CEDRIC RAYNARD STUBBS and DECHANTA CATRECIA STUBBS, Appellants,
FEDERAL NATIONAL MORTGAGE ASSOCIATION; MULTIBANK 2009-1 RES-ADC VENTURE LLC; and WOODLAND ESTATES HOME AND PROPERTY OWNERS ASSOCIATION, INC., Appellees.
FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
pursuant to Fla. R. App. P. 9.130 from the Circuit Court for
Charlotte County; James R. Thompson, Senior Judge.
Raynard Stubbs and Dechanta Catrecia Stubbs, pro se.
Kathleen Angione of Kahane & Associates, P.A.,
Plantation, for Appellee Federal National Mortgage
appearance for Appellees Multibank 2009-1 RES-ADC Ventures
LLC and Woodland Estates Home and Property Owner's
and Dechanta Stubbs appeal the trial court's "Final
order denying defendant's motion to vacate and
defendant's notice of objection, " rendered May 2,
2017. The motion sought to vacate the "Final order
granting second motion for writ of possession, "
rendered March 1, 2017. Because we are without jurisdiction,
we dismiss the appeal.
trial court entered a foreclosure judgment against the
Stubbses. We dismissed their subsequent appeal. See
Stubbs v. Fed. Nat'l Mortg. Ass'n., 210 So.3d
1286 (Fla. 2d DCA 2016) (table decision). Federal National
Mortgage Association (Fannie Mae) purchased the property at a
judicial sale and obtained a certificate of title in August
2016. Then, in January and, again, on March 1, 2017, the
trial court entered separate orders granting Fannie Mae's
petitions seeking issuance of a writ of possession. Shortly
after the entry of each order, the Stubbses filed motions to
vacate and objections to issuance of the writ under Florida
Rule of Civil Procedure 1.540. In response, the trial court
issued the May 2 order that is now before us.
March 1, 2017, order granting a writ of possession is an
appealable, nonfinal order under Florida Rule of Appellate
Procedure 9.130(a)(3)(C)(ii). See Speedway SuperAmerica,
LLC v. Tropic Enters., Inc., 966 So.2d 1, 2 (Fla. 2d DCA
2007) ("[A]n order directing the issuance of a writ of
possession . . . is subject to interlocutory review as an
order that determines 'the right to immediate possession
of property.' " (quoting Fla. R. App. P.
of appealing that order, the Stubbses sought relief under
rule 1.540. But, "rule [1.540(b)] does not . . .
authorize a trial court to grant relief from a non-final
order." Garcia v. Navy Fed. Credit Union, 224
So.3d 339, 341 (Fla. 5th DCA 2017). And although Florida Rule
of Appellate Procedure 9.130(a)(5) provides that
"[o]rders entered on an authorized and timely motion
[under Florida Rule of Civil Procedure 1.540] are reviewable
by the method prescribed by this rule, " "[a]n
order entered on a motion to vacate a non-final order . . .
is not reviewable under [rule] 9.130(a)(5)."
Bennett's Leasing, Inc. v. First St. Mortg.
Corp., 870 So.2d 93, 98 (Fla. 1st DCA 2003). Simply put,
"a motion to vacate pursuant to [Florida Rule of Civil
Procedure] 1.540(b) cannot be directed toward non-final
orders such as the writ of possession." Bryant v.
Wells Fargo Bank, N.A., 182 So.3d 927, 930 (Fla. 3d DCA
2016); see also Hollifield v. Renew & Co., Inc.,
18 So.3d 616, 617 (Fla. 1st DCA 2009) ("Rule 1.540
authorizes a trial court to grant relief 'from a final
judgment, decree, order, or proceeding'-not from a
non-final order . . . ."). Consequently, a rule 1.540
motion directed to a non-final order is improper and leaves
us without jurisdiction to review the denial of the motion to
vacate. Bryant, 182 So.3d at 930 ("[E]ven if
the motion to vacate had been the proper procedural vehicle
below, we are without jurisdiction to review the trial
court's denial of that motion because it does not fall
within the purview of appealable, non-final orders set forth
in Rule 9.130(a)(3).").
to invoke our jurisdiction to review a nonfinal order, an
appellant must file a notice of appeal "within 30 days
of rendition of the order to be reviewed." Fla. R. App.
P. 9.130(b). This was not done. The Stubbses filed their
notice of appeal more than sixty days after rendition of the
"Final order granting second motion for writ of
possession." Their rule 1.540(b) motion did not toll the
time for taking an appeal, because "[a] motion under
this subdivision does not affect the finality of a judgment
or decree or suspend its operation." Fla. R. Civ. P.
1.540(b); see, e.g., In re Guardianship of
Schiavo, 792 So.2d 551, 560 (Fla. 2d DCA 2001) (stating
that a motion under rule 1.540(b) "does not operate to
stay a judgment"); Hatton v. Palm Beach County,
550 So.2d 65, 66 (Fla. 2d DCA 1989) (stating that motions
filed under rule 1.540 "do not suspend rendition of the
final judgment (and therefore do not toll the time for filing
an appeal)"); cf. Richardson v. Watson, 611
So.2d 1254, 1255 (Fla. 2d DCA 1992) ("Unlike an
authorized and timely motion directed to a final order, a
motion for reconsideration or rehearing of a nonfinal order
does not toll the time for filing a notice of appeal . . .
."). As a result, the "[f]ailure to file any notice
within the 30-day period constitutes an irremediable
jurisdictional defect.' " First Nat'l Bank
in Fort Myers v. Fla. Unemployment Appeals Comm'n,
461 So.2d 208, 208 (Fla. 1st DCA 1984).
upon the foregoing, we dismiss the Stubbses' appeal.
LaROSE, CJ, and SILBERMAN and ...