Bryant v. Wells Fargo Bank, N.A. , 182 So. 3d 927 ( 2016 )

Third District Court of Appeal
State of Florida
Opinion filed January 20, 2016.
Not final until disposition of timely filed motion for rehearing.
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No. 3D14-78
Lower Tribunal No. 08-52928
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Annette Bryant,
Appellant,
vs.
Wells Fargo Bank, N.A., etc.,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Eugene J.
Fierro, Senior Judge, and Beatrice Butchko, Judge.
Annette Bryant, in proper person.
Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, and Diana B.
Matson, Joshua R. Levine, and Eve A. Cann (Fort Lauderdale) for appellee.
Before LAGOA, EMAS, and SCALES, JJ.
ON MOTION TO DISMISS
LAGOA, J.
The appellant, Annette Bryant (Bryant) appeals from several orders in this
foreclosure case. We dismiss the appeal for lack of jurisdiction.
This appeal stems from a foreclosure case filed by the appellee, Wells Fargo
Bank, N.A. (the “Bank”), against Bryant and other defendants in September, 2008.
After a non-jury trial, the trial court entered a Final Judgment of Foreclosure in
favor of the Bank on June 23, 2011. After several delays, the property at issue was
sold to the Bank at a public foreclosure auction on February 9, 2012. On February
27, 2012, the certificate of title was issued in the name of the Bank. On July 30,
2012, the trial court entered an Order for Writ of Possession in favor of the Bank.
After another defendant filed a bankruptcy petition, which was later
dismissed and closed, the Bank filed what was by then its second motion for alias
writ of possession on October 17, 2013. Bryant filed a motion for extension of
time to respond to the Bank’s motion. On November 18, 2013, the trial court
entered an Order for Alias Writ of Possession (“Writ of Possession”), ordering the
clerk to issue an alias writ of possession putting the Bank in exclusive possession
of the property.
On November 22, 2013, Bryant filed her “Verified Motion (1) to Vacate
Order of Writ of Possession1 (2) For Leave of Court to Renew Motion for
Extension of Time to Complete Responses to Plaintiff’s Alias Writ of Possession.”
1A review of the motion to vacate shows that it was brought under Florida Rule of
Civil Procedure 1.540(b) and alleged “fraud on the court.”
2
She also filed, on January 6, 2014, a “Motion to Disregard Forged & Fabricated
Assignment of Mortgage & Request for Judicial Notice.” The trial court
subsequently entered two orders on January 6, 2014 (collectively, the “Orders of
January 6”). In one order, the trial court denied Bryant’s motions for extension of
time and to vacate the order of writ of possession.2 In a second order, the trial
court denied Bryant’s motion to disregard forged and fabricated assignment of
mortgage.
Bryant filed her notice of appeal on January 10, 2014. The notice states that
Bryant seeks review of: (1) the Final Judgment of Foreclosure entered in June,
2011; (2) the November, 2013 Writ of Possession; and (3) “my other motions
heard January 6, 2014.” The Final Judgment, however, was the only order
attached to the notice of appeal. For the reasons addressed below, we dismiss
Bryant’s appeal for lack of jurisdiction.
With regard to the Final Judgment of Foreclosure rendered on June 23,
2011, Bryant’s notice of appeal, filed on January 10, 2014, was clearly insufficient
to invoke this Court’s jurisdiction. See Fla. R. App. P. 9.110(b) (requiring notice
of appeal to be filed within thirty days of rendition of the order to be reviewed);
Peltz v. Dist. Court of Appeal, Third Dist., 605 So. 2d 865 (Fla. 1992) (stating that
an untimely filing of a notice of appeal precludes the appellate court from
2 That order also denied a “motion to compel plaintiff to produce” as untimely
filed.
