U.S. Bank National Ass'n v. Anthony-Irish

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED

U.S. BANK NATIONAL ASSOCIATION, ETC.,

Appellant,
v. Case No. 5D15-3153

ELIZABETH E. ANTHONY-IRISH, ET AL.,

Appellees.
________________________________/

Opinion filed October 14, 2016

Appeal from the Circuit Court
for Volusia County,
Sandra C. Upchurch, Judge.

Dean A. Morande and Michael K. Winston,
of Carlton Fields Jorden Burt, PA, West
Palm Beach, for Appellant.

Elizabeth E. Anthony-Irish, Deland, pro se.

No Appearance for other Appellees.

COHEN, J.

U.S. Bank appeals the denial of its rule 1.540(b)(4) motion to vacate a final

judgment. U.S. Bank commenced this action in 2007 with a complaint to foreclose on a

mortgage. Late in 2009, the trial court granted U.S. Bank’s motion for summary judgment

and entered a final judgment of foreclosure. That same day, the court also ordered the

parties to mediation. 1 The parties did not object to this order.

1The record does not indicate whether the parties agreed to mediate or whether
the court unilaterally ordered the mediation.
Mediation was rescheduled after U.S. Bank failed to appear. U.S. Bank agreed to

make a settlement offer to Anthony-Irish and to cancel the foreclosure sale, but no copy

of the mediated agreement was filed. The trial court found that the parties agreed to

mortgage payments of $743.61 per month. The record indicates that Anthony-Irish was

also required to apply for the Home Affordable Modification Program (“HAMP”), a

government program designed to reduce mortgage payments for qualified homeowners.

Anthony-Irish then sent the first of two ex-parte communications to the trial court.

In a March 2010 letter, she alleged that she had been turned down for HAMP because

Citigroup, the owner of the note, did not participate in the program. She complained that

she should have been made aware of this limitation at the earlier mediation. The trial court

set a hearing based on Anthony-Irish’s letter. At that hearing, which was attended by both

parties, the court ordered Anthony-Irish to continue making mortgage payments per the

mediated agreement and to again apply for HAMP. In August 2010, she was once again

turned down for HAMP, this time because her loan servicer determined that it could not

reduce her payments to an affordable amount without changing the terms of her mortgage

beyond what HAMP permitted.

Anthony-Irish sent another letter to the trial court in December 2010, claiming that

the second denial was unfair and in bad faith—she alleged the company had used

incorrect income figures and denied her HAMP application based on the amount of her

then-current mortgage payment, the very payment she sought to modify. The trial court

elected to treat this letter from Anthony-Irish as a “motion for reconsideration of final

judgment” and set another hearing, which U.S. Bank failed to attend. The trial court then

set an evidentiary hearing that U.S. Bank, yet again, failed to attend. The trial court

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and while it could have been amended to include such a reservation, it was not. Without

a written mediated agreement in the record, the trial court lacked procedural jurisdiction

to enforce the agreement. See Cent. Park A Metrowest Condo. Ass’n v. AmTrust REO I,

LLC, 169 So. 3d 1223, 1227 (Fla. 5th DCA 2015). Thus, U.S. Bank is correct that the

order enforcing the mediated judgment was not properly entered. The trial court did not

lack subject-matter jurisdiction, however. The trial court retained subject-matter

jurisdiction over the general category of mortgage foreclosures, and the issue of a court’s

authority to enter further orders after final judgment is, instead, an issue of procedural

jurisdiction. See Paulucci, 842 So. 2d at 801 n.3 (clarifying that entry of further orders

after final judgment presents an issue of continuing, not subject-matter jurisdiction); In re

Adoption of D.P.P., 158 So. 3d 633, 633-37 (Fla. 5th DCA 2014) (explaining that Florida

circuit courts are courts of general jurisdiction and nothing is beyond their subject-matter

jurisdiction except those cases that have specifically been excluded).

Next, U.S. Bank argues the trial court lacked jurisdiction because: 1) the trial court

failed to provide proper notice of the hearing, and 2) Anthony-Irish’s letters, if treated as

motions, failed to specify that she was seeking relief from the final judgment. Generally,

orders entered without notice and opportunity to be heard are void under rule 1.540(b)(4).

