39 Fla. L. Weekly D789, D789 (Fla. 3d DCA Apr. 16, 2014)
(holding that the foreclosure action was improperly tried before case was “at issue”
in contravention of Florida Rule of Civil Procedure 1.440 where a responsive
pleading to counterclaim had not been filed prior to issuing the order setting case
for trial); Precision Constructors, Inc. v. Valtec Const. Corp., 825 So. 2d 1062,
1 In dismissing the action based on “further good cause,” the trial court did not
precisely specify what “further good cause” warranted the imposition of such a
harsh sanction. Regardless, as explained in this opinion, dismissal without
prejudice to refile was an abuse of discretion.
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1063 (Fla. 3d DCA 2002); Bennett v. Cont’l Chems., Inc., 492 So. 2d 724, 727 n.1
(Fla. 1st DCA 1986) (en banc) (“An answer must be served by or a default entered
against all defending parties before the action is at issue.” (quoting Trawick’s
Florida Practice and Procedure § 22-2 (1980 ed.))).
Second, when both parties appeared before the trial court on January 11,
2013, they informed the trial court they were not ready to proceed—Garcia-Villalta
had not filed an answer; Ocean Bank’s motion for default against Chase Bank was
pending; Garcia-Villalta’s discovery requests were pending; and the trial court had
not ruled on Garcia-Villalta’s motions to dismiss and to compel discovery. As
such, both parties requested that the non-jury trial not go forward that day. Despite
the parties’ requests and the fact that a continuance would not have prejudiced
either party, the trial court dismissed the action without prejudice to refile.
Finally, even if the foreclosure case had been “at issue,” the trial court
nonetheless abused its discretion by dismissing the action without prejudice to
refile because the record demonstrates that Ocean Bank’s trial counsel’s failure to
timely serve Garcia-Villalta with the Uniform Order was nothing more than “an
honest error.” See JP Morgan Chase Bank v. Jurney, 86 So. 3d 1182, 1182-84
(Fla. 2d DCA 2012) (holding that the trial court abused its discretion by dismissing
the bank’s foreclosure action and allowing the bank to refile a new foreclosure
action because the bank’s failure to timely file an amended complaint that
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complies with Florida Rule of Civil Procedure 1.110(b) “was no more than an
honest mistake”). Accordingly, we reverse the orders under review and direct the
trial court to reinstate the foreclosure action.
Reversed and remanded.
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