WESLEY WHITTINGHAM AND ANDREA BROWN, Appellants.
HSBC BANK USA, NA AS TRUSTEE FOR THE HOLDERS OF DEUTSCHE ALT-A SECURITIES MORTGAGE LOAN TRUST, SERIES 2007-OA1, Appellee.
FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
Nonfinal Appeal from the Circuit Court for Brevard County,
Lisa Davidson, Judge.
Nicholas A. Vidoni, of Vidoni Law PLLC, Cocoa, for
Taylor and Brandi Wilson, of Deluca Law Group, PLLC, Ft.
Lauderdale, for Appellee.
Whittingham and Andrea Brown ("Borrowers") appeal
the trial court's order vacating two separate orders
issued on October 14, 2013, and February 20, 2018, under
Florida Rule of Civil Procedure 1.540(b)(4). The 2013 order
was a case management order dismissing the foreclosure case
without prejudice after the parties failed to appear at the
case conference. The 2018 order vacated a summary final
judgment of foreclosure in favor of HSBC Bank USA, NA as
Trustee for the Holders of Deutsche Alt-A Securities Mortgage
Loan Trust, Series 2007-OA1 ("Bank"), and again
dismissed the case without prejudice. Borrowers raise four
arguments on appeal. We find dispositive Borrowers'
argument that judicial estoppel prevented Bank from
challenging the 2018 order that it requested, and reverse.
August 27, 2010, the trial court rendered a summary final
judgment of foreclosure against Borrowers and in favor of
Bank, which it had signed four days earlier. The foreclosure
sale was set for December 15, 2010. But, a week prior to the
sale, Bank filed an ex parte motion to cancel it. The trial
court granted the motion and cancelled the sale. The next
year, in October 2011, Bank filed a motion to vacate the
final judgment, stating that it did not wish to proceed with
the case. Bank also asked the trial court to withdraw the
original documents and dismiss the case without prejudice.
Bank, however, never noticed the motion for a hearing, and
the trial court did not rule on it at that time.
years later, in 2013, on its own motion, the trial court set
and held a case management conference. Neither party
attended. Based on their nonattendance, the trial court
issued a case management order on October 14, 2013, which
dismissed the case without prejudice and gave the parties
forty-five days to file additional pleadings. More than a
year later, on December 9, 2014, Bank filed a motion to
withdraw the original documents from the court file. In the
motion, Bank decelerated the loan, withdrew its demand for
immediate payment, and reinstituted the loan as an
installment loan. Ten days later, the trial court granted the
motion. Bank then filed a separate foreclosure action in
October 2015, which was set for trial in May 2018.
subsequently filed a notice of hearing on its October 2011
motion to vacate the 2010 final judgment in this case. On
February 20, 2018, the trial court, ex parte, granted the
October 2011 motion to vacate and dismissed the case without
prejudice. Shortly thereafter, Borrowers filed a rule
1.540(b)(4) motion to vacate the 2013 case management order,
which had also dismissed the case without prejudice. They
characterized the order as an involuntary dismissal and
argued that it was void because the trial court lacked
jurisdiction to involuntarily dismiss the case after it had
rendered the summary final judgment. Bank also filed a
similar motion, which not only sought to vacate the 2013 case
management order, but the 2018 order as well. Similar to
Borrowers, Bank claimed that both orders were void because
the trial court lost subject matter jurisdiction to enter
them after the final judgment was rendered. Bank also
maintained that the 2010 final judgment was still
enforceable, and thus, a new foreclosure sale date should be
subsequent hearing on the parties' motions, the trial
court inquired why Bank had previously moved to vacate the
2010 final judgment. Bank responded:
Well, Your Honor, fundamentally what we thought we were able
to do is clean up the Court docket. We knew that we were
advancing on a 2015 case, it was already set for trial, and
we didn't want there to be an issue where there was an
outstanding judgment. Subsequent to the Court granting that
order though, after partly reading counsel's arguments on
their motion to vacate, they titled it a motion to vacate a
judgment but they're actually trying to vacate an order
of dismissal, but after reviewing their case law we believe
that it was error for us to have renoticed it just as it was
error for Your Honor to have granted it.
then proceeded to argue that the motions and orders were void
because the trial court lost jurisdiction to enter them one
year after the 2010 final judgment was rendered. The trial
court agreed and vacated, as void, all orders entered after
August 23, 2011.
appeal, Borrowers contend that, regardless of whether the
2018 order was void, judicial estoppel bars Bank from
challenging it. They maintain that under estoppel principles
a party who accepts the benefit of an order is estopped from
urging error upon the same order. We agree.
estoppel provides that "[o]ne who assumes a particular
position or theory in a case is judicially estopped in a
later phase of that same case, or in another case, from
asserting any other or inconsistent position toward the same
parties and subject matter." In re Adoption of
D.P.P., 158 So.3d 633, 639 (Fla. 5th DCA 2014) (citing
Federated Mut.Implement & Hardware Ins. Co.