HARBOR BAY CONDOMINIUMS, INC., APPELLANT,
v.
FABIAN BASABE & MAY BASABE, AND BANK ONE NATIONAL ASSOCIATION F/K/A THE FIRST NATIONAL BANK OF CHICAGO, APPELLEES
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Harbor Bay Condominiums appeals the trial court's denial of its motion to amend a final foreclosure judgment to include $4,760 in attorney's fees that were omitted from the original judgment. The court affirmed, holding that Harbor Bay's motion was untimely under Florida Rules of Civil Procedure and the trial court lacked jurisdiction to amend the final judgment after the redemption period had passed.
The trial court properly denied Harbor Bay's motion because it was untimely. Harbor Bay had 10 days under Rule 1.530 or 30 days under Rule 1.525 to move for amendment or attorney's fees, but filed its motion more than 50 days after entry of the final judgment. The trial court therefore lacked jurisdiction to amend the final judgment, and the Basabes' redemption based on the amount specified in the judgment was valid.
[1] A trial court retains jurisdiction to amend or modify a final judgment only when a rule or statute provides for such action.
[2] A motion to alter or amend a judgment must be served not later than 10 days after the entry of the judgment.
Previewing 2 of 6 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The court retains the power to modify by subsequent order the time and manner of the enforcement of a final judgment after it becomes final, but it does not retain the power, unless provided by statute or rule, to amend, modify or alter the provisions of a final judgment.”
Establishes the fundamental principle that trial courts cannot modify final judgments without statutory or rule authorization.
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Join FLexlaw to unlock all legal intelligenceBank One filed a foreclosure action against a condominium unit owned by Fabian and May Anne Basabe for past due mortgage payments. Harbor Bay, as the …
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GREEN, J.
Harbor Bay Condominiums, Inc. (“Harbor Bay”) appeals a post-judgment order which denied its motion for reinstatement and to amend summary final judgment. For the following reasons, we affirm.
Bank One National Association (“Bank One”) filed a foreclosure action against a condominium unit owned by Fabian and May Anne Basabe, claiming past due mortgage payments. Harbor Bay was also named as a defendant. Harbor Bay cross-claimed the Basabes, seeking past due association fees, costs, and attorney’s fees.
On August 19, 2002, summary final judgment was entered in favor of Bank One and Harbor Bay. Specifically, as to Harbor Bay’s cross-claim, the summary final judgment provides:
4. ATTORNEY’S FEES
* * *
b. The Declaration of Condominium and Florida Statute 718 provides for Crossclaimant’s attorneys fees. Crossclaimant has retained an attorney and the Court finds that 27.20 hours have reasonably been expended by crossclaimant as set forth on said attorney’s Affidavit. Further, Cross-claimant’s counsel has filed a supporting attorneys fee Affidavit by an independent attorney. The hourly fee of $175.00 is a reasonable hourly fee. Below is a total fee awarded pursuant to Florida Patient’s Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla.1985).
5. DAMAGES:
b. There is now due and owing to Crossclaimant Harbour Bay Condominium, Inc. under the Declaration of Condominium and Condominium claim of lien sued upon herein the following sums of money to wit.
1) Regular monthly assessments (25 months @ $638.71 per month from 8/1/00 through 8/1/02 $15,967.75
2) Special assessments of 4/5/01 $ 609.00
3) Special assessment of 1/10/02 $ 9,466.95
4) Late fees (28 @ $25.00 ea.) $ 650.00
5) Cost of recording Claim of Lien $ 12.00
6) Costs (Deposition of Fabian Basabe) $ 225.00
TOTAL DUE $26,929.70
The damage section of the judgment, as shown above, did not delineate the determined $4,760 in attorney’s fees or include them in the total due. Nor did the judgment reserve jurisdiction for the purpose of assessing such fees.
