Third District Court of Appeal State of Florida
Opinion filed June 8, 2022. Not final until disposition of timely filed motion for rehearing.
________________
No. 3D21-1693 Lower Tribunal No. 02-31329 ________________
David L. Brooks, Appellant,
vs.
Valerie Brooks, Appellee.
An Appeal from the Circuit Court for Miami-Dade County, David Young, Judge.
Ross & Girten, and Lauri Waldman Ross; Foster-Morales Sockel- Stone, LLC, and Dori Foster-Morales; and Rodon Law, PLLC, and Mary Lou Rodon, for appellant.
Richard A. Schurr, P.A., Richard A. Schurr and Bonnie M. Sack, for appellee.
Before EMAS, HENDON and GORDO, JJ.
GORDO, J. David Brooks (“former husband”) appeals the trial court’s final order
dismissing his motion to vacate a final judgment of dissolution of marriage
under Florida Rule of Civil Procedure 1.540(b). We have jurisdiction. Fla.
R. App. P. 9.030(b)(1)(A). We find as a matter of law the trial court properly
dismissed the motion and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The former husband and wife were married in 1985. The parties
divorced by final judgment of dissolution of marriage on July 3, 2003. The
final judgment incorporated the Marital Settlement Agreement (“MSA”) and
the Qualified Domestic Relations Order (“QDRO”), which memorialized the
parties agreement as to an equitable distribution of their real and personal
property. On June 28, 2004, the former husband filed a motion to vacate the
final judgment pursuant to Florida Rule of Civil Procedure 1.540(b)(1) and
Florida Family Law Rule of Procedure 12.540(b) alleging mistake. He
alleged mistake as to certain provisions in the MSA and QDRO regarding
survivorship benefits upon his death. On November 8, 2005, the former
husband filed an amended motion to vacate final judgment, raising the same
argument and additionally arguing the judgment was no longer equitable
pursuant to rule 1.540(b)(5). The former husband however, never sought to
2 have his motion heard by the trial court. On June 24, 2011, the trial court
entered an order closing the case post-judgment.
In April 2020, the former husband filed a request to reopen his case
and set his November 2005 motion to vacate for final hearing. The former
wife subsequently filed a motion to dismiss the former husband’s motion to
vacate arguing the trial court was without jurisdiction. The trial court
dismissed the motion to vacate finding the motion was untimely. This appeal
followed.
STANDARD OF REVIEW
While this Court generally reviews an order denying a rule 1.540
motion for abuse of discretion, when the trial court rules on the motion as a
matter of law—our review is de novo. See CFLB Mgmt., LLC v. Diamond
Blue Int’l, Inc., 318 So. 3d 589, 592 (Fla. 3d DCA 2021).
LEGAL ANALYSIS
The sole question presented before us is whether the trial court
properly found the motion to vacate was untimely pursuant to rule
1.540(b)(1) and (b)(5). We address the applicable sections of rule 1.540(b)
separately.
I. Rule 1.540(b)(1)
Rule 1.540(b)(1) provides:
3 (b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud; etc. On motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, decree, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect.
(emphasis added). Because rule 1.540(b) is designed to preserve the finality
of a case, motions pursuant to this rule are intentionally limited in number.
See Sanchez v. Sanchez, 285 So. 3d 969, 972 (Fla. 3d DCA 2019). “Under
the rule, all motions seeking relief ‘shall be filed within a reasonable time’
after entry of the challenged final order, and motions seeking relief based on
categories (1), (2), or (3) must be filed within one year of entry of the final
order.” Id. at 973. The former husband argues despite his failure to set his
motion to vacate for final hearing for sixteen years—from 2004 to 2020—he
timely filed his motion pursuant to rule 1.540(b)(1)1 because final judgment
was entered on July 3, 2003, and he filed his motion within one year. He
further asserts rule 1.540 imposes no deadline on when the motion must be
heard.
