MELINA M. NACIUS AND AURILIEN NACIUS, APPELLANTS,
v.
ONE WEST BANK, FSB, AS SUCCESSOR IN INTEREST TO INDYMAC FEDERAL BANK, F.S.B., SUCCESSOR IN INTEREST TO INDYMAC BANK, F.S.B., APPELLEE
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The court held that it lacks appellate jurisdiction to review the denial of a motion to vacate a writ of possession, as such a motion cannot be directed to a non-final order and its denial does not fall within appealable non-final orders.
[1] A court is not required to accept a confession of error from a party.
[2] An appellate court must assess its own jurisdiction even when jurisdiction is not challenged by the parties.
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Join FLexlaw to unlock all legal intelligenceAppellants appealed the denial of their motion to stay and vacate a writ of possession, after their prior appeal of a final judgment of foreclosure wa…
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Appellants appeal the court’s final judgment and denial of their “Emergency Motion to Stay and Vacate Writ of Possession.” Previously, we dismissed the appeal of the final judgment of foreclosure for lack of jurisdiction as the notice of appeal was not timely as to that final judgment. Appellee now files a confession of error and states that we should reverse the denial of the motion to vacate the writ of possession. We reject the confession of error and sua sponte dismiss this appeal for lack of appellate jurisdiction.
While we appreciate counsel’s candor and explanation in the confession of error, we are not required to accept a confession of error. D.A. v. Dep’t of Children & Family Servs., 84 So.3d 1136, 1139 (Fla. 3d DCA 2012); Bain v. State, 919 So.2d 599, 602 (Fla. 3d DCA 2006) (citing Perry v. State, 808 So.2d 268 (Fla. 1st DCA 2002)); Santiago v. State, 669 So.2d 334, 335 (Fla. 3d DCA 1996)). We are, however, required to assess our own jurisdiction even when not raised by the parties. Rayburn v. Bright, 163 So.3d 735, 736 (Fla. 5th DCA 2015); Ruffin v. Kingswood E. Condo. Ass’n, 719 So.2d 951, 952 (Fla. 4th DCA 1998).
The appellants appeal the trial court’s denial of their motion to vacate a writ of possession. However, as the Third District recently held, a motion to vacate cannot be directed to a non-final order. Bryant v. Wells Fargo Bank, N.A., 182 So.3d 927, 930 (Fla. 3d DCA 2016) (“[W]e note that a motion to vacate pursuant to Rule 1.540(b) cannot be directed toward non-final orders such as the writ of possession .... ”). Further, as the court held in Bryant, “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 ap-pealable, non-final orders set forth in Rule 9.130(a)(3).” Id. at 930.
We agree with the Third District’s opinion in Bryant and dismiss this appeal for lack of appellate jurisdiction.
Appeal dismissed.
Conner and Klingensmith, JJ., concur.
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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)…cked “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 [Florida Rule of Appellate Procedure] 9.130(a)(3).” Id.; accord Nacius v. One W. Bank, FSB, 211 So. 3d 152, 153 (Fla. 4th DCA 2017) (sua sponte dismissing appeal challenging trial court’s denial of motion to vacate writ of possession based on Bryant). Based on the foregoing, we lack jurisdiction to consider the Garcias’ appeal of their denied rule 1.540…
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Chaim Joseph Bialostozky v. GAHC3 Mount Dora FL MOB II, LLC (Fla. 5th DCA 2024)…owledge that the issue of our jurisdiction to consider this aspect of the appeal was not raised by either party; however, an appellate court is required to assess its own jurisdiction, even when not raised by the parties. Nacius v. One W. Bank, FSB, 211 So. 3d 152, 153 (Fla. 4th DCA 2017) (citing Rayburn v. Bright, 163 So. 3d 735, 736 (Fla. 5th DCA 2015); Ruffin v. Kingswood E. Condo. Ass’n, 719 So. 2d 951, 952 (Fla. 4th DCA 1998)). Based on our long-standing precedent, see Dawkins, Inc. v. Huff, 836 So. 2d 1…
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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
- Perry v. State, 808 So. 2d 268 (Fla. 1st DCA 2002)
- Ruffin v. Kingswood E. Condo. Ass'n, Inc., 719 So. 2d 951 (Fla. 4th DCA 1998)
- D.A. v. Dep't OF Child. & Fam. Servs., 84 So. 3d 1136 (Fla. 3d DCA 2012)
- Bryant v. Wells Fargo Bank, N.A., 182 So. 3d 927 (Fla. 3d DCA 2016)
- Santiago v. State, 669 So. 2d 334 (Fla. 3d DCA 1996)
- Rayburn v. Bright, 163 So. 3d 735 (Fla. 5th DCA 2015)
- Bain v. State, 919 So. 2d 599 (Fla. 3d DCA 2006)