DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
ANGELA L. DAWSON and ANGELA L. DAWSON, P.A.,
Appellant,
v.
ANTONIO HERNANDEZ,
Appellee.
No. 4D18-1588
[March 11, 2020]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Michael L. Gates, Judge; L.T. Case No. CACE 14-024425
(21).
Michael Hursey, Fort Lauderdale, for appellant.
Kenzie N. Sadlak of Kenzie N. Sadlak, PA, Miami, for appellee.
MAY, J.
We are called upon to enforce the rules of civil procedure and to give
meaning to the word “redemption.” The borrower appeals a second
amended final judgment in a foreclosure action. The threshold issue is
whether the trial court could twice amend the final foreclosure judgment
to increase the redemption amount to include appellate and post-
judgment attorney’s fees and costs after the borrower redeemed the
property. 1 The answer is “no.” We reverse.
The lender filed an action to foreclose a mortgage on commercial
property. It then moved for summary judgment, which 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
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.
final judgment to the Clerk of Court. The clerk then issued a satisfaction
of judgment.
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 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.
Among other motions, the borrower moved for reconsideration and/or
rehearing of the amended final judgment and order vacating the
satisfaction of judgment. The trial court denied the borrower’s motions.
The borrower then moved to set aside the court’s order denying its motion
for reconsideration/rehearing and the amended final judgment.
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. The court canceled the foreclosure
sale.
The lender petitioned for a writ of certiorari and prohibition seeking to
quash the trial court’s order canceling the sale and to 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
judgment,” citing Verneret v. Foreclosure Advisors, LLC,
45 So. 3d 889, 892
(Fla. 3d DCA 2010), and Parsons v. Whitaker Plumbing of Boca Raton, Inc.,
751 So. 2d 655, 657 (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 post-judgment attorney’s fees and costs. It
argued that it incurred additional attorney’s fees and costs because of the
borrower’s multiple post-judgment motions and hearings. The lender
argued that it was entitled to seek 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
2
attorney’s fees, interest, and costs. It did so without a hearing.
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
court denied the renewed motion. The borrower now appeals.
Jurisdiction
The lender argues we lack subject matter jurisdiction to review the
order because the appeal is untimely. We disagree.
“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 increasing the redemption amount. The second amended
final judgment once again increased the redemption amount. The
borrower’s motions for reconsideration and rehearing were authorized
under the Florida Rules of Civil Procedure. The appeal is timely. We have
jurisdiction. 2 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. P’ship
v. 4750, LLC,
124 So. 3d 935 (Fla. 4th DCA 2012), is controlling.
2 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).
3
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 an amended final judgment 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).
• The Rules of Civil Procedure
While a trial court has the authority to enforce its judgment, it does not
have the power “absent an appropriate motion under Florida Rules of Civil
Procedure 1.530 or 1.540 to modify a judgment once it becomes final.”
Vargas v. Deutsche Bank Nat’l Trust Co.,
104 So. 3d 1156 (Fla. 3d DCA
2012). Here, the trial court amended the final judgment without a motion
under Florida Rule of Civil Procedure 1.530 or 1.540. Instead, the lender
moved to amend the final judgment (twice) under Florida Rule of Civil
Procedure 1.525.
Florida Rule of Civil Procedure 1.530(g) provides: “A motion to alter or
amend the judgment shall be served not later than 15 days after entry of
the judgment, except that this rule does not affect the remedies in rule
1.540(b).” Florida Rule of Civil Procedure 1.540 then provides several
bases for amending a judgment: clerical mistakes, inadvertence,
excusable neglect, newly discovered evidence, and fraud. 3 Florida Rule of
Civil Procedure 1.525 however addresses only costs and attorney’s fees. 4
Because the trial court granted the motions and twice amended the
3 The lender also argues that the satisfaction of judgment was properly vacated
because it was satisfied pursuant to the wrong statutory section. Although
Florida Rule of Civil Procedure 1.540 specifically provides for relief from such
error, the lender failed to move to vacate the satisfaction on these grounds.
