DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
ERNEST P. RICCI,
Appellant,
v.
VENTURES TRUST 2013-I-H-R BY MCM CAPITAL
PARTNERS, LLC, its trustee, et al.,
Appellee.
No. 4D18-1111
[June 12, 2019]
Appeal of nonfinal order from the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; Barry J. Stone, Judge; L.T. Case No.
CACE 13-007175.
Ernest P. Ricci, North Kingston, Rhode Island, pro se.
Richard S. McIver and H. Michael Muñiz of Kass Shuler, P.A., Tampa,
for appellee.
CONNER, J.
Ernest P. Ricci, pro se, appeals the trial court’s nonfinal order
overruling his objection to sale, denying his motion to set aside certificate
of sale, and directing the clerk of the court to issue a certificate of title to
Ventures Trust (“Ventures”) in an underlying mortgage foreclosure action.
Ricci argues that the trial court erred in entering the order because prior
to its entry, Ricci filed a notice of removal to federal court and filed a copy
with the state court clerk. He argues that the trial court did not have
jurisdiction until the federal court remanded the case and that the trial
court’s order was therefore void because it was entered prior to the
remand.
Because the case was effectively removed to federal court a few hours
before the order under review was entered, we reverse the order under
review. However, as we explain, our reversal is without prejudice for the
trial court, sua sponte or upon motion, to immediately re-enter the order
after vacating it, with notice to the parties.
Background
Ventures filed its foreclosure complaint, and eventually moved for
summary judgment, which was granted. Ricci appealed and this Court
affirmed per curiam. Ricci v. Ventures Tr. 2013–I–H–R By MCM Capital
Partners, LLC,
253 So. 3d 607 (Fla. 4th DCA 2018). Thereafter, Ricci filed
his first notice of removal to the federal district court, which delayed the
foreclosure sale until the federal district court remanded the case in
October 2017. Ventures maintains that during this time, Ricci filed
numerous bankruptcy petitions, which Ventures argues were used to
further delay the foreclosure sale.
In March 2018, Ricci filed his motion to set aside the sale, and the trial
court held a hearing. In support of the motion, Ricci argued that he was
not given proper notice of the judicial sale. On April 4, 2018, the trial
court entered an order overruling the objection to the sale, finding that at
the time the notice of sale was served, Ricci was represented by counsel,
and that counsel for Ventures had properly served Ricci’s counsel with the
notice. The trial court concluded that an evidentiary hearing was not
required because Ricci was not entitled to personal notice by Ventures. At
7:25 a.m. the same day, and prior to the order overruling the objection to
sale was filed, Ricci filed his second notice of removal to federal court and
filed a copy with the state court clerk.
Five days later, Ricci filed his notice of appeal with this Court. One
week later, the federal district court rendered its second order remanding
the case, concluding that it did not have subject matter jurisdiction.
Appellate Analysis
On appeal, Ricci asserts that the trial court lost jurisdiction once he
filed his notice of removal and filed a copy with the state court clerk, which
was prior to the entry of the order denying his objection to the foreclosure
sale. He contends that the nonfinal order at issue is therefore void.
In response, Ventures maintains that Ricci invited any error, and that
he failed to preserve the jurisdictional argument by not first raising it in
the trial court. Ventures further contends that Ricci’s objection to the sale
failed as a matter of law, and therefore, even if the trial court was
temporarily divested of jurisdiction, the order constituted harmless error.
Ventures’ preservation argument lacks merit because “[a]n order void
for want of jurisdiction in the lower tribunal may be challenged on appeal,
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even where the jurisdictional defect was not raised below.” Musa v. Wells
Fargo Del. Tr. Co.,
181 So. 3d 1275, 1275 (Fla. 1st DCA 2015). Generally,
“a challenge to subject matter jurisdiction is proper only when the court
lacks authority to hear a class of cases, rather than when it simply lacks
authority to grant the relief requested in a particular case.” In re Adoption
of D.P.P.,
158 So. 3d 633, 636-37 (Fla. 5th DCA 2014) (citing Cunningham
v. Standard Guar. Ins. Co.,
630 So. 2d 179, 181 (Fla. 1994); Fla. Power &
Light Co. v. Canal Auth.,
423 So. 2d 421, 425 (Fla. 5th DCA 1982)).
Judgments entered without subject matter jurisdiction are void.
Id. at
637. To the extent that Ricci appears to argue the trial court lacked
subject matter jurisdiction, the matter may be raised for the first time on
appeal.
