Third District Court of Appeal

State of Florida 

Opinion filed September 18, 2024.

Not final until disposition of timely filed motion for rehearing.

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No. 3D24-387

Lower Tribunal No. 23-004559-CC-20

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Patrick Fabre,

Appellant,

vs.

4647 Block, LLC,

Appellee.

An Appeal from the County Court for Miami-Dade County, Gordon 

Murray, Judge.

Law Office of Debra Kay Cohen, and Debra Kay Cohen, for appellant.

Barakat and Bossa, PLLC, and Giacomo Bossa, for appellee.

Before LINDSEY, MILLER and GOODEN, JJ. 

GOODEN, J.

Appellee 4647 Block, LLC filed a two-count complaint against 

Appellant Patrick Fabre. It alleged a count for eviction and a count for 
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holdover damages. After Fabre did not post rent into the court registry as 

ordered, the trial court entered a “Final Judgment for Removal of Tenant.” 

Fabre moved to stay the writ of possession and for relief from the judgment, 

which were denied by the trial court in a single order. Fabre now appeals 

these two orders. In the notice of appeal, he asserts that they are both final 

in nature. 

I. JURISDICTION

We must analyze our jurisdiction in every case. “[I]t is the duty of the 

court to consider it, for if the court is without jurisdiction, it is powerless to act 

in the case.” Roberts v. Seaboard Sur. Co., 29 So. 2d 743, 748 (Fla. 1947). 

Accord Almacenes El Globo De Quito, S.A. v. Dalbeta L.C., 181 So. 3d 559, 

561 (Fla. 3d DCA 2015); Bloomgarden v. Mandel, 154 So. 3d 451, 453 (Fla. 

3d DCA 2014); 84 Lumber Co. v. Cooper, 656 So. 2d 1297, 1298 (Fla. 2d 

DCA 1994).

We first must examine whether the “Final Judgment” is a final order 

and appealable under Florida Rule of Appellate Procedure 9.110.1

 “In 

deciding whether an order constitutes a final judgment, we look not to the 

title. Instead, we review the content and substance to discern whether the 

order fully and finally determines the rights of the parties involved in the 

1 See also Art. V, § 4(b), Fla. Const.; Fla. R. App. P. 9.030(b). 
3

lawsuit.” Colby III, Inc. v. Centennial Westland Mall Partners, LLC, 386 So. 

3d 1003, 1005 (Fla. 3d DCA 2023). “A final order or judgment is one which 

evidences on its face that it adjudicates the merits of, and disposes of, the 

matter before the court and leaves no judicial labor to be done.” Cardillo v. 

Qualsure Ins. Corp., 974 So. 2d 1174, 1175–76 (Fla. 4th DCA 2008). See 

also Bloomgarden, 154 So. 3d at 454 (“Florida’s test of finality for appellate 

purposes is well established: the order constitutes the end of judicial labor in 

the trial court, and nothing further remains to be done to terminate the dispute 

between the parties.”). 

Despite its title and the SRS stamp, the “Final Judgment” is not a final 

order. This order did not fully dispose of the entire case. It only disposed of 

Count I of the complaint. There is still judicial labor to be had—Count II.2

 

Colby III, Inc., 386 So. 3d at 1005. Simply put, inclusion of language of 

finality does not transform a non-final order into a final order where there is 

still judicial work to be had. 

Nevertheless, we do have jurisdiction to review the “Final Judgment” 

as an appealable, nonfinal order under Florida Rule of Appellate Procedure 

2 Nothing in the record indicates that Count II was either abandoned or 

dismissed. Further, “[a] default under [section 83.232, Florida Statutes,] 

determines only the possessory interest and does not resolve a dispute for 

damages.” Famsun Invest, LLC v. Therault, 95 So. 3d 961, 963–64 (Fla. 4th 

DCA 2012). 
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9.130 as it concerns a “right to immediate possession of property.” Fla. R. 

App. P. 9.130(a)(3)(C)(ii); Bryant v. Wells Fargo Bank, N.A., 182 So. 3d 927, 

929 (Fla. 3d DCA 2016); Speedway SuperAmerica, LLC v. Tropic Enter., 

Inc., 966 So. 2d 1, 2 (Fla. 2d DCA 2007). 

Next, we turn to the order denying Fabre’s motion for relief from 

judgment filed under Florida Rule of Civil Procedure 1.540(b). Our analysis 

of the “Final Judgment” has a direct impact on our review of this order. 

Rule 1.540(b) allows a party to seek relief from final judgments and 

orders for certain substantive errors. Fla. R. Civ. P. 1.540(b). By its plain 

text, Rule 1.540(b) only applies to final orders. Id. (“On motion and upon 

such terms as are just, the court may relieve a party or a party’s legal 

representative from a final judgment, decree, order, or proceeding. . . .”) 