Without a proper motion, the trial court lacked the authority to vacate the
satisfaction of judgment. The lender is “therefore, entitled to no relief below and
is entitled to no relief here.”
Vargas, 104 So. 3d at 1166.
4“Any party seeking a judgment taxing costs, attorneys’ fees, or both shall serve
a motion no later than 30 days after filing of the judgment, including a judgment
of dismissal, or the service of a notice of voluntary dismissal, which judgment or
notice concludes the action as to that party.” Fla. R. Civ. P. 1.525.
4
final judgment without a motion under Florida Rule of Civil Procedure
1.530 and 1.540, the amended and second amended judgments must be
reversed for lack of jurisdiction. See Frumkes v. Frumkes,
328 So. 2d 34,
35 (Fla. 3d DCA 1976) (reversing award of attorneys’ fees because the trial
court was without jurisdiction to modify the final judgment without
authorization from a rule or statute).
• Redemption
The amended and second amended final judgment were also entered in
error because the borrower exercised the statutory right to redemption
before the lender moved for post-judgment appellate attorney’s fees and
costs and to amend the final judgment. The lender responds that the trial
court correctly amended the final judgment because: 1) section 45.0315,
Florida Statutes, provides for attorneys’ fees to be included in a judgment
subject to redemption; and 2) our order denying the lender’s petition for
writ of certiorari and prohibition indicated the amended final judgment
was properly entered. 5
Here, the borrower properly 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
5 Our order 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 judgment.” Hernandez v. Dawson, Case No. 4D16-3896 (citations omitted).
The order should not be misunderstood to have put our stamp of imprimatur
on the amended final judgment, nor be interpreted to allow what happened here.
The cases relied on by the lender simply do not support its position. 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.”).
5
incurred to the time of tender, including reasonable attorney’s
fees of the creditor. Otherwise, there is no right of redemption.
The lender argues this language provides for the inclusion of reasonable
attorney’s fees “incurred to the time of tender.” § 45.0315, Fla. Stat. The
lender’s interpretation is correct. However, the borrower tendered the
money prior to the award of attorney’s fees. Neither the statute, nor our
precedent requires attorney’s fees to 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.”).
Here, the borrower paid the Clerk of Court the full amount of the
existing final judgment before fees and costs were awarded. As such, the
borrower redeemed its property for the full amount contained in the
original 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. 6 The borrower is still liable for attorney’s fees and costs awarded
subsequently in a separate or supplemental judgment.
Because the trial court erred in twice amending the final judgment after
the borrower redeemed the property, it goes without saying that it also
erred in denying the borrower’s renewed motion for reconsideration and
rehearing. This error was compounded by the court’s failure to hold an
evidentiary hearing on the attorney’s fees issue. United Bonding Ins. Co.
of Indianapolis, Ind. v. Presidential Ins. Co.,
155 So. 2d 635, 637 (Fla. 2d
DCA 1963) (holding that counsel’s testimony alone is insufficient to award
attorney’s fees). Similarly, “[t]o award costs in the absence of a written
motion and evidence and without giving the opposing party the
opportunity to be heard on the issue violates procedural due process.”
Med. Specialists of Tampa Bay, LLC v. Kelly,
162 So. 3d 1053, 1054–55
(Fla. 2d DCA 2015).
Here, the trial court failed to hold an evidentiary hearing on the amount
of fees before it increased the redemption amount in the amended and
6 The lender also argues that 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
second amended final judgment. It also erred in relying solely on the
lender’s affidavit to determine the amount of reasonable fees. United
Bonding Ins. Co. of Indianapolis,
Ind., 155 So. 2d at 637.
We reverse the amended final judgment, the second amended final
judgment, and the order vacating the satisfaction of judgment. We remand
the case to the trial court to reinstate the satisfaction of judgment and
enter supplemental judgment(s) for attorney’s fees and costs.
Reversed and Remanded.
LEVINE, C.J., and GERBER, J., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
7
