Cardelle v. HSBC Bank USA, NA

Third District Court of Appeal
State of Florida

Opinion filed August 16, 2017.
Not final until disposition of timely filed motion for rehearing.

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No. 3D16-2768
Lower Tribunal No. 16-19084
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Idelfonso Cardelle,
Appellant,

vs.

HSBC Bank USA, NA,
Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Michael A.
Hanzman, Judge.

Idelfonso Cardelle, Jr., in proper person.

McGuire Woods, Sara F. Holladay-Tobias and Emily Y. Rottmann
(Jacksonville), for appellee.

Before EMAS, SCALES and LUCK, JJ.

PER CURIAM.
 Appellant, Idelfonso Cardelle, appeals from the trial court’s order which 1)

vacated an earlier default entered against appellee, HSBC Bank USA; and 2)

dismissed Cardelle’s complaint with prejudice.

We affirm without further discussion the trial court’s order insofar as it

vacated the default previously entered against HSBC Bank, as appellant has failed

to demonstrate that the trial court grossly abused its discretion. See M.W. v. SPCP

Grp. V, LLC, 163 So. 3d 518 (Fla. 3d DCA 2015).

However, we find merit in Cardelle’s claim that the trial court, at that same

hearing, erred in dismissing Cardelle’s complaint with prejudice. The trial court

entered its order of dismissal sua sponte, at a hearing that was scheduled for the

purpose of addressing the default and the request for entry of a default final

judgment. Cardelle would have no reason to anticipate (and was provided no

notice) that the hearing would include consideration of dismissal of Cardelle’s

complaint. The sua sponte dismissal of the complaint, in the absence of proper

notice, violated Cardelle’s due process rights by expanding the scope of the

hearing and making a determination on matters not noticed for that hearing. See

Pinnock v. Whyte, 209 So. 3d 71 (Fla. 3d DCA 2016); Shah v. Shah, 178 So. 3d

70 (Fla. 3d DCA 2015); Epic Metals Corp. v. Samari Lake East Condo. Ass’n,

Inc., 547 So. 2d 198 (Fla. 3d DCA 1989).

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 We therefore affirm the trial court’s order insofar as it vacated the default

against HSBC Bank, but reverse the trial court’s order insofar as it dismissed

Cardelle’s complaint with prejudice.1

Affirmed in part, reversed in part, and remanded for further proceedings

consistent with this opinion.

1We do not reach the merits of the trial court’s basis for dismissing the complaint
with prejudice.

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