MARIA V. CHESHIRE, APPELLANT,
v.
WELLS FARGO BANK, N.A., APPELLEE
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Maria Cheshire appealed the trial court's order denying her motions for relief after Wells Fargo voluntarily dismissed its mortgage foreclosure action. The appellate court reversed and remanded, finding that an order dismissing Cheshire's counterclaims entered simultaneously with the trial judge's recusal order may be void, entitling her to relief under Florida Rule of Civil Procedure 1.540(b).
Orders entered simultaneously with a recusal order are void, subject to a narrow exception where the written order merely reduces an earlier oral ruling made before recusal. The case is remanded to determine whether the trial judge made an earlier oral ruling before recusal; if not, the dismissal of counterclaims is void and appellant is entitled to relief under rule 1.540(b)(4).
[1] An order entered simultaneously with a trial judge's order of recusal is void.
[2] An order entered simultaneously with a recusal order is not void if it merely reduces an earlier oral ruling made prior to the recusal.
Previewing 2 of 4 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“Any order entered simultaneously with an order of recusal is void.”
Establishes the primary legal principle that orders entered at the same time as a recusal order lack validity.
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Join FLexlaw to unlock all legal intelligenceWells Fargo filed a mortgage foreclosure action against Cheshire. Cheshire filed counterclaims in response. The trial judge entered an order dismissin…
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Appellant seeks review of the trial court’s order denying her motions seeking relief following appellee’s voluntary dismissal of its mortgage foreclosure action against appellant. We conclude appellant’s motions failed to state any claim for relief pursuant to Florida Rule of Civil Procedure 1.540(b) with one possible exception. Appellant correctly notes the order dismissing her counterclaims with prejudice was entered simultaneously with the trial judge’s order of recusal. Any order entered simultaneously with an order of recusal is void. Lance Block, P.A. v. Searcy, Denney, Scarola, Barnhart & Shipley, P.A., 85 So.3d 1122 (Fla. 1st DCA 2012). An exception has been recognized where the trial judge’s written order was simply a reduction of an earlier adverse oral ruling made prior to the recusal. Barnett Bank of S. Fla., N.A. v. Tarr, 557 So.2d 595, 595-96 (Fla. 4th DCA 1990). The record is silent as to whether the trial judge made an earlier oral ruling prior to his recusal. If there was no prior oral ruling, appellant would be entitled to relief under rule 1.540(b)(4) because the order dismissing her counterclaims with prejudice was void. Appellee’s subsequent notice of voluntary dismissal would have no effect on appellant’s counterclaims if the trial court’s earlier order of dismissal was void under rule 1.540(b)(4). See Layne Dredging Co. v. Regus, Inc., 622 So.2d 7, 8 (Fla. 2d DCA 1993) (holding that a counterclaim is not extinguished by a voluntary *887dismissal of the complaint). Accordingly, we reverse and remand for further proceedings on the limited issue of whether the order dismissing appellant’s counterclaims was void because it was entered simultaneously with the trial judge’s recu-sal order.
REVERSED and REMANDED.
OSTERHAUS, and KELSEY, JJ., concur.
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Citator
Cited By
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Yoanky DE LA OSA v. Wells Fargo Bank, N.A., 208 So. 3d 259 (Fla. 3d DCA 2016)…ng an order denying a motion to vacate “orders” of dismissal under rule 1.540(b)(4)). The First and Fourth Districts have similarly held that the term “judgment” as used in Rule 1.540(b)(4) includes final orders. Cheshire v. Wells Fargo Bank, N.A., 175 So. 3d 886, 887 (Fla. 1st DCA 2015) (reversing an order denying a motion to vacate an order dismissing counterclaims with prejudice under Rule 1.540(b)(4) and remanding for the limited purpose of determining whether the order dismissing the counterclaims was v…1 / 2
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Yoanky De La OSA v. Wells Fargo Bank, N.A., 218 So. 3d 914 (Fla. 3d DCA 2016)…nt” by this Court in a related context. Falkner v. Amerifirst Fed. Savs. & Loan, 467 So. 2d 746, 747 (Fk. 3d DCA 1985); see Falkner v. Amerifirst Fed. Savs. & Loan, 489 So. 2d 758, 759 (Fla. 3d DCA 1986). See also Cheshire v. Wells Fargo Bank, N.A., 175 So. 3d 886 (Fla. 1st DCA 2015) (entitling appellant to relief under rule 1.540(b)(4) from void order dismissing counterclaim with prejudice). .We note that rule 1.540 is substantially modeled on Rule 60 of the Federal Rules of Civil Procedure. Federal rule 60…
Authorities Cited
- Barnett Bank OF S. Fla., N.A. v. Tarr, 557 So. 2d 595 (Fla. 4th DCA 1990)
- Layne Dredging Co. v. Regus, Inc., 622 So. 2d 7 (Fla. 2d DCA 1993)
- Lance Block, P.A. v. Searcy, 85 So. 3d 1122 (Fla. 1st DCA 2012)