Third District Court of Appeal
State of Florida
Opinion filed October 31, 2018.
Not final until disposition of timely filed motion for rehearing.
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No. 3D17-531
Lower Tribunal No. 15-26358
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Darcy Santos,
Appellant,
vs.
HSBC Bank USA, National Association as Trustee for the Holders
of the GSAA Home Equity Trust 2005-07,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Jacqueline
Hogan Scola, Judge.
Pomeranz & Associates, P.A. and Mark L. Pomeranz (Hallandale), for
appellant.
Akerman LLP, Nancy M. Wallace (Tallahassee), William P. Heller (Fort
Lauderdale), and Eric M. Levine (West Palm Beach), for appellee.
Before LOGUE, LUCK and LINDSEY, JJ.
LUCK, J.
Darcy Santos appeals from a final judgment foreclosing a mortgage on her
condominium. She claims various errors in the proceedings below which occurred
before and after Ms. Santos filed her notice of appeal. We have no jurisdiction to
address the rulings made after filing of the notice of appeal, and affirm the
remaining issues directed to the final judgment.
Factual Background and Procedural History
In connection with her purchase of a condo unit at the Gates at Doral Isles,
Ms. Santos executed a note and mortgage in favor of First National Bank of
Arizona in the amount of $208,550 on January 27, 2005. On November 11, 2015,
HSBC Bank USA1 brought the present action to foreclose the mortgage, alleging
Ms. Santos defaulted on her mortgage by failing to make the October 2009
payment and all subsequent payments. Ms. Santos answered the complaint, HSBC
replied to Ms. Santos’ answer, and on December 15, 2016, the lower court issued
an order setting the matter for non-jury trial on February 7, 2017. The order,
which was served on Ms. Santos’s counsel of record, indicated no continuance
motions would be entertained on the day of trial.
In accordance with the trial order, HSBC filed its witness and exhibit lists,
several affidavits, and a motion in limine. Nothing was filed on behalf of Ms.
Santos. When the case was called for trial on February 7, neither Ms. Santos nor
1 HSBC Bank is a successor in interest to the original lender.
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her counsel were present. The trial proceeded in their absence, concluding with the
court entering a foreclosure judgment in favor of the bank that same day. We have
not been provided with a transcript of the trial.
Ms. Santos then filed a verified motion to vacate the final judgment, together
with attached affidavits and exhibits. Ms. Santos’s counsel explained that the
reason he failed to appear on February 7 was due to a clerical error by his staff.
Apparently, clerical staff failed to docket the trial, mistakenly believing the trial
order referred to a case to be tried in St. Lucie County on the same day. When the
error was discovered on the date of trial, defense counsel asked plaintiff’s counsel
to request a short continuance so that he could drive back down to Miami.
However, the trial judge disposed of the case without waiting. The motion argued
the foreclosure judgment should be vacated on the grounds of excusable neglect,
improper trial setting, and insufficient evidence of indemnification.
Before the trial court heard the motion to vacate, Ms. Santos filed her notice
of appeal from the final judgment. At Ms. Santos’s request, we relinquished
jurisdiction for the trial court to consider the motion to vacate. The motion was
heard and denied on April 27. On May 1, HSBC filed the trial court’s order
denying the motion with this court, requesting that we reassert appellate
jurisdiction in the case. Ms. Santos did not amend her notice of appeal to include
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the order denying the motion to vacate. Nonetheless, Ms. Santos raises on appeal
the same three issues argued in her motion to vacate.
Discussion
First, Ms. Santos argues the final judgment should have been vacated
because her counsel’s failure to appear for trial was due to excusable neglect. Next,
she contends the case was not properly scheduled for trial because it was not at
issue. Finally, she claims there was insufficient evidence to support the final
judgment’s finding on indemnification.
The trial court’s ruling on the excusable neglect issue was announced via the
May 1 order denying the motion to vacate. We do not have jurisdiction to review
the May 1 order because Ms. Santos failed to file a notice appealing it. Florida
Rule of Appellate Procedure 9.110 states, in pertinent part:
(d) Notice of Appeal. … The notice shall contain … the date of
rendition, and the nature of the order to be reviewed….
....
(h) Scope of Review. The court may review any ruling or matter
occurring before filing the notice.
Pursuant to this rule, Florida appellate courts deny review of judicial acts occurring
after the filing of a notice of appeal. See Forney v. Crews, 112 So. 3d 741 (Fla. 1st
DCA 2013) (determining appellate court was without authority to consider
mandamus relief on denial of motion to disqualify judge entered after notice of
appeal); Lauderdale Marine Ctr., Ltd. V. MYD Marine Distribs., Inc., 31 So. 3d
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256 (Fla. 4th DCA 2010) (declining to consider attorney’s fees issues where
attorney’s fees hearing took place months after filing of notice of appeal); Freeman
v. Velez, 8 So. 3d 1285 (Fla. 4th DCA 2009) (same).
