DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

NOEL RODRIGUEZ a/k/a NOEL ALEXIS RODRIGUEZ NEVINS,

Appellant,

v.

TEMPERATURE CONCEPTS, INC. and ROBERT MARK BORDONI,

Appellees.

No. 4D18-2434

[ March 27, 2019 ]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm 

Beach County; Donald W. Hafele, Judge; L.T. Case No. 502015CA011087.

Christopher R. Turner of Christopher R. Turner, PLLC, Orlando, for 

appellant.

Angelo A. Gasparri of Angelo A. Gasparri, P.A., Boynton Beach, for 

appellees.

TAYLOR, J.

Noel Rodriguez appeals the trial court’s entry of final summary 

judgment in favor of Temperature Concepts, Inc., and Robert Mark 

Bordoni. The judgment was entered after the trial court reopened the case 

six months after it had entered an order of dismissal. Because the trial 

court was without jurisdiction when it reopened the case and entered 

summary judgment, we reverse the final judgment and remand for 

reinstatement of the prior order of dismissal. Accordingly, we do not reach 

the merits of the parties’ arguments concerning evidence to support the 

final summary judgment.

Temperature Concepts and Bordoni brought an action against 

appellant for civil theft, constructive fraud, conversion, and unjust 

enrichment. More than 120 days elapsed and appellant still had not been 

served with the complaint. On March 21, 2016, the trial court sua sponte

entered an order directing Temperature Concepts and Bordoni to effect 

service upon appellant within ten days or to file a motion to show good 

cause or excusable neglect. The court’s order added that failure to comply 

would result in a dismissal of the case, without further notice or court 
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order. Neither Temperature Concepts nor Bordoni responded to the order. 

On April 11, 2016, the trial court entered an order dismissing the case. 

No motion for rehearing was filed.

Four months after the dismissal order, an affidavit of diligent search 

and inquiry was filed with the court, which noted that there had been one 

unsuccessful attempt to serve process two weeks after the complaint had 

been filed.

On October 28, 2016, more than six months after the dismissal order, 

Temperature Concepts and Bordoni filed a motion to reopen the case to 

perfect service, alleging that they had made multiple attempts to locate 

appellant and that they believed he was willfully avoiding service. After a 

December 2016 hearing, the trial court granted the motion to reopen the 

case and permitted Temperature Concepts and Bordoni 120 days to serve 

appellant. On June 13, 2018, the trial court entered final summary 

judgment in favor of Temperature Concepts and Bordoni.

On appeal, the parties mainly dispute whether the trial court abused 

its discretion by reopening the case to allow Temperature Concepts and 

Bordoni to perfect service upon appellant and whether competent 

substantial evidence supported the final summary judgment. They do not 

address the trial court’s loss of subject matter jurisdiction after it 

dismissed the case and the dismissal order became final.

Even if “neither party presents an argument regarding the trial court’s 

subject matter jurisdiction, a defect in the trial court’s jurisdiction may be 

raised sua sponte for the first time on appeal.” Alekseyev v. U.S. Bank 

Nat’l Ass’n, 189 So. 3d 935, 937 (Fla. 4th DCA 2016).

It is well settled that the trial court loses jurisdiction over a case after 

it becomes final, with the exception that the trial court has jurisdiction to 

entertain a timely filed motion under Florida Rule of Civil Procedure 1.540. 

See Magloire v. Bank of N.Y., 147 So. 3d 594, 596 (Fla. 4th DCA 2014). 

Outside of a rule 1.540 motion, when an order of dismissal is filed, “[t]he 

trial court has jurisdiction to entertain a timely motion for rehearing or to 

revisit the cause on the court’s own initiative within the time allowed for a 

rehearing motion.” Id. (quoting Ludovici v. McKiness, 545 So. 2d 335, 336 

n.3 (Fla. 3d DCA 1989)). A motion for new trial or rehearing must be served 

no later than fifteen days after the return of the verdict or the filing of a 

judgment. Fla. R. Civ. P. 1.530(b); Randall v. Griffin, 204 So. 3d 965, 967 

(Fla. 5th DCA 2016).

In this case, after the trial court entered its dismissal order on April 11, 
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2016, Temperature Concepts and Bordoni had fifteen days within which 

to file a motion for rehearing. Alternatively, the court could have, on its 

own initiative, reconsidered its decision within that same fifteen-day 

period. Because neither of these actions took place, the order became final 

and the trial court lost jurisdiction over the case on April 26, 2016. 

Therefore, the trial court was without jurisdiction when, more than six 

months later, it entertained and granted the motion to reopen the case to 

perfect service.

Accordingly, we reverse and remand with directions to vacate the final 

judgment entered on June 13, 2018 and reinstate the final order of 

dismissal entered on April 11, 2016.

Reversed and Remanded with directions.

GERBER, C.J., and KUNTZ, J., concur.

* * *

Not final until disposition of timely filed motion for rehearing.