Opinion
Nos. 3D17-0795 & 3D17-0794
09-25-2019
HARVARD FINANCIAL SERVICES, LLC, RJR Charitable Holdings, LLC, and Tessa Iacoboni, Appellants, v. Astra REMY-CALIXTE, Appellee.
Law Offices of Paul Morris, P.A., and Paul Morris ; Beighley, Myrick, Udell & Lynne, and Maury L. Udell ; Roniel Rodriguez, IV, for appellants. Ritter Chusid, LLP, and Shawn R. Horwick, and Gary S. Rosner (Coral Springs), for appellee.
Law Offices of Paul Morris, P.A., and Paul Morris ; Beighley, Myrick, Udell & Lynne, and Maury L. Udell ; Roniel Rodriguez, IV, for appellants.
Ritter Chusid, LLP, and Shawn R. Horwick, and Gary S. Rosner (Coral Springs), for appellee.
Before SALTER, FERNANDEZ, and LINDSEY, JJ.
LINDSEY, J.
Harvard Financial, RJR Charitable Holdings, and Tessa Iacoboni appeal an order granting Remy-Calixte's two motions for relief pursuant to Florida Rule of Civil Procedure 1.540 and her motion for summary judgment. For the reasons set forth below, we reverse .
We also vacate the final judgment entered in favor of Remy-Calixte.
I. BACKGROUND
This appeal arises from a 2007 foreclosure action (the "2007 Foreclosure Action") that Residential Funding Company brought against Derrick Marbles, Ramon Garcia, and Janice Gessa, three owners of a residential property in Biscayne Park (the "Property"). The procedural history is extensive. We set forth in detail the relevant record facts as follows. Shortly after the 2007 Foreclosure Action was filed, three separate money judgments were entered against Marbles. In the 2007 Foreclosure Action, the trial court entered final summary judgment (the "2007 Foreclosure Judgment") in favor of Residential, and Residential purchased the Property at a foreclosure sale. After learning that Marbles, Garcia, and Gessa did not receive notice of the sale, Residential moved to vacate the sale, certificate of sale, and certificate of title. Residential did not move to vacate the 2007 Foreclosure Judgment. The court granted Residential's motion but also vacated the 2007 Foreclosure Judgment by way of an order entered January 31, 2008 (the "January 2008 Vacatur Order"). Over one year later, on July 29, 2009, the court dismissed the 2007 Foreclosure Action for lack of prosecution (the "July 2009 Dismissal Order").
It is undisputed that the original court file was destroyed in January of 2013. Thus, everything before the trial court was recreated from the files of the parties and their counsel.
At this point, there only existed a right to foreclose on Marbles's interest in the Property in light of the three 2007 money judgments against Marbles.
Nearly four months after the trial court entered the July 2009 Dismissal Order, Residential filed a motion to reschedule the foreclosure sale. The trial court granted this motion. Residential, again the highest bidder, obtained certificate of title. Residential then executed a special warranty deed to Wells Fargo; Wells Fargo executed a special warranty deed to Providence Investment Group; and in December 2012, Providence executed a warranty deed to Remy-Calixte, the appellee.
Because of the January 2008 Vacatur Order and the July 2009 Dismissal Order, there was no valid foreclosure judgment and no pending foreclosure action at the time the Property was sold to Residential at the foreclosure sale.
In February 2015, Gessa and Garcia (two of the three original owners of the Property) transferred their interest to appellant RJR Charitable Holdings. In October 2015, two of the three 2007 money judgments against Marbles were assigned to Harvard Financial, also an appellant herein. Harvard sought and obtained in the trial court an order directing the levy and sale of the Property.
In February 2016, in a new civil action, Remy-Calixte, represented by counsel retained by the title insurer, sought to enjoin the sheriff's sale. Harvard filed an action for declaratory relief and to foreclose its judgment lien on Marbles's interest in the Property. Harvard was later joined by cross-claimant Tessa Iacoboni, the remaining party with a 2007 money judgment against Marbles. The circuit court granted Remy-Calixte's motion to stay the foreclosure sale, which was affirmed on appeal. Both cases—Remy-Calixte's injunction action and Harvard/Iacoboni's foreclosure action—were then consolidated below.