Even where the appellate court relinquishes jurisdiction to the trial court
after a notice of appeal is filed, as we did in this case, return of jurisdiction to the
appellate court does not automatically extend that jurisdiction to judicial acts
which took place while jurisdiction was relinquished to the trial court. In such
instances, the appellant must formally invoke the appellate court’s jurisdiction to
review the post-notice-of-appeal acts by filing a new notice of appeal or by
amending its prior notice of appeal to include those acts. R.W. v. Department of
Children and Families, 164 So. 3d 15 (Fla. 1st DCA 2015) is instructive on this
jurisdictional question.
In R.W., a mother appealed from a final judgment terminating her parental
rights to her child based on a surrender of parental rights. Prior to filing her initial
brief, the mother requested that the appellate court “relinquish partial jurisdiction
to the trial court below for purposes of allowing the trial court to consider [her]
motion for reconsideration of her surrender of parental rights.” Id. at 16. The First
District treated the request as one to allow the trial court to rule on a motion for
relief from judgment and relinquished jurisdiction to the trial court. Thereafter, the
trial court held an evidentiary hearing at which it found there was no duress or
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fraud that caused the mother’s voluntary surrender of parental rights. The mother
then filed a status report informing the appellate court of the trial court’s ruling and
requesting that it “proceed with the appeal on the merits.” Id. at 17. The appellate
court noted the status report and ordered the mother to file her initial brief. In its
opinion, the First District affirmed issues directly related to the final judgment of
termination, but dismissed, for lack of jurisdiction, the issue challenging the post-
notice ruling because the mother did not file a separate notice of appeal as to the
denial of the post-judgment motion.
Regarding the effect of the relinquishment, the R.W. court explained:
We recognize that we relinquished jurisdiction to the trial court to rule
on the motion for reconsideration. That, however, has no bearing on
our jurisdiction to review the trial court’s ruling on the motion.
Indeed, absent an appeal of the order on the motion for relief from
judgment, we are unaware of any authority that would allow an
otherwise unpreserved issue raised in a post-judgment motion to be
considered in the appeal of the underlying judgment simply by virtue
of the appellate court having relinquished jurisdiction for a ruling on
such a motion.
Id. at 18 (citations omitted); see also Davis v. State, 174 So. 3d 646 (Fla. 1st DCA
2015) (refusing to consider denial of motion to disqualify the judge entered after
appellate court relinquished jurisdiction for the trial court to consider a motion to
mitigate defendant’s sentence where defendant filed a status report simply
requesting that appeal be put back on the docket); Jefferson v. State, 440 So. 2d 20,
22 n. 1 (Fla. 1st DCA 1983) (explaining that proper procedure when appellate
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court relinquishes jurisdiction to trial court to determine issue of ineffective
assistance of counsel is to file a new notice of appeal if trial court denies relief).
Without a proper notice of appeal, this court has no jurisdiction to review the
trial court’s denial of Ms. Santos’s motion to vacate and may address only matters
determined by the final judgment itself. Because defense counsel’s excusable
neglect was argued in the motion to vacate, we dismiss the appeal as to this issue
for lack of jurisdiction.
Turning to Ms. Santos’ argument that the trial court erred in setting the case
for trial because it was not at issue, we find no merit to the argument. Ms. Santos
answered the complaint asserting several affirmative defenses. In its reply to those
affirmative defenses, HSBC stated that any defenses amounting to mere
conclusions of law without supporting factual allegations which should be stricken.
This statement alone does not constitute a motion to strike an affirmative defense.
See Fla. R. Civ. P. 1.100(a), (b) (“If an answer … contains an affirmative defense
and the opposing party seeks to avoid it, the opposing party must file a reply
containing the avoidance…. An application to the court for an order must be by
motion which must be made in writing … , must state with particularity the
grounds for it, and must set forth the relief or order sought.”); Id. R. 1.140(b), (f)
(“If a pleading sets forth a claim for relief to which the adverse party is not
required to serve a responsive pleading, the adverse party may assert any defense
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in law or fact to that claim for relief, except that the objections of failure to state a
legal defense in an answer or reply must be asserted by motion to strike the defense
…. A party may move to strike or the court may strike redundant, immaterial,
impertinent, or scandalous matter from any pleading at any time.”). As no motion
to strike was formally made requesting an order from the court, the case was at
issue and properly set for trial.
With regard to the remaining issue, i.e. that there was insufficient evidence
to support the indemnity required under section 673.3091(2) of the Florida
Statutes, our review is precluded by Ms. Santos’s failure to provide a transcript of
the trial. See Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150 (Fla.
1979).
Conclusion
For the reasons stated, we dismiss this appeal on the issue relating to the
denial of the motion to vacate and we affirm the final judgment of foreclosure.
Dismissed in part; affirmed in part.
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