CEDRIC RAYNARD STUBBS AND DECHANTA CATRECIA STUBBS v. FEDERAL NATIONAL HOME LOAN

• Court: District Court of Appeal of Florida
• Decided: June 13, 2018
• Docket: 17-1929
• Status: Published

Opinion

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT

CEDRIC RAYNARD STUBBS and ) DECHANTA CATRECIA STUBBS, ) ) Appellants, ) ) v. ) Case No. 2D17-1929 ) FEDERAL NATIONAL MORTGAGE ) ASSOCIATION; MULTIBANK 2009-1 ) RES-ADC VENTURE LLC; and ) WOODLAND ESTATES HOME AND ) PROPERTY OWNERS ASSOCIATION, ) INC., ) ) Appellees. ) )

Opinion filed June 13, 2018.

Appeal pursuant to Fla. R. App. P. 9.130 from the Circuit Court for Charlotte County; James R. Thompson, Senior Judge.

Cedric Raynard Stubbs and Dechanta Catrecia Stubbs, pro se.

Kathleen Angione of Kahane & Associates, P.A., Plantation, for Appellee Federal National Mortgage Association.

No appearance for Appellees Multibank 2009-1 RES-ADC Ventures LLC and Woodland Estates Home and Property Owner's Association, Inc.

PER CURIAM. Cedric and Dechanta Stubbs appeal the trial court's "Final order denying

defendant's motion to vacate and defendant's notice of objection," rendered May 2,

2017. The motion sought to vacate the "Final order granting second motion for writ of

possession," rendered March 1, 2017. Because we are without jurisdiction, we dismiss

the appeal.

The trial court entered a foreclosure judgment against the Stubbses. We

dismissed their subsequent appeal. See Stubbs v. Fed. Nat'l Mortg. Ass'n., 210 So. 3d

1286 (Fla. 2d DCA 2016) (table decision). Federal National Mortgage Association

(Fannie Mae) purchased the property at a judicial sale and obtained a certificate of title

in August 2016. Then, in January and, again, on March 1, 2017, the trial court entered

separate orders granting Fannie Mae's petitions seeking issuance of a writ of

possession. Shortly after the entry of each order, the Stubbses filed motions to vacate

and objections to issuance of the writ under Florida Rule of Civil Procedure 1.540. In

response, the trial court issued the May 2 order that is now before us.

The March 1, 2017, order granting a writ of possession is an appealable,

nonfinal order under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(ii). See

Speedway SuperAmerica, LLC v. Tropic Enters., Inc., 966 So. 2d 1, 2 (Fla. 2d DCA

2007) ("[A]n order directing the issuance of a writ of possession . . . is subject to

interlocutory review as an order that determines 'the right to immediate possession of

property.' " (quoting Fla. R. App. P. 9.130(a)(3)(C)(ii))).

Instead of appealing that order, the Stubbses sought relief under rule

1.540. But, "rule [1.540(b)] does not . . . authorize a trial court to grant relief from a non-

final order." Garcia v. Navy Fed. Credit Union, 224 So. 3d 339, 341 (Fla. 5th DCA

-2- 2017). And although Florida Rule of Appellate Procedure 9.130(a)(5) provides that

"[o]rders entered on an authorized and timely motion [under Florida Rule of Civil

Procedure 1.540] are reviewable by the method prescribed by this rule," "[a]n order

entered on a motion to vacate a non-final order . . . is not reviewable under [rule]

9.130(a)(5)." Bennett's Leasing, Inc. v. First St. Mortg. Corp., 870 So. 2d 93, 98 (Fla.

1st DCA 2003). Simply put, "a motion to vacate pursuant to [Florida Rule of Civil

Procedure] 1.540(b) cannot be directed toward non-final orders such as the writ of

possession." Bryant v. Wells Fargo Bank, N.A., 182 So. 3d 927, 930 (Fla. 3d DCA

2016); see also Hollifield v. Renew & Co., Inc., 18 So. 3d 616, 617 (Fla. 1st DCA 2009)

("Rule 1.540 authorizes a trial court to grant relief 'from a final judgment, decree, order,

or proceeding'–not from a non-final order . . . ."). Consequently, a rule 1.540 motion

directed to a non-final order is improper and leaves us without jurisdiction to review the

denial of the motion to vacate. Bryant, 182 So. 3d at 930 ("[E]ven if the motion to

vacate had been the proper procedural vehicle below, we are without jurisdiction to

review the trial court's denial of that motion because it does not fall within the purview of

appealable, non-final orders set forth in Rule 9.130(a)(3).").

Furthermore, to invoke our jurisdiction to review a nonfinal order, an

appellant must file a notice of appeal "within 30 days of rendition of the order to be

reviewed." Fla. R. App. P. 9.130(b). This was not done. The Stubbses filed their notice

of appeal more than sixty days after rendition of the "Final order granting second motion

for writ of possession." Their rule 1.540(b) motion did not toll the time for taking an

appeal, because "[a] motion under this subdivision does not affect the finality of a

judgment or decree or suspend its operation." Fla. R. Civ. P. 1.540(b); see, e.g., In re

Guardianship of Schiavo, 792 So. 2d 551, 560 (Fla. 2d DCA 2001) (stating that a motion -3- under rule 1.540(b) "does not operate to stay a judgment"); Hatton v. Palm Beach

County, 550 So. 2d 65, 66 (Fla. 2d DCA 1989) (stating that motions filed under rule

1.540 "do not suspend rendition of the final judgment (and therefore do not toll the time

for filing an appeal)"); cf. Richardson v. Watson, 611 So. 2d 1254, 1255 (Fla. 2d DCA

1992) ("Unlike an authorized and timely motion directed to a final order, a motion for

reconsideration or rehearing of a nonfinal order does not toll the time for filing a notice

of appeal . . . ."). As a result, the "[f]ailure to file any notice within the 30-day period

constitutes an irremediable jurisdictional defect.' " First Nat'l Bank in Fort Myers v. Fla.

Unemployment Appeals Comm'n, 461 So. 2d 208, 208 (Fla. 1st DCA 1984).

Based upon the foregoing, we dismiss the Stubbses' appeal.

Dismissed.

LaROSE, C.J., and SILBERMAN and ROTHSTEIN-YOUAKIM, JJ., Concur.

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