De La Osa v. Wells Fargo Bank, N.A.

208 So.3d 259 (Mem)

Yoanky DE LA OSA, Appellant,

v.WELLS FARGO BANK, N.A., Appellee.

No. 3D14–1455

District Court of Appeal of Florida, Third District.

Opinion filed December 14, 2016

Feiler & Leach, P.L., and Martin E. Leach, for appellant.

Carlton Fields Jorden Burt, P.A., and Michael K. Winston, Dean A. Morande, and Donna L. Eng (West Palm Beach), and Nancy C. Ciampa, for appellee.

Before, SUAREZ, C.J, and WELLS, SHEPHERD, ROTHENBERG, LAGOA, SALTER, EMAS, FERNANDEZ, LOGUE, and SCALES, JJ.

On Motion for Rehearing En Banc

LOGUE, J.

The final order underlying this appeal dismissed a case because the Plaintiff failed to appear for trial. The Plaintiff, however, was given no notice to appear for trial and no copy of the dismissal order. Although labeled "without prejudice," the order is final and uncontestably void. The trial court set aside this void final order pursuant to Florida Rule of Civil Procedure 1.540(b)(4), which authorizes a court to relieve a party from a void "judgment or decree." The Defendant appealed arguing that Rule 1.540(b)(4) applies only to a void "judgment or decree" and not to a void final "order." The original panel assigned to the case agreed with the Defendant and reversed. De La Osa v. Wells Fargo Bank, N.A. , No. 3D14–1455, 2016 WL 517466, at *4 (Fla. 3d DCA 2016). On rehearing en banc, we vacate the panel opinion and affirm the trial court's order setting aside the void final order.

ANALYSIS

Florida Rule of Civil Procedure 1.540(b) reads as follows:

(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud; etc. On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, decree, order, or proceeding for the following reasons : (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial or rehearing; (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) that the judgment or decree is void ; or (5) that the judgment or decree has been satisfied, released, or discharged, or a prior judgment or decree upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment or decree should have prospective application. The motion shall be filed within a reasonable time, and for reasons (1), (2), and (3) not more than 1 year after the judgment, decree, order, or proceeding was entered or taken. A motion under this subdivision does not affect the finality of a judgment or decree or suspend its operation. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, decree, order, or proceeding or to set aside a judgment or decree for fraud upon the court.

Writs of coram nobis, coram vobis, audita querela, and bills of review and bills in the nature of a bill of review are abolished, and the procedure for obtaining any relief from a judgment or decree shall be by motion as prescribed in these rules or by an independent action.

(emphasis added).

Observing that the first sentence of Rule 1.540(b) refers to "a final judgment, decree, order, or proceeding," the Defendant took as his first premise that the drafters intended these terms to have distinct and different meanings. Applying a negative implication,¹ the Defendant reasoned that, because subsection (4) of 1.540(b) refers only to a judgment or decree, subsection (4) applies only to a void "judgment" or "decree" and not to a void final "order." The Defendant's conclusion follows a certain logic. But the premise is incorrect. Any difference between the terms final "judgment," final "decree," and final "order" disappeared long ago, at least for procedural purposes.

Over forty years ago, the Florida Supreme Court held that the term "judgment" as used in the Florida Rules of Civil Procedure included final "orders." Laytner v. Humble Oil & Ref. Co. , 262 So.2d 675, 677 (Fla. 1972). Laytner dealt with Rule 1.530, the companion rule to Rule 1.540. Otherwise, the issue in Laytner was virtually identical to the issue here.

The question in Laytner was whether Rule 1.530's authority to rehear "judgments" included the authority to rehear "an order dismissing a complaint with prejudice." The Court held that the term "judgment" included a final "order" for purposes of the Rule. The Court explained:

We hold that a motion to rehear an order dismissing a complaint with prejudice is proper under F.R.C.P. 1.530 because it is directed to an otherwise appealable final judgment heard without a jury within the terms of the rule. This being a judgment , a motion filed within ten (10) days of its entry is proper and tolls the time for appeal. This was the procedure under the former equity rules, O'Steen v. Thomas , 1941, 146 Fla. 73, 200 So. 230, and is therefore encompassed by Rule 1.530 of our modern rules of procedure in which law and equity have been merged.

Id. (citation omitted) (emphasis added).

