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Fourth DCA Issues Inconsistent Rulings on Trial Courts’ Jurisdiction to Rehear an Order Denying Relief from Judgment

Uncategorized • Feb 24, 2016
post about Fourth DCA Issues Inconsistent Rulings on Trial Courts’ Jurisdiction to Rehear an Order Denying Relief from Judgment

Today, Florida’s 4th DCA issued its opinion in the case of Security National Mortgage Co. v. Crevan O. Reid, No. 4D14-2450.   Robert J. Hauser is a partner at the Pankauski Law Firm PLLC, in West Palm Beach, Florida, where he handles business litigation, probate litigation and appellate work.  Robert is Board Certified by the Florida Bar in Appellate law and recently commented on this recent 4th DCA opinion: 

The Fourth District appears to have issued contradictory, recent rulings on the procedural propriety of a motion for rehearing directed to the denial of relief from judgment under Florida Rule of Civil Procedure 1.540(b).

1. Druin v. Stuber, 168 So. 3d 305 (Fla. 4th DCA July 1, 2005)

  • On July 2, 2015 I posted a blog about Drouin v. Stuber, 168 So. 3d 305 (Fla. 4th DCA July 1, 2015). In that case, the Fourth District entertained an appeal of an order grantingrehearing of the denial of relief from a paternity judgment under Rule 1.540(b). The court squarely addressed the question of jurisdiction, and held that the trial court did have jurisdiction to rehear its denial of 1.540 relief and to change its decision:
  • “Drouin first argues that the order granting the mother’s motion for rehearing and vacating the 2011 paternity judgment must be reversed because, having rendered its initial order denying the mother’s rule 1.540 motion, the court was without jurisdictionto entertain the mother’s motion for rehearing. Motions for rehearing are properly directed to “final judgments” and generally may not be directed to interlocutory orders.See, e.g., Wagner v. Bieley, Wagner & Assocs., Inc., 263 So.2d 1, 3 (Fla.1972); Seigler v. Bell, 148 So.3d 473, 478 (Fla. 5th DCA 2014). Post decretal orders may be viewed as “final judgments” and the proper subject of a motion for rehearing “[w]here an order after judgment is dispositive of any question,” “completes the judicial labor on that portion of the cause after judgment,” and “constitutes a final and distinct adjudication of rights which have not been adjudicated in the original final judgment.” Clearwater Fed. Sav. & Loan Ass’n v. Sampson, 336 So.2d 78, 79-80 (Fla.1976). The trial court’s initial ruling denying the mother’s rule 1.540 motion was such an order. Cf. Popescu v. Laguna Master Ass’n, 126 So.3d 449, 450 (Fla. 4th DCA 2013) (holding that order denying amotion to vacate a foreclosure sale and certificate of title was properly the subject of a motion for rehearing as it was a “discrete final order, separate from the final lien foreclosure judgment” and was “a final adjudication of the parties’ rights on issues distinct from those before the court prior to the lien foreclosure judgment”). Thus, Drouin’s jurisdictional argument fails.”
  • Drouin, 168 So. 3d at 307. Drouin is now a final decision. It has since been published in the Southern Reporter, but it has not been cited in any other published decisions.
  • At the time, I was concerned about this decision. It appears to create a procedural trapfor litigants, who may believe that their pending motion for rehearing tolls the time to appeal the original denial of relief. After all, if a motion for rehearing is an “authorized and timely” motion directed to the order denying relief under Rule 1.540(b), it means that the time to appeal is tolled by operation of Florida Rule of Appellate Procedure 9.020(i). In my July 2, 2015 blog, I wrote that Drouin was probably incorrect:
  • “Too many other authorities suggest that a Rule 1.540(b) decision is not subject to rehearing, including Rule 9.130(a)(5) itself; a prior case from the Fourth DCA, Talley v. Canal Indemnity, 558 So. 2d 1088 (Fla. 4th DCA 1990) (dismissing appeal ; Anstead, J., concurring to explain that “[l]itigants should be on notice that they must appeal orders denying motions under rule 1.540 within 30 days or be barred from appellate review.”); and Francisco v. Victoria Marine Shipping, 486 So.2d 1386 (Fla. 3d DCA 1986) (order denying relief from final judgment, though final, is not a “judgment” giving rise to a right to rehearing within the meaning of Rule 1.530).”

2. Security National Mortgage Co. v. Crevan O. Reid,

  • No. 4D14-2450 (Fla. 4th DCA Feb. 24, 2016)
  • Now fast-forward seven months. Today (February 24, 2016), the Fourth District issued its opinion in Security National Mortgage Co. v. Crevan O. Reid, No. 4D14-2450. In that case, Circuit Judge Glenn D. Kelley had dismissed the plaintiff’s case as a sanction for failure to appear at a pre-trial conference. The plaintiff moved to vacate the dismissal pursuant to Rule 1.540(b). The trial court denied this motion. The plaintiff moved for rehearing. The trial court “granted” this motion requesting rehearing but ultimately denied the motion to vacate for a second time. The plaintiff appealed from the second denial.
  • Drouin, of course, suggests that the rehearing could be properly sought. If so, once rehearing was “granted” the ultimate decision to deny 1.540(b) relief would be final and appealable. But the Fourth District held otherwise:
  • “The Florida Rules of Civil Procedure do not authorize the rehearing of an order entered on a rule 1.540(b) motion. See Intercoastal Marina Towers, Inc. v. Suburban Bank, 506 So. 2d 1177, 1178 (Fla. 4th DCA 1987). The lower court was therefore without jurisdiction to rehear Security’s motion after it had already denied it. See Thornton v. Jabeen, 683 So. 2d 150 (Fla. 3d DCA 1996); Irwin v. Walker, 468 So. 2d 241 (Fla. 2d DCA 1984). We therefore do not reach the merits of Security’s appeal and quash the order denying Security’s motion to vacate entered on rehearing.”
  • In today’s decision, the Fourth District did not cite or acknowledge its prior decision inDrouin, which clearly would have supported the existence of jurisdiction below to entertain the rehearing motion. Moreover, the appellant did not cite Drouin, because it filed its initial brief back in February of 2015, before the Drouin decision was issued. The docket sheet reflects that the appellant did not thereafter file any reply brief or a notice of supplemental authority. Perhaps if it had done so it would help bring this conflict to the attention of the Court and therefore to a resolution.

3. Analysis

  • Unfortunately, the plaintiff in Security National Mortgage appears to have fallen in to exactly the trap (albeit unwittingly) which is created by Drouin. Litigants in the Fourth District are now left to wonder whether the Court will follow Drouin or Security National Mortgage in the future. But more importantly, litigants should never assume that a motion for rehearing of the denial of a 1.540(b) motion may be reheard or reconsidered. An order on such a motion should be appealed within 30 days, or appellate review will likely be deemed forever barred.
  • In the meantime, I hope that the Fourth District will address the problem created byDrouin, either by limiting it the decision to its facts (having to do with a paternity dispute) or by acknowledging in a future en banc decision that the jurisdictional ruling in Drouinwas contrary to other Florida case law.