DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
ANGELA L. DAWSON and ANGELA L. DAWSON, P.A.,
Appellants,
v.
ANTONIO HERNANDEZ,
Appellee.
No. 4D18-1588
[ June 24, 2020 ]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Michael L. Gates and Mily Rodriguez-Powell, Judges; L.T.
Case No. CACE 14-024425 (21).
Michael Hursey of Michael Hursey, P.A., Fort Lauderdale, for
appellants.
Kenzie N. Sadlak of Kenzie N. Sadlak, PA, Miami, for appellee.
On Motion for Rehearing
MAY, J.
We grant the appellee’s motion for rehearing, withdraw our previously
issued opinion, and substitute the following in its place.
The borrower appeals a second amended final judgment in a foreclosure
action. The underlying issue is whether the trial court could twice amend
the final foreclosure judgment to include appellate and post-judgment
attorney’s fees and costs after the borrower redeemed the property. 1 The
answer is “yes.” However, the process by which the amended judgments
were entered here causes us to reverse.
The lender filed an action to foreclose a mortgage on commercial
property and a lis pendens. It then moved for summary judgment, which
1There are two appellants. The P.A. is the borrower; the individual personally
guaranteed the loan. We refer to them as the borrower for ease of reference.
the trial court granted. The court entered a final judgment.
The borrower appealed. We dismissed the appeal as untimely, but
conditionally granted attorney’s fees to the lender. After the dismissal, but
before the sale date, the borrower paid the total amount reflected in the
original final judgment to the Clerk of Court, which included attorney’s
fees and costs to date. The clerk then issued a satisfaction of judgment.
It did not issue a certificate of redemption.
Later that same day, the lender moved for post-judgment and appellate
attorney’s fees. He also moved to vacate the satisfaction of judgment,
disburse the court funds, and amend the original final judgment to
increase the redemption amount to include the appellate attorney’s fees,
pursuant to Florida Rule of Civil Procedure 1.525. The lender argued the
satisfaction was issued in error, pursuant to section 55.141, Florida
Statutes.
The trial court granted the lender’s motions, vacated the satisfaction of
judgment, and disbursed the court registry funds. The court then entered
an amended final judgment, which included the amount of the original
judgment and the subsequently awarded appellate attorney’s fees, giving
the borrower credit for the amount paid to the Clerk of Court.
Among other motions, the borrower moved for reconsideration and/or
rehearing of the amended final judgment and an order vacating the
satisfaction of judgment. The trial court denied the borrower’s motions on
July 7, 2016. Instead of filing a notice of appeal, the borrower then moved
to set aside the order denying her motions for reconsideration and/or
rehearing. The trial court denied that motion on April 11, 2017. In the
interim, the borrower filed several motions and requests for hearing,
including a motion to cancel the foreclosure sale because the judge
presiding over the case resigned. 2 The court canceled the foreclosure sale.
The lender petitioned this Court for a writ of certiorari and prohibition,
seeking to quash the trial court’s order canceling the sale and prohibit the
trial court from considering the borrower’s motion to set aside. We denied
the petition without prejudice to the lender’s ability to seek an increase of
the redemption amount, based on the “properly entered amended final
2 To provide some context, the original judge resigned. The newly assigned judge
recused herself, leaving the case in the hands of a third trial court judge, who
ultimately recused herself as well. The borrower represented herself during much
of the proceedings. She was represented by counsel for part of the proceedings,
but he eventually moved to withdraw.
2
judgment,” citing Verneret v. Foreclosure Advisors, LLC,
45 So. 3d 889 (Fla.
3d DCA 2010), and Parsons v. Whitaker Plumbing of Boca Raton, Inc.,
751
So. 2d 655 (Fla. 4th DCA 1999). The trial court denied the borrower’s
motion to set aside the order and amended final judgment.
The lender then moved for additional post-judgment attorney’s fees and
costs. It argued that it incurred attorney’s fees and costs because of the
borrower’s multiple post-judgment motions and hearings. The lender
argued it was entitled to a second amended final judgment with an
increased redemption amount that included the additional attorney’s fees,
plus interest, pursuant to our order dismissing the lender’s petition.
The trial court entered a second amended final judgment and again
increased the redemption amount to include the lender’s additional
attorney’s fees, interest, and costs, giving credit for the amount paid by
the borrower to the Clerk of Court. It did so without a hearing on the
amount of attorney’s fees.
The borrower filed a renewed motion for reconsideration and/or
rehearing of the amended final judgment, the order vacating the
satisfaction of judgment, and the second amended final judgment. The
trial court denied the renewed motion. The borrower now appeals.
