BAC Home Loans Servicing L. P. etc. v. Jeffrey Robert Parrish etc.
146 So. 3d 526
Fla. Dist. Ct. App.2014Background
- BAC Home Loans Servicing, L.P. filed a mortgage foreclosure complaint in November 2009.
- The trial court entered a sua sponte Order Setting Trial on March 14, 2013, scheduling trial for April 11, 2013.
- The order was not served on appellant’s counsel; counsel did not appear on April 11.
- The trial court dismissed the foreclosure action without prejudice for failure to appear.
- Appellant filed a timely motion for rehearing asserting lack of service (not willful nonappearance); the motion was denied without an evidentiary hearing.
- The district court reviewed the dismissal and found procedural error and failure to apply required standards before sanctioning dismissal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the order setting trial complied with Fla. R. Civ. P. 1.440(c) (30-day rule) | The trial date was properly set | The order violated the 30-day minimum notice requirement | Court held the order violated Rule 1.440(c) (only 28 days between notice and trial) |
| Whether dismissal for failure to appear was appropriate without a hearing under Kozel standards | Dismissal was justified by nonappearance | Nonappearance was due to lack of service, not willfulness; an evidentiary hearing was required | Court held the trial court should have held an evidentiary hearing to determine willfulness before dismissing |
Key Cases Cited
- Kozel v. Ostendorf, 629 So. 2d 817 (Fla. 1993) (sets standards for dismissals/sanctions and requires inquiry into willfulness)
- Rivera v. Rivera, 562 So. 2d 833 (Fla. 1st DCA 1990) (failure to give minimum 30-day notice renders judgment defective)
- Ham v. Dunmire, 891 So. 2d 492 (Fla. 2004) (standards for imposing dismissal sanctions)
- Florida National Org. for Women, Inc. v. State, 832 So. 2d 911 (Fla. 1st DCA 2002) (procedural safeguards before sanctioning dismissal)
- Crews v. Shadburne, 637 So. 2d 979 (Fla. 1st DCA 1994) (dismissal as sanction requires proper procedural findings)
- Gaines v. Placilla, 634 So. 2d 711 (Fla. 1st DCA 1994) (courts must follow rule-based notice requirements)