       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
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

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      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

                                     3
(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

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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.




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