Post-Trial / Appellate Practice – Order dismissing case without prejudice, without leave to amend is final, appealable order; Motion for relief from judgment under Rule 1.540 should be sworn to

Mortgage foreclosure — Where trial court had dismissed complaint without
prejudice without granting leave to amend, court did not have power to grant an
untimely motion for rehearing and vacate the order of dismissal — Plaintiff is
not barred from seeking relief by way of timely and procedurally adequate motion
for relief from judgment

SNEHAL PATEL and PRATIKSHA PATEL, Appellants, v. U.S. BANK NATIONAL
ASSOCIATION, as Trustee for Lehman XS Trust Mortgage Pass-Through Certificates
Series 2007-15N; SHADOW GLEN AT COLONIAL I RESIDENTS’ ASSOCIATION, INC.; SHADOW
GLEN AT COLONIAL II RESIDENTS’ ASSOCIATION, INC.; COLONIAL COUNTRY CLUB OF LEE
COUNTY MASTER ASSOCIATION, INC. MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.;
LUIS A. RUIZ; and UNKNOWN SPOUSE OF LUIS A. RUIZ, Appellees. 2nd District. Case
No. 2D14-1417. Opinion filed December 31, 2014. Appeal from the Circuit Court
for Lee County; William C. McIver, Senior Judge. Counsel: P. Brandon Perkins,
Brett C. Powell, and Alexander Brockmeyer of The Powell Law Firm, Fort Myers;
and Scott Kuhn of Kuhn Law Firm, P.A., Fort Myers, for Appellants. Nancy M.
Wallace and Ryan D. O’Connor of Akerman LLP, Tallahassee; and William P. Heller
of Akerman LLP, Fort Lauderdale, for Appellee U.S. Bank National Association as
Trustee for Lehman XS Trust Mortgage Pass-Through Certificates Series 2007-15N.
No appearance for Appellees Shadow Glen at Colonial I Residents’ Association,
Inc.; Shadow Glen at Colonial II Residents’ Association, Inc.; Colonial Country
Club of Lee County Master Association, Inc.; Mortgage Electronic Registration
Systems, Inc.; Luis A. Ruiz; and Unknown Spouse of Luis A. Ruiz.

(ALTENBERND, Judge.) Snehal and Pratiksha Patel appeal an order that vacated
a prior order of dismissal in a foreclosure action. We reverse this procedurally
odd order without prejudice to the rights of U.S. Bank National Association and
the other appellees to seek relief from judgment pursuant to Florida Rule of
Civil Procedure 1.540.

U.S. Bank filed a mortgage foreclosure action against the Patels in March
2012. The case was tried on October 18, 2013. It is undisputed that at the trial
the judge asked for a copy of the note attached to the complaint, and the clerk
of court represented that no note was attached to the complaint. As a result,
the court entered an order involuntarily dismissing the case without prejudice
on that date. The order did not grant U.S. Bank leave to amend.

Within a few hours, it apparently was determined that the clerk had been in
error and that a note was attached to the complaint. Because the parties were
not available to return that day to resolve this confusion, the trial court
advised them to address the matter by a motion for rehearing.

U.S. Bank did not file a motion for rehearing. Shadow Glen at Colonial II
Resident’s Association, Inc. (“the Association”), filed a motion for rehearing
that was served on October 31, 2013. The trial court granted the Association’s
motion in February 2014 and vacated the involuntary dismissal as to all parties.
The Patels appeal this order.

“An order dismissing an action without prejudice and without granting leave
to amend is a final appealable order.” Valcarcel v. Chase Bank USA NA, 54
So. 3d 989, 990 (Fla. 4th DCA 2010). Rendition of such an order can be stayed,
however, upon the filing of a timely, authorized motion, including a motion for
rehearing. See Fla. R. App. P. 9.020(i). At the time of these events,
Florida Rule of Civil Procedure 1.530 required a motion for rehearing to be
served not later than ten days after the date of filing of the
judgment.1 It is undisputed that the
Association’s motion was untimely as a motion for rehearing.2

U.S. Bank argues that the Association’s motion should be treated as a timely
motion for relief from judgment under rule 1.540. The motion does not invoke
that rule, and its content does not appear to be a motion under that rule. The
motion is not verified or supported by an affidavit, which is usually necessary
for a motion pursuant to rule 1.540. See DiSarrio v. Mills, 711
So. 2d 1355 (Fla. 2d DCA 1998). We conclude that the motion was not a motion for
relief from judgment.

The trial court did not have power to grant the Association’s untimely motion
for rehearing. Accordingly, we reverse the order entered on rehearing, which
vacated the prior order of dismissal, and direct the trial court on remand to
once again enter an order of involuntary dismissal. This result does not bar
U.S. Bank or the other appellees from seeking relief by way of a timely and
procedurally adequate motion for relief from the judgment entered on remand.

Reversed and remanded. (KELLY and BLACK, JJ., Concur.)

__________________

1Effective January 1, 2014, that time has
been increased to fifteen days. In re Amendments to the Fla. Rules of Civil
Procedure, 131 So. 3d 643, 649 (Fla. 2013).

2Notably, even if the motion had been
timely, it would not have stayed rendition of the order for U.S. Bank because it
was not filed by or on behalf of U.S. Bank. See Fla. R. App. P.
9.020(i)(1). Thus, the order involuntarily dismissing the action had become
final for U.S. Bank long before the filing of the trial court’s order granting
rehearing.