Federal Natl. Mtg. Assn. v. Blocker

Full title: FEDERAL NATIONAL MORTGAGE ASSOCIATION, Appellant, v. EILEEN BLOCKER…

Court: District Court of Appeal of Florida, First District

Date published: Feb 18, 1999

728 So. 2d 306 (Fla. Dist. Ct. App. 1999)

Opinion

No. 98-2295

Opinion filed February 18, 1999.

An appeal from the Circuit Court for Duval County; Judge Karen A. Cole.

Marsha M. Brown, of Shapiro and Fishman, Jacksonville, for Appellant.

T. Geoffrey Heekin and S. Hunter Malin of Bartlett Heekin, P.A., Jacksonville, for Appellee Blocker; and Bruce R. Anderson, Jr. of Kurt Andrew Simpson, a Professional Association, Jacksonville, for Appellees O'Connor and Lindner.

BARFIELD, C. J.

Federal National Mortgage Association (FNMA) appeals an order staying a mortgage foreclosure action pending the outcome of arbitration in a related action to which FNMA is not a party. We treat the initial brief, together with FNMA's response to our order to show cause, as a petition for writ of certiorari.

In the 1997 foreclosure action, the defendant mortgagor had filed a third-party complaint against the sellers and an inspector upon whose report the mortgagor had relied in purchasing the property. The sellers filed a motion seeking a stay of the third-party action pending arbitration of a separate 1995 action involving the same parties and essentially the same issues as the third-party action. After a hearing on this motion, the trial court issued an order sua sponte staying the entire foreclosure action pending the outcome of arbitration in the 1995 action in order to conserve "litigant and judicial resources." FNMA's motion for reconsideration, asserting that no party had requested a stay of the entire action, was denied.

We find that the trial court's order granted relief that was not requested, noticed, nor litigated by any party. See Kerrigan, Estess, Rankin McLeod v. State, 711 So.2d 1246 (Fla. 4th DCA 1998), and the cases cited therein. This denial of due process constitutes a departure from the essential requirements of law, for which FNMA has no adequate remedy on appeal from the final judgment in the case. The order is therefore QUASHED and the case is REMANDED to the trial court for further proceedings.

ERVIN and JOANOS, JJ., CONCUR.