Opinion
No. 1D21-2288
07-06-2022
NATIONSTAR MORTGAGE LLC, Appellant, v. Lucimeire DESOUZA a/k/a Lucimere E. DeSouza, et al., Appellees.
Hallie S. Evans, Troutman Pepper Hamilton Sanders LLP, Atlanta, GA, for Appellant. Eric S. Kolar, Kolar Law, P.A., Jacksonville, for Appellee Luciano Fernandes.
Hallie S. Evans, Troutman Pepper Hamilton Sanders LLP, Atlanta, GA, for Appellant.
Eric S. Kolar, Kolar Law, P.A., Jacksonville, for Appellee Luciano Fernandes.
Kelsey, J.
A routine residential property foreclosure filed in 2008 comes to us on appeal from an order awarding attorneys’ fees against Appellant Nationstar, setting the amount, and containing words of finality allowing execution on the judgment. Nationstar argues only that the individual who obtained the fee judgment was statutorily barred from participating in the foreclosure case, and therefore the fee judgment is invalid. This presents an intriguing appellate practice question about what issues we have jurisdiction to address on appeal from a fee judgment. We hold that, on the facts presented, we have jurisdiction to address whether or not the litigant who obtained the fee judgment against Nationstar was a proper party to the litigation, because this issue is dispositive of entitlement to the award, which is foundational to the judgment. The record reflects that Nationstar timely asserted and fully preserved its objections to this individual's participation. On the merits, we hold that the litigant was not a proper party, and we reverse the order on appeal.
FACTS.
The order on appeal granted attorneys’ fees to a Mr. Fernandes, who was not a mortgagor, but purported to hold a quitclaim deed to the foreclosed property. The quitclaim deed was dated June 25, 2007, about eleven months before the foreclosure complaint was filed. The quitclaim deed was not recorded, however, until May 13, 2009, about ten months after the foreclosure complaint and notice of lis pendens were filed. Evidence established that the property was vacant when the lawsuit and lis pendens were filed. It is undisputed that the quitclaim deed was recorded long after the twenty-day deadline established in section 48.23(1)(b) of the Florida Statutes (2008) (providing that the filing of a notice of lis pendens bars all interests and liens unrecorded when the lis pendens is filed unless the holder intervenes within twenty days after the lis pendens is filed).
It is likewise undisputed that Mr. Fernandes did not intervene within twenty days after the lis pendens was filed. He first appeared in the foreclosure action sua sponte by filing an answer to the complaint in May of 2009, when he first recorded the quitclaim deed. The predecessor plaintiff, as holder of the mortgage, obtained a final judgment of foreclosure in 2013, but Mr. Fernandes sought and obtained an order vacating that judgment and canceling the sale, on grounds that he had not been served properly with documents leading up to the judgment. The case languished for a year, until after Nationstar became the holder of the mortgage. Nationstar initially included Mr. Fernandes in an amended complaint filed in 2015, but then dropped him because he was not a proper party. Without being granted intervention, and without any participation by the mortgagor, Mr. Fernandes sought discovery from Nationstar, mirroring discovery he had sought from the original plaintiff. The requested discovery far exceeded the typical documents necessary to establish Nationstar's standing as holder of the note (the note, mortgage, and indorsement), which both the original plaintiff and Nationstar did provide to Mr. Fernandes. Mr. Fernandes sought numerous additional categories of documents, such as attorney fee agreements; the addresses, phone numbers, and dates of employment of individuals who had signed documents related to the mortgage and its transfers; and documents that Mr. Fernandes himself had signed. Nevertheless, he claimed to be dissatisfied with Nationstar's responses throughout several rounds of motions.
Nationstar consistently objected to these discovery requests on their merits and on the grounds that Mr. Fernandes lacked standing and was statutorily barred from participation. Nationstar consistently argued that Mr. Fernandes was not a proper intervenor because he had failed to meet the statutory deadline after the filing of the notice of lis pendens.
Mr. Fernandes did not move to intervene until 2016, relying on an alleged earlier "grant" of intervention. Apparently, a predecessor judge had written a case note in the file indicating intervention had been granted. The note did not reference or analyze the statutory deadline problem or any other reasoning. The record does not include any evidence of a hearing or rendition of a written order on intervention.
