NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
DYCK-O'NEAL, INC., )
)
Appellant, )
)
v. ) Case No. 2D15-796
)
KENNETH M. DUFFY, )
)
Appellee. )
)
Opinion filed December 2, 2015.
Appeal from the Circuit Court for Lee
County; Alane C. Laboda, Judge.
Susan B. Morrison and Lauren E. Wages of
Law Office of Daniel C. Consuegra, P.L.,
Tampa, for Appellant.
Darrin R. Schutt of Schutt Law Firm, P.A.,
Fort Myers, for Appellee.
VILLANTI, Chief Judge.
In this appeal, we confront the issue of whether a lawsuit should be
dismissed when an out-of-state plaintiff fails to timely file the nonresident cost bond
required by section 57.011, Florida Statutes (2014), but does file such a bond before the
hearing on the defendant's motion to dismiss for failure to file the bond. We answer this
question in the negative and thus reverse the dismissal here and remand for further
proceedings.
Dyck-O'Neal, Inc. (DONI), an out-of-state corporation, filed a foreclosure
action on a note and mortgage given by Duffy on real property he owned in Florida.
When Duffy was served with the complaint, he sent a notice to DONI pursuant to
section 57.011, advising DONI of the statutory requirement that it, as an out-of-state
plaintiff, file a $100 nonresident cost bond. Section 57.011 provides that if the out-of-
state plaintiff fails to file the nonresident cost bond within twenty days of such notice, the
defendant "may . . . move to dismiss the action or may hold the attorney bringing or
prosecuting the action liable for said costs." § 57.011.
After DONI failed to file the required nonresident cost bond during the
twenty-day period after service of Duffy's notice, Duffy filed a motion to dismiss the
foreclosure complaint on September 4, 2014. That same day, he filed a notice of
hearing on the motion, setting the hearing for October 13, 2014. On September 10,
2014, the Clerk of the Circuit Court docketed the filing of the required nonresident cost
bond by DONI. Nevertheless, the trial court went forward with the hearing on Duffy's
motion to dismiss on October 13, 2014, and it dismissed DONI's complaint "due to the
untimely filing of the bond per statute." This appeal ensued.
On the record before this court, there is no question that DONI did not
comply with the statutory requirement that it file a nonresident cost bond within twenty
days of receiving notice of the requirement from Duffy. However, there is also no
question that DONI did file the required bond more than a month before the hearing on
Duffy's motion to dismiss the complaint. And there is also no question that Duffy failed
-2-
to offer any evidence that he had been prejudiced by DONI's delay in filing the required
bond. Given that DONI complied with the statutory requirements, albeit in an untimely
fashion, and that Duffy was not prejudiced by the delay, dismissal of DONI's complaint
was an abuse of discretion.
From the record, it appears that the trial court believed that section 57.011
required it to dismiss the complaint based on DONI's untimely filing of the bond,
regardless of the fact that the bond was later filed and Duffy had suffered no prejudice
from the late filing. The trial court's belief was unfounded for two reasons. First, the
plain language of section 57.011 does not require a trial court to grant a defendant's
motion to dismiss. The statute gives the defendant two options if the out-of-state
plaintiff does not timely file the required bond: move for dismissal or seek to hold the
attorney bringing the action liable for costs. However, the statute does not require the
trial court to grant either of these remedies simply because the defendant has sought
them. In the absence of such a requirement, the trial court has the discretion to
determine whether a defendant's motion should be granted in light of the purpose of the
statute, which is "to protect prevailing defendants against suits brought by nonresident
plaintiffs, so that such defendants are guaranteed up to $100 of their costs in the
action." Certex USA, Inc. v. Vidal, 706 F. Supp. 2d 1291, 1295 (S.D. Fla. 2010)
(quoting Lady Cyana Divers, Inc. v. Carvalho, 561 So. 2d 612, 613 (Fla. 3d DCA 1990)).
And this determination should also include consideration of all of the circumstances of
the case, including whether the out-of-state plaintiff has, in fact, belatedly filed the
required bond.
-3-
Second, longstanding case law does not support the trial court's belief that
dismissal was required. In Thompson v. Grosslaub, 147 So. 861 (Fla. 1933), the
supreme court specifically held that the trial court had the discretion to refuse to dismiss
an out-of-state plaintiff's action even though the required nonresident cost bond was not
filed within the statutory time. In rejecting the defendant's argument that dismissal was
required, the supreme court explained:
The allowance of a motion to dismiss is merely a means
which is authorized by the statute to be used in order to
coerce observance with its terms. Therefore, where it is
made to appear to the court that, although a nonresident
plaintiff or complainant in a case is in technical default
because he has not complied with the terms of the statute
within the period required therefor, but has nevertheless
afterward given, filed and had approved by the clerk of the
circuit court a bond which is good in substance and
adequate for the purpose of the required security as to
payment of costs, the court may in its sound discretion
refuse to dismiss the suit because the bond was not given
and filed within the statutory time, since the object of the
statute is realized by the bond that has been actually given
and accepted.
Id. at 862 (emphasis added). More recent cases have continued to apply the supreme
court's rationale when considering motions to dismiss under section 57.011. See, e.g.,
Diaz v. Bravo, 603 So. 2d 106, 107 (Fla. 3d DCA 1992) (reversing dismissal when the
plaintiff had not filed the required bond and noting that "[i]f the motion to dismiss was
granted based on the plaintiffs' failure to post a bond pursuant to section 57.011, the
trial court also erred since the plaintiffs' failure to post the bond could have been easily
remedied"); cf. E. Invs., LLC v. Cyberfile, Inc., 947 So. 2d 630, 631 (Fla. 3d DCA 2007)
(reversing dismissal of complaint on other grounds but noting that the plaintiff had
alleged in its motion for rehearing that it had now complied with section 57.011 and,
-4-
citing Diaz, stating that dismissal under that statute on those facts was an abuse of
discretion). These cases recognize that section 57.011 is coercive rather than punitive,
and once the statutory purpose is realized, its language should not be used to punish a
compliant plaintiff.
Here, the record shows that DONI complied with the statute and filed the
required bond more than a month before Duffy's motion to dismiss was heard. As in
Eastern Investments, the error in not timely filing the bond was remedied before the
dismissal was final. Clearly if dismissal was improper in Eastern Investments when the
plaintiff waited to file the bond until after dismissal had been granted, it was improper
here when the bond was filed before the hearing on the motion to dismiss was even
held. Therefore, it was an abuse of the trial court's discretion to dismiss DONI's action
in light of its actual, although belated, filing of the bond.
In reaching this conclusion, we recognize that section 57.011 sets a
deadline for compliance and authorizes a defendant to seek specified relief if an out-of-
state plaintiff does not timely comply with the statutory obligation. We certainly do not
condone the actions of out-of-state plaintiffs who delay in complying with this obligation.
However, once an out-of-state plaintiff has complied with the statute by filing the
required bond, dismissal is simply no longer an appropriate remedy for the prior
violation of section 57.011.
Finally, we note that while the parties argued in their briefs whether the
factors set forth in Kozel v. Ostendorf, 629 So. 2d 817 (Fla. 1993), applied to this type of
statutory violation, they asserted at oral argument that the Kozel factors do not apply.
While we are not convinced that the Kozel factors could not have been used by the trial
-5-
court to fashion some sanction for DONI's delay in filing the required bond, we will not
address this now-abandoned issue. Instead, we simply reverse the order dismissing
DONI's complaint and remand for further proceedings.
Reversed and remanded.
LaROSE and SALARIO, JJ., Concur.
-6-