182 So. 3d 927
Fla. Dist. Ct. App.2016Background
- Wells Fargo filed foreclosure against Annette Bryant and others in September 2008; trial court entered Final Judgment of Foreclosure for the bank on June 23, 2011.
- Property sold to the bank at public foreclosure auction on February 9, 2012; certificate of title issued February 27, 2012; writ of possession originally entered July 30, 2012.
- After a bankruptcy filing by another defendant was dismissed, the bank sought an alias writ of possession; the trial court entered an Order for Alias Writ of Possession on November 18, 2013.
- Bryant filed multiple post-judgment motions: (1) motion for extension of time to respond to the alias writ, (2) motion to vacate the writ under Fla. R. Civ. P. 1.540(b) alleging fraud, and (3) motion to disregard an assignment of mortgage as forged; the court denied these in orders entered January 6, 2014.
- Bryant filed a notice of appeal on January 10, 2014 seeking review of the June 2011 Final Judgment, the November 2013 writ of possession, and the January 6, 2014 rulings.
- The appellate court dismissed the appeal for lack of jurisdiction: Bryant’s notice of appeal was untimely as to the Final Judgment and the writ of possession, and the January 6 orders were non-appealable nonfinal rulings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether appeal invokes appellate jurisdiction as to Final Judgment of Foreclosure | Bryant sought review of June 2011 Final Judgment | Bank contended Bryant’s appeal was untimely | Dismissed: notice filed in Jan 2014 was untimely under Fla. R. App. P. 9.110(b) and appellate court lacked jurisdiction |
| Whether writ of possession order is appealable and timely appealed | Bryant appealed the Nov 18, 2013 writ as part of her notice | Bank argued appellant failed to timely file notice for nonfinal order | Dismissed: writ is appealable as nonfinal under Fla. R. App. P. 9.130(a)(3)(C)(ii), but Bryant’s Jan 10, 2014 notice was outside 30-day limit so jurisdiction lacking |
| Whether denial of motion to vacate writ (Rule 1.540(b)) is reviewable on appeal | Bryant sought relief from writ via Rule 1.540(b) alleging fraud on the court | Bank argued motion targeted a nonfinal order and denial is not appealable | Dismissed: Rule 1.540 applies to final orders only; denial of motion to vacate a nonfinal order is not reviewable under Rule 9.130 |
| Whether other January 6 rulings (extension, disregarding assignment, production) are appealable | Bryant appealed these denials as part of her notice | Bank argued these were nonfinal and not within categories of interlocutory review | Dismissed: those rulings do not fall within appealable nonfinal categories in Rule 9.130(a)(3) |
Key Cases Cited
- Peltz v. Dist. Court of Appeal, Third Dist., 605 So. 2d 865 (untimely notice of appeal precludes appellate jurisdiction)
- Mekertin v. Winn Dixie Stores, Inc., 869 So. 2d 1286 (time for taking an appeal is jurisdictional under Fla. R. App. P. 9.110)
- Chandler v. BAC Home Loans Servicing, 101 So. 3d 948 (Florida courts must dismiss appeals not initiated within applicable time limits)
- Speedway SuperAmerica, LLC v. Tropic Enters., Inc., 966 So. 2d 1 (order directing issuance of writ of possession is appealable as determining right to immediate possession)
- Hollifield v. Renew & Co., 18 So. 3d 616 (Rule 1.540 relief is limited to final judgments, not nonfinal orders)
- Bennett’s Leasing, Inc. v. First St. Mortg. Corp., 870 So. 2d 93 (order on motion to vacate a nonfinal order is not reviewable under Rule 9.130)