Federal National Mortgage Ass'n v. Wild

Third District Court of Appeal
State of Florida

Opinion filed May 6, 2015.
Not final until disposition of timely filed motion for rehearing.

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No. 3D14-1392
Lower Tribunal No. 13-159M
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Federal National Mortgage Association,
Appellant,

vs.

Frederick W. Wild, et al.,
Appellees.

An Appeal from the Circuit Court for Monroe County, David J. Audlin, Jr.,
Judge.

Shapiro, Fishman & Caché, and Kimberly N. Hopkins and Ronald M. Caché
(Tampa) for appellant.

Hoffman, Larin & Agnetti, and Martin L. Hoffman, for appellees.

Before SHEPHERD, C.J., and SUAREZ and SALTER, JJ.

SALTER, J.
 Federal National Mortgage Association (“FNMA”) appeals an order

dismissing FNMA’s foreclosure complaint for non-compliance 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., 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, 40 Fla. L.

Weekly D627 (Fla. 3d DCA Mar. 11, 2015).

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 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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