ANNETTE BRYANT, APPELLANT,
v.
WELLS FARGO BANK, N.A., ETC., APPELLEE
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Annette Bryant appealed from a foreclosure judgment and related orders, but the Florida District Court of Appeal, Third District, dismissed the appeal for lack of jurisdiction because Bryant failed to timely file her notice of appeal within the required thirty-day periods.
The court dismissed the appeal for lack of jurisdiction because Bryant failed to timely file her notice of appeal within thirty days of the rendition of each order she sought to review, which is a jurisdictional requirement. The Final Judgment of Foreclosure could not be reviewed because the notice of appeal was filed nearly three years after the judgment. The Writ of Possession could not be reviewed because the notice of appeal was filed more than fifty days after that order. The Orders of January 6 were not appealable non-final orders under the applicable rules of appellate procedure.
[1] An appellate court lacks jurisdiction to review a final judgment of foreclosure when the notice of appeal is filed more than thirty days after the rendition of the judgme…
[2] An appellate court lacks jurisdiction to review an order directing the issuance of a writ of possession when the notice of appeal is filed more than thirty days after the…
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Join FLexlaw to unlock all legal intelligence“The time for taking an appeal is a jurisdictional requirement established by Florida Rule of Appellate Procedure 9.110(b). Where the notice of appeal is not filed within thirty days of rendition, the appellate court is precluded from exercising jurisdiction over the appeal.”
Establishes that the thirty-day filing requirement for notices of appeal is jurisdictional and mandatory, not merely a procedural guideline.
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Join FLexlaw to unlock all legal intelligenceWells Fargo Bank filed a foreclosure action against Bryant in September 2008. After a non-jury trial, the trial court entered a Final Judgment of Fore…
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ON MOTION TO DISMISS
The appellant, Annette Bryant (Bryant) appeals from several orders in this foreclosure case. We' dismiss the appeal for lack of jurisdiction.
This appeal stems Aom a foreclosure case filed by the appellee, Wells Fargo Bank, N.A. (the “Bank”), against Bryant and other defendants in September, 2008. After a non-jury trial, the trial court entered a Final Judgment Of Foreclosure in favor of the Bank on-June 23, 2011. After several delays, the property at issue was sold to the Bank at a public foreclosure auction on February 9, 20Í2. dn Fébruary 27, 2012, the certificate of title was issued in the name of the Bank. On July 30, 2012, the trial court entered an Order for Writ of Possession in favor of the Bank.
After another defendant filed a bankruptcy petition, which was later dismissed and closed, the Bank filed what was by then its. second motion for alias writ of possession .on October 17, 2013. Bryant filed a motion for extension of time to respond to the Bank’s motion. On November ' 18, 2013, the trial court entered an Order for Alias Writ of Possession (“Writ of Possession”), ordering the clerk to issue an alias writ of possession putting the Bank in exclusive possession of the property-
On November 22, 2013, Bryant filed her “Verified Motion (1) to Vacate Order of Writ of Possession1 (2) For Leave of Court to Renew Motion for Extension of Time to Complete Responses to Plaintiffs Alias Writ of Possession.” She also filed, on January 6,2014, a “Motion to Disregard Forged & Fabricated Assignment of Mortgage & Request for Judicial Notice.” The trial court subsequently entered two orders on January 6, 2014 (collectively the “Orders of January 6”). In one order, the trial court denied Bryant’s motions for extension of time and to vacate the order óf writ of possession.2 In a second order, the *929trial court denied Bryant’s motion to disregard forged and fabricated assignment of mortgage.
Bryant filed her notice of appeal on January 10, 2014. The notice states that Bryant seeks review of: (1) the' Final Judgment of Foreclosure entered in June, 2011; (2) the November, 2013 Writ of Possession; and (3) “my other motions heard January 6, 2014.” The Final Judgment, however, was the only order attached to the notice of appeal. For the reasons addressed below, we dismiss Bryant’s appeal for lack of jurisdiction.
With regard to the Final Judgment of Foreclosure rendered on June 23, 2011, Bryant’s notice of appeal, filed on January 10, 2014, was clearly insufficient to invoke this Court’s jurisdiction.' See Fla. R.App. P. 9.110(b) (requiring notice of appeal to be filed within thirty days of rendition of the order to be reviewed); Pettz v. Dist. Court of Appeal, Third Dist., 605 So.2d 865 (Fla.1992) (stating that an .untimely filing of a notice of appeal precludes the appellate court from exercising jurisdiction); see also Mekertin v. Winn Dixie Stores, Inc., 869 So.2d 1286, 1288 (Fla. 4th DCA 2004) (“The time for taking an appeal is a jurisdictional requirement established by Florida Rule of Appellate Procedure 9.110(b). Where the notice of appeal is not filed within thirty days of rendition, the appellate court is precluded from exercising jurisdiction over the' appeal.” (quoting Am. Auto. Ass’n v. C.D.S. Towing & Recovery, Inc., 805 So.2d 1064, 1065 (Fla. 3d DCA 2002))); Chandler v. BAC Home Loans Servicing, 101 So.3d 948 (Fla. 1st DCA 2012).