This case note prompted the successor judge to send the case back to the predecessor judge for clarification on whether and why Mr. Fernandes had been allowed to intervene. The intervention issue languished for nearly two years, until the successor judge entered an order granting intervention in September of 2018. The order contained no recitation of facts and no analysis.
After finally obtaining this grant of intervenor status, Mr. Fernandes continued to press for additional discovery. Nationstar moved for reconsideration of the order granting intervention, asserting that Mr. Fernandes lacked standing and was barred from participating in the litigation. Nationstar also asserted that the requested discovery was overbroad and the responses it provided were appropriate. In September of 2019, Mr. Fernandes moved for sanctions for Nationstar's allegedly deficient responses to his voluminous and wide-ranging discovery requests. Over a year later, after a hearing, the trial court granted sanctions, later setting the amount, including fees for litigating the issue of fees.
Nationstar moved for rehearing, which the court denied, later entering an amended judgment awarding fees and setting the amount with appropriate words of finality. Nationstar timely appealed, correctly asserting that such an order is an appealable final order. See Hastings v. Osius , 104 So. 2d 21, 22 (Fla. 1958) (noting that an order determining entitlement to attorneys’ fees, setting the amount, and reciting "for which let execution issue," was a final appealable order, rendering certiorari review inappropriate); Saye v. Pieschacon , 750 So. 2d 759, 761 (Fla. 1st DCA 2000) (citing Hastings and other cases in support of holding that fee order determining entitlement and amount, and executable, was an immediately appealable final order).
On appeal, Nationstar argues only that Mr. Fernandes was not a proper intervenor, and therefore was not entitled to litigate against Nationstar at all, let alone to obtain monetary relief from Nationstar. Mr. Fernandes responds that we lack jurisdiction to address this issue in this appeal.
We agree with Nationstar that we have jurisdiction to review the propriety of Mr. Fernandes's intervenor status. We write further to explain why, and why we reverse the order on appeal.
ANALYSIS.
1. Procedure .
Mr. Fernandes first raises a procedural argument that Nationstar is not entitled to seek review of his intervenor status in the litigation because the order granting intervention in September of 2018 was not referenced in or attached to the notice of appeal. This argument is wrong in both respects. A timely notice of appeal of an appealable order gives us jurisdiction to review earlier interlocutory orders. See Fla. R. App. P. 9.110(h) ("[T]he court may review any ruling or matter occurring before filing of the notice."). No rule or case requires that all such interlocutory orders be attached to the notice of appeal or referenced in it.
Mr. Fernandes's remaining arguments address his status as an intervenor, which as already noted are the only arguments Nationstar raises. We agree with both parties that the order appealed is final and appealable; but in this posture, we must determine what issues we can adjudicate.
Mr. Fernandes does not argue that we should avoid addressing intervention because Nationstar can challenge intervention on a plenary appeal from a future final judgment of foreclosure. Nevertheless, we have considered this possibility in addition to others, as part of our obligation to determine the scope of our jurisdiction. See Wade v. Fla. Dep't of Child. & Fams ., 57 So. 3d 869, 870 (Fla. 1st DCA 2011) ("We are required to examine our jurisdiction in every case."); see also Philip J. Padovano, Florida Appellate Practice, § 1:5 (2022 ed.) ("The appellate court has an independent duty to determine the existence of jurisdiction in every case and to dismiss a case that is not within its jurisdiction."). Further, we have "such jurisdiction as may be necessary for a complete determination of the cause." Fla. R. App. P. 9.040(a).
The theoretically available alternative options for review might include appealing from the intervention order itself, and appealing from a final judgment of foreclosure at the end of the case. As to the first option, Nationstar could not immediately appeal the order granting intervention. Such an order is a non-final order that is not among the limited class of appealable non-final orders under Florida Rule of Appellate Procedure 9.130. See Padovano, supra , § 23:4 & n.14 (citing Carlisle v. U.S. Bank, Nat'l Ass'n , 225 So. 3d 893 (Fla. 3d DCA 2017) ).
In contrast, orders denying intervention are final and appealable, because they eliminate the proposed intervenor as a party. See Fla. R. App. P. 9.110(k) ("If a partial final judgment totally disposes of an entire case as to any party, it must be appealed within 30 days of rendition."); De Sousa v. JP Morgan Chase , 170 So. 3d 928, 929 (Fla. 4th DCA 2015) (holding that order denying intervention is a final, appealable order as to the aggrieved party).
