TAYLOR HODGKINS HIDALGO v. IRENE BINDER AND STUART BINDER ( 2023 )


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  •       Third District Court of Appeal
    State of Florida
    Opinion filed January 11, 2023.
    Not final until disposition of timely filed motion for rehearing.
    ________________
    No. 3D22-217
    Lower Tribunal No. 19-21746
    ________________
    Taylor Hodgkins Hidalgo,
    Appellant,
    vs.
    Irene Binder and Stuart Binder,
    Appellees.
    An Appeal from a non-final order from the Circuit Court for Miami-
    Dade County, Gina Beovides, Judge.
    Alexander Rodriguez & Associates, P.A., and Alexander Rodriguez,
    for appellant.
    Wasson & Associates, Chartered, and Annabel C. Majewski; and Lee
    H. Schillinger, P.A., and Lee H. Schillinger (Weston), for appellees.
    Before FERNANDEZ, C.J., and HENDON and LOBREE, JJ.
    HENDON, J.
    Taylor Hodgkins Hidalgo (“appellant”), one of the defendants below,1
    appeals from a non-final order granting Irene and Stuart Binders’ (the
    “Binders”), plaintiffs below, motion for relief from judgment pursuant to
    Florida Rule of Civil Procedure 1.540(b). We reverse.
    Facts
    This case arises out of a mortgage foreclosure proceeding. Upon
    hearing both parties’ motions for summary judgment, the trial court orally
    denied the Binders’ motion for summary judgment, and granted the
    defendants’ motion for summary judgment, reserving jurisdiction to
    determine entitlement to and amount of attorney’s fees and costs. The trial
    court instructed the defendants’ counsel to prepare a proposed order and
    send it to the Binders’ counsel for review before submitting it to the trial
    court. The Binders’ counsel indicated he had no objection to the entry of
    defendants’ proposed order. On March 1, 2021, the trial court entered the
    seven-page final summary judgment order as proposed by the defendants.
    In its order, the trial court recited the facts of the case, the legal standard,
    analyzed the issues, concluded that the mortgage was unenforceable,
    1
    Appellant Taylor Hodgkins Hidalgo is one of John Michael Hodgkins’
    (“J.M.”) two daughters. Other defendants below include John Doe as
    Personal Representative of the Estate of John Michael Hodgkins, Heather
    Hodgkins (J.M.’s daughter), and Chadd Hodgkins (J.M.’s son) (collectively,
    “defendants”).
    2
    dissolved the lis pendens, and reserved jurisdiction to deal with any further
    issues regarding the title, note and mortgage, as well as entitlement to fees
    and costs to be awarded to the defendants. The summary judgment order
    was electronically served on the offices of both parties’ counsels that same
    day.
    On March 12, 2021, the Binders’ counsel passed away. Two months
    later, in May 2021, the Binders’ new counsel filed a motion for relief from
    judgment pursuant to Florida Rule of Civil Procedure 1.540(b). In that
    motion, the Binders asserted that they were entitled to vacate the summary
    judgment order and re-instate the same order thereby providing them with
    a new 15-day period for filing a motion for rehearing and a new 30-day
    period for filing a notice of appeal as a result of former counsel’s death prior
    to the deadline for filing those motions. To establish the inadvertence or
    excusable neglect required by rule 1.540, the Binders alleged that they did
    not hear from their counsel’s office until weeks after his death, and did not
    learn of the trial court’s ruling until they retrieved their file from counsel’s
    office sometime in April 2021. The Binders argued that there were factual
    and legal issues precluding summary judgment, specifically equitable
    subrogation, that could have and should have been raised in a motion for
    rehearing or on appeal.
    3
    In response, the defendants contended that summary judgment had
    not been entered as a result of mistake, inadvertence, surprise, or
    excusable neglect because the Binders’ counsel had presented his clients’
    substantive arguments at the summary judgment hearing, he had approved
    the proposed order, received the summary judgment order on March 1,
    2021, and did not pass away until twelve days later. Thus there was no
    mistake, inadvertence, or excusable neglect prior to the rendition of the
    order, or as a result of appellees’ counsels’ death, that necessitated relief.
    The trial court held a hearing on the Binders’ rule 1.540(b) motion for
    relief from judgment. The Binders argued that the March 1, 2021 summary
    judgment order should be vacated and re-instated 1) to afford them a new
    rehearing period to raise the issue of equitable subrogation; and 2) to re-
    enter the order of summary judgment so as to permit them to file a timely
    appeal because they did not personally receive timely notice, were not
    personally served with a copy of the order of summary judgment, and
    allegedly did not receive it until after the time to file an appeal had lapsed.
