U.S. Bank National Ass'n v. Rivera , 2016 Fla. App. LEXIS 6348 ( 2016 )

Third District Court of Appeal
State of Florida
Opinion filed April 27, 2016.
Not final until disposition of timely filed motion for rehearing.
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No. 3D15-1415
Lower Tribunal No. 09-77359
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U.S. Bank National Association, etc.,
Petitioner,
vs.
Gladys Rivera, et al.,
Respondents.
A Case of Original Jurisdiction – Prohibition.
Burr & Forman, Nicholas S. Agnello and John R. Chiles, (Fort Lauderdale),
for petitioner.
Tony Stabenow, for respondents, Gladys Rivera and Dennis Rivera.
Before WELLS, EMAS and LOGUE, JJ.
WELLS, Judge.
U.S. Bank National Association petitions this court to issue a writ
prohibiting the court below from entering further orders in this now long-dismissed
foreclosure action. We agree that the court below no longer enjoys jurisdiction to
entertain any further motions in this matter but withhold our writ confident that the
trial court will comply with this decision.
This petition arises from a foreclosure action filed in October of 2009.
Purportedly unable to locate borrowers Dennis and Gladys Rivera, the Bank served
them by publication. When the Riveras failed to respond, the bank secured a
default and ultimately a final judgment of foreclosure against them.
The Riveras sought Chapter 13 bankruptcy protection and a scheduled
foreclosure sale was cancelled. Gladys Rivera also filed a Chapter 7 bankruptcy
petition. Both bankruptcy actions were quickly discharged.
In the meantime, on October 12, 2011, the Bank, citing to irregularities in
the actions taken by its former counsel in prosecuting a number of foreclosure
actions on its behalf, filed a rule 1.540 motion to vacate the final judgment in its
favor entered in this case. See Fla. R. Civ. P. 1.540. The Riveras also sought rule
1.540 relief claiming that the final judgment was void because (1) no good faith
effort had been made to locate and serve them; (2) the affidavit of due diligence
was defective; (3) no non-military affidavit had been filed; (4) the affidavits in
support of the judgment were insufficient; and (5) the complaint was defective
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because it failed to properly allege standing, jurisdiction over Dennis Rivera, or
that proper notice of a default had been given.1 In conjunction with this motion,
the Riveras sought to take discovery from the Bank. When the Bank failed to
comply with the Riveras’ discovery demands, sanctions were sought and twice
imposed against the Bank.
On December 12, 2013, the Bank’s earlier-filed rule 1.540 motion to vacate
the final judgment was granted. The following day, the Bank sought and
subsequently was granted relief from the previously entered discovery sanction
orders. See U.S. Bank Nat’l Ass’n v. Rivera, 128 So. 3d 907 (Fla. 3d DCA 2013).
Because the sanction orders had been quashed in part because the Riveras’ fraud
claim was unsupported by any sworn testimony, the Riveras filed an amended
verified motion to vacate the final judgment of foreclosure. Shortly thereafter, the
Bank voluntarily dismissed the foreclosure action which had already been
reinstated the year before.
The Riveras thereafter sought to set aside the voluntary dismissal so that the
court below could dismiss the action with prejudice for fraud on the court. The
Riveras also sought to take discovery in conjunction with this latest motion. When
1 The Riveras also filed a separate class action in the Eleventh Judicial Circuit, in
which U.S. Bank was not named as a party, alleging that U.S. Bank’s prior servicer
and its counsel had committed fraud in various foreclosure actions. In that action,
the Riveras alleged that “the claims in this case involve the same facts and legal
issues as the claims in Case No. 09-77359 CA 27 [the instant action].”
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the Bank again refused to engage in discovery, the Riveras moved to compel and
for the imposition of sanctions. The Bank moved to strike the Riveras’ motion to
vacate the voluntary dismissal and sought to avoid sanctions claiming that because
the action had been voluntarily dismissed, the court below had no jurisdiction to
continue to entertain further discovery or motions. The motion to strike was
denied with the trial court holding in relevant part:
With respect to the P[etitioner]’s objection that this Court is without
jurisdiction to enter discovery orders based on the notice of voluntary
dismissal and order vacating the final judgment, the objection is
overruled.
The Riveras’ renewed motion to compel discovery and for an award of fees
as a sanction was granted orally; however, no written orders have been entered.
The Bank now seeks to preclude the court below from entertaining further
discovery or motions relating to this now dismissed action. Specifically, the Bank
points to the trial court’s order determining that it continues to enjoy jurisdiction to
entertain discovery motions despite the fact that there are no grounds on which this
action may be reopened. We agree because this issue has already been decided in
Pino v. Bank of New York, 121 So. 3d 23 (Fla. 2013), where the Florida Supreme
Court held that a trial court has neither the authority under rule 1.540 nor the
inherent authority to grant relief from a voluntary dismissal where fraud on the
court is alleged but no affirmative relief has been granted to the dismissing
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plaintiff. There, the Court responded “in the negative” to the following certified
question:
DOES A TRIAL COURT HAVE JURISDICTION AND
AUTHORITY UNDER RULE 1.540(B), FLA. R. CIV. P., OR
UNDER ITS INHERENT AUTHORITY TO GRANT RELIEF
FROM A VOLUNTARY DISMISSAL WHERE THE MOTION
ALLEGES A FRAUD ON THE COURT IN THE PROCEEDINGS
BUT NO AFFIRMATIVE RELIEF ON BEHALF OF THE
PLAINTIFF HAS BEEN OBTAINED FROM THE COURT?
