ORFINGER, C.J.
Rocka Fuerta Construction, Inc. ("Rocka") appeals the final order dismissing its complaint against Southwick, Inc. as a sanction. We reverse the order of dismissal,
Rocka completed several projects for Southwick. A dispute regarding payment arose between them that was resolved when they entered into a settlement agreement ("Settlement Agreement"), which required Southwick to make two payments of $4,000 each to Rocka, the first of which was due upon the Settlement Agreement's execution. Southwick delivered a check to Rocka as required for the first payment; however, the bank refused to honor it. Rocka resubmitted the check, and it was again dishonored.
Rocka retained counsel and advised them of the Settlement Agreement and about the bad check. Rocka's attorneys proceeded to file a multi-count complaint against Southwick, seeking $42,835, the amount Rocka originally claimed Southwick owed, not the $8,000 agreed to in the Settlement Agreement. The complaint did not refer to or seek to rescind the Settlement Agreement. Southwick responded by filing a "Motion for Sanctions in Attempting to Perpetrate a Fraud Upon the Court" and a motion for sanctions pursuant to section 57.105, Florida Statutes. In both motions, Southwick argued that the Settlement Agreement superseded any underlying contractual agreements between the parties and that Rocka acted in bad faith by not disclosing the Settlement Agreement to the court. Southwick asked the court to dismiss Rocka's suit with prejudice and to award it section 57.105 attorney's fees.
At the hearing on the motions, Rocka's attorneys argued that they did not refer to the Settlement Agreement in the complaint because, they contended, there was no valid Settlement Agreement, i.e., it was void or voidable due to Southwick's failure to make the required payments. Unconvinced by that argument, the trial court dismissed Rocka's complaint with prejudice as a sanction for what it believed was Rocka's attempt to perpetrate a fraud on the court.
An order dismissing a case as a sanction will be upheld absent an abuse of discretion.
This case plainly fails to present the type of egregious misconduct or extreme circumstance to support dismissal with prejudice. Rocka's failure to refer to or seek to rescind the Settlement Agreement is simply not fraud. Instead, if anything, the Settlement Agreement's effect on Rocka's claim is more appropriately raised by Southwick as an affirmative defense.
Next, Rocka alleges that the trial court abused its discretion by granting sanctions and awarding attorney's fees and costs to Southwick pursuant to section 57.105, Florida Statutes. While the dismissal order was styled as an order granting sanctions pursuant to section 57.105, the court made no determination of the amount of the fees to be imposed as a sanction under section 57.105.
For these reasons, we reverse the order dismissing Rocka's suit. We dismiss, as premature, Rocka's appeal of the order concerning attorney's fees and costs under section 57.105.
REVERSED in part; DISMISSED in part.
GRIFFIN and JACOBUS, JJ., concur.
An accord and satisfaction results when: (1) the parties mutually intend to effect a settlement of an existing dispute by entering into a superseding agreement, and (2) there is actual performance in accordance with the new agreement; compliance with the new agreement discharges the prior obligations. Martinez v. S. Bayshore Tower, L.L.L.P., 979 So.2d 1023, 1024 (Fla. 3d DCA 2008). The defense of accord and satisfaction requires proof that "the parties mutually intended to effect settlement of an existing dispute by entering into a superseding agreement ... and ... actual performance with satisfaction of the new agreement...." Rudick v. Rudick, 403 So.2d 1091, 1093-94 (Fla. 3d DCA 1981). If there is no performance under the new agreement, then there is no satisfaction and the defense fails. Id. at 1094; see Waxler v. Hockensmith, 474 So.2d 415, 417 (Fla. 2d DCA 1985); Vance v. Scanlon, 121 So.2d 709, 710 (Fla. 2d DCA 1960); Hannah v. James A. Ryder Corp., 380 So.2d 507, 510-11 (Fla. 3d DCA 1980). Further, the question of whether the parties intended to effect a settlement of an existing dispute by entering into a superseding agreement is generally a question of fact. See Brewer v. Northgate of Orlando, Inc., 143 So.2d 358, 361 (Fla. 2d DCA 1962); Hannah, 380 So.2d at 509.