Remy-Calixte moved for summary judgment seeking to quiet title. She also filed two motions pursuant to Rule 1.540 seeking to vacate (1) the January 2008 Vacatur Order (which vacated the 2007 Foreclosure Judgment) and (2) the July 2009 Dismissal Order (which dismissed the 2007 Foreclosure Action) for lack of prosecution. In March 2017, the circuit court entered final summary judgment in favor of Remy-Calixte, finding that she was the successor in interest to Residential and an innocent bona fide purchaser for value. The court also granted Remy-Calixte's two Rule 1.540 motions, finding (1) that the January 2008 Vacatur Order was a clerical error and the portion of that order that vacated the 2007 Foreclosure Judgment was void for lack of notice, and (2) that the July 2009 Dismissal Order was void for lack of notice. Harvard, RJR, and Iacoboni timely appeal. II. ANALYSIS
The first issue before us is whether, in March of 2017, there was a legal basis to vacate the January 2008 Vacatur Order. The trial court relied, as does Remy-Calixte, on an equitable approach to do so. However, we are compelled to reverse because the Florida Rules of Civil Procedure do not provide a legal basis for correcting the January 2008 Vacatur Order over eight years after it was entered.
Harvard also challenges the trial court's granting of Remy-Calixte's Rule 1.540 motion, which vacated the July 2009 Dismissal Order. The trial court correctly stated that an order that is void for lack of notice can be corrected at any reasonable time. See Fla. R. Civ. P. 1.540(b) ("The motion shall be filed within a reasonable time ...."). However, based on the facts herein, we disagree with the trial court that a motion to vacate filed nearly eight years after issuance of a dismissal for lack of prosecution (the July 2009 Dismissal Order) complies with the reasonable time requirement.
Florida Rule of Civil Procedure 1.540 provides a method for obtaining relief from judgments, decrees, or orders. Pursuant to Rule 1.540(a) a trial judge is authorized to correct "clerical mistakes ... at any time ...." The trial court is also authorized to correct non-clerical or substantive mistakes under Rule 1.540(b)(1) ; however, a motion to correct a non-clerical mistake must be filed "not more than 1 year after the judgment, decree, order, or proceeding was entered or taken."
While it arguably appears that the January 2008 Vacatur Order mistakenly vacated the 2007 Foreclosure Judgment, Remy-Calixte did not move to vacate the 2008 Vacatur Order until October of 2016. Based on the clear language of Rule 1.540, the trial court would only have been authorized to vacate the January 2008 Vacatur Order in 2016 if the mistake were clerical. Harvard argues the alleged mistake is a judicial mistake and not a clerical mistake and is therefore not subject to correction "at any time." We agree. See Moforis v. Moforis, 977 So. 2d 786, 787-88 (Fla. 4th DCA 2008) ("The clerical mistakes referred to by subsection (a) are only ‘errors or mistakes arising from accidental slip or omission, and not errors or mistakes in the substance of what is decided by the judgment or order.’ " (quoting Byers v. Callahan, 848 So. 2d 1180, 1184 (Fla. 2d DCA 2003) )).
We look first to the plain language of the January 2008 Vacatur Order. The Order is titled "ORDER VACATING FINAL SUMMARY JUDGMENT, FORECLOSURE SALE, CERTIFICATE OF SALE, AND CERTIFICATE OF TITLE[.]" Further, the order explicitly states that the "Final Summary Judgment entered on September 5, 2007 is hereby vacated." Although this order may have been mistakenly entered because Residential never requested that the 2007 Foreclosure Judgment be vacated, such a mistake, if any, is a mistake in the substance of what was decided and not merely an accidental slip or omission. Consequently, subsection (a) does not provide a basis for vacating the January 2008 Vacatur Order.
Remy-Calixte asserts that the mistake was a "typographical error" yet provides no explanation nor legal basis to support this theory. She also argues that the circumstances surrounding the January 2008 Vacatur Order provide sufficient evidence from which the trial court could have found that the January 2008 Vacatur Order, which vacated the 2007 Foreclosure Judgment, was unintentional. However, based on the language of the January 2008 Vacatur Order itself, the judge intentionally, although perhaps mistakenly, vacated the 2007 Foreclosure Judgment. See Green v. Guardianship of Green, 67 So. 3d 432, 434 (Fla. 3d DCA 2011) (holding that language in an unambiguous order must be given its plain meaning).