As to the second option, assuming Nationstar ultimately obtains a final judgment of foreclosure in its favor, it is difficult to suggest that it, as the prevailing party, should be required to wait and appeal a favorable judgment to gain review of an earlier adverse intervention order. This is especially true here, where there exists an undeniably final, appealable attorneys’-fee judgment that rests on the foundational but previously non-appealable ruling that Mr. Fernandes has standing as an intervenor to collect fees from Nationstar.
Nationstar proposes a third option: that the intervention foundation of the attorneys’-fee order is appealable under rule 9.110(k), the partial final judgment rule. We think not. That rule on its face defines a partial final judgment as one that "disposes of an entire case as to any party," or "disposes of a separate and distinct cause of action that is not interdependent with other pleaded claims." Fla. R. App. P. 9.110(k). The attorneys’-fee judgment does neither.
While we respectfully disagree with the dissent on outcome, we agree with the dissent that the linchpin of the analysis is whether the intervention issue "relate[s] to" the attorneys’-fee judgment within the meaning of rule 9.110(h) ’s reference to a court's having jurisdiction to review any "ruling or matter occurring before filing of the notice [of appeal]." Florida courts have construed "ruling or matter" as used in rule 9.110(h) as meaning rulings and orders "directly related to and an aspect of the final [order]" under review. Portis v. Seatruck, Inc. , 98 So. 3d 1234, 1235 (Fla. 3d DCA 2012). Using that analytical framework, we have rejected an attempt to include unrelated rulings denying motions for new trial within an appeal from an order imposing attorney's fees and costs. Saye , 750 So. 2d at 761. By similar reasoning, the Fourth District has held that an appeal of a final summary judgment in favor of one defendant did not encompass a separate order on another defendant's unrelated affirmative defense. Cygler v. Presjack , 667 So. 2d 458, 461 (Fla. 4th DCA 1996). The Second District has refused to allow one of several co-defendants to use another co-defendant's appealable judgment to file an appeal bringing up an unrelated issue. Merkle v. Home Shopping Network , Inc. , 916 So. 2d 841, 842–43 (Fla. 2d DCA 2005).
In contrast, the court in C.P. Motion, Inc. v. Goldblatt , 193 So. 3d 39, 41 n.1 (Fla. 3d DCA 2016), found that it could review the trial court's order denying a motion to substitute a party (a non-appealable order standing alone), upon review of an appealable interlocutory order dismissing the same party's counterclaim. Similarly, in Deutsche Bank National Trust Co. v. Plageman , 133 So. 3d 1199, 1200 (Fla. 2d DCA 2014), on appeal from dismissal with prejudice of an amended foreclosure complaint, the court found that it could review earlier, non-appealable interlocutory orders finding verification of a foreclosure complaint improper.
These cases illustrate the limits on interlocutory review, while recognizing the propriety of review of an order where there is a direct relationship as to the parties whose rights are adjudicated and the issues are "an aspect of" the order to be reviewed. We find the requisite nexus of parties and issues in the order under review. We, like all Florida courts, adhere to the rule that an attorneys’-fee judgment is final and appealable only when it resolves both entitlement and amount. See, e.g. , Tyson v. Tyson, 310 So. 3d 1292, 1292 (Fla. 1st DCA 2021) ; Magnolia Fla. Tax Certificates v. Alexa1 , 229 So. 3d 1288, 1288 (Fla. 1st DCA 2017). The judgment before us encompasses both issues; otherwise it would not be appealable, and neither party argues that it is not appealable.
Entitlement in this case has always centered first on Mr. Fernandes's status in the foreclosure case, not just on whether Nationstar committed sanctionable discovery violations. The record clearly demonstrates Nationstar's consistent and protracted preservation of its challenges to Mr. Fernandes's standing and status in the litigation. It is irrefutable that without the party-status aspect of his entitlement, Mr. Fernandes could not obtain an attorneys’-fee award. This makes the issue of his status in the litigation "directly related to" the attorneys’-fee judgment, and gives us jurisdiction over the issue of his status.
It makes no difference that the judgment on appeal did not repeat the earlier interlocutory, non-appealable ruling as to Mr. Fernandes's status. Courts do not have to repeat or re-incorporate all previous rulings that bear on a subsequent appealable order, for us to have jurisdiction to review the earlier orders. See Fla. R. App. P. 9.110(h). Having concluded that the intervention issue is properly before us, we turn to the merits of that issue, which are clear and briefly disposed.
