Leichester Trust v. Federal National Mortgage Association ("Fannie Mae") , 2015 Fla. App. LEXIS 19161 ( 2015 )

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
LEICHESTER TRUST, TRUST NUMBER )
1920, )
)
Appellant, )
)
v. ) Case No. 2D15-1390
)
FEDERAL NATIONAL MORTGAGE )
ASSOCIATION ("FANNIE MAE"), a )
corporation organized and existing under )
the laws of the United States of America, )
its successors and/or assigns, )
)
Appellee. )
)
Opinion filed December 23, 2015.
Appeal pursuant to Fla. R. App. P. 9.130
from the Circuit Court for Hillsborough
County; Wayne Timmerman, Senior Judge.
Heather A. DeGrave of Walters Levine
Klingensmith & Thomison, P.A., Tampa, for
Appellant.
Nicole R. Ramirez of eXL Legal, PLLC, St.
Petersburg, for Appellee.
VILLANTI, Chief Judge.
Leichester Trust, Trust Number 1920 (the Trust) appeals an order denying
its motion to vacate an order denying rehearing that the Trust never received. The
effect of the denial of the motion to vacate was to preclude the Trust from appealing the
final judgment of foreclosure entered in favor of Federal National Mortgage Association
(Fannie Mae) due to a clerical error by the court. The Trust also appeals the order
denying its motion to stay issuance of the certificate of title. For the reasons explained
below, we reverse the order denying the motion to vacate the order on rehearing and
remand with directions for the trial court to vacate the order denying rehearing and
reenter an order on the motion for rehearing so as to restart the clock for appellate
purposes. We affirm the denial of the Trust's motion to stay issuance of the certificate
of title without further discussion.1
The record shows that the Trust is the legal owner of certain real property.
Fannie Mae holds a note given by Ali and Elizabeth Rodriguez that is secured by a
mortgage on the real property owned by the Trust. The relationship between the
Rodriguezes and the Trust is not entirely clear from the record before this court.
The original lender, SunTrust Mortgage, Inc., filed a foreclosure action in
2012. The foreclosure action named the Rodriguezes and the Trust as defendants, and
the Trust appeared in the proceedings through counsel. During the proceedings,
Fannie Mae was substituted for SunTrust as plaintiff. Fannie Mae subsequently filed a
motion for summary judgment, which the Trust opposed. Nevertheless, the trial court
granted final summary judgment of foreclosure in favor of Fannie Mae over the Trust's
objections on September 9, 2014. The final summary judgment of foreclosure shows
1
We recognize that this ruling may complicate matters should the Trust
ultimately prevail in its anticipated appeal of the summary judgment of foreclosure;
however, untangling that transaction—should it become necessary—is beyond the
scope of this appeal. For purposes of this appeal, we simply note that the arguments
raised by the Trust in this appeal in relation to the motion to stay issuance of the
certificate of title were either not preserved for appellate review or have no merit.
-2-
that it was to be served on twelve entities, and it included an email address for the
Trust's counsel.
The Trust filed a timely motion for rehearing of the final summary
judgment of foreclosure on September 19, 2014. In its motion, the Trust challenged the
final summary judgment on both procedural and substantive grounds. The motion for
rehearing was signed by counsel for the Trust, and the signature block includes an
email address for counsel. The record shows that the trial court denied this motion on
October 6, 2014; however, the order does not contain a certificate of service. Instead,
at the bottom of the order, the court listed four entities as being entitled to receive
"copies"—three by email and one, the Trust, by postal mail. Nothing in the record or the
order explains why this order was served on only one-third of the interested parties or
why the Trust was the sole entity to be served by postal mail despite the court having an
email address for the Trust's counsel.
Five weeks after the order denying the Trust's motion for rehearing was
rendered, counsel for Fannie Mae filed and served a notice of hearing on the Trust's
motion for rehearing, which set the hearing for December 9, 2014. On December 4,
2014, the court sua sponte cancelled the hearing and sent an automated notice to the
parties indicating that the court would review the motion for rehearing and determine
whether a hearing was needed. If so, the case manager would contact the parties to
reschedule the hearing. It seems clear at this point that neither the parties nor the court
knew that the Trust's motion for rehearing had been denied two months earlier.
Shortly after receiving this notice, counsel for the Trust discovered that an
order denying the motion for rehearing had been rendered two months earlier. In
-3-
response to this discovery, the Trust filed a motion to vacate the order denying the
motion for rehearing pursuant to Florida Rule of Civil Procedure 1.540(b). In this
motion, counsel for the Trust asserted that she had never been served with a copy of
the order denying rehearing and that the court's failure to serve her with a copy of the
order had prevented the Trust from filing a timely notice of appeal from the final
summary judgment of foreclosure. The Trust noted that it did not appear that the order
denying rehearing had been served on any of the parties, as they were actively working
to schedule a hearing on the motion as late as November 14, 2014. The Trust asked
the court to vacate the October 6, 2014, order on the motion for rehearing and to
reenter it to allow the Trust to appeal the final judgment. Counsel for the Trust
supported the motion to vacate with her sworn affidavit, indicating that she had never
received the order denying rehearing, and she attached correspondence that showed
that she and counsel for Fannie Mae continued to try to schedule a hearing on the
motion months after it had been denied as evidence that neither knew of the entry of the
order. Importantly, Fannie Mae did not file or offer any countervailing evidence or
submit any pleading containing any facts that contradicted the assertion of counsel for
the Trust that she was not served with the order denying rehearing nor did Fannie Mae
assert that its counsel had timely received the order denying rehearing. Despite the
Trust's request for a hearing on its motion to vacate, the trial court denied the motion to
vacate without a hearing on March 11, 2015. The Trust now appeals this ruling.