A foreclosure sale date for the condominium was set for October 4, 2002. On October 3, 2002, the Basabes requested a redemption figure as to Harbor Bay, which the clerk of circuit court gave as $26,929.70, the total amount recited in the final judgment. Basabe paid the sum requested by the clerk and, pursuant to Florida Statute 45.0315,1 timely redeemed the property. A check from the clerk of court was issued to Harbor Bay this same day.
On October 10, 2002, a week following redemption, Harbor Bay served its motion to amend summary final judgment of foreclosure, seeking to amend the judgment to include $4,760 in attorney’s fees or, alternatively, for the entry of a supplemental judgment of foreclosure entered in the same amount.2
The trial court denied Harbor Bay’s motion finding that:
Pursuant to Florida Statute 45.0815, Fabian Basabe exercised his redemption rights before the Clerk’s filing of Certificate of Sale by paying the amount of money specified in the Judgment, therefore properly exercising his right of redemption under the statute. It is undisputed that attorneys fees and costs were not included in the Final Judgment, however Basabe should not be prevented from exercising his redemption rights due to Harbour Bay Condominium’s failure to include the fees and costs in the Judgment, whether such failure was either by mistake or intentional. See Bee Bee Medical Center Inc., v. Strategic Consulting and Managing, Inc., 677 So. 2d 84 (Fla. 2d DCA 1996). Finding the denial of Harbor Bay’s motion proper, we affirm.
A trial court does not retain the authority to amend or modify a final judgment, absent a rule or statute providing otherwise. See Frumkes v. Frumkes, 328 So. 2d 34, 35 (Fla. 3d DCA 1976) (“The court retains the power to modify by subsequent order the time and manner of the enforcement of a final judgment after it becomes final, but it does not retain the power, unless provided by statute or rule, to amend, modify or alter the provisions of a final judgment.”). In this case, Harbor Bay could have moved under rule 1.525 and/or 1.530, for an amendment of the final judgment. Rule 1.530, however, provides that “[a] motion to alter or amend the judgment shall be served not later than 10 days after entry of the judgment[.]” Fla. R. Civ. P. 1.530(g) (2001); whereas rule 1.525 would have given Harbor Bay thirty days following the filing of the summary final judgment to file a motion for attorney’s fees.3 Fla. R. Civ. P. 1.525 (2001). Here, Harbor Bay’s motion was served more than fifty (50) days after the entry of the summary final judgment.4 It was therefore untimely. The Florida Supreme Court has held that:
motions and petitions for correction of error by the trial court must be made within the time prescribed by rule or statute.... Unless a proper motion or petition is filed within the allotted time the order becomes absolute and except as provided by the rules ... the trial court has no authority to alter, modify or vacate the substance of the order. Kippy Corp. v. Colburn, 177 So. 2d 193, 196-97 (Fla.1965).
The trial court in this case was without jurisdiction to amend and/or reinstate the final judgment, and therefore denial of Harbor Bay’s motion was proper. See Oyer v. Boyer, 383 So. 2d 717, 718 (Fla. 4th DCA 1980) (“[t]he question of jurisdiction is absolute and the cases so holding are too numerous to require citation. In the case now before us, no petition for rehearing was filed within the time allowed under the rules. This being so, the trial court was also powerless to make the [attorney’s fee] award.”). Accordingly, we affirm. See Dade County Sch. Bd. v. Radio Station WQBA, 731 So. 2d 638, 644-45 (Fla.1999) (holding that ruling of trial court will be upheld if the court reached right result but for wrong reason).
Affirmed.
. This statute provides:
Right of redemption. — At any time before the later of the filing of a certificate of sale by the clerk of the court or the time specified in the judgment, order, or decree of foreclosure, the mortgagor or the holder of any subordinate interest may cure the mortgagor’s indebtedness and prevent a foreclosure sale by paying the amount of moneys specified in the judgment, order, or decree of foreclosure, or if no judgment, order, or decree of foreclosure has been rendered, by tendering the performance due under the security agreement, including any amounts due because of the exercise of a right to accelerate, plus the reasonable expenses of proceeding to foreclosure incurred to the time of tender, including reasonable attorney’s fees of the creditor. Otherwise, there is no right of redemption.