Jurisdiction
The lender argues we lack subject matter jurisdiction to review the
borrower’s challenges to the first amended final judgment because the
appeal was untimely. We agree.
“An order is rendered when a signed, written order is filed with the clerk
of the lower tribunal.” Fla. R. App. P. 9.020(h). However, a timely and
authorized motion for rehearing tolls rendition of a final order “until the
filing with the clerk of a signed, written order disposing of the last of such
motions.” Fla. R. App. P. 9.020(h)(1)(B), (h)(2)(A). An order is final and
ripe for appeal when it completes the judicial labor of the lower tribunal.
Caufield v. Cantele,
837 So. 2d 371, 375 (Fla. 2002).
Here, the amended final judgment materially changed the original final
judgment by changing the redemption amount. The borrower moved for
rehearing, which was denied in July 2016. The borrower did not appeal
from that order, but filed yet another motion to set the order aside. In
doing so, the borrower missed the opportunity for us to review the
amended final judgment. Remington v. Remington,
705 So. 2d 920, 922
(Fla. 4th DCA 1997) (“Only a motion for rehearing authorized by the Rules
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of Civil Procedure will suspend rendition of an order under the appellate
rules.”).
The second amended final judgment once again changed the
redemption amount. The borrower’s motions for reconsideration and
rehearing were authorized under the Florida Rules of Civil Procedure. The
appeal from that order is timely. We have jurisdiction. 3 See Caldwell v.
Wal-Mart Stores, Inc.,
980 So. 2d 1226, 1229 (Fla. 1st DCA 2008) (“[A] party
may appeal an amended judgment that makes a material change in the
original judgment, [although] the appeal is limited to the amended portions
of the judgment and does not call up for review errors in the original.”).
On the Merits
The borrower argues the trial court erred when it vacated the
satisfaction of judgment. The borrower contends that because it complied
with the statutory requirements for redemption, Sedra Family Ltd.
Partnership v. 4750, LLC,
124 So. 3d 935 (Fla. 4th DCA 2012), is
controlling.
The lender responds that: 1) Florida law provides for attorney’s fees to
be included in a judgment for purposes of redemption; 2) the satisfaction
of judgment was erroneous because it was entered pursuant to the wrong
Florida Statute—section 55.141 instead of section 45.0315; 3) the trial
court had discretion to enter amended final judgments for additional
attorney’s fees; and 4) the borrower’s argument is moot because we
previously deemed the amended final judgment “to be proper.”
We review a trial court’s amendment of a final judgment for an abuse
of discretion. See Baker v. Courts at Bayshore I Condo. Ass’n,
279 So. 3d
799, 801 (Fla. 3d DCA 2019).
• Redemption
“The right of redemption is the mortgagor’s valued and
protected equitable right to reclaim [his or] her estate in
foreclosed property.” Sudhoff v. Fed. Nat’l Mortg. Ass’n.,
942 So. 2d 425, 428 (Fla. 5th DCA 2006) (citations
3 The borrower argues the trial court erred in granting the lender’s original motion
for summary judgment without a hearing. We are without jurisdiction to review
issues related to the original final judgment because that appeal was dismissed
as untimely. See Denny v. Denny,
334 So. 2d 300, 302 (Fla. 1st DCA 1976).
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omitted). It is considered “an innate feature of every
mortgage.” VOSR Indus., Inc. v. Martin Props., Inc.,
919 So.
2d 554, 556 (Fla. 4th DCA 2005). The right “belongs to the
mortgagor and those claiming under or through him [or
her].” Indian River Farms v. YBF Partners,
777 So. 2d 1096,
1099 (Fla. 4th DCA 2001) (quoting John Stepp, Inc. v. First
Fed. Sav. & Loan Ass’n of Miami,
379 So. 2d 384, 385 (Fla.
4th DCA 1980)).
....
The right of redemption does not require court approval
prior to exercising it, and the right continues until it has
been waived or extinguished. See Indian River Farms,
777
So. 2d at 1099; Metroplex Invs., Inc. v. Precision Equity
Invs., Inc.,
647 So. 2d 304, 305 (Fla. 5th DCA 1994); Kane,
582 So. 2d at 162. “In order to exercise the right of
redemption, the mortgagor or its assignee should pay the
amount due by tendering it to the mortgagee or to the clerk
of court.” Indian River Farms,
777 So. 2d at 1099; see also
Kane, 582 So. 2d at 161.
Popescu v. Laguna Master Ass’n., Inc.,
184 So. 3d 1196, 1199–200 (Fla.
4th DCA 2016).
