DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

LAUREN J. SCHINDLER,

Appellant,

v.

THE BANK OF NEW YORK MELLON TRUST COMPANY, national 

association f/k/a THE BANK OF NEW YORK TRUST COMPANY, N.A.,

as successor to JP MORGAN CHASE BANK, N.A., as Trustee for

RAMP 2003RZ4,

Appellee.

No. 4D13-4825

[April 8, 2015]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm 

Beach County; Howard H. Harrison, Senior Judge; L.T. Case No. 

502012CA009062XX.

Lauren J. Schindler, North Palm Beach, pro se.

K. Denise Haire and Nicole R. Topper of Blank Rome, LLP, Boca 

Raton, for appellee.

KLINGENSMITH, J.

Lauren J. Schindler (“Defendant”) appeals the trial court’s final 

judgment of foreclosure in favor of the Bank of New York Mellon Trust 

Company (“Bank”). After Bank’s first foreclosure case against Defendant 

was dismissed pursuant to Florida Rule of Civil Procedure 1.420(b) (“rule 

1.420(b)”), Bank filed a second complaint seeking to foreclose the 

mortgage predicated on the same default that was alleged in its 

previously dismissed foreclosure suit. Defendant claims that the order of 

dismissal acted as an adjudication on the merits, and Bank was 

therefore required to provide a new notice of breach of the mortgage 

agreement to support its second complaint. We agree. 

Bank sent a default letter to Defendant notifying her that she had 

defaulted on her mortgage payments and that it was accelerating the 

debt. Soon thereafter, Bank filed its initial complaint and commenced a 

foreclosure suit against Defendant. The trial court granted Defendant’s 
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motion to dismiss due to Defendant’s failure to verify the initial 

complaint, and gave Bank thirty days to amend. Bank failed to amend 

within the time allotted, and Defendant filed a second motion to dismiss 

pursuant to rule 1.420(b). Following a hearing on the second motion, the 

trial court issued an order providing Bank an additional twenty days to 

amend. Within that order, the trial court memorialized a stipulation by 

the parties that in the event Bank failed to amend within twenty days, 

Defendant could notify the court and the case would be dismissed “in 

accordance with the rule without the need for an additional motion or 

hearing.” No amendment was ever filed. The trial court then dismissed 

the case, noting that Bank had “chosen not to timely file an amended 

complaint,” and that the case was dismissed “pursuant to [rule] 

1.420(b).”

Bank later filed a second complaint seeking to foreclose the mortgage, 

listing the same default date as indicated in the first complaint. As her 

first affirmative defense to the second complaint, Defendant argued that 

pursuant to Paragraph 20 of the mortgage, the lender was not permitted 

to foreclose until it had notified the buyer of a breach of the mortgage 

agreement. She claimed that because Bank’s case was predicated on the 

same default that was alleged in its previously dismissed foreclosure 

suit, Bank’s second case was barred by the doctrine of res judicata. The 

trial court disagreed, and interpreted the preceding judge’s order 

dismissing the case pursuant to rule 1.420(b) as a dismissal “without 

prejudice,” rather than an adjudication on the merits, because the order 

did not contain express language stating that it was dismissed “with 

prejudice.” At the conclusion of trial, the court ruled in favor of Bank 

and thereafter issued its final judgment of foreclosure. This appeal 

followed.

Rule 1.420(b) states:

(b) Involuntary Dismissal. Any party may move for 

dismissal of an action or of any claim against that party for 

failure of an adverse party to comply with these rules or any 

order of court. Notice of hearing on the motion shall be 

served as required under rule 1.090(d). After a party seeking 

affirmative relief in an action tried by the court without a 

jury has completed the presentation of evidence, any other 

party may move for a dismissal on the ground that on the 

facts and the law the party seeking affirmative relief has 

shown no right to relief, without waiving the right to offer 

evidence if the motion is not granted. The court as trier of 

the facts may then determine them and render judgment 
3

against the party seeking affirmative relief or may decline to 

render judgment until the close of all the evidence. Unless 

the court in its order for dismissal otherwise specifies, a 

dismissal under this subdivision and any dismissal not 

provided for in this rule, other than a dismissal for lack of 

jurisdiction or for improper venue or for lack of an 

indispensable party, operates as an adjudication on the 

merits.

Fla. R. Civ. P. 1.420(b) (emphasis added).

Rule 1.420(b) provides that if a case is dismissed pursuant to the rule 

for a reason other than lack of jurisdiction, improper venue, or failure to 

join an indispensable party, the order operates as an adjudication on the 

merits “[u]nless the court in its order of dismissal otherwise specifies.” 

Id. When an order of dismissal purports to adjudicate a case on the 

merits, this means that the case has been dismissed with prejudice. See 

Smith v. St. Vil, 714 So. 2d 603, 604 (Fla. 4th DCA 1998) (discussing 

involuntary dismissals pursuant to rule 1.420(b) and stating that “[i]n 

regard to orders of dismissal . . . the words ‘with prejudice’ normally 

connote that there has been an adjudication on the merits”). 