1 The former husband also filed his motion under Florida Family Law Rule of Procedure 12.540(b). “The relevant portions of rule 12.540(b)(4) are identical to rule 1.540(b)(4), and motions filed under rule 12.540(b) are governed by the body of law applicable to rule 1.540(b).” Sanchez, 285 So. 3d at 971. The relevant motion hereinafter will be referred to as the former husband’s rule 1.540 motion without reference to its family law counterpart.
4 We disagree and find the former husband’s rule 1.540(b) motion was
untimely because he failed to schedule a notice of hearing on his motion for
over sixteen years. Simply filing a motion to vacate pursuant to rule
1.540(b)(1) within one year of a final judgment does not eliminate a litigant’s
responsibility to bring the motion to the attention of the trial court within a
reasonable time. Despite filing his motion within one year of the final
judgment, the former husband made no attempt to bring it to the attention of
the trial court for over sixteen years. Such a disregard for the time
requirements of rule 1.540(b) would render the rule’s intention of preserving
the finality of judgments a nullity. See Goodman v. Joffe, 57 So. 3d 1001,
1002 (Fla. 4th DCA 2011) (“Our holding should not be read to mean that a
party may ignore the time requirements imposed by Florida Rule of Civil
Procedure 1.540, or that we countenance the practice of filing a motion and
then allowing it to languish. The civil practice of law would benefit from a
rule which provides that motions not pursued to resolution by the movant
within a fixed period of time should be deemed denied.”); Sewell Masonry
Co. v. DCC Constr., Inc., 862 So. 2d 893, 899 (Fla. 5th DCA 2003) (“Litigants
have an affirmative obligation to move their cases to resolution and not sit
back and rely on the trial court to set their hearings for them.”); Metro. Dade
Cnty. v. Certain Lands Upon Which Assessments Are Delinq., 471 So. 2d
5 191, 193–94 (Fla. 3d DCA 1985) (finding the trial court was without
jurisdiction to vacate the November 1981 final judgment in August 1984).
It is well established that “[i]n a proceeding on a rule 1.540 motion, the
court’s final determination of whether to grant relief will inherently include a
ruling on jurisdiction. This is different from most judicial acts but arises
because of the unusual procedural status of rule 1.540, which exists to
provide jurisdiction where otherwise there would be none.” Miller v. Fortune
Ins. Co., 484 So. 2d 1221, 1224 (Fla. 1986). Rule 1.540(b) allows a trial
court to vacate a final judgment for only five limited grounds, “(1) mistake or
excusable neglect, (2) newly discovered evidence, (3) fraud, (4) the subject
final order is void, and (5) it is no longer equitable that the subject final order
have prospective application.” Sanchez, 285 So. 3d at 973.
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Third District Court of Appeal State of Florida
Opinion filed June 8, 2022. Not final until disposition of timely filed motion for rehearing.
________________
No. 3D21-1693 Lower Tribunal No. 02-31329 ________________
David L. Brooks, Appellant,
vs.
Valerie Brooks, Appellee.
An Appeal from the Circuit Court for Miami-Dade County, David Young, Judge.
Ross & Girten, and Lauri Waldman Ross; Foster-Morales Sockel- Stone, LLC, and Dori Foster-Morales; and Rodon Law, PLLC, and Mary Lou Rodon, for appellant.
Richard A. Schurr, P.A., Richard A. Schurr and Bonnie M. Sack, for appellee.
Before EMAS, HENDON and GORDO, JJ.
GORDO, J. David Brooks (“former husband”) appeals the trial court’s final order
dismissing his motion to vacate a final judgment of dissolution of marriage
under Florida Rule of Civil Procedure 1.540(b). We have jurisdiction. Fla.