    For the first time, the Binders argued that the summary judgment
    order merely established entitlement to a judgment and did not actually
    enter “final” judgment. They contended that as there is no language of
    finality, there was no “final” summary judgment order on the docket or any
    4
    subsequent order issued containing words of finality. The Binders did not
    raise the issue of finality in their 1.540(b) motion and responses leading up
    to the hearing. The trial court questioned the Binders’ counsel why they
    should be entitled to a new opportunity to move for rehearing in order to
    raise the issue of equitable subrogation, an issue that was not raised in the
    original summary judgment motion and hearing, especially if the issue was
    known for the entire litigation. The Binders’ counsel responded that the
    issue of equitable subrogation could be raised at any time, even as late as
    appeal, citing to Dade County School Board v. Radio Station WQBA, 
    731 So. 2d 638
    , 645–46 (Fla. 1999). 2
    The trial court ultimately granted the Binders’ motion, holding:
    2
    We note that, in that case, the Florida Supreme Court reversed, rather
    than upheld, the Third District Court's tipsy coachman affirmance. 
    Id.
     at
    645–46. The Third District's tipsy coachman affirmance had been based on
    matters argued before the trial court following a jury trial. 
    Id. at 644
    . An
    appellate court is “‘not at liberty to address issues that were not raised by
    the parties.’” Rosier v. State, 
    276 So. 3d 403
    , 406 (Fla. 1st DCA 2019) (en
    banc) (quoting Anheuser-Busch Co., Inc. v. Staples, 
    125 So. 3d 309
    , 312
    (Fla. 1st DCA 2013)). “Nor may an appellate court ‘depart from its
    dispassionate role and become an advocate by second guessing counsel
    and advancing for him [or her] theories and defenses which counsel either
    intentionally or unintentionally has chosen not to mention.’” Rosier, 276 So.
    3d at 406 (quoting Polyglycoat Corp. v. Hirsch Distribs., Inc., 
    442 So. 2d 958
    , 960 (Fla. 4th DCA 1983) (on motion for rehearing)).
    5
    ORDERED AND ADJUDGED: Plaintiffs’ Motion from Relief
    from Judgment is GRANTED for the reasons stated below. The
    Order granting Summary Final Judgment for the Defendants
    and denying Plaintiffs’ motion for summary judgment appears to
    lack the general words of finality, to render it a final order.
    Alternatively, even if such order is a final order, the Plaintiff has
    demonstrated both excusable neglect and due diligence in
    moving to set aside the order. Specifically, this court finds that
    that illness or death can constitute excusable neglect. Church v
    Strickland, 
    382 So. 2d 419
     (Fla. 5th DCA 1980). The Clerk is
    directed to remove docket entry reference to a summary final
    judgment, numbered 41, from the Court's docket for this case.
    Defendant Taylor Hodgkins Hidalgo appeals.
    We review an order ruling on a motion for relief from judgment filed
    under Florida Rule of Civil Procedure 1.540(b) under an abuse of discretion
    standard. Foche Mortg., LLC v. CitiMortgage, Inc., 
    163 So. 3d 525
    , 526
    (Fla. 3d DCA 2015). “An appellate court will not disturb an order of the trial
    court in the exercise of its judicial discretion unless an abuse of that
    discretion is clearly shown.” Feldman v. Feldman, 
    324 So. 2d 117
    , 118
    (Fla. 3d DCA 1975); Tikhomirov v. Bank of New York Mellon, 
    223 So. 3d 1112
    , 1116 (Fla. 3d DCA 2017) (holding a trial court is accorded broad
    discretion in determining rule 1.540(b) motions).
    Discussion
    The parties argue that this Court should determine the finality of the
    underlying summary judgment order. Although the determination of the
    finality of an order is a pure question of law and is subject to de novo
    6
    review,3 this Court is not tasked in this appeal with evaluating the
    underlying summary judgment order. The only order on appeal is the order
    granting the Binders’ 1.540(b) motion, which warrants application of a very
    different, abuse of discretion, standard of review.
    The order granting the 1.540(b) motion is a non-final order.           The
    order is appealable under Florida Rule of Appellate Procedure 9.130(a)(5),
    which expressly governs procedures applicable to “[o]rders entered on an
    authorized[4] and timely motion for relief from judgment.” The rule is thus
    3
    ProntoCash, LLC v. Autoboutique of Miami, Inc., 
    336 So. 3d 1212
    , 1215
    (Fla. 3d DCA 2021) (holding the determination of the finality of an order is a
    pure question of law and is subject to de novo review) (citing M.M. v. Fla.
    Dep't of Child. & Fams., 
    189 So. 3d 134
    , 137 (Fla. 2016)).
    4
    In New Day Miami, LLC v. Beach Devs., LLC, 
    225 So. 3d 372
    , 375 (Fla.
    3d DCA 2017), this Court stated:
    We are mindful that the committee notes purporting to explain
    our Supreme Court's 2008 amendment to rule 9.130(a)(5)
    characterize rehearing motions directed toward rule 1.540
    motions as unauthorized. Those notes read, in relevant part, as
    follows: “Subdivision (a)(5) has been amended to recognize the
    unique nature of the orders listed in this subdivision and to
    codify the holdings of all of Florida's district courts of appeal on
    this subject. The amendment also clarifies that motions for
    rehearing directed to these particular types of orders are
    unauthorized and will not toll the time for filing a notice of
    appeal.” Fla. R. App. P. 9.130(a)(5) committee notes (2008).
    Committee notes, however, are not binding authority. K.D. v.
