De Matos Rebolledo v. Cambero Cordero , 2017 Fla. App. LEXIS 3786 ( 2017 )

Third District Court of Appeal
State of Florida
Opinion filed March 22, 2017.
Not final until disposition of timely filed motion for rehearing.
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Nos. 3D16-786 & 3D15-2409
Lower Tribunal No. 11-16201
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Jose Fernando De Matos Rebolledo, et al.,
Appellants,
vs.
Mireya Cristina Cambero Cordero,
Appellee.
Appeals from non-final orders from the Circuit Court for Miami-Dade
County, Sarah I. Zabel, Judge.
Brenda B. Shapiro; Mesa & Associates, P.A., and Manuel Arthur Mesa, for
appellants.
Diaz, Reus & Targ, LLP, and Michael Diaz, Jr., Louis Martinez and Paola
Sanchez Torres, for appellee.
Before SUAREZ, C.J., and WELLS and SCALES, JJ.
SCALES, J.
In these consolidated appeals, Appellant Jose Fernando de Matos Rebolledo
(“Husband”) challenges two trial court orders: (i) a September 17, 2015 order
awarding Appellee Mireya Cristina Cambero Cordero (“Wife”) monthly temporary
support payments of $50,000 and a retroactive support payment of $668,037 (the
“Support Order”); and (ii) a March 24, 2016 order finding Husband in contempt
for failing to pay Wife the sums awarded in the Support Order (the “Contempt
Order”). We consolidated Husband’s appeals of the two orders, and quash both
orders because the trial court lacked jurisdiction to enter either order.
I. Relevant Facts and Procedural History
Husband and Wife were married on April 5, 2003. In May of 2011, Wife
filed a divorce petition in the Miami-Dade Circuit Court, and in June of 2011,
Husband filed a counter-petition. The following month, Wife voluntarily dismissed
her divorce petition, leaving only Husband’s counter-petition pending in the circuit
court. In February of 2012, after Wife had filed no responsive pleading to
Husband’s counter-petition, Husband filed a motion seeking a clerk’s default on
his counter-petition. A default was entered against Wife on April 23, 2012.
On August 19, 2014, pursuant to rules 1.500(d) and 1.540(b) of the Florida
Rules of Civil Procedure, Wife filed a motion to set aside the April 23, 2012
default. Appended to her motion as an exhibit was a proposed answer to Husband’s
June 2011 counter-petition as well as a proposed counterclaim to Husband’s
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counter-petition. Wife set her motion to lift the default for hearing on September 5,
2014.
On September 4, 2014, the eve of the scheduled hearing on Wife’s motion to
lift the default, Husband filed a notice of voluntary dismissal, dismissing his June
2011 counter-petition. At the September 5, 2014 hearing on Wife’s motion,
Husband asserted that his September 4, 2014 voluntary dismissal had terminated
the case and, thus, divested the circuit court of any further jurisdiction over the
case.
The circuit court disagreed with Husband’s jurisdictional argument, and on
December 17, 2014, entered an order lifting the April 23, 2012 default. The trial
court’s order gave Wife thirty days to file a response to Husband’s June 2011
counter-petition. Shortly thereafter Wife filed her response to Husband’s June
2011 counter-petition.1
On March 25, 2015, Wife filed a motion seeking temporary support pursuant
to section 61.071 of the Florida Statutes, and in August of 2015, the trial court held
a hearing resulting in the entry of the September 2015 Support Order. Husband
timely appealed the Support Order (case number 3D15-2409). After Husband did
not pay the sums pursuant to the Support Order, the trial court entered the
1 While not relevant to our holding, the record is unclear as to why the trial court
gave Wife thirty days to file a response to Husband’s June 2011 counter-petition,
rather than simply accepting the proposed answer and counterclaim that were
appended as exhibits to Wife’s motion to lift the default.
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Contempt Order in March of 2016, which Husband also timely appealed (case
number 3D16-786).2 We consolidated the appeals.