2. Merits.
Nationstar correctly argues that under section 48.23(1)(b), Florida Statutes (2008), any person with an unrecorded interest in mortgaged real property was required to intervene in a foreclosure suit within 20 days after the notice of lis pendens was filed. It is undisputed that the lis pendens in this case was filed July 24, 2008, and equally undisputed that Mr. Fernandes did not timely move to intervene. The statute is clear and unambiguous. Mr. Fernandes's failure to comply with the statute deprived him of any legal right to participate as a party in the foreclosure litigation. See Westburne Supply, Inc. v. Cmty. Villas Partners, Ltd. , 508 So. 2d 431, 434 (Fla. 1st DCA 1987) (holding that the principal purpose of the statute requiring filing of a notice of lis pendens is to bar unrecorded interests in the property). Mr. Fernandes's belated recordation of his quitclaim deed did not cure his lack of standing to intervene. See Bank of N.Y. Mellon v. HOA Rescue Fund, LLC , 249 So. 3d 731, 733–34 (Fla. 2d DCA 2018) (reversing dismissal based on subsequent purchaser's intervention, after finding that the intervention was improper).
The trial court had no discretion in the matter and no authority to allow Mr. Fernandes to participate in the foreclosure action as if he were a proper party. We addressed a similar issue in another foreclosure case, Bank of America, N.A. v. Mirabella Owners’ Ass'n, Inc. , 238 So. 3d 405 (Fla. 1st DCA 2018). There, the foreclosure action was already pending when a non-party, Horizon, purchased the property. Id . at 406. We reversed the trial court's order allowing Horizon to intervene, as well as the trial court's order granting Horizon's motion to dismiss the case and dissolve the lis pendens. Id . at 407. Yet the relief we reversed in Mirabella is exactly what Mr. Fernandes would have us approve here. We have considered, and reject on their merits, these and Mr. Fernandes's other arguments.
We strongly suggest that this fourteen-year-old foreclosure case be concluded promptly.
REVERSED and REMANDED .
Makar, J., concurs with opinion; Bilbrey, J., dissents with opinion.
Makar, J., concurring with opinion.
My panel colleagues have reasonable positions about the disposition of the procedural and substantive issues in this unusual appeal. I concur in reversal, however, noting a few pragmatic factors that lean in that direction.
First, it makes practical sense to permit review of an intervention order at the earliest point in a proceeding, provided a reasonable nexus exists with the final order under review. That's because an unauthorized intervenor can impose unrecoverable costs and irremediable delays on legal proceedings, making it important to ferret out those who don't belong, earlier rather than later.
Second, the language of Rule 9.110(h), Florida Rules of Appellate Procedure, which states that a "court may review any ruling or matter occurring before filing of the notice" of appeal from a final order, is flexible enough to encompass a non-final order permitting intervention when the intervention results in burdensome discovery that would not otherwise occur, as well as a final appealable order related to the discovery itself. Fla. R. App. P. 9.110(h) (emphasis added). This case is not one in which a party has attempted to "bootstrap" review of an unrelated prior order. See, e.g. , Portis v. Seatruck, Inc. , 98 So. 3d 1234, 1235 (Fla. 3d DCA 2012) (prohibiting a party from bootstrapping review of a final order "to an order affecting her rights against another defendant[ ]"). Enough of a reasonable nexus exists to warrant review of the intervention order.
Third, appellate practitioners—by virtue of their training and perhaps their nature—are risk averse. When confronted with a final appealable order, such as the fees order in this case, the question will be asked "What if I don't pursue an appeal now?" If the answer is that review of the final order (and potentially earlier related orders) will be lost, the filing of a notice of appeal will likely follow to preserve review of the final order and prior related orders. Doing so is understandable, particularly when a Catch-22 situation exists, which is the case here. If Nationstar does not appeal the fees order, it becomes final and enforceable; Nationstar would thereby forfeit its ability to vacate the fee order at the end of the case on any basis, including that intervention was improper. For the reasons in Judge Kelsey's opinion as well as these pragmatic factors, appellate review and reversal of the intervention order is proper.
Bilbrey, J., dissenting.
