LUZ MARIA CARDENAS
v.
BANK OF NEW YORK MELLON TRUST COMPANY, N.A., ETC.
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A successor judge may grant a rule 1.530 rehearing motion to vacate a dismissal order when the appellate record lacks transcripts of the hearings needed to determine whether the arguments were identical to those previously raised.
[1] An appellate court cannot conclude that a successor judge lacked authority to grant a rule 1.530 rehearing motion based on arguments being identical to those previously r…
Previewing 1 of 1 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“A successor judge, under proper circumstances, may rule [on rehearing] upon a matter overlooked or omitted by the predecessor judge, but may not correct errors committed by the predecessor.”
Discussion of the general rule limiting successor judges' authority regarding predecessor judges' orders
Cardenas was the defendant in a foreclosure action by Bank of New York Mellon Trust Company. A judge dismissed the foreclosure action for failure to p…
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Third District Court of Appeal
State of Florida
Opinion filed February 14, 2024. Not final until disposition of timely filed motion for rehearing.
________________
No. 3D23-0819 Lower Tribunal No. 17-16917
________________
Luz Maria Cardenas,
Appellant,
vs.
Bank of New York Mellon Trust Company, N.A., etc.,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Migna Sanchez-Llorens, Judge. Fistel Law Group, P.A., and F. Scott Fistel (Ft. Lauderdale), for appellant. Bradley Arant Boult Cummings LLP, and Sara D. Accardi (Tampa), and Stephen C. Parsley (Birmingham, AL), for appellee. Before SCALES, MILLER, and GORDO, JJ. PER CURIAM.
Appellant Luz Maria Cardenas, the defendant below, appeals a
November 14, 2022, final foreclosure judgment rendered in favor of the
plaintiff below, appellee Bank of New York Mellon Trust Company, N.A.
(“Bank”). Specifically, Cardenas challenges the trial court’s February 18,
2021 order (“Vacatur Order”) granting Bank’s Florida Rule of Civil Procedure
1.530 rehearing motion to vacate a final order that, pursuant to Florida Rule
of Civil Procedure 1.420(e), dismissed Bank’s foreclosure action for failure
to prosecute (“Dismissal Order”).
Because a predecessor judge entered the Dismissal Order and a
successor judge entered the Vacatur Order, Cardenas – citing cases that
generally prevent a successor judge from granting rehearing unless the
grounds for rehearing are different from those initially raised1 – argues that
the successor judge lacked the authority to grant Bank’s rehearing motion.
According to Cardenas, the grounds for vacating the Dismissal Order
advanced by Bank at the February 10, 2021 hearing on its rehearing motion
were identical to the grounds argued by Bank at the December 15, 2020
hearing on the trial court’s rule 1.420(e) notice of lack of prosecution.
Without transcripts of either hearing, however, we are unable to
conclude that, as a matter of law, the arguments presented were identical
such that the trial court lacked the authority to grant Bank’s rule 1.530
rehearing motion. See Applegate v. Barnett Bank of Tallahassee, 377 So. 2d
1150, 1152 (Fla. 1979) (“Without a record of the trial proceedings, the
appellate court can not properly resolve the underlying factual issues so as
to conclude that the trial court’s judgment is not supported by the evidence
or by an alternative theory. Without knowing the factual context, neither can
an appellate court reasonably conclude that the trial judge so misconceived
the law as to require reversal.”); Leon v. Supreme Constr. Corp., 274 So. 3d
422, 425 (Fla. 3d DCA 2019) (“[T]here is no transcript of the hearing on the
FWOP notice in the record before us. Thus, we are compelled to affirm on
that basis along [sic].”); HSBC Bank USA, Nat’l Ass’n v. Nixon, 117 So. 3d
430, 433 (Fla. 4th DCA 2012) (affirming the denial of a rule 1.530 rehearing
motion because the appellant failed to provide the appellate court with a
hearing transcript).
We, therefore, are compelled to affirm the Vacatur Order. Finding no
merit as to Cardenas’s arguments directed at entry of the final judgment of
foreclosure,2 we affirm the final judgment without discussion.
Affirmed.
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