This case presents a situation almost identical to that in Gibson v. Buice,
381 So. 2d 349 (Fla. 5th DCA 1980). There, the court rendered the final judgment on
February 23, 1979, but both the court and the clerk failed to mail copies of the judgment
-4-
to the parties. Id. at 350. When the defendant learned of the entry of the final judgment
after the time for filing the notice of appeal had expired, the defendant filed a motion for
relief from judgment under rule 1.540(b). Id. The defendant argued that "mistake or
inadvertence" had occurred due to the court's failure to mail copies of the judgment to
the parties, the defendant attached an affidavit of his counsel alleging that he had never
received a copy, and the defendant asked that the court vacate the final judgment and
reenter it so that he could take an appeal. Id. The trial court denied the motion to
vacate. Id. On appeal from the denial of that motion, the Fifth District noted that when
the court fails to transmit a copy of an order or judgment to the parties, rule 1.540(b)
should be liberally applied "in a manner conducive to the ends of justice." Id. at 351(quoting Rogers v. First Nat'l Bank at Winter Park, 232 So. 2d 377, 378 (Fla. 1970)).
Thus, the court reversed the trial court's order and remanded "for entry of an order as
authorized by Rule 1.540(b), which will provide the appellant with an avenue for a direct
appeal." Id.Since that ruling, multiple courts, including this one, have routinely held
that a trial court's or clerk's failure to serve the parties with an order or judgment
warrants relief under rule 1.540(b), "even if for no other purpose than to reenter the
order with a fresh date to preserve the right to appeal." Paul v. Wells Fargo Bank, N.A.,
68 So. 3d 979, 983 (Fla. 2d DCA 2011); David M. Dresdner, M.D., P.A. v. Charter Oak
Fire Ins. Co., 972 So. 2d 275, 280 (Fla. 2d DCA 2008) (noting that fundamental fairness
requires granting relief under rule 1.540(b) when trial court or clerk errors result in a
party's inability to file a timely notice of appeal); Schultz v. Time Warner Entm't Co., 906
So. 2d 297, 299 (Fla. 5th DCA 2005) (affirming the trial court's decision to grant a
-5-
motion to vacate when the copy of the judgment served on the parties by the clerk
contained an error that misled the parties concerning the date of rendition); Pompi v.
City of Jacksonville, 872 So. 2d 931, 933 (Fla. 1st DCA 2004) (finding that relief under
rule 1.540(b) was warranted when the court clerk at least arguably contributed to
counsel's misconception about the date of rendition); Rosso v. Golden Surf Towers
Condo. Ass'n, 711 So. 2d 1298, 1300 (Fla. 4th DCA 1998) (noting that when the court
does not serve a party with an order or judgment and a party is thus precluded from
bringing a timely appeal, the trial court abuses its discretion in denying a motion to
vacate the unserved order or judgment); Kanecke v. Lennar Homes, Inc., 543 So. 2d
784, 785 (Fla. 3d DCA 1989) (holding that when the trial court failed to provide notice of
entry of a final judgment to the parties until after the time for filing a notice of appeal
expired, the trial court was "obligated" to grant relief under rule 1.540(b)); Woldarsky v.
Woldarsky, 243 So. 2d 629, 630 (Fla. 1st DCA 1971) (affirming the trial court's decision
to set aside a final judgment under rule 1.540(b) and reenter the judgment to allow a
party to appeal when the trial court failed to serve the parties with the original
judgment); see generally Katherine E. Giddings & Michael J. Larson, The Right to
Relief: Untimely Notice of an Appealable Order, Fla. B.J., Nov. 2015, at 50. These
authorities highlight the importance that courts place on protecting the litigants'
appellate rights when a notice of appeal is not timely filed through no fault of the
appellant or counsel.2
2
Frankly, based on these undisputed facts, we are somewhat surprised
that counsel for Fannie Mae did not simply stipulate to the entry of a new order on the
motion for rehearing for purposes of preserving the Trust's appellate rights. Given the
facts here, this would have been the professional and civil thing to do.
-6-
Here, counsel for the Trust filed an affidavit swearing that she never
received a copy of the order denying the Trust's motion for rehearing. The order itself
does not contain a certificate of service that would contradict this allegation. Nor did
Fannie Mae offer any evidence—or even simple assertions of counsel—to contradict
the Trust's allegations. Moreover, the fact that counsel for Fannie Mae filed a notice of
hearing on the Trust's motion for rehearing more than two months after the court denied
that motion tends to support the Trust's assertion that the order on the motion for
rehearing was never sent to the parties. Therefore, the Trust's inability to file a timely
notice of appeal was due to the actions or inactions of the trial court—not any action or
inaction by the Trust or its counsel. On these facts, the Trust was entitled to relief under
rule 1.540(b), and the trial court should have granted the motion for relief from
judgment.
Accordingly, we reverse the order denying the Trust's motion to vacate the
order denying rehearing and remand with directions for the trial court to vacate the order
denying rehearing and enter an order as authorized by rule 1.540(b) that will provide the
Trust with an avenue for a direct appeal, namely a new order on the Trust's motion for
rehearing.
Affirmed in part, reversed in part, and remanded with instructions.
MORRIS and BLACK, JJ., Concur.
-7-