Third District Court of Appeal
                               State of Florida

                            Opinion filed July 02, 2014.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                                No. 3D13-461
                         Lower Tribunal No. 11-21566
                             ________________


                                 Ocean Bank,
                                    Appellant,

                                        vs.

                         Maria E. Garcia-Villalta,
                                    Appellee.



      An Appeal from the Circuit Court for Miami-Dade County, Jorge E. Cueto,
Judge.

     Louis K. Nicholas II, for appellant.

     Russo Appellate Firm, P.A., and Christopher J. Bailey, for appellee.


Before ROTHENBERG, SALTER, and FERNANDEZ, JJ.

     ROTHENBERG, J.

     Ocean Bank appeals the dismissal of its foreclosure action against Maria E.
Garcia-Villalta (“Garcia-Villalta”) without prejudice to refile based on Ocean

Bank’s failure to comply with the trial court’s Uniform Order Setting Cause for

Non-Jury Trial and Trial Instructions (“Uniform Order”). Because we find that the

trial court abused its discretion, we reverse the orders under review and remand for

reinstatement of the foreclosure action.

      Ocean Bank filed a foreclosure action against Garcia-Villalta in July 2011,

but failed to serve her with the complaint either personally or by publication. In

August 2011, Garcia-Villalta moved to dismiss the action based on Ocean Bank’s

failure to serve the complaint. Although Garcia-Villalta did not file an answer, she

participated in the litigation through counsel by serving Ocean Bank with

interrogatories and requests for production on October 19, 2011. Ocean Bank

failed to respond, and therefore, the following month, Garcia-Villalta moved to

compel the pending discovery.

      On November 20, 2012, the trial court sua sponte issued a Uniform Order,

which set Garcia-Villalta’s foreclosure case and approximately 80 other

foreclosure cases for a non-jury trial on January 11, 2013. The Uniform Order,

which was furnished by fax to the numerous plaintiffs’ attorneys, provided, in part,

as follows: “The movant shall IMMEDIATELY serve a true and correct copy of

this Order, by mail, facsimile, email or hand-delivery, to all parties/counsels of

record for whom service is not indicated by the accompanying 11th Circuit



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confirmation, and file proof of service with the Clerk of the Court.”

      Ocean Bank served a copy of the Uniform Order on Garcia-Villalta’s trial

counsel on December 20, 2012—only twenty-two days prior to the scheduled non-

jury trial. On January 4, 2013, Garcia-Villalta moved to strike the matter from the

non-jury docket, arguing that Ocean Bank had not served Garcia-Villalta with the

Uniform Order at least thirty days before the scheduled trial as required by Florida

Rule of Civil Procedure 1.440(c). Thereafter, on January 7, 2013, Ocean Bank

moved to continue the trial because it had not properly served Garcia-Villalta with

the complaint, and, on the following day, Ocean Bank filed a motion for default

against another named defendant, Chase Bank USA, N.A. (“Chase Bank”).

      The parties appeared before the trial court for the scheduled trial on January

11, 2013. Ocean Bank’s counsel explained that she did not immediately serve the

Uniform Order on Garcia-Villalta’s counsel because she mistakenly believed that

Garcia-Villalta’s counsel had received the Uniform Order via fax. However, once

she learned that Garcia-Villalta had not received the Uniform Order, she

immediately served Garcia-Villalta’s counsel with the Uniform Order on

December 20, 2012. Ocean Bank’s counsel described her delay as “an honest

error.”

      The trial court dismissed Ocean Bank’s foreclosure action without prejudice

to refile based on Ocean Bank’s counsel’s failure to timely serve the Uniform



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Order and on the trial court’s finding of “further good cause.”1 Ocean Bank’s

appeal followed.

      Ocean Bank contends the trial court abused its discretion in dismissing its

foreclosure action without prejudice to refile. See Bank One, N.A. v. Harrod, 

, 520 (Fla. 4th DCA 2004) (holding that the dismissal of an action for

failure to comply with a trial court’s order is reviewed for an abuse of discretion).

We agree.

      Under the circumstances of this case, the trial court abused its discretion for

various reasons. First, the foreclosure case was not properly “at issue” when the

trial court issued its sua sponte order setting the case for trial because Garcia-

Villalta had not filed a responsive pleading, no default had been issued against

Garcia-Villalta, and the trial court had not ruled on Ocean Bank’s motion for

default against Chase Bank. See Fla. R. of Civ. P. 1.440(a); Tucker v. Bank of

New York Mellon, 39 Fla. L. Weekly D789, D789 (Fla. 3d DCA Apr. 16, 2014)

(holding that the foreclosure action was improperly tried before case was “at issue”

in contravention of Florida Rule of Civil Procedure 1.440 where a responsive

pleading to counterclaim had not been filed prior to issuing the order setting case

for trial); Precision Constructors, Inc. v. Valtec Const. Corp., 

,

1 In dismissing the action based on “further good cause,” the trial court did not
precisely specify what “further good cause” warranted the imposition of such a
harsh sanction. Regardless, as explained in this opinion, dismissal without
prejudice to refile was an abuse of discretion.

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1063 (Fla. 3d DCA 2002); Bennett v. Cont’l Chems., Inc., 

, 727 n.1

(Fla. 1st DCA 1986) (en banc) (“An answer must be served by or a default entered

against all defending parties before the action is at issue.” (quoting Trawick’s

Florida Practice and Procedure § 22-2 (1980 ed.))).

      Second, when both parties appeared before the trial court on January 11,

2013, they informed the trial court they were not ready to proceed—Garcia-Villalta

had not filed an answer; Ocean Bank’s motion for default against Chase Bank was

pending; Garcia-Villalta’s discovery requests were pending; and the trial court had

not ruled on Garcia-Villalta’s motions to dismiss and to compel discovery. As

such, both parties requested that the non-jury trial not go forward that day. Despite

the parties’ requests and the fact that a continuance would not have prejudiced

either party, the trial court dismissed the action without prejudice to refile.

      Finally, even if the foreclosure case had been “at issue,” the trial court

nonetheless abused its discretion by dismissing the action without prejudice to

refile because the record demonstrates that Ocean Bank’s trial counsel’s failure to

timely serve Garcia-Villalta with the Uniform Order was nothing more than “an

honest error.”   See JP Morgan Chase Bank v. Jurney, 

, 1182-84

(Fla. 2d DCA 2012) (holding that the trial court abused its discretion by dismissing

the bank’s foreclosure action and allowing the bank to refile a new foreclosure

action because the bank’s failure to timely file an amended complaint that



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complies with Florida Rule of Civil Procedure 1.110(b) “was no more than an

honest mistake”). Accordingly, we reverse the orders under review and direct the

trial court to reinstate the foreclosure action.

      Reversed and remanded.




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