The principle that "judgment" as used in Rule 1.530 includes a final "order" has been repeatedly upheld in the ensuing decades. Capone v. Philip Morris USA, Inc. , 116 So.3d 363, 372 (Fla. 2013) ("[Rule 1.530] has been consistently construed to authorize rehearings of orders and judgments which are final in nature").² In fact, the term "judgment" as used in Rule 1.530 has always been understood to include final orders of dismissal without prejudice exactly like the one in this case.³

There is no reason why the term "judgment" would include final "order" in Rule 1.530 but not Rule 1.540 : the two Rules complement each other. Between them, they provide just, speedy, and inexpensive ways for litigants to bring errors in final orders to the attention of the trial court. See generally Balmoral Condo. Ass'n v. Grimaldi , 107 So.3d 1149, 1151 (Fla. 3d DCA 2013) ("[R]ule 1.530 provides a short window of time for a court to reconsider a final order for a broad range of reasons; rule 1.540, on the other hand, provides a larger window of time for a court to change a final order but only for a narrow, enumerated list of reasons."). For the Defendant's argument to be correct, we would have to hold that the term "judgment" has different meanings in different parts of the rules of civil procedure—different even in companion rules.

As the Florida Supreme Court noted in Laytner , the interchangeability of the terms final "judgment" and final "order" stems from the merger of law and equity for procedural purposes. Laytner , 262 So.2d at 677. Significantly, the authors' comment to Rule 1.540 also specifically cite to the merger of law and equity to explain the use of language in the rule. Fla. R. Civ. P. 1.540 (authors' cmt. 1967) (noting the term "decrees" was included in the Rule to ensure decrees "rendered prior to January 1, 1967 [the date of the merger of law and equity] may come within this rule").

Modern lawyers often overlook the merger for procedural purposes of law and equity. But the merger of the procedures governing law and equity into one body of rules was one of the most revolutionary and beneficial changes in American procedural law. This revolution was accomplished by the deceptively simple and often-overlooked language of Florida Rule of Civil Procedure 1.040, which quietly provides "[t]here shall be one form of action to be known as ‘civil action.’ " Because Rule 1.040"eliminat[ed] the distinction between law and equity," the drafters of the Rules of Civil Procedure considered Rule 1.040"the most fundamental rule of all." Fla. R. Civ. P. 1.040 (authors' cmt. 1967).

Consistent with this historic change, the Florida Rules of Appellate Procedure expressly recognize the interchangeability of the terms final "order" and "judgment." Rule 9.020(f) defines "order" as a "decision, order, judgment , decree, or rule of a lower tribunal, excluding minutes and minute book entries." (emphasis added). This definition refutes the Defendant's entire argument: the contention that the terms are distinct cannot be reconciled with this definition indicating the terms are interchangeable.

Florida Rule of Judicial Administration 2.430(2) also expressly uses the term "judgment" as interchangeable with "final order, final judgment, final docket entry, final dismissal, or nolle prosequi [that] has been entered as to all parties" for procedural matters relating to document retention.

Rule 1.540 itself uses these terms interchangeably. Rule 1.540(b) expressly applies to a "judgment, decree, order, or proceeding," but the rule also provides that "a motion under this subdivision does not affect the finality of a judgment or decree or suspend its operation." If we were to accept the Defendant's premise and use of negative implication, the continuation of finality would apply only to a "judgment or decree" and not to a final order. This makes no sense.

Likewise, the Rule provides "[t]his rule does not limit the power of a court ... to set aside a judgment or decree for fraud upon the court." Accepting the Defendant's premise and use of negative implication, this rule would limit the power of a court to set aside a final order for fraud upon the court: an absurd result because there is no reason for the drafters to treat fraud in procuring final orders any less seriously than fraud in procuring final judgments and decrees. In addition, the authors' comment notes that Rule 1.540 does not apply to "interlocutory judgments," an expression that makes sense only if "judgment" also refers to "order" in contravention to the Defendant's interpretation.

This understanding of Rule 1.540 is deeply embedded in decades of case law. This year, the Supreme Court indicated, albeit in a very short opinion, that the term "judgment" as used in the Rule included the term "order." Francois v. Brinkmann , 2016 WL 634609 (Fla. 2016) ("The petition for writ of prohibition...