DONCARLOS GARCIA AND ANNE GARCIA, APPELLANTS,
v.
NAVY FEDERAL CREDIT UNION AND 56 COTTONWOOD COURT LAND TRUST, APPELLEES

Fla. 5th DCA | 2017-08-11
Nos. Case Nos. 5D16-1350 & 5D16-3055
COHEN, C.J., SAWAYA and WALLIS, JJ., concur.
224 So. 3d 339 Florida District Court of Appeal, Fifth District (2017) Negative Treatment
Cited by 8 cases

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Synopsis

The Garcias appealed a final judgment of foreclosure by Navy Federal Credit Union and the trial court's denial of their motion to vacate a writ of possession issued to the winning bidder at the foreclosure sale. The appellate court affirmed the foreclosure judgment but dismissed the appeal regarding the writ of possession for lack of jurisdiction, holding that Rule 1.540(b) applies only to final judgments, not non-final orders like writs of possession.


Holding

The court affirmed the final judgment of foreclosure and dismissed the appeal concerning the writ of possession for lack of appellate jurisdiction. Rule 1.540(b) permits relief only from final judgments, not non-final orders such as a writ of possession, and an order denying a motion to vacate a non-final order is not reviewable under Florida Rule of Appellate Procedure 9.130(a)(5).


Headnotes

[1] A motion to vacate pursuant to Rule 1.540(b) cannot be directed towards non-final orders.

[2] An order entered on a motion to vacate a non-final order is not reviewable under Florida Rule of Appellate Procedure 9.130(a)(5).

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Key Quotes

“Rule 1.540(b) permits a party to move to vacate a "final judgment, decree, order, or proceeding" on several grounds. Fla. R. Civ. P. 1.540(b). The rule does not, however, authorize a trial court to grant relief from a non-final order.”

Establishes the fundamental limitation that Rule 1.540(b) applies only to final judgments, not non-final orders.

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Facts & Procedural History

In November 2003, the Garcias executed a home equity line of credit agreement secured by a second mortgage, borrowing up to $75,000 from Navy Federal …

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Opinion of the Court
PER CURIAM.

PER CURIAM.

In this consolidated appeal, Doñearlos and Anne Garcia appeal the trial court’s entry of final judgment of foreclosure in favor of Navy Federal Credit Union (“NFCU”) (5D16-1350). The Garcias also appeal the trial court’s denial of their motion to vacate the writ of possession issued to 56 Cottonwood Court Land Trust (the “Trust”) following the foreclosure sale (5D16-3055). We affirm the final judgment of foreclosure without further comment. For the following reasons, we sua sponte dismiss the portion of the appeal concerning the writ of possession for lack of appellate jurisdiction.

In November 2003, the Garcias executed a home equity line of credit agreement, secured by a second mortgage on their property, permitting them to borrow up to $75,000 from NFCU. The Garcias defaulted by failing to make the payment due October 1, 2007, and all subsequent payments. After a two-day bench trial, the trial court entered final judgment of foreclosure for NFCU. At the foreclosure sale in April 2016, the Trust submitted the winning bid for $230,000. The Flagler County Clerk issued a writ of possession to the Trust the following August. The Garcias then filed a verified emergency motion to vacate the writ of possession pursuant to Florida Rule of Civil Procedure 1.540(b), arguing, inter alia, that they did not receive proper notice of the foreclosure sale. The trial court denied the Garcias’ motion.

Rule 1.540(b) permits a party to move to vacate a “final judgment, decree, order, or proceeding” on several grounds. Fla. R. Civ. P. 1.540(b). The rule does not, however, authorize a trial court to grant relief from a non-final order. Hialeah Hotel, Inc. v. Woods, 778 So.2d 314, 315 (Fla. 3d DCA 2000) (“Rule 1.540 applies only to final judgments, not to interlocutory or*341ders.”)• Moreover, “[a]n order entered on a motion to vacate a non-final order, even where the motion mislabels the non-final order as final, is not reviewable under Florida Rule of Appellate Procedure 9.130(a)(5).” Bennett’s Leasing, Inc. v. First St. Mortg. Corp., 870 So.2d 93, 98 (Fla. 1st DCA 2003); see also Hi-Tech Mktg. Group, Inc. v. Thiem, 659 So.2d 479, 479 (Fla. 4th DCA 1995) (“Appellant seeks review of a non-final order denying its motion to vacate a non-final order striking its pleadings as a discovery violation sanction. This is not a ‘final 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 that the borrowers inappropriately utilized rule 1.540(b), explaining that “a motion to vacate pursuant to Rule 1.540(b) cannot be directed towards non-final orders such as the writ of possession.” Id. at 930. The court further determined that “even if the motion to vacate had been the proper procedural vehicle below,” it nonetheless lacked “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(b) motion directed- towards the non-final order granting a writ of possession to the Trust. Accordingly, we affirm the final judgment of foreclosure and sua sponte dismiss the portion of the appeal concerning the writ of possession.

AFFIRMED in part; DISMISSED in part.

COHEN, C.J., SAWAYA and WALLIS, JJ., concur.


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Citator

Cited By

  • Stubbs v. Fed. Nat'l Home Loan, 250 So. 3d 151 (Fla. 2d DCA 2018)
    …App. P. 9.130(a)(3)(C)(ii))). Instead of appealing that order, the Stubbses sought relief under rule 1.540. But, "rule [1.540(b)] does not . . . authorize a trial court to grant relief from a non- final order." Garcia v. Navy Fed. Credit Union, 224 So. 3d 339, 341 (Fla. 5th DCA - 3 - 2017). And although Florida Rule of Appellate Procedure 9.130(a)(5) provides that "[o]rders entered on an authorized and timely motion [under Florida Rule of Civil Procedure 1.540] are reviewable by the method prescribe…
  • Fabre v. 4647 Block, LLC, 401 So. 3d 523 (Fla. 3d DCA 2024)
    …phasis added); In re: Amends. to Fla. Rules of Civ. Proc. —2019 Regular- Cycle Report, 292 So. 3d 660, 661 (Fla. 2019). “The rule does not, however, authorize a trial court to grant relief from a non-final order.” Garcia v. Navy Fed. Credit Union, 224 So. 3d 339, 340 (Fla. 5th DCA 2017). See also Hialeah Hotel, Inc. v. Woods, 778 So. 2d 314, 315 (Fla. 3d DCA 2000) (“That is so because Rule 1.540 applies only to final judgments, not to interlocutory orders.”). Since the “Final Judgment” is a nonfinal order…
  • …(Fla. 3d DCA Sept. 18, 2024) (“By its plain text, Rule 1.540(b) only applies to final orders. ‘The rule does not . . . authorize a trial court to grant relief from a non-final order.’” (citations omitted) (quoting Garcia v. Navy Fed. Credit Union, 224 So. 3d 339, 340 (Fla. 5th DCA 2017))); Bennett’s Leasing, Inc. v. First St. Mortg. Corp., 870 So. 2d 93, 97 (Fla. 1st DCA 2003) (“[R]ule 1.540 authorizes motions seeking relief only from “a final judgment, decree, order, or proceeding.”); Bryant v. Wells Fargo…

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