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New Day Miami, LLC v. Beach Developers, LLC

Florida Court of Appeals, Third District

August 16, 2017

New Day Miami, LLC, Appellant,
v.
Beach Developers, LLC, et al., Appellees.

         Not final until disposition of timely filed motion for rehearing.

          An Appeal from the Circuit Court for Miami-Dade County, Lower Tribunal No. 15-9283 Eric William Hendon, Judge.

          Richard L. Barbara, P.A., and Richard L. Barbara, for appellant.

          Law Offices of Robert P. Frankel, P.A., and Robert P. Frankel (Plantation), for appellee Beach Developers, LLC; Russell A. Cohen, P.A., and Russell A. Cohen; Tables Law Group, P.A., and Ryan Tables (Hollywood), for appellee Brepega, LLC.

          Before ROTHENBERG, C.J., and SCALES and LUCK, JJ.

          ON MOTION FOR RECONSIDERATION

          SCALES, J.

         I. Relevant Procedural Background

         The circuit court entered a final judgment of foreclosure on October 4, 2016, in the case of Beach Developers, LLC v. Brepega, LLC, lower tribunal case number 15-9283. Appellant New Day Miami, LLC ("NDM") was the successful bidder at a November 17, 2016 foreclosure sale. Two of the named defendants[1] in the foreclosure action moved, pursuant to Florida Rule of Civil Procedure 1.540, to vacate the October 4, 2016 judgment of foreclosure and to set aside the sale to NDM.[2]

         On March 10, 2017, the trial court entered an order granting these two defendants' rule 1.540 motion, thus vacating the judgment and setting aside the sale to NDM. Rather than appealing this March 10, 2017 order, NDM filed a motion for rehearing pursuant to rule 1.530. On April 17, 2017, the trial court denied NDM's motion for rehearing, and NDM filed its notice of appeal in this Court on May 9, 2017, challenging both the March 10, 2017 order and the April 17, 2017 order denying rehearing.

         Appellee, plaintiff below, Beach Developers, LLC moved to dismiss NDM's appeal as untimely. Beach Developers argued that, pursuant to the express provisions of Florida Rule of Appellate Procedure 9.130(a)(5), [3] NDM's rule 1.530 motion for rehearing did not toll the rendition date of the trial court's March 10, 2017 order granting the rule 1.540 motion; and therefore, NDM's May 9, 2017 notice of appeal was untimely as it was not filed within thirty days of rendition as required by Florida Rule of Appellate Procedure 9.130(b).

         NDM did not respond to Beach Developers's motion to dismiss, and on June 9, 2017, we granted the motion and dismissed NDM's appeal. NDM then filed with this Court the instant motion for reconsideration. In the instant motion, NDM argues that the trial court's March 10, 2017 order - vacating the foreclosure sale and setting aside NDM's certificate of title - constituted a final judgment as to NDM, despite being manifested in a rule 1.540 order. NDM maintains that, because it was a third-party bidder at the foreclosure sale, rather than a party to the underlying foreclosure action, NDM's motion for rehearing of the March 10, 2017 order was both timely and authorized, thereby delaying "rendition" of the March 10, 2017 order until NDM's rehearing motion was adjudicated on April 17, 2017. Fla. R. App. P. 9.020(i)(1).[4] NDM argues that its May 9, 2017 notice of appeal is therefore timely, and adequately invokes this Court's jurisdiction to review both (i) the March 10, 2017 order, and (ii) the April 17, 2017 order denying NDM's rehearing motion.

         II. Analysis

         A. March 10, 2017 Order on Rule 1.540 Motion

         We are not unsympathetic to the peculiar situation in which NDM finds itself. We agree that the March 10, 2017 order is "final" as to NDM. While this order has reopened the underlying foreclosure case, which remains to be litigated, no further adjudication remains with regard to NDM in this case. See Miami-Dade Water & Sewer Auth. v. Metro. Dade Cty., 469 So.2d 813, 814 (Fla. 3d DCA 1985) ("In determining the finality of an order, judgment, or decree, the test employed by the appellate court is whether the order appealed constitutes an end to judicial labor in the trial court, and nothing further remains to be done to terminate the dispute between the parties directly affected."). We also agree with NDM that, generally, pursuant to rule 9.020(i)(1), an authorized and timely motion seeking relief from a final order delays rendition of the final order until the rehearing motion can be adjudicated. Yet, rule 9.020(i)'s tolling provision is applicable "unless another rule of procedure ...


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