R. App. P. 9.030(b)(1)(A). We find as a matter of law the trial court properly
dismissed the motion and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The former husband and wife were married in 1985. The parties
divorced by final judgment of dissolution of marriage on July 3, 2003. The
final judgment incorporated the Marital Settlement Agreement (“MSA”) and
the Qualified Domestic Relations Order (“QDRO”), which memorialized the
parties agreement as to an equitable distribution of their real and personal
property. On June 28, 2004, the former husband filed a motion to vacate the
final judgment pursuant to Florida Rule of Civil Procedure 1.540(b)(1) and
Florida Family Law Rule of Procedure 12.540(b) alleging mistake. He
alleged mistake as to certain provisions in the MSA and QDRO regarding
survivorship benefits upon his death. On November 8, 2005, the former
husband filed an amended motion to vacate final judgment, raising the same
argument and additionally arguing the judgment was no longer equitable
pursuant to rule 1.540(b)(5). The former husband however, never sought to
2 have his motion heard by the trial court. On June 24, 2011, the trial court
entered an order closing the case post-judgment.
In April 2020, the former husband filed a request to reopen his case
and set his November 2005 motion to vacate for final hearing. The former
wife subsequently filed a motion to dismiss the former husband’s motion to
vacate arguing the trial court was without jurisdiction. The trial court
dismissed the motion to vacate finding the motion was untimely. This appeal
followed.
STANDARD OF REVIEW
While this Court generally reviews an order denying a rule 1.540
motion for abuse of discretion, when the trial court rules on the motion as a
matter of law—our review is de novo. See CFLB Mgmt., LLC v. Diamond
Blue Int’l, Inc., 318 So. 3d 589, 592 (Fla. 3d DCA 2021).
LEGAL ANALYSIS
The sole question presented before us is whether the trial court
properly found the motion to vacate was untimely pursuant to rule
1.540(b)(1) and (b)(5). We address the applicable sections of rule 1.540(b)
separately.
I. Rule 1.540(b)(1)
Rule 1.540(b)(1) provides:
3 (b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud; etc. On motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, decree, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect.
(emphasis added). Because rule 1.540(b) is designed to preserve the finality
of a case, motions pursuant to this rule are intentionally limited in number.
See Sanchez v. Sanchez, 285 So. 3d 969, 972 (Fla. 3d DCA 2019). “Under
the rule, all motions seeking relief ‘shall be filed within a reasonable time’
after entry of the challenged final order, and motions seeking relief based on
categories (1), (2), or (3) must be filed within one year of entry of the final
order.” Id. at 973. The former husband argues despite his failure to set his
motion to vacate for final hearing for sixteen years—from 2004 to 2020—he
timely filed his motion pursuant to rule 1.540(b)(1)1 because final judgment
was entered on July 3, 2003, and he filed his motion within one year. He
further asserts rule 1.540 imposes no deadline on when the motion must be
heard.
1 The former husband also filed his motion under Florida Family Law Rule of Procedure 12.540(b). “The relevant portions of rule 12.540(b)(4) are identical to rule 1.540(b)(4), and motions filed under rule 12.540(b) are governed by the body of law applicable to rule 1.540(b).” Sanchez, 285 So. 3d at 971. The relevant motion hereinafter will be referred to as the former husband’s rule 1.540 motion without reference to its family law counterpart.
4 We disagree and find the former husband’s rule 1.540(b) motion was
untimely because he failed to schedule a notice of hearing on his motion for
over sixteen years. Simply filing a motion to vacate pursuant to rule
1.540(b)(1) within one year of a final judgment does not eliminate a litigant’s
responsibility to bring the motion to the attention of the trial court within a
reasonable time. Despite filing his motion within one year of the final
judgment, the former husband made no attempt to bring it to the attention of
the trial court for over sixteen years. Such a disregard for the time
requirements of rule 1.540(b) would render the rule’s intention of preserving
the finality of judgments a nullity. See Goodman v. Joffe, 57 So. 3d 1001,
1002 (Fla. 4th DCA 2011) (“Our holding should not be read to mean that a
party may ignore the time requirements imposed by Florida Rule of Civil
Procedure 1.540, or that we countenance the practice of filing a motion and
then allowing it to languish. The civil practice of law would benefit from a
rule which provides that motions not pursued to resolution by the movant
within a fixed period of time should be deemed denied.”); Sewell Masonry
Co. v. DCC Constr., Inc., 862 So. 2d 893, 899 (Fla. 5th DCA 2003) (“Litigants
have an affirmative obligation to move their cases to resolution and not sit
back and rely on the trial court to set their hearings for them.”); Metro. Dade
Cnty. v. Certain Lands Upon Which Assessments Are Delinq., 471 So. 2d
5 191, 193–94 (Fla. 3d DCA 1985) (finding the trial court was without
jurisdiction to vacate the November 1981 final judgment in August 1984).
