FERSOM MORTGAGE, INC., APPELLANT,
v.
CARLOS E. MORENO AND EMIRA MORENO, APPELLEES.

Fla. 3d DCA | 2018-04-25
No. 3D17–509
Before SUAREZ, SALTER, and LINDSEY, JJ.
254 So. 3d 519 Florida District Court of Appeal, Third District (2018) Positive Treatment
Cited by 1 case

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Holding

A voluntary dismissal of a main foreclosure action does not extinguish the trial court's subject-matter jurisdiction over a properly filed crossclaim that is not derivative of the main claim.


Headnotes

[1] A crossclaim filed and served before a plaintiff's voluntary dismissal of the main action survives the dismissal if the dismissal does not address the crossclaim.

[2] A voluntary dismissal of a main action does not extinguish subject-matter jurisdiction over a properly filed and served crossclaim that is not derivative of the main clai…

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Facts & Procedural History

The Bank of New York Mellon filed a foreclosure action against the Homeowners, joining Fersom Mortgage as a second mortgage holder. Fersom filed a cro…

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Opinion of the Court
SUAREZ, J.

SUAREZ, J.

This is an appeal from a final order dismissing Appellant Fersom Mortgage, Inc.'s crossclaim for lack of jurisdiction. Because we find that Fersom's crossclaim survived dismissal of the main foreclosure action, we reverse and remand for further proceedings.

In January 2012, The Bank of New York Mellon ("BNY"), the first mortgage lender, brought a foreclosure action against Appellees/Homeowners Carlos and Emira Moreno. Fersom had a second, separate mortgage on the property and was joined as a party. In May 2013, Fersom filed a crossclaim *520for foreclosure of its second mortgage and paid the crossclaim filing fee. The Homeowners were duly served, and they filed an answer and affirmative defenses in response to the crossclaim. In May 2014, following mediation between BNY and the Homeowners, BNY filed a voluntary dismissal of the main action.

In September 2016, Fersom filed a motion for final judgment. In response, the Homeowners filed a motion to amend their answer to Fersom's crossclaim, which was granted. After filing their amended answer, the Homeowners filed a motion to dismiss Fersom's crossclaim for lack of subject-matter jurisdiction. In their motion to dismiss, the Homeowners, relying on Layne Dredging Co. v. Regus, Inc., 622 So.2d 7 (Fla. 2d DCA 1993), argued that Fersom's crossclaim did not survive BNY's voluntary dismissal. The trial court agreed and dismissed Fersom's crossclaim, citing Layne Dredging. This appeal follows.

The issue before us is whether BNY's voluntary dismissal of the main foreclosure action extinguished the trial court's subject-matter jurisdiction as to Fersom's crossclaim. We hold that it did not; Fersom's crossclaim survived. Both the Homeowners' and the trial court's reliance on Layne Dredging is misplaced. In Layne Dredging, the Second District held that the trial court erred when it entered an order permitting the filing of a crossclaim "long after" voluntary dismissal of the main claim. Here, however, Fersom filed its crossclaim, paid its filing fee, served the Homeowners, and the Homeowners filed an answer before BNY filed its Notice of Voluntary Dismissal. Moreover, the court in Layne Dredging suggested that the crossclaim there "was purely derivative, so as to disappear with the dismissal of the main claim." Bruce J. Berman & Peter D. Webster, Fla. Prac., Civil Procedure § 1.420:8 n.4 (April 2018 update) (citing Layne Dredging, 622 So.2d at 8 ("Any purpose the defendant [crossclaimant] may have had to transfer its liability through a crossclaim ... was nullified at the moment when [plaintiff] accomplished the voluntary termination of its lawsuit.")). In contrast, the crossclaim here does not appear to depend on the survival of the main claim.

In Bird Lakes Dev. Corp. v. Velez, 846 So.2d 555 (Fla. 3d DCA 2003), this Court held that both a crossclaim and third party claim survived dismissal of the main action because none of the pleadings or orders entered in connection with the dismissal referred to the crossclaim or the third party claim. The same is true here. The voluntary dismissal only addressed BNY's foreclosure action; it did not address Fersom's crossclaim.

Because Fersom's crossclaim was filed before the voluntary dismissal and the voluntary dismissal did not address the action between Fersom and the Homeowners, the trial court had subject-matter jurisdiction over Fersom's crossclaim.1 We therefore *521reverse and remand for further proceedings.

Reversed and remanded.


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Citator

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  • …is hereby dismissed with prejudice.”1 Appellant was not served with a copy of the order of dismissal. 1 The dismissal of a primary cause of action or counterclaim does not serve to extinguish an existing crossclaim. Fersom Mortg., Inc. v. Moreno, 254 So. 3d 519, 520 n.1 (Fla. 3d DCA 2018) (“We perceive no valid or compelling reason to dismiss a crossclaim over which the courts of this state have jurisdiction merely because the Nearly two years later, appellant discovered the entire action stood dismissed…

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