BANK OF NEW YORK MELLON F/K/A BANK OF NEW YORK, AS TRUSTEE FOR THE CERTIFICATEHOLDERS OF THE CWABS, INC., ASSET-BACKED CERTIFICATES, SERIES 2007-2, APPELLANT,
v.
JOSEPH A. SWAIN AND VICTORIA SWAIN, APPELLEES
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Bank of New York Mellon appealed from an order granting summary judgment in favor of homeowners Joseph and Victoria Swain in a foreclosure case. The appellate court dismissed the appeal for lack of jurisdiction because the Bank failed to timely appeal the initial summary judgment order, which was a final appealable order.
The initial summary judgment order dismissing the case without prejudice was a final, appealable order, and because the Bank failed to file its notice of appeal within thirty days of that order, the appellate court lacks jurisdiction to entertain the appeal.
[1] An order granting summary judgment that dismisses an action without prejudice and without granting leave to amend is a final, appealable order.
[2] The finality of a court order for appellate purposes is determined by its effect, not its label.
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“An order dismissing an action without prejudice and without granting leave to amend is a final appealable order.”
Establishes that the initial summary judgment order was final and appealable, triggering the thirty-day appeal deadline.
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Join FLexlaw to unlock all legal intelligenceThe trial court issued a summary judgment order dismissing the foreclosure case without prejudice to the Bank filing a new lawsuit. The Bank filed a m…
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Bank of New York Mellon (“the Bank”) appeals from an order granting a “motion to adjudicate finality” that purported to enter final summary judgment of foreclosure in favor of Joseph and Victoria Swain (“the Swains”). This order followed a written order issued several months earlier, which granted summary judgment in the Swains’ favor and dismissed the case without prejudice to the Bank filing a new lawsuit.1 The Swains have filed á motion to dismiss the appeal, arguing that the Bank’s appeal is untimely because the initial summary-judgmént order was a final, appealable order, rendering the .order on the motion to adjudicate finality a nullity. We agree.
If an order merely grants a motion for summary judgment, without doing more, it is not an appealable, final order. Boyd v. Goff, 828 So.2d 468, 469 (Fla. 5th DCA 2002) (quoting McQuaig v. Wal-Mart Stores, Inc., 789 So.2d 1215 (Fla. 1st DCA 2001)). However, when, as here, there is evidence of finality on the face of the summary judgment order, it will be deemed a final order for appellate purposes. Getman v. Tracey Const., Inc., 62 So.3d 1289, 1291 (Fla. 2d DCA 2011); Boyd, 828 So.2d at 469. “An order dismissing an action without prejudice and without granting leave to amend is a final appealable order.” Valcarcel v. Chase Bank USA NA, 54 So.3d 989, 990 (Fla. 4th DCA 2010). That is the situation here. The focus is on “what a court order does” and not “how the order is labeled.” Boyd, 828 So.2d at 469.
A notice of appeal must be filed within thirty days of rendition of the order to be reviewed; otherwise, this Court lacks jurisdiction to entertain the appeal. See Fla. R. App. P. 9.110(b); Rayburn v. Bright, 163 So.3d 735, 737 (Fla. 5th DCA 2015). The initial summary-judgment order was a final, appealable order from which the Bank did not timely appeal. The Bank filed its appeal more than nine months after that initial order—and more than three months after the denial of the motion for rehearing. Accordingly, we dismiss this appeal for lack of jurisdiction.
DISMISSED.
PALMER and ORFINGER, JJ., concur.
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Salgado v. Suyapa-Jimenez, 254 So. 3d 1053 (Fla. 3d DCA 2018)
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Nationstar Mortg. v. Earnest Edward Glisson (Fla. 2d DCA 2019)…order does' and not 'how the order is labeled,' " but here they are one and the same: the order dismisses the 2012 case without prejudice and it is titled "order of dismissal." See Bank of N.Y. Mellon for Certificateholders of CWABS, Inc. v. Swain, 217 So. 3d 226, 227 (Fla. 5th DCA 2017) (quoting Boyd v. Goff, 828 So. 2d 468, 469 (Fla. 5th DCA 2002)); cf. Fla. R. Civ. P. 1.420(b) ("Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provid…
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Ladonna Hudkins v. Hudkins (Fla. 5th DCA 2023)…ortion of the appeal challenging the Order Determining Total Incapacity is untimely, we lack jurisdiction to address it, and this portion of the appeal is therefore dismissed. See Bank of N.Y. Mellon for Certificateholders of CWABS, Inc. v. Swain, 217 So. 3d 226, 227 (Fla. 5th DCA 2017) (“A notice of appeal must be filed within thirty days of rendition of the order to be reviewed; otherwise, this Court lacks jurisdiction to entertain the appeal.” (citations omitted)). B. Next, Appellant challenges the porti…
Authorities Cited
- McQUAIG v. Wal-Mart Stores, Inc., 789 So. 2d 1215 (Fla. 1st DCA 2001)
- Valcarcel v. Chase Bank USA NA, 54 So. 3d 989 (Fla. 4th DCA 2010)
- Boyd v. Goff, 828 So. 2d 468 (Fla. 5th DCA 2002)
- Getman v. Tracey Constr., Inc., 62 So. 3d 1289 (Fla. 2d DCA 2011)
- Rayburn v. Bright, 163 So. 3d 735 (Fla. 5th DCA 2015)