It is well established that “[i]n a proceeding on a rule 1.540 motion, the
court’s final determination of whether to grant relief will inherently include a
ruling on jurisdiction. This is different from most judicial acts but arises
because of the unusual procedural status of rule 1.540, which exists to
provide jurisdiction where otherwise there would be none.” Miller v. Fortune
Ins. Co., 484 So. 2d 1221, 1224 (Fla. 1986). Rule 1.540(b) allows a trial
court to vacate a final judgment for only five limited grounds, “(1) mistake or
excusable neglect, (2) newly discovered evidence, (3) fraud, (4) the subject
final order is void, and (5) it is no longer equitable that the subject final order
have prospective application.” Sanchez, 285 So. 3d at 973. The trial court
correctly recognized that an attempt to vacate a final judgment pursuant to
1.540(b)(1) after sixteen years would inherently frustrate the rule’s purpose
in finality of judgments and limiting a trial court’s jurisdiction.
II. Rule 1.540(b)(5)
The former husband also sought relief under subsection (5) of rule
1.540(b), which provides a trial court may vacate a judgment when “it is no
longer equitable that the judgment, decree, or order should have prospective
application. The motion shall be filed within a reasonable time, and for
6 reasons (1), (2), and (3) not more than 1 year after the judgment, decree,
order, or proceeding was entered or taken.” (emphasis added).
“[R]ule 1.540(b)[(5)] requires such a motion to be brought ‘within a
reasonable time’” therefore, once the litigant knows the final judgment is no
longer equitable, the litigant must move within a reasonable amount of time
to vacate final judgment. Castro v. Sun ‘N Lake of Sebring Improvement
Dist., 334 So. 3d 663, 666–67 (Fla. 2d DCA 2021). “Rule 1.540(b)(5) was
designed to provide ‘extraordinary relief’ in exceptional circumstances, and
is to be narrowly construed. If a party had a chance to litigate the issue
before, present a defense below and did not do so, courts are reluctant to
set aside previously entered judgments. The circumstances addressed in
category (5) all appear to address matters arising after the judgment, not
circumstances present before the judgment.” Pure H2O Biotechnologies,
Inc. v. Mazziotti, 937 So. 2d 242, 245 (Fla. 4th DCA 2006) (emphasis added)
(internal citations omitted).
We find no error in the trial court’s determination that the former husband
did not bring his amended motion to vacate under subsection (5) within a
reasonable time. The former husband knew of the alleged mistake in 2004,
yet did not seek resolution on his motion until 2020. Significantly, the former
husband did not allege any new or changed post-judgment circumstances in
7 his written motion, nor does the record reveal any such circumstances. Quite
the opposite, the record reveals the former husband was aware of the
alleged grounds raised within one year of the final judgment and failed to
seek resolution on his motion for over sixteen years. The former husband’s
motion to vacate also unequivocally provides he had a chance to litigate his
survivorship benefits before judgment and these benefits were not new
issues that arose after judgment. As such, “[i]f the motion for relief from
judgment was somehow based on rule 1.540(b)(5), the trial court properly
denied relief.” Linares v. Bank of Am., N.A., 278 So. 3d 330, 332 n.5 (Fla.
3d DCA 2019).
Affirmed.