appeal from the Circuit Court for Duval County. Karen Cole,
Spencer, pro se, Appellant.
J. Gendreau of Storey Law Group, P.A., Orlando, for
Appellant 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 courts 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.
Appellant 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 Appellants motion
to set aside and her subsequent filings in the trial court
have no bearing on this Courts 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 Appellants 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 Appellants 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 Appellants 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. Natl Mortg. Assn, 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 Courts jurisdiction. The appeal must therefore
be dismissed. See Watts v. Watts, 56 So.3d
897 (Fla. 1st DCA 2011).
C.J., and ...