Nationstar Mortgage, LLC, appeals pretrial orders sanctioning it for failure to sufficiently answer interrogatories or produce requested documents. The trial court awarded Luciano Fernandes, the intervenor/defendant below, the attorney's fees he incurred to obtain court orders compelling Nationstar's supplemental responses to discovery. Because Nationstar's initial brief contains no argument challenging the merits of the attorney's fee orders, instead challenging only Fernandes’ intervention, I would affirm. Since the majority reverses based on the unrelated issue of Fernandes’ intervention, I respectfully dissent.
I agree with the majority that the sanctions order was an appealable final judgment and not a partial final judgment.
In the initial brief, Nationstar argues that the order granting Fernandes’ motion to intervene as a defendant in Nationstar's foreclosure action, entered a year before the sanction orders on appeal, contradicts the law and must therefore be reversed. Nationstar's argument on appeal is that upon reversal of the trial court's order allowing intervention, the basis for the orders sanctioning Nationstar for failure to comply with Fernandes’ discovery requests will collapse. The majority agrees with this argument, but I believe that the issue of intervention is too far removed for us to address it here.
Nationstar's initial brief asserts legal error only in the order allowing Fernandes to intervene. The brief lacks any challenge to the trial court's exercise of discretion in sanctioning Nationstar. No fundamental error is involved here. See generally Yau v. IWDWarriors, Corp. , 144 So. 3d 557, 560 (Fla. 1st DCA 2014) (holding that no fundamental error in awarding fees, even if the basis to do so is suspect). So we are constrained to limit our consideration to the arguments in the briefs. See Rosier v. State , 276 So. 3d 403, 406 (Fla. 1st DCA 2019) (en banc).
Nationstar argues reversible error in the order allowing Fernandes to intervene has caused needless litigation and delay in the disposition of Nationstar's foreclosure action. That may well be so. However, review of the order allowing Fernandes to intervene is beyond the scope of this appeal. The attorney's fee sanction for discovery violations is ancillary to the merits of the foreclosure action and therefore cannot provide the vehicle for appellate review of the previous order granting intervention. See Fla. R. App. P. 9.110(h) (providing the scope of review in an appeal of a final judgment).
Other DCAs have addressed the limits of the scope of review under this rule as follows:
We recognize Florida Rule of Appellate Procedure 9.110(h) authorizes an appellate court to review "any ruling or matter occurring before filing of the notice [of appeal]." We construe the phrase "ruling or matter" in Rule 9.110(h) to mean rulings and orders "directly related to and an aspect of the final [order]" under review. Cygler v. Presjack, 667 So. 2d 458, 461 (Fla. 4th DCA 1996) (finding an adverse summary judgment on a defendant's affirmative defense was a non-final, non-appealable order in the plaintiff's appeal of summary final judgment in favor of the co-defendant).
Portis v. Seatruck, Inc ., 98 So. 3d 1234, 1235 (Fla. 3d DCA 2012) ; see also Deutsche Bank Nat'l Tr. Co. v. Plageman , 133 So. 3d 1199, 1200 (Fla. 2d DCA 2014).
The order granting Fernandes’ motion to intervene is not directly related to the fees sanction. To hold otherwise would mean that if a trial court grants a motion to intervene, then that motion can be challenged in any subsequent appeal no matter how distant the issue on appeal is from the merits of intervention issue. The court in Portis warned of the "jurisdictional mischief" that an expansive reading of rule 9.110(h) "invites" in creating "a second window within which to obtain review." Portis , 98 So. 3d at 1235. Under this expansive view adopted by the majority, a party wishing to challenge a grant of intervention could willfully defy discovery intending to get sanctioned or otherwise gin up an appealable order to provide a means to appeal the intervention order pretrial. We should not allow such "bootstrap review of this order" granting intervention to occur. Id .
I am not suggesting Nationstar undertook this action.
Based on the record and briefs filed in this appeal, appellate review of the trial court's order granting Fernandes’ motion to intervene should be available only on appeal of a final judgment disposing of the entire case. See, e.g. , Bank of Am., N.A. v. Mirabella Owners’ Ass'n, Inc. , 238 So. 3d 405, 407 (Fla. 1st DCA 2018). For this reason, I would affirm the sanctions order against Nationstar. Since the majority addresses intervention and reverses, I respectfully dissent.