See Wells Fargo Bank, N.A. v. Michaels, 166 So. 3d 226, 227-28 (Fla. 5th DCA 2015)

(granting relief under rule 1.540(b) because the court failed to enter or serve a written

order or otherwise provide notice to the parties of the docket sounding or trial date).

U.S. Bank claims that it “was never given notice that it faced the ultimate sanction

of dismissal” because the hearing notices provided by the trial court did not specifically

mention that the final judgment may be set aside. Yet, the trial court’s notice for the

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Cf. Arcadia Citrus Growers Ass’n v. Hollingsworth, 185 So. 431, 433 (Fla. 1938). Although

sometimes identified by different terms, procedural jurisdiction simply refers to “the power

of the court over a particular case that is within its subject matter jurisdiction.” Tobkin v.

State, 777 So. 2d 1160, 1163 (Fla. 4th DCA 2001).

Flaws in a court’s procedural jurisdiction arise in a number of contexts. If a court

enters an order prior to the filing of proper pleadings, the court is said to lack jurisdiction.

Lovett v. Lovett, 112 So. 768, 775-76 (Fla. 1927). Likewise, if a court grants relief beyond

the scope of the pleadings, it acts in excess of its jurisdiction. See Fine v. Fine, 400 So.

2d 1254, 1255 (Fla. 5th DCA 1981) (“The jurisdiction of the court can be exercised only

within the scope of the pleadings . . . .”). The court is said to act outside of its jurisdiction

if it enters additional orders after a voluntary dismissal or a final judgment that did not

reserve jurisdiction for the specific purpose of entering those orders. Paulucci v. Gen.

Dynamics Corp., 842 So. 2d 797, 803 (Fla. 2003); Davidson v. Stringer, 147 So. 228, 229

(Fla. 1933);. In all of these cases, it is clear that the court retains “subject-matter

jurisdiction”—the power to decide matters within a general category of cases—yet the

court loses power over the specific dispute. Stephens, supra note 3, at 10.

U.S. Bank argues that the trial court in this case lacked subject-matter jurisdiction

to enter the orders subsequent to the final judgment. Establishing that the court lacked

subject-matter jurisdiction is essential to U.S. Bank because its rule 1.540(b) motion

would otherwise be untimely. Rule 1.540(b) requires that the motion be brought within a

“reasonable time”—for 1.540(b)(1)-(3), the motion must be brought within one year after

Stephens, Florida’s Third Species of Jurisdiction, 82 Fla. Bar J. 10 (2008) (describing
“procedural jurisdiction”).

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the final judgment. U.S. Bank’s motion was brought more than four years after the trial

court entered its order vacating the final judgment in this case.

This court has previously held, however, that an order entered without subject-

matter jurisdiction can be attacked under rule 1.540(b)(4) at any time because a lack of

subject-matter jurisdiction goes to the foundation of the court’s power to adjudicate the

case presented. Arquette v. Rutter, 150 So. 3d 1259, 1261 (Fla. 5th DCA 2014). U.S.

Bank presents three grounds for finding the trial court lacked subject-matter jurisdiction:

1) the trial court lacked subject-matter jurisdiction to order mediation; 2) U.S. Bank never

received proper notice of a potential dismissal; and 3) Anthony-Irish’s December 2010

letter could not be treated as a motion to vacate summary judgment because it was

untimely under rule 1.540(b)(3).

First, U.S. Bank argues that once the trial court entered summary judgment in its

favor without specifically reserving jurisdiction to order mediation, the court lost

jurisdiction to order the parties to mediate. Generally, a court’s procedural jurisdiction after

the entry of final judgment is limited to ensuring the proper entry and enforcement of the

judgment, but that jurisdiction may be extended to enforcing a settlement agreement

incorporated into the final judgment. Paulucci, 842 So. 2d at 803. The court also has

inherent power “to do those things necessary to enforce its orders.” Id. (quoting Levin,

Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. U.S. Fire Ins. Co., 639 So. 2d

606, 608-09 (Fla. 1994)).

The original final judgment includes typical language reserving jurisdiction “to enter

further orders as are proper, including deficiency judgments, if permissible.” It does not

specifically reserve jurisdiction to order mediation or to enforce a mediated agreement,

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and while it could have been amended to include such a reservation, it was not. Without