In Anson St., LLC v. Rosado, 4D12-253 (Fla. 4th DCA, Nov. 21, 2012), Anson Street, LLC (“Plaintiff”) sought review of the trial court’s order dismissing the mortgage foreclosure action against Franklin Rosado and Maricruz Ayala (“Defendants”).
In March 2010, Plaintiff filed a complaint to foreclose its mortgage on the Defendants’ property. The Defendants then filed a motion to dismiss. Because no further action occurred in the case, the trial court sent a notice of lack of prosecution with a hearing date in August 2011. Before the hearing, the trial court dismissed the action for deficiencies in the pleading. The trial court later vacated the dismissal on the Plaintiff’s motion, which indicated that the pleading was not deficient. However, the trial court ordered that the Plaintiff was required to prosecute the case to final disposition within 60 days or the case would be sua sponte dismissed by the trial court. In compliance with the order, the Plaintiffs motioned for summary judgment and set the motion for hearing within the 60 days allowed. The Defendants then filed an answer and affirmative defenses, demanded a jury trial, and filed requests for discovery. In response, the Plaintiff sought an extension of time and relief from the trial court’s 60-day deadline. The Plaintiff indicated that the Defendants had answered and demanded discovery which could not be completed by the 60-day deadline. Nevertheless, the trial court sua sponte dismissed the case because the appellant failed to prosecute the case to final disposition within the 60 days. The Fourth District Court of Appeal reversed the order of dismissal.
In its reasoning, the Fourth District Court of Appeal discussed the trial court’s use of a dismissal as a remedy and a sanction:
“It is uniformly held that dismissal is a drastic remedy which courts should employ only in extreme situations.” [citation omitted] In using dismissal as a sanction, a court must find that the party’s conduct is “willful or contumacious,” and it must make such a finding in the written order. [citation omitted]… “As a general rule, ‘a court should not enter summary judgment when the opposing party has not yet completed discovery.’ ” [citation omitted] Id.
The trial court failed to make any finding of willfulness. No willfulness could be shown on the record as the Plaintiff was not willfully delaying the proceedings where the Defendants actions required the cancellation of the summary judgment hearing. The Fourth District Court of Appeal stated, “[f]or the [Plaintiff] to have gone ahead with the summary judgment while [the Defendants’] demands for discovery were outstanding would merely have invited an appeal from any judgment entered by the court.” Id.
To read the entire opinion, click here.