Moreover, when Residential requested that the sale be vacated, it included a proposed order that did not vacate the 2007 Foreclosure Judgment, which for reasons unknown, the judge did not adopt. Thus, the January 2008 Vacatur Order was at most judicial error rather than a mere clerical mistake. See Phillip J. Padovano, 5 Fla. Prac., Civil Practice § 13:8 (2018-2019 ed.) ("A clerical mistake is one that is committed through oversight or omission. In contrast, a judicial error is one that is brought about by an intentional but incorrect judicial act .... If the mistake is one that has a material effect on the matter in controversy, then it cannot be regarded as a clerical mistake." (footnote omitted)).
Remy-Calixte also argues that even if Rule 1.540(a) is not available to correct a substantive mistake, relief is available under Rule 1.540(b)(5) because "it is no longer equitable that the judgment or decree should have prospective application." We reject this argument because Rule 1.540(b) only applies to final judgments, and the January 2008 Vacatur Order is not a final order. See Padovano, supra at § 13:8 n.1 ("The remedy afforded by rule 1.540 applies only to final judgments." (citing Campos v. Campos, 230 So. 3d 553 (Fla. 1st DCA 2017) ; Kozich v. DeBrino, 837 So. 2d 1041 (Fla. 4th DCA 2002) (holding that rule 1.540(b) provides no basis for relief from a nonfinal order); Bell v. Broward Cty. Personnel Review Bd./Agent Rosenberg, 691 So. 2d 514 (Fla. 4th DCA 1997) ; Bruno v. A.E. Handy & Assocs., Inc., 787 So. 2d 251 (Fla. 5th DCA 2001) )). For this same reason, the trial court's ruling that only a portion of the January 2008 Vacatur Order was void for lack of notice, presumably pursuant to Rule 1.540(b)(4), is also unavailing.
Finally, Remy-Calixte argues that even if the trial court incorrectly vacated the January 2008 Vacatur Order pursuant to Rule 1.540, the Tipsy Coachman rule applies because a trial court judge is authorized to vacate or modify interlocutory rulings or orders of a predecessor judge. Remy-Calixte relies on Tingle v. Dade Cty. Bd. of Cty. Comm'rs, 245 So. 2d 76, 78 (Fla. 1971). However, nothing in Tingle allows a trial court judge to vacate an interlocutory order in a separate action after a final order has been entered. See id. ("While a judge should hesitate to undo his own work, and should hesitate still more to undo the work of another judge, he does have, until final judgment , the power to do so and may therefore vacate or modify the Interlocutory rulings or orders of his predecessor in the case." (emphasis added)). Once the July 2009 Dismissal Order was entered, the case was closed.
See, e.g., Robertson v. State, 829 So. 2d 901, 906 (Fla. 2002) ("This longstanding principle of appellate law, sometimes referred to as the ‘tipsy coachman’ doctrine, allows an appellate court to affirm a trial court that ‘reaches the right result, but for the wrong reasons’ so long as ‘there is any basis which would support the judgment in the record.’ "); see also Home Depot U.S.A. Co. v. Taylor, 676 So. 2d 479, 480 (Fla. 5th DCA 1996) (tracing the origin of the rule to Lee v. Porter, 63 Ga. 345 (1879) ); Lee, 63 Ga. at 346 ("the pupil of impulse, it forc'd him along, His conduct still right, with his argument wrong; Still aiming at honor, yet fearing to roam, The coachman was tipsy, the chariot drove home." (quoting an excerpt from the poem "Retaliation," written in 1774 by Oliver Goldsmith, an Irish novelist, playwright, and poet)).
III. CONCLUSION
Because the Florida Rules of Civil Procedure do not provide a means of vacating the January 2008 Vacatur Order to correct what the trial court believed to be an order unintentionally entered by the prior trial judge, over eight years after it was entered, the trial court erred in doing so. Further, vacating, nearly eight years later, an order dismissing an action for lack of prosecution, given the extensive procedural history of the lower court cases at issue herein, is beyond the reasonableness requirement of Rule 1.540(b).
See Fla. R. Civ. P. 1.540 Author's Comment—1967 ("The application of the relief provisions is generally within the discretion of the court except when questions of law are involved. For example, if a judgment or decree is void as a matter of law, no discretion would exist but to give proper relief.").
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Finally, there was no valid foreclosure judgment on the Property after entry of the January 2008 Vacatur Order. Thus, thus the 2010 Foreclosure Sale to Residential was void. Accordingly, we reverse and remand for proceedings consistent herewith.
Reversed and remanded.