        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                            FOURTH DISTRICT

  WACHOVIA MORTGAGE, FSB f/k/a WORLD SAVINGS BANK, FSB,
             n/k/a WELLS FARGO BANK, N.A.,
                       Appellant,

                                    v.

JOSE R. MONTES; The Unknown Spouse of Jose R. Montes; CATALINA
    SOLANO; The Unknown Spouse of Catalina Solano; COURTYARD
  HOMES AT THE GROVE HOMEOWNERS ASSOCIATION, INC.; THE
  RIDGES MAINTENANCE ASSOCIATION, INC.; Any and All Unknown
   Parties Claiming by, through, under, and against the herein named
 Individual Defendant(s) who are not known to be dead or alive, whether
said Unknown Parties may claim an interest as Spouses, Heirs, Devisees,
  Grantees, or Other Claimants; Tenant #1, Tenant #2, Tenant #3, and
      Tenant #4; the names being fictitious to account for parties in
                              possession,
                               Appellees.

                             No. 4D13-3654

                           [January 28, 2015]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Michael L. Gates, Judge; L.T. Case No. 09-67096 CACE
(11).

  Beverly A. Pohl of Broad and Cassel, Fort Lauderdale, and Francisco
Armada of Broad and Cassel, Miami, for appellant.

  Robert Flavell of Robert Flavell, P.A., Miami, for appellees Jose R.
Montes and Catalina Solano.

CIKLIN, J.

    Wachovia Mortgage, FSB (“Wachovia”) appeals the final judgment
entered in favor of the defendants below, Jose R. Montes and Catalina
Solano, after its mortgage foreclosure case was involuntarily dismissed at
trial. Wachovia argues the trial court erred in involuntarily dismissing
the case before Wachovia finished presenting its evidence. We agree, and
we reverse and remand for a new trial.
   Prior to trial—and as the record clearly indicates—Wachovia filed the
original promissory note with the court. At trial, however, the parties
discovered that the original note was missing from the court file.
Wachovia sought to introduce a copy, but the defendants lodged a best
evidence objection, disputed the authenticity of the original, and moved
to involuntarily dismiss the case.          Without permitting further
presentation of evidence, the court summarily granted the motion.

   Approximately one week later, the clerk found the original note and
returned it via mail to Wachovia.       Wachovia promptly moved for
rehearing or a new trial, arguing the dismissal was premature and
explaining that trial could now proceed with the original note. The trial
court denied the motion and entered final judgment for the defendants.

   Florida Rule of Civil Procedure 1.420(b)           governs   involuntary
dismissals and provides in pertinent part:

   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 against the party seeking
   affirmative relief or may decline to render judgment until the close
   of all the evidence. . . .

(Emphasis added).

    In a bench trial, an involuntary dismissal is appropriate where the
plaintiff fails to establish a prima facie case. Boca Golf View, Ltd. v.
Hughes Hall, Inc., 843 So. 2d 992, 993 (Fla. 4th DCA 2003) (citations
omitted). By definition therefore, Florida courts have held on numerous
occasions that, pursuant to rule 1.420(b), a trial court may not order an
involuntary dismissal of a case before a plaintiff rests its case. See
Deutsche Bank Nat’l Trust Co. v. Santiago, 117 So. 3d 1146, 1146-47
(Fla. 3d DCA 2013) (reversing trial court’s sua sponte involuntary
dismissal of the case entered before bank completed examination of its
witness); A.N. v. M.F.–A., 946 So. 2d 58, 60 (Fla. 3d DCA 2006) (“By
denying appellants the opportunity to complete their case-in-chief, the
trial court denied appellants their due process.”); Lustig v. Garcia, 789
So. 2d 482, 483 (Fla. 4th DCA 2001) (“[A]n involuntary dismissal may not
be entered before the plaintiff has completed the presentation of his
evidence.”); SJS Enters. v. Cates, 547 So. 2d 226, 227 (Fla. 4th DCA

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1989) (trial court cannot “jump the gun” by granting involuntary
dismissal while plaintiff was presenting its first witness).

   In the instant case, Wachovia had scarcely begun presenting its case
when the court noticed that the original note was not in the court file
and, as a result, granted the defendants’ motion for involuntary
dismissal. Wachovia was denied the opportunity to present any evidence
in support of its claim, let alone finish its case-in-chief. The trial court
erred in granting the defendants’ motion and further erred by denying
Wachovia’s motion for a new trial.

   Because of this incontrovertible error, as well as the recovery of the
original note, the defendants’ arguments pertaining to Wachovia’s ability
to prove its case without the note are irrelevant.

   Reversed and remanded with instructions.

GERBER and LEVINE, JJ., concur.

                           *         *         *

   Not final until disposition of timely filed motion for rehearing.




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