The court’s order of dismissal clearly stated that the case was being 

dismissed “pursuant to [rule] 1.420(b)” due to Bank’s failure to amend 

and verify the complaint. It did not make reference to a lack of 

jurisdiction, improper venue, or lack of an indispensable party. 

Moreover, the order did not specify that even though the dismissal was 

entered pursuant to rule 1.420(b), it was not intended to be an 

adjudication on the merits. Absent one of the exceptions as stated in the 

rule or a clear expression to the contrary, a dismissal pursuant to rule 

1.420(b) is an adjudication on the merits, and, by effect, a dismissal with 

prejudice.

Although this court has recognized that dismissing a case with 

prejudice “is a drastic remedy which courts should employ only in 

extreme situations,” see Townsend v. Feinberg, 659 So. 2d 1218, 1219 

(Fla. 4th DCA 1995), a trial court has the discretion to dismiss an action 

for an egregious violation of an order requiring that an amended 

complaint be filed within a certain time frame. Allstate Ins. Co. v. 

Montgomery Ward, 538 So. 2d 974, 974-75 (Fla. 5th DCA 1989). 

Additionally, “[p]rior to exercising its discretion to grant dismissal based 

on failure to comply with a court order, the court must make a finding 

that the failure to comply was willful or contumacious.” Townsend, 659 

So. 2d at 1219; see also Taylor v. City of Lake Worth, 125 So. 3d 267, 267 
4

(Fla. 4th DCA 2013) (reversing order dismissing complaint with prejudice 

“because the order does not contain an express written finding of willful 

noncompliance for dismissal pursuant to [rule] 1.420(b)”); Cummings v. 

Warren Henry Motors, Inc., 648 So. 2d 1230, 1232 (Fla. 4th DCA 1995) 

(“[A] dismissal of an action as a sanction for violating an order of the 

court is error where the court fails to make an express written finding of 

a party’s willful or deliberate refusal to obey a court order.”). Here, the 

order of dismissal stated that it was entered because Bank “chose[] not to 

timely file an amended complaint,” thereby satisfying the requirement of 

an express written finding that Bank’s noncompliance was indeed willful.

Bank’s argument that it was not properly notified that the order 

would act as a dismissal with prejudice is without merit. A trial court 

cannot dismiss a case with prejudice under rule 1.420(b) for failure to 

amend if it has not first notified the offending party of the consequences 

of failing to amend. See First Union Nat’l Bank v. Hartle, 579 So. 2d 295 

(Fla. 4th DCA 1991) (ruling in part that lower court erred by dismissing 

case pursuant to rule 1.420(b) where court did not indicate failure to 

comply with order to amend would result in dismissal of the action); see 

also Edward L. Nezelek, Inc. v. Sunbeam Television Corp., 413 So. 2d 51, 

54-55 (Fla. 3d DCA 1982) (stating that “once a court has dismissed a 

complaint for failure to state a cause of action, but has granted the party 

leave to amend, that complaint may subsequently be dismissed with 

prejudice only if one of two notice conditions are met, (1) separate notice 

to plaintiff of hearing on the motion for dismissal with prejudice or entry 

of final judgment, or (2) the order dismissing the complaint with leave to 

amend specifically provides that on failure to amend within the stated 

time, the cause will be dismissed without further notice”). In the instant 

case, it is clear from the record that Bank was given adequate notice of 

what would happen in the event that it failed to timely amend its 

complaint. In its penultimate order of dismissal that gave leave to 

amend, the trial court warned the parties that a failure to amend the 

complaint would result in a dismissal under rule 1.420(b).

According to the plain language of rule 1.420(b), the order dismissing 

Bank’s first foreclosure suit was rendered with prejudice as an 

adjudication on the merits due to Bank’s failure to comply with its terms. 

The trial judge therefore erred by ruling that the case had been 

dismissed without prejudice. 

Because Bank’s second foreclosure action was predicated upon the 

same default raised in the first action, the prior adjudication on the 

merits barred Bank from relying on that default under the doctrine of res 

judicata. See Singleton v. Greymar Assocs., 840 So. 2d 356, 356 (Fla. 4th 
5

DCA 2003), aff’d, 882 So. 2d 1004 (Fla. 2004) (stating that res judicata 

does not bar a subsequent foreclosure action against a party so long as 

the succeeding action is predicated upon a “new and different breach” of 

the mortgage agreement). 

We therefore reverse the trial court’s ruling on this issue and remand 

the case for entry of an order of dismissal. As a result, all other points 

raised by Defendant on appeal are moot.

Reversed and Remanded with instructions.

STEVENSON and CIKLIN, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.