final until disposition of timely filed motion for rehearing.
appeal from the Circuit Court for Miami-Dade County Lower
Tribunal No. 12-2515, Rodolfo A. Ruiz, Judge.
Jones Browne, and Carla A. Jones and Holly M. Hamilton, for
Lawyers, LLC, and Chase E. Jenkins (Ft. Lauderdale), for
SUAREZ, SALTER, and LINDSEY, JJ.
an appeal from a final order dismissing Appellant Fersom
Mortgage, Inc.'s crossclaim for lack of jurisdiction.
Because we find that Fersom's crossclaim survived
dismissal of the main foreclosure action, we reverse and
remand for further proceedings.
January 2012, The Bank of New York Mellon ("BNY"),
the first mortgage lender, brought a foreclosure action
against Appellees/Homeowners Carlos and Emira Moreno. Fersom
had a second, separate mortgage on the property and was
joined as a party. In May 2013, Fersom filed a crossclaim for
foreclosure of its second mortgage and paid the crossclaim
filing fee. The Homeowners were duly served, and they filed
an answer and affirmative defenses in response to the
crossclaim. In May 2014, following mediation between BNY and
the Homeowners, BNY filed a voluntary dismissal of the main
September 2016, Fersom filed a motion for final judgment. In
response, the Homeowners filed a motion to amend their answer
to Fersom's crossclaim, which was granted. After filing
their amended answer, the Homeowners filed a motion to
dismiss Fersom's crossclaim for lack of subject-matter
jurisdiction. In their motion to dismiss, the Homeowners,
relying on Layne Dredging Co. v. Regus, Inc., 622
So.2d 7 (Fla. 2d DCA 1993), argued that Fersom's
crossclaim did not survive BNY's voluntary dismissal. The
trial court agreed and dismissed Fersom's crossclaim,
citing Layne Dredging. This appeal follows.
issue before us is whether BNY's voluntary dismissal of
the main foreclosure action extinguished the trial
court's subject-matter jurisdiction as to Fersom's
crossclaim. We hold that it did not; Fersom's crossclaim
survived. Both the Homeowners' and the trial court's
reliance on Layne Dredging is misplaced. In
Layne Dredging, the Second District held that the
trial court erred when it entered an order permitting the
filing of a crossclaim "long after" voluntary
dismissal of the main claim. Here, however, Fersom filed its
crossclaim, paid its filing fee, served the Homeowners, and
the Homeowners filed an answer before BNY filed its Notice of
Voluntary Dismissal. Moreover, the court in Layne
Dredging suggested that the crossclaim there "was
purely derivative, so as to disappear with the dismissal of
the main claim." Bruce J. Berman & Peter D. Webster,
Fla. Prac., Civil Procedure § 1.420:8 n.4
(April 2018 update) (citing Layne Dredging, 622
So.2d at 8 ("Any purpose the defendant [crossclaimant]
may have had to transfer its liability through a crossclaim .
. . was nullified at the moment when [plaintiff] accomplished
the voluntary termination of its lawsuit.")). In
contrast, the crossclaim here does not appear to depend on
the survival of the main claim.
Bird Lakes Dev. Corp. v. Velez, 846 So.2d 555 (Fla.
3d DCA 2003), this Court held that both a crossclaim and
third party claim survived dismissal of the main action
because none of the pleadings or orders entered in connection
with the dismissal referred to the crossclaim or the third
party claim. The same is true here. The voluntary dismissal
only addressed BNY's foreclosure action; it did not
address Fersom's crossclaim.
Fersom's crossclaim was filed before the voluntary
dismissal and the voluntary dismissal did not address the
action between Fersom and the Homeowners, the trial court had
subject-matter jurisdiction over Fersom's
crossclaim. We therefore reverse and remand for