Bank of New York Mellon v. Swain
217 So. 3d 226
| Fla. Dist. Ct. App. | 2017Background
- Bank of New York Mellon (the Bank) was the appellant after the trial court entered summary judgment in favor of Joseph and Victoria Swain (the Swains) and dismissed the foreclosure action without prejudice.
- The trial court’s written summary-judgment order dismissed the case without granting leave to amend.
- The Bank moved for rehearing; the motion was denied more than three months before the Bank sought an order "adjudicating finality."
- The trial court then entered an order on the motion to adjudicate finality purporting to enter a final summary judgment for the Swains.
- The Bank filed its appeal more than nine months after the initial summary-judgment order and after denial of rehearing; the Swains moved to dismiss the appeal as untimely.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the initial summary-judgment order was a final, appealable order | The Bank argued the initial order was not final and did not end the case for appellate purposes | The Swains argued the initial order dismissed the action without prejudice and without leave to amend, making it final and appealable | The court held the initial order was final and appealable because it dismissed the action without leave to amend |
| Whether the subsequent "adjudicate finality" order revived appellate timeliness | The Bank argued the later order was a distinct finalization permitting a timely appeal | The Swains argued the later order was a nullity because finality had already been effected by the initial order | The court held the later order was ineffective to revive the appeal deadline; appeal was untimely |
| Whether the appeal was timely under Fla. R. App. P. 9.110(b) | The Bank contended timely appeal window began after adjudication of finality | The Swains contended the appeal period began at rendition of the initial final order | The court held the appeal period began at rendition of the initial final order and the Bank missed the 30-day period |
| Whether the court had jurisdiction to entertain the late appeal | The Bank argued jurisdiction existed based on the later order | The Swains argued lack of jurisdiction due to untimely notice of appeal | The court dismissed the appeal for lack of jurisdiction |
Key Cases Cited
- Boyd v. Goff, 828 So. 2d 468 (Fla. 5th DCA 2002) (an order’s substance, not its label, determines finality)
- McQuaig v. Wal-Mart Stores, Inc., 789 So. 2d 1215 (Fla. 1st DCA 2001) (summary-judgment orders that merely grant a motion may not be final)
- Getman v. Tracey Const., Inc., 62 So. 3d 1289 (Fla. 2d DCA 2011) (evidence of finality on the face of a summary-judgment order makes it appealable)
- Valcarcel v. Chase Bank USA NA, 54 So. 3d 989 (Fla. 4th DCA 2010) (an order dismissing an action without prejudice and without leave to amend is final and appealable)
- Rayburn v. Bright, 163 So. 3d 735 (Fla. 5th DCA 2015) (timeliness of notice of appeal is jurisdictional)