final until disposition of any timely and authorized motion
under Fla. R. App. P. 9.330 or 9.331.
appeal from the Circuit Court for Duval County. Karen Cole,
Spencer, pro se, Appellant.
Christian J. Gendreau of Storey Law Group, P.A., Orlando, for
challenges the final judgment of foreclosure entered on
Deutsche Bank National Trust Co.'s amended motion for
summary final judgment. Because the notice of appeal failed
to timely invoke this court's jurisdiction, the appeal
must be dismissed.
final judgment that is the subject of this appeal was entered
on September 26, 2018. On October 11, 2018, Appellant filed a
motion to set aside the final judgment. Appellant
specifically referred to rule 1.540, Florida Rules of Civil
Procedure, and asserted that she was entitled to relief
because her failure to appear at the final hearing was due to
her mis-reading the time specified in the notice of hearing.
She also alleged that Deutsche Bank had committed fraud on
the court by failing to file documents favorable to her
position and that she had paid the amounts owed under the
note during the pendency of the litigation. These allegations
constitute allegations of "mistake, inadvertence,
surprise, or excusable neglect;" "fraud . . . or
other misconduct of an adverse party;" and "that
the judgment or decree has been satisfied." See
Fla. R. Civ. P. 1.540(b)(1), (3), & (5). No order on the
motion is contained in the record.
filed her notice of appeal on January 8, 2019. This was well
beyond 30 days from September 26, 2018 - the date the final
judgment was entered. "It is axiomatic that an appeal
must be filed within thirty days of entry of the final
judgment; this is jurisdictional and irremediable."
Helmich v. Wells Fargo Bank, N.A., 136 So.3d 763, 764
(Fla. 1st DCA 2014); see also Fla. R. App. P.
9.110(b) (noting that jurisdiction of the appellate court is
invoked by filing a notice of appeal "within 30 days of
rendition of the order to be reviewed"). The merits of
Appellant's motion to set aside and her subsequent
filings in the trial court have no bearing on this
Court's appellate jurisdiction over the final judgment.
recognize that certain motions toll the rendition of a final
order for purposes of the time to file an appeal, including
motions for new trial and motions for rehearing. See
Fla. R. App. P. 9.020(h)(1). While rule 9.020(h)(1) does not
list a motion to set aside or a motion for relief from
judgment as tolling motions, "the true nature of a
motion must be determined by its content and not by the label
the moving party has used to describe it." Fire
& Cas. Ins. Co. of Connecticut v. Sealey, 810 So.2d
988, 992 (Fla. 1st DCA 2002). For example, in Olson v.
Olson, 704 So.2d 208, 210 (Fla. 5th DCA 1998), the court
found that the "motion to set aside final judgment"
was "intended to operate as a motion for rehearing"
and was timely filed as such. The court in Olson
determined that the motion tolled rendition of the final
order, and thus the appeal was timely. Id.
the unambiguous allegations in Appellant's motion to set
aside establish that the motion was not simply a mislabeled
motion for rehearing or for new trial. The contents of the
motion demonstrate Appellant's intent to seek relief from
judgment under rule 1.540, and this court is not at liberty
to redraft the motion filed in the trial court as one tolling
rendition, despite Appellant's pro se status. See
James v. Crews, 132 So.3d 896, 899 (Fla. 1st DCA 2014)
("leniency in construing pleadings does not allow a
court to re-draft the substance of a claim").
Furthermore, Appellant in citing to rule 1.540 should have
been aware that rule 1.540(b) provides, "A motion under
this subdivision does not affect the finality of a judgment
or decree or suspend its operation." A motion for relief
from judgment under rule 1.540(b) does not suspend rendition
of a final judgment or toll the time for taking an appeal.
Stubbs v. Fed. Nat'l Mortg. Ass'n, 250 So.3d
151, 152-153 (Fla. 2d DCA 2018).
the notice of appeal was filed more than 30 days after the
entry of the final judgment and because rendition of the
final judgment was not tolled, Appellant failed to timely
invoke this Court's jurisdiction. The appeal must
therefore be dismissed. See Watts v. Watts, 56 So.3d
897 (Fla. 1st DCA 2011).
C.J., and ...