    State, 
    470 So. 2d 1387
    , 1389 (Fla. 1985).
    7
    applicable to all orders granting or denying a party's rule 1.540 motion,
    irrespective of whether the order is “final” or “non-final.” New Day Miami,
    LLC v. Beach Devs., LLC, 
    225 So. 3d 372
    , 375 (Fla. 3d DCA 2017). “An
    order on a party's rule 1.540 motion seeking relief from judgment may be
    final or non-final. Such an order granting a party's rule 1.540 motion
    seeking relief from a judgment may be “non-final” if it vacates a judgment,
    i.e., the adjudication of the parties' dispute continues.” 
    Id.
     at 375 n.6. Thus,
    because the order on appeal vacated the final summary judgment, the
    parties’ dispute continues and the nature of the order is non-final.
    On the merits, the order on appeal is equivocal. On the one hand,
    the trial court concluded that the summary judgment order “appeared” to
    lack general words of finality, determined that it was a non-final order, and
    the trial court subsequently removed reference to a “final” summary
    judgment from the case docket. Alternatively, the trial court suggested that
    “if” the summary judgment was a final order, the Binders had demonstrated
    excusable neglect. Neither of these conclusions are supported in the record
    or in the law.
    We reverse the order on appeal for two reasons. First, by granting
    the Binders’ rule 1.540 motion and characterizing the underlying summary
    judgment order as non-final, the trial court erroneously allowed them a new
    8
    post-judgment rehearing period to assert a substantive issue – equitable
    subrogation – that they failed to raise prior to and during the original
    summary judgment hearing. See, e.g. Boyd v. Int'l Fid. Ins. Co., 
    412 So. 2d 944
    , 945 (Fla. 3d DCA 1982) (holding a party may not defeat an entered
    summary judgment by altering previously filed pleadings, especially when
    the matters it seeks to present by amendment were available prior to the
    entry of summary judgment) (citation omitted).         The issue of equitable
    subrogation was not raised in the Binders’ complaint for foreclosure,
    subsequent pleadings, or in their motion for final summary judgment. The
    record indicates that they first raised the issue of equitable subrogation in
    their post-judgment motion for relief from judgment.
    Second, the trial court misapplied the excusable neglect analysis by
    misinterpreting the facts when it, alternatively, concluded that even if the
    summary judgment order is a “final” order, the Binders had demonstrated
    excusable neglect as a result of counsel’s death. We disagree.
    The Binders rely on City of Ocala v. Heath, 
    518 So. 2d 325
    , 325 (Fla.
    5th DCA 1987), to argue that that they should be excused as a result of
    counsel’s post-judgment death. Although it is true that the illness and death
    of counsel meets the definition of excusable neglect as a ground for
    vacating or setting aside a judgment, decree, or order pursuant to Florida
    9
    Rule of Civil Procedure 1.540(b)(1)), City of Ocala and its progeny have to
    do with counsel’s pre-judgment physical or mental impairment that led to an
    error that may warrant relief. The record, however, does not indicate that
    the Binders’ counsel was in any way impaired during the litigation leading
    up to the summary judgment order.
    Rather, the facts show that counsel passed away after the final
    summary judgment order was rendered, four days before the time for filing
    a motion for rehearing closed, and approximately two weeks before the
    time for filing a notice of appeal. The Binders do not argue that their
    counsel was in any way impaired prior to the rendition of the final summary
    judgment order. The record shows that both counsels’ offices received
    notice of the summary judgment order the day it was rendered on April 1,
    2021. The Binders also contend they should have had notice mailed
    directly to them. However, all of the record pleadings in the litigation were
    e-filed with the court and emailed to the parties’ counsels’ offices, not to the
    clients themselves. This argument lacks merit because notice was not
    required to be sent to the client directly, as they were represented by
    counsel. See Fla. R. Civ. P. 1.080.
    The appellant contends that the Binders’ counsel’s office could have
    timely notified them of the summary judgment order and, if counsel could
    10
    not timely file a motion for rehearing or notice of appeal, another attorney
    could have been retained to do so. The trial court made no findings along
    these lines, or that the Binders, who knew about the summary judgment
    hearing, should have kept themselves apprised of the status of their
    litigation.
    Finally, the Binders argued at the hearing on their motion for relief
    from judgment that if the trial court found the summary judgment order was
    non-final, it should treat the motion as a rule 1.530 motion for
    reconsideration instead of a rule 1.540 motion for relief from judgment, and
    re-enter the summary judgment order to allow the parties a new rehearing
    period. Rule 1.530(b) has a jurisdictional time window of 15 days from the
    “date of filing of the judgment in a non-jury action.” Such a motion at this
    point would be untimely, and in any event, the trial court had lost
    jurisdiction to consider a rule 1.530 motion at the time of the hearing.
    The order on relief from judgment fails to adequately explain the
    factual and legal basis for granting relief, and errs in its application of rule
    1.540. For the reasons set forth above, we reverse the order granting the
    Binders’ 1.540 motion for relief from judgment and remand for further
    consistent proceedings.
    Reversed and remanded.
    11