(emphasis added); In re: Amends. to Fla. Rules of Civ. Proc. —2019 RegularCycle Report, 292 So. 3d 660, 661 (Fla. 2019). “The rule does not, however, 

authorize a trial court to grant relief from a non-final order.” Garcia v. Navy 

Fed. Credit Union, 224 So. 3d 339, 340 (Fla. 5th DCA 2017). See also

Hialeah Hotel, Inc. v. Woods, 778 So. 2d 314, 315 (Fla. 3d DCA 2000) (“That 

is so because Rule 1.540 applies only to final judgments, not to interlocutory 

orders.”). Since the “Final Judgment” is a nonfinal order, Fabre’s Rule 

1.540(b) motion was not authorized. 
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Under Florida Rule of Appellate Procedure 9.130, we can only review 

orders on “authorized and timely motion[s] for relief from judgment.” Fla. R. 

App. P. 9.130(a)(5). See also id. at Committee Notes, 2008 Amendment 

(“Subdivision 9.130(a)(5) is intended to authorize appeals from orders 

entered on motions for relief from judgment that are specifically 

contemplated by a specific rule of procedure.”). Since Fabre’s motion was 

not authorized under Rule 1.540(b), we do not have jurisdiction to review it.3

 

This is true even where the order is mislabeled as final. Bennett’s 

Leasing, Inc. v. First St. Mortg. Corp., 870 So. 2d 93, 98 (Fla. 1st DCA 2003) 

(“An order entered on a motion to vacate a non-final order, even where the 

motion mislabels the non-final order as final, is not reviewable under Florida 

Rule of Appellate Procedure 9.130(a)(5).”).

Based on the foregoing, we do not have jurisdiction to consider Fabre’s 

appeal of the order denying his motion for relief from the judgment.4 We

3 The order also denied Fabre’s motion to stay writ of possession. However, 

Fabre did not raise any argument on appeal as to that motion. We are “not 

at liberty to address issues that were not raised by the parties.” AnheuserBusch Cos., Inc. v. Staples, 125 So. 3d 309, 312 (Fla. 1st DCA 2013). 

Therefore, any appeal on this motion is deemed abandoned.

4 Even if this motion were treated as a motion for reconsideration, we would 

still not have jurisdiction to review it. It would be a non-appealable, non-final 

order. See Agere Sys. Inc. v. All Am. Crating, Inc., 931 So. 2d 244, 245 (Fla. 

5th DCA 2006) (“Moreover, an order that simply denies a motion for 

reconsideration or rehearing of an underlying non-final order, such as the 
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therefore dismiss that portion of the appeal. Hi-Tech Mktg. Grp., Inc. v. 

Thiem, 659 So. 2d 479, 479 (Fla. 4th DCA 1995). 

II. STANDARD OF REVIEW

Matters of statutory interpretation are reviewed de novo. 5051 NW 

37 Ave. Corp. v. IES Sales & Serv., LLC, 389 So. 3d 734, 737 (Fla. 3d DCA 

2024).

III. ANALYSIS

Fabre entered a commercial lease. 4647 Block subsequently 

purchased the property. As part of the lease agreement, Fabre was required 

to provide 4647 Block a copy of “any and all local, state or federal permits” 

which were required for use of the premise. 

4647 Block requested those permits and sent a 15-day notice to cure 

noncompliance or vacate the premise. Fabre provided some, but not all the 

required documents. Approximately two months later, 4647 Block made 

another request and sent a second 15-day notice to cure noncompliance or 

vacate the premise. Fabre only produced an application for a permit. 

one sought to be appealed in this case, is not in itself an appealable order.”); 

Richardson v. Watson, 611 So. 2d 1254, 1255 (Fla. 2d DCA 1992) (“The trial 

court’s order denying the motion for reconsideration of that order, however, 

is not appealable.”). 
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4647 Block filed a two-count complaint against Fabre seeking eviction 

and holdover damages. Fabre maintained that he complied with all 

provisions of the lease. 

In August 2023, 4647 Block petitioned the trial court for deposit of the 

rent monies into the court registry pursuant to section 83.232, Florida 

Statutes. The motion noted that, even though an answer had been filed, 

Fabre had not deposited rent into the court registry. 

 Fabre immediately began paying rent monies into the court registry. 

He timely paid September, October, and November rents. See § 83.232(1), 

Fla. Stat.; Tribeca Aesthetic Med. Sols., LLC v. Edge Pilates Corp., 82 So. 

3d 899, 901 (Fla. 4th DCA 2011) (“Section 83.232(1), Florida Statutes, 

requires a tenant to pay into the court registry the amount of unpaid rent 

together with rent accruing during the pendency of the suit.”); Poal Wk Taft, 

LLC v. Johnson Med. Ctr. Corp., 45 So. 3d 37, 38 (Fla. 4th DCA 2010) 

(“Section 83.232 requires the tenant to pay into the court registry its rent to 

forestall possession of the premises by the landlord during a pending eviction 

proceeding.”). However, Fabre did not timely pay December rent into the 

court registry. 
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Later that month, the trial court entered an agreed order on 4647 

Block’s petition, which directed Fabre to pay rent into the registry on the first 

day of each month. This order was served on Fabre’s attorneys. 

Fabre’s attorneys subsequently moved to withdraw as counsel. The 

trial court granted the request at a January 3, 2024, hearing. That same day, 

4647 Block filed a motion for default judgment on possession alleging that 