Id. at 25, 26.
In determining that no jurisdiction exists under these circumstances, the
Florida Supreme Court confirmed that a rule 1.420(a)(1) voluntary dismissal is
jurisdictional and serves to terminate the litigation, instantaneously divesting the
lower court of jurisdiction to entertain further motions or to enter further orders
that would otherwise either dispose of the case on the merits or revive the original
action. Id. at 32.
As the Court in Pino recognized, a voluntary dismissal irrevocably
terminates an action and because no judgment exists, rule 1.540 generally does not
apply:
The problem with the defendant’s attempt to use rule 1.540(b)
to have this case reinstated is found in the actual language of rule
1.540(b). While rule 1.540(b) may be used to afford relief to all
litigants who can demonstrate the existence of one of the five grounds
enumerated therein, including fraud, the rule is nevertheless limited in
its application to ‘reliev[ing] a party or a party’s legal representative
from a final judgment, decree, order, or proceeding.’ Fla. R. Civ. P.
1.540(b) (emphasis added).
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Pino, 121 So. 3d at 35.
While a litigant may secure relief from a voluntary dismissal under rule
1.540(b) where the litigant has been subjected to some adverse impact from which
the litigant needs to be relieved, no such adverse impact has been alleged or
demonstrated to exist here. See Id. (stating “[w]e agree . . . that in the context of a
litigant seeking relief from a plaintiff’s voluntary dismissal, he or she may obtain
such ‘relief’ only where the voluntary dismissal being challenged under rule
1.540(b) subjects the litigant to some adverse impact from which he or she must be
relieved.”).
In Pino, the defendant in a mortgage foreclosure action sought to set aside a
voluntary dismissal and for entry of a dismissal with prejudice claiming fraud on
the court. There, as here, the defendant alleged that the bank had engaged in
fraudulent conduct in an attempt to foreclose a mortgage. But because the bank
had secured no affirmative relief detrimental to the defendant, the Supreme Court
concluded that rule 1.540(b) provided no authority on which the trial court could
rely to either strike or disregard the notice of voluntary dismissal filed by the bank:
In sum, to obtain the benefit of rule 1.540(b) on the basis of a
plaintiff’s voluntary dismissal, a defendant must suffer adverse impact
as a result of the plaintiff’s receipt of affirmative relief from which the
defendant should be alleviated. This requirement is found in the
language of the rule itself, which is limited in application to
“reliev[ing] a party or a party’s legal representative from a final
judgment, decree, order, or proceeding.” Fla.R.Civ.P. 1.540(b)
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(emphasis added). In other words, the voluntary dismissal being
challenged under rule 1.540(b) must subject the litigant to some
adverse impact from which he or she needs relief. Applied in the
context of a voluntary dismissal taken after fraudulent conduct by a
plaintiff, any affirmative relief the plaintiff obtained against the
defendant as a result of fraudulent conduct would clearly have an
adverse impact on the defendant, thereby entitling the defendant to
seek redress under rule 1.540(b)(3). On the other hand, where the
alleged fraud does not lead to the plaintiff obtaining affirmative relief
to the detriment of the defendant, rule 1.540(b)(3) would not be the
proper vehicle for a trial court to reopen an case voluntarily dismissed
by a plaintiff.
Id. at 39.
The Court also concluded that trial courts currently enjoy no inherent
authority to disregard voluntary dismissals. Rejecting the reasoning of a line of
“older equity cases decided by the Court during the first half of the twentieth
century,” the Court held that “[u]nder a plain reading of rule 1.420(a)(1), the trial
court now has no authority or discretion to deny a plaintiff’s service of a notice of
voluntary dismissal, as the dismissal is effective upon service.” Id. at 40 (citing
Fla. R. Civ. P. 1.420(a)(1)).2
2 The Court also rejected the notion that Florida Rule of Civil Procedure 1.110(b)
requiring verification of foreclosure complaints, provides a trial court with the
authority to reopen a case that has been voluntarily dismissed:
While the intended purpose of the rule amendment was to give trial
courts more power to sanction plaintiffs who make false allegations in
mortgage foreclosure filings, it did not vest trial courts with the
authority to strike a voluntary dismissal, reinstate the dismissed
action, and then dismiss the action with prejudice as a consequent
sanction.
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In summary, here as in Pino, no basis exists to strike, set aside, or otherwise
disregard the voluntary dismissal filed below. Because this action effectively was
terminated upon service of the Bank’s notice of voluntary dismissal, the court
below was without jurisdiction to entertain the motions filed by the Riveras
following the filing of that notice. We therefore quash all orders, oral or written,
entered by the court below following the Bank’s notice of voluntary dismissal but
withhold issuance of this court’s writ confident that the court below will refrain
from further action in this matter.
Id. at 41.
The Court did, however, conclude that where a defendant has filed a section
57.105 motion before an action is dismissed and the plaintiff has either failed to
withdraw the offending pleading or voluntarily dismissed the action within the 21-
day safe harbor period, the defendant may file, and the trial court will have
continuing jurisdiction to consider, a sanction motion. Id. at 41 (citing §
57.105(4), Fla. Stat. (2009)).
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