Removal procedures are governed by the federal statutes. The relevant
statute provides:
Promptly after the filing of such notice of removal of a civil
action the defendant or defendants shall give written notice
thereof to all adverse parties and shall file a copy of the notice
with the clerk of such State court, which shall effect the
removal and the State court shall proceed no further unless
and until the case is remanded.
City of Delray Beach v. Dharma Props., Inc.,
809 So. 2d 35, 36 (Fla. 4th
DCA 2002) (quoting 28 U.S.C. § 1446(d)). Further:
If at any time before final judgment it appears that the district
court lacks subject matter jurisdiction, the case shall be
remanded. An order remanding the case may require
payment of just costs and any actual expenses, including
attorney fees, incurred as a result of the removal. A certified
copy of the order of remand shall be mailed by the clerk to the
clerk of the State court. The State court may thereupon
proceed with such case.
Id. (quoting 28 U.S.C. § 1447(c)).
There are “competing views” and “conflicting cases, even within our
own state” regarding the effect of the federal removal statutes on state
court jurisdiction. Hunnewell v. Palm Beach Cty.,
786 So. 2d 4, 6 (Fla. 4th
DCA 2000). More specifically, there is a split of authority in federal, out-
of-state, and Florida decisions as to whether an order entered by a state
trial court during the removal period is “void” or “voidable.” The majority
position, nationally and within Florida, is that “after removal, the
jurisdiction of the state court absolutely ceases and the state court has a
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duty not to proceed any further in the case. Any subsequent proceedings
in state court on the case are void ab initio.”
Musa, 181 So. 3d at 1277
(quoting Maseda v. Honda Motor Co.,
861 F.2d 1248, 1254-55 (11th Cir.
1988)); see also Garcia v. Deutsche Bank Nat’l Tr. Co.,
259 So. 3d 201, 202
(Fla. 3d DCA 2018); Cole v. Wells Fargo Bank Nat’l Ass’n,
201 So. 3d 749,
750 (Fla. 5th DCA 2016); Gunning v. Brophy,
746 So. 2d 468, 468 (Fla. 2d
DCA 1997).
This Court has also held that the removal statutes make clear that
“state court jurisdiction ceases when a copy of the notice of removal is filed
in the state court. . . . Thereafter, the state court is allowed to resume
jurisdiction on the removed case if, and only if, the federal court grants
permission by entering an order of remand.” Dharma
Props., 809 So. 2d
at 36 (quoting Preston v. Allstate Ins. Co.,
627 So. 2d 1322, 1324 (Fla. 3d
DCA 1993)). However, in Heilman v. Florida Department of Revenue,
727
So. 2d 958 (Fla. 4th DCA 1998), we opined that “not all state actions are
void before a federal court remand,” and we followed the lead of North
Dakota in adopting a “limited exception to the general ‘void’ rule.”
Id. at
960. We said: “The exception provides that in cases involving multiple
filings of removal petitions, a state court retains jurisdiction to act when
the federal court subsequently denies a removal petition which is based
on the same grounds as a previously denied removal petition.”
Id. As the
First District cogently noted in Musa, it appears we adopted the “narrow
exception” as a way to address the abuse of frivolous removals.
Musa, 181
So. 3d at 1282-83.
However, there are two problems concerning the caselaw, both
nationally and within Florida, analyzing the effect of the federal removal
statutes on state court jurisdiction. One problem is that much of the
caselaw speaks in terms of the effect of removal on “subject matter
jurisdiction,” when more properly, the topic is “case jurisdiction.” “Subject
matter jurisdiction” refers to “the [trial] court lack[ing] authority to hear a
class of cases, rather than when it simply lacks authority to grant the relief
requested in a particular case.” In re Adoption of
D.P.P., 158 So. 3d at 636-
37. “Case jurisdiction” refers to “the power of the court over a particular
case that is within its subject matter jurisdiction.” Trerice v. Trerice,
250
So. 3d 695, 698 (Fla. 4th DCA 2018) (quoting MCR Funding v. CMG
Funding Corp.,
771 So. 2d 32, 35 (Fla. 4th DCA 2000)).
The distinction in the type of jurisdiction affected by removal is
important because, significantly, section 1446(d) does not use the word
“jurisdiction” in describing the “effect” of removal. The statute provides:
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Promptly after the filing of such notice of removal of a civil
action the defendant or defendants shall give written notice
thereof to all adverse parties and shall file a copy of the notice
with the clerk of such State court, which shall effect the
removal and the State court shall proceed no further unless
and until the case is remanded.