Similarly, Bryant failed to timely invoke this Court’s jurisdiction to review the Writ of Possession. That order may be properly viewed as an appealable, non-final order determining “the right to immediate possession of property.” See Fla. R.App. P. 9:130(a)(3)(C)(ii); Speedway Super America, LLC v. Tropic Enters., Inc., 966 So.2d 1 (Fla. 2d DCA 2007) (stating that order-directing the issuance of writ of possession is subject to interlocutory review as an ■ order that determines “the right to immediate possession of property” under Rule 9.130(a)(3)(C)(ii)); cf. First Hanover v. Vazquez, 848 So.2d 1188 (Fla. 3d DCA 2003) (finding that order denying writ of possession, within .^context- of landlord-tenant statute appealable as non-final order under Rule 9.130(a)(3)(C)(ii)). • As with review of a final order, in order to invoke this Court’s! jurisdiction to review a non-final order, an appellant must file a notice within thirty days of rendition of the order to be reviewed. Fla. R.App. P. 9.130(b). Here, the Writ of Possession was rendered on November 18, 2013, and the notice of appeal was filed on January 10, 2014. Bryant’s failure to file a notice of appeal within thirty days of rendition precludes this Court from exercising jurisdiction-over the appeal. See Longleaf C & D Disposal Facility, Inc. v. Green’s Fill Dirt, Inc., 98 So.3d 1250 (Fla. 1st DCA 2012); Stok v. Cabrera, 774 So.2d 824 (Fla. 3d DCA 2000); see also Chandler, 101 So.3d at 949 (“Florida courts are required to dismiss an appellate proceeding if it was not initiated within the applicable time limit.”). -
Finally, we also dismiss Bryant’s appeal of the Orders of January 6, as taken from non-appealable,, non-final orders. The Orders of January 6 contain several rulings by the trial court. Turning first to the denial of Bryant’s motion to vacate the order of writ of possession, we *930note that a motion to vacate pursuant to Rule 1.540(b) cannot be directed toward non-final orders such as the writ of possession, an order here. See Hollifield v. Renew & Co., 18 So.3d 616, 617 (Fla. 1st DCA 2009) (“Rule 1.540 authorizes a trial court to grant relief ‘from a final judgment, decree, order, or proceeding’ — not from a non-final order_”). Moreover, even if the motion to vacate had been the proper procedural vehicle below, we are without jurisdiction to review the trial court’s denial of that motion because it does not fall within the purview of appealable, non-final orders set forth in Rule 9.130(a)(3). See Bennett’s Leasing, Inc. v. First St. Mortg. Corp., 870 So.2d 93, 98 (Fla. 1st DCA 2003) (“An order entered on a motion to vacate a non-final order, even where the motion mislabels the non-final order as final, is not renewable under Florida Rule of Appellate Procedure 9.130(a)(5).”). Similarly, the remaining rulings encompassed by the Orders of January 6 — denying Bryant’s motion for extension of time, motion to disregard forged and fabricated assignment of mortgage, and motion to compel plaintiff to produce — do not fall within any of the categories of appealable, non-final orders set forth in Rule 9.130(a)(3), and are therefore subject to dismissal for lack of jurisdiction as well.
For the above reasons, we dismiss the appeal for lack of jurisdiction.
APPEAL DISMISSED.
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Stubbs v. Fed. Nat'l Home Loan, 250 So. 3d 151 (Fla. 2d DCA 2018)…. Corp., 870 So. 2d 93, 98 (Fla. 1st DCA 2003). Simply put, "a motion to vacate pursuant to [Florida Rule of Civil Procedure] 1.540(b) cannot be directed toward non-final orders such as the writ of possession." Bryant v. Wells Fargo Bank, N.A., 182 So. 3d 927, 930 (Fla. 3d DCA 2016); see also Hollifield v. Renew & Co., Inc., 18 So. 3d 616, 617 (Fla. 1st DCA 2009) ("Rule 1.540 authorizes a trial court to grant relief 'from a final judgment, decree, order, or proceeding'–not from a non-final order . . .…
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Doncarlos Garcia and Anne Garcia v. Navy Fed. Credit Union & 56 Cottonwood Court Land Tr., 224 So. 3d 339 (Fla. 5th DCA 2017)…al order’ as contemplated by rule 1.540(b) Florida Rules of Civil Procedure; therefore, this appeal must be dismissed sua sponte for lack of jurisdiction.”). The Third District Court addressed this precise issue in Bryant v. Wells Fargo Bank, N.A., 182 So. 3d 927, 928 (Fla. 3d DCA 2016). Like in this case, the borrowers in Bryant appealed both a final judgment of foreclosure and an order denying their rule 1.540(b) motion to quash the writ of possession in favor of the bank. Id. The appellate court found tha…
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Cordero v. Wash. Mut. Bank, 241 So. 3d 967 (Fla. 3d DCA 2018)
Previewing 3 of 13 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (11 total)
- Bennett's Leasing, Inc. v. First St. Mortg. Corp., 870 So. 2d 93 (Fla. 1st DCA 2003)
- Arvin Peltz v. Dist. Court OF Appeal, 605 So. 2d 865 (Fla. 1992)
- Speedway Superamerica, LLC v. Tropic Enters., Inc., 966 So. 2d 1 (Fla. 2d DCA 2007)
- Vandairy Cleckley v. State, 869 So. 2d 1286 (Fla. 4th DCA 2004)
- Ric Hollifield v. Renew & Co., Inc., 18 So. 3d 616 (Fla. 1st DCA 2009)
- Sanchez v. State, 848 So. 2d 1188 (Fla. 3d DCA 2003)
- Wardell Sanders v. State, 805 So. 2d 1064 (Fla. 5th DCA 2002)
- The Am. Auto. Ass'n. v. C.D.S. Towing & Recovery Inc., 805 So. 2d 1064 (Fla. 3d DCA 2002)
- F.B. v. Dep't OF Child. & Families, 774 So. 2d 824 (Fla. 3d DCA 2000)
- Chandler v. BAC Home Loans Servicing, 101 So. 3d 948 (Fla. 1st DCA 2012)