Here, the borrower redeemed the property under Florida law. Section
45.0315 (2015), Florida Statutes, provides:
Right of redemption. At any time before the later of the filing
of a certificate of sale by the clerk of the court or the time
specified in the judgment, order, or decree of foreclosure, the
mortgagor or the holder of any subordinate interest may cure
the mortgagor’s indebtedness and prevent a foreclosure sale
by paying the amount of moneys specified in the judgment,
order, or decree of foreclosure, or if no judgment, order, or
decree of foreclosure has been rendered, by tendering the
performance due under the security agreement, including any
amounts due because of the exercise of a right to accelerate,
plus the reasonable expenses of proceeding to foreclosure
incurred to the time of tender, including reasonable attorney’s
fees of the creditor. Otherwise, there is no right of redemption.
The original foreclosure judgment included attorney’s fees and costs to
date. The borrower tendered the full amount of the original judgment,
including some attorney’s fees, costs, and post-judgment interest, and did
so before the lender asked for additional attorney’s fees. Neither the
5
statute, nor our precedent requires attorney’s fees be paid to redeem the
property. See Sedra Family Ltd. P’ship,
124 So. 3d at 936 (holding that
redemption rights are not thwarted by failure to pay attorney’s fees,
because “[r]egardless of any demands . . . for attorney’s fees or other
amounts, appellants could have redeemed by paying the amount of the
final judgment.”).
While the goal of foreclosure is to ensure that the mortgage holder’s lien
is repaid, including attorney’s fees, no case prevents the borrower from
redeeming its property prior to an award of attorney’s fees. 4 The borrower
is however still liable for attorney’s fees and costs awarded subsequent to
the redemption of the property.
Equally true is that the trial court had the authority to amend the final
judgment or enter a new judgment for attorney’s fees and costs after the
borrower redeemed the property. See, e.g., Parsons,
751 So. 2d 655
(borrower’s exercise of redemption rights on the first foreclosure judgment
“did not preclude the court from entering the second judgment.”).
However, the trial court should have conducted an evidentiary hearing
before amending the amended judgment to include additional attorney’s
fees and costs. Geraci v. Kozloski,
377 So. 2d 811, 812 (Fla 4th DCA 1979)
(“[F]ee was assessed . . . based solely upon the affidavit of a lawyer” and
over the borrower’s objection. “In an adversary proceeding such as this
the determination of an attorney’s fee for the mortgagee based upon
affidavits over objection of the mortgagor is improper. Evidence should be
adduced so that the full range of cross examination will be afforded both
parties.”); see also Petrovsky v. HSBC Bank,
185 So. 3d 700, 701 (Fla. 4th
DCA 2016) (“‘Reasonable attorney’s fees’ generally are not liquidated
damages and require a hearing. Absent an evidentiary hearing, the fee
award will be reversed for a hearing unless there is an indication that the
right to a hearing was waived.”).
Here, the trial court increased the redemption amount without a
hearing on the amount of fees. The borrower immediately objected by filing
various post judgment motions to reconsider, rehear, set aside, and vacate
the judgments. Because the trial court failed to hold an evidentiary
4 The lender also argues the borrower is barred from challenging the amended
and second amended final judgment based on the law of the case doctrine. But,
that doctrine does not apply to arguments that were not at issue in the prior
proceeding. See McKenzie Check Advance of Fla., LLC v. Betts,
191 So. 3d 530,
534 (Fla. 4th DCA 2016).
6
hearing on the amount of fees and costs before it increased the redemption
amount in the second amended final judgment, we reverse and remand
the case for an evidentiary hearing.
• Satisfaction of Judgment
The last issue we address is the satisfaction of judgment. The borrower
argues the trial court erred in vacating the satisfaction of judgment. The
lender responds the trial court correctly vacated the satisfaction of
judgment because the clerk erred in issuing the satisfaction under section
55.141, Florida Statutes, instead of issuing a certificate of redemption
under section 45.0315. On this issue, we agree with the lender.
Section 55.141, which allows for satisfaction of final judgments for the
payment of money “by payment of the full amount of [the] judgment . . .
plus interest and costs,” is inapplicable to “foreclosure judgments.” Mortg.
Elec. Registration Sys. v. Mahler,
928 So. 2d 470, 472 (Fla. 4th DCA 2006)
(quoting § 55.141, Fla. Stat.). The more specific statute governing the
cancellation of mortgages, liens, and judgments controls. Id. The court
did not err in setting aside the satisfaction.
We reverse the second amended final judgment. We remand the case
to the trial court for an evidentiary hearing to determine the amount of
attorney’s fees and costs in either an amended, new, or supplemental
judgment.
Reversed in part and remanded for proceedings consistent with this
opinion.
LEVINE, C.J., and GERBER, J., concur.
* * *
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