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exercising jurisdiction); see also Mekertin v. Winn Dixie Stores, Inc., 869 So. 2d
1286, 1288 (Fla. 4th DCA 2004) (“The time for taking an appeal is a jurisdictional
requirement established by Florida Rule of Appellate Procedure 9.110(b). Where
the notice of appeal is not filed within thirty days of rendition, the appellate court
is precluded from exercising jurisdiction over the appeal.” (quoting Am. Auto.
Ass’n v. C.D.S. Towing & Recovery, Inc., 805 So. 2d 1064, 1065 (Fla. 3d DCA
2002))); Chandler v. BAC Home Loans Servicing, 101 So. 3d 948 (Fla. 1st DCA
2012).
Similarly, Bryant failed to timely invoke this Court’s jurisdiction to review
the Writ of Possession. That order may be properly viewed as an appealable, non-
final order determining “the right to immediate possession of property.” See Fla.
R. App. P. 9.130(a)(3)(C)(ii); Speedway SuperAmerica, LLC v. Tropic Enters.,
Inc., 966 So. 2d 1 (Fla. 2d DCA 2007) (stating that order directing the issuance of
writ of possession is subject to interlocutory review as an order that determines
“the right to immediate possession of property” under Rule 9.130(a)(3)(C)(ii)); cf.
First Hanover v. Vazquez, 848 So. 2d 1188 (Fla. 3d DCA 2003) (finding that order
denying writ of possession within context of landlord-tenant statute appealable as
non-final order under Rule 9.130(a)(3)(C)(ii)). As with review of a final order, in
order to invoke this Court’s jurisdiction to review a non-final order, an appellant
must file a notice within thirty days of rendition of the order to be reviewed. Fla.
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R. App. P. 9.130(b). Here, the Writ of Possession was rendered on November 18,
2013, and the notice of appeal was filed on January 10, 2014. Bryant’s failure to
file a notice of appeal within thirty days of rendition precludes this Court from
exercising jurisdiction over the appeal. See Longleaf C & D Disposal Facility, Inc.
v. Green’s Fill Dirt, Inc., 98 So. 3d 1250 (Fla. 1st DCA 2012); Stok v. Cabrera,
774 So. 2d 824 (Fla. 3d DCA 2000); see also Chandler, 101 So. 3d at 949(“Florida courts are required to dismiss an appellate proceeding if it was not
initiated within the applicable time limit.”).
Finally, we also dismiss Bryant’s appeal of the Orders of January 6, as taken
from non-appealable, non-final orders. The Orders of January 6 contain several
rulings by the trial court. Turning first to the denial of Bryant’s motion to vacate
the order of writ of possession, we note that a motion to vacate pursuant to Rule
1.540(b) cannot be directed toward non-final orders such as the writ of possession,
an order here. See Hollifield v. Renew & Co., 18 So. 3d 616, 617 (Fla. 1st DCA
2009 (“Rule 1.540 authorizes a trial court to grant relief ‘from a final judgment,
decree, order, or proceeding’—not from a non-final order . . . .”). Moreover, even
if the motion to vacate had been the proper procedural vehicle below, we are
without jurisdiction to review the trial court’s denial of that motion because it does
not fall within the purview of appealable, non-final orders set forth in Rule
9.130(a)(3). See Bennett’s Leasing, Inc. v. First St. Mortg. Corp., 870 So. 2d 93,
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98 (Fla. 1st DCA 2003) (“An order entered on a motion to vacate a non-final order,
even where the motion mislabels the non-final order as final, is not reviewable
under Florida Rule of Appellate Procedure 9.130(a)(5).”). Similarly, the remaining
rulings encompassed by the Orders of January 6—denying Bryant’s motion for
extension of time, motion to disregard forged and fabricated assignment of
mortgage, and motion to compel plaintiff to produce—do not fall within any of the
categories of appealable, non-final orders set forth in Rule 9.130(a)(3), and are
therefore subject to dismissal for lack of jurisdiction as well.
For the above reasons, we dismiss the appeal for lack of jurisdiction.
APPEAL DISMISSED.
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