II. Issue on Appeal and Standard of Review
While both Husband and Third-Party Appellants assert an array of
challenges to the orders on appeal, we need address only the one dispositive issue
raised by the parties: whether the trial court retained jurisdiction over this case
after Husband’s September 4, 2014 voluntary dismissal. Because this issue
involves a pure question of law, we review de novo the trial court’s decision that it
retained jurisdiction. Herbits v. City of Miami, 197 So. 3d 575, 578 (Fla. 3d DCA
2016). We conclude that Husband’s September 4, 2014 voluntary dismissal
divested the trial court of jurisdiction.
III. Analysis
Relying on Gull Construction Co. v. Hendrie, 271 So. 2d 775 (Fla. 2d DCA
1973) and Our Gang, Inc. v. Commvest Securities, Inc., 608 So. 2d 542 (Fla. 4th
DCA 1992), Wife argues, and the trial court concluded, that Wife’s August 2014
motion to have the default lifted is tantamount to a motion seeking leave to file an
amended pleading. Therefore, Wife argues that her motion – like the motions in
2 The Contempt Order made several findings that allegedly affect the interests of
several corporations in which Husband allegedly had some interest. These
corporations – Colonnade 101 SE, Inc., Colonnade 119 SW, Inc., Colonnade 318
SW, Inc., Colonnade 116 SE, Inc., and Colonnade 115 SW, Inc. – have joined
Husband as “Third-Party Appellants” in challenging the Contempt Order.
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Gull Construction Co. and Our Gang, Inc. – stayed the effect of Husband’s
voluntary dismissal. Indeed, Gull Construction Co. and its progeny stand for the
proposition that a party’s pending motion to amend that party’s pleadings to assert
a counterclaim stays the effect of a later filed voluntary dismissal. Our Gang, Inc.,
608 So. 2d at 543; Siler v. Lumbermens Mut. Cas. Co., 420 So. 2d 357, 358 (Fla.
5th DCA 1982); Ryder Sys., Inc. v. O’Connor, 369 So. 2d 980, 981 (Fla. 4th DCA
1979); Gull Constr. Co., 271 So. 2d at 776.
Those cases, however, are inapposite: in none of those cases has the party
filing the motion to amend already been defaulted. In this case, default was entered
against Wife on April 23, 2012. By virtue of this default, Wife was precluded from
filing anything in the trial court except a motion to have the default lifted. Smith v.
Rheaume, 623 So. 2d 625, 626 (Fla. 5th DCA 1993). Any other purported filings
by Wife were a nullity. Paraud v. Suncoast E. No. 2, Inc., 785 So. 2d 688, 689
(Fla. 3d DCA 2001) (Mem). Hence Wife’s procedural posture in this case is
fundamentally different from that of the parties in Gull Construction Co. and Our
Gang, Inc. The movants in those cases had sought leave to amend a filed pleading
when the other party’s dismissal notice was filed. Here, Wife had filed no
pleadings in the case, resulting in the default being entered against her.
The only motion pending when Husband filed his dismissal was Wife’s
motion to lift the default. This motion became moot when Husband filed his
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voluntary dismissal on September 4, 2014. See 84 Lumber Co. v. Cooper, 656 So.
2d 1297, 1299-300 (Fla. 2d DCA 1994). Husband’s voluntary dismissal ended the
case, depriving the trial court of any further jurisdiction over the case. Stone v.
Stone, 691 So. 2d 649 (Fla. 3d DCA 1997) (Mem). Therefore, any and all orders
entered after the trial court was divested of jurisdiction were void. Herbits, 197 So.
3d at 578. While, notwithstanding Husband’s dismissal, the trial court and the
parties proceeded as if the trial court continued to have jurisdiction over the case, it
is well settled that parties cannot confer jurisdiction where none exists. Strommen
v. Strommen, 927 So. 2d 176, 179 (Fla. 2d DCA 2006).
IV. Conclusion
Husband’s September 4, 2014 voluntary dismissal terminated this case and
divested the trial court of jurisdiction to adjudicate any further matters in this case.
We therefore quash the orders on appeal and all other orders entered by the trial
court after jurisdiction was divested.3
Orders on appeal quashed.
3 We express no opinion regarding any other issues raised by the parties.
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