§ 45.0315, Fla. Stat. (2002).
. After the filing of Harbor Bay’s motion to amend summary final judgment, Fabian Bas-abe filed a bankruptcy action and the trial court abated Harbor Bay’s motion. On March 7, 2003, Harbor Bay filed a motion to reinstate this action.
. This rule provides:
Any party seeking a judgment taxing costs, attorneys’ fees, or both shall serve a motion within 30 days after filing of the judgment, including a judgment of dismissal, or the service of a notice of voluntary dismissal.
.At oral argument, Harbor Bay claimed that the court had jurisdiction to amend the judgment under Florida Rule of Civil Procedure 1.540. This claim was not raised at the trial level or briefed for appellate review. Thus, we refuse to entertain this new, alternative argument. See Dober v. Worrell, 401 So. 2d 1322, 1324 (Fla.1981)(holding that appellate court will not consider issue not presented to trial judge on appeal from final judgment).
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Vargas v. Deutsche Bank Nat'l Tr. Co., 104 So. 3d 1156 (Fla. 3d DCA 2012)…Levy v. Levy, 900 So. 2d 737, 745 (Fla. 2d DCA 2005) (“Trial courts have no authority to alter, modify, or vacate a final judgment except [*1166] as provided in Florida Rules of Civil Procedure 1.530 and 1.540.”); Harbor Bay Condos., Inc. v. Basabe, 856 So. 2d 1067, 1069 (Fla. 3d DCA 2003) (“A trial court does not retain the authority to amend or modify a final judgment, absent a rule or statute providing otherwise.”); Frumkes v. Frumkes, 328 So. 2d 34, 35 (Fla. 3d DCA 1976) (“The court retains the power to mo…
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Garcia v. Christiana Tr., 208 So. 3d 176 (Fla. 3d DCA 2016)…nding a trial court loses jurisdiction of a cause after a judgment or final decree has been entered and the time for filing petition for rehearing or motion for new trial has expired or same has been denied); Harbor Bay Condominiums, Inc. v. Basabe, 856 So. 2d 1067, 1070 (Fla. 3d DCA 2003). In this matter, notwithstanding the language contained in the 2014 Rocketrider opinion, neither this Court nor the trial court had jurisdiction to modify or reopen the Final Judgment of Foreclosure because that judgment wa…
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Yemc Constr. & Dev., Inc. v. Inter SER, 884 So. 2d 446 (Fla. 3d DCA 2004)…t was without jurisdiction to alter or amend the judgment substantively when, as here, the Tenants’ motion was filed more than ten days after filing of the final judgment of foreclosure. See Fla.R.Civ.P. 1.530(g); Harbor Bay Condos., Inc. v. Basabe, 856 So. 2d 1067 (Fla. 3d DCA 2003). In addition, the trial court was without authority to extend the period of redemption. Here, it is undisputed that the Tenants’ right of redemption expired upon filing of the certificate of sale. § 45.0315, Fla. Stat. (2003). Th…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Fla. Patient's Comp. Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985)
- Dade Cnty. Sch. Bd. v. Radio Station Wqba, 731 So. 2d 638 (Fla. 1999)
- Chirogianis v. Anderson, 401 So. 2d 1322 (Fla. 1981)
- The Kippy Corp. v. Sherwood Colburn, 177 So. 2d 193 (Fla. 1965)
- Melvyn B. Frumkes v. Frumkes, 328 So. 2d 34 (Fla. 3d DCA 1976)
- Oyer v. Boyer, 383 So. 2d 717 (Fla. 4th DCA 1980)
- BEE BEE Med. Ctr., Inc. v. Strategic Consulting & Managing, Inc., 677 So. 2d 84 (Fla. 2d DCA 1996)