28 U.S.C. § 1446(d) (emphasis added). Instead of directly stating the state
court has no power to act, the statute simply gives a command that the
state court take no further action. If Congress truly intended that any
action taken by the state court during the removal period is void, it would
have used words to that effect. Instead, as a matter of comity, it appears
that Congress simply intended the removal statute to provide a directive
not to take further action (in other words, affecting the state court’s
authority to act in a particular case, which is case jurisdiction, not subject
matter jurisdiction). Additionally, a lack of subject matter jurisdiction
makes an order void, whereas a lack of case jurisdiction generally renders
an order voidable. 14302 Marina San Pablo Place SPE, LLC v. VCP-San
Pablo, Ltd.,
92 So. 3d 320, 321 (Fla. 1st DCA 2012) (Ray, J., concurring).
The second problem is that some cases describe the “effect” of removal
as causing jurisdiction to “cease” or “terminate,” while other cases speak
of jurisdiction as “suspended.” See
Musa, 181 So. 3d at 1277 (stating
“after removal, the jurisdiction of the state court absolutely ceases”
(quoting
Maseda, 861 F.2d at 1254-55));
Maseda, 861 F.2d at 1256 (“This
case was removed to federal court which terminated the jurisdiction of the
state court.”); cf. Akla Indus., Inc. v. Columbia St. Partners, Inc.,
95 N.E.3d
194, 199 (Ind. Ct. App. 2018) (“An order remanding an action to the
Federal court . . . merely suspends or holds [state] jurisdiction in
abeyance[.]” (first and second alterations in original) (quoting Peoples Tr.
& Sav. Bank v. Humphrey,
451 N.E.2d 1104, 1108 (Ind. Ct. App. 1983)));
Holmes v. AC & S, Inc.,
388 F. Supp. 2d 663, 667 (E.D. Va. 2004)
(discussing that removal to federal court suspends any subsequent state
court proceedings).
The problem with cases speaking in terms of jurisdiction “ceasing” or
“terminating” is that the analysis seems to indicate that jurisdiction solely
resides in one court at a time, suggesting that jurisdiction gets diverted
from one court to another. However, cases using “cease” and “terminate”
language never explain how the removal statute language supports the
notion that once jurisdiction “ceases” or “terminates,” jurisdiction gets
reactivated. On the other hand, the “unless and until” language of section
1446(d) seems more conducive to the notion that state court jurisdiction
is “suspended” by a removal to federal court.
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Ventures’ answer brief contends that there is a seeming intra-district
conflict in our caselaw between Heilman and Hunnewell on the one hand
(adopting the limited exception to the majority rule that state action after
removal and before remand is void), and Remova Pool Fence Co. v. Roth,
647 So. 2d 1022 (Fla. 4th DCA 1994), and Weatherly v. North American
Van Lines,
440 So. 2d 518 (Fla. 4th DCA 1983), on the other hand
(embracing the majority position that there are no exceptions to the rule).
Interestingly, Ventures does not cite Dharma Properties in its answer brief,
which opined that once removal occurs, the state court’s jurisdiction
“ceases,” and “resume[s]” “if, and only if, the federal court grants
permission by entering an order on remand.” Dharma
Props., 809 So. 2d
at 36 (quoting
Preston, 627 So. 2d at 1324). We note that Dharma
Properties did not cite or discuss Heilman or Hunnewell.
Based on our analysis in Dharma Properties, we do not need to resolve
intra-district conflict with our caselaw or certify conflict with any sister
district courts. In Dharma Properties, we made clear that once an order of
remand is entered by the federal court, state court jurisdiction resumes.
We construe the principle of resumption of jurisdiction to be automatic,
once the remand order is entered by the federal court. We view the
situation concerning the effect of removal on state court case jurisdiction
to be comparable to hitting the “pause” button on a recording device. The
creation of the case record in state court is stopped until the “resume”
button is pushed (the entry of the remand order). In our view, it does not
matter whether state case jurisdiction is described as having “ceased,”
“terminated,” or having been “suspended” while removal was in effect.
Once the remand order is entered, the state court can resume its
jurisdiction over the case as if the removal notice had never been filed.
Thus, the proper course of action regarding an order entered after
notice of removal has been filed in the state court proceeding and before
entry of a remand order is that: (1) the trial court and the parties take no
action on the improperly issued state court order until a remand order is
entered; (2) the trial court promptly vacate the order sua sponte or on
motion of a party after the remand order is entered; and (3) the trial court
immediately re-enter the vacated order with notice to the parties after the
remand order is entered. Such course of action assures that the parties
will be in the same position as they would have been if removal had never
occurred.
Thus, we reverse the April 4, 2018 order entered by the trial court
because the trial court did not have case jurisdiction to issue the order,
and remand for further proceedings consistent with this opinion.
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Reversed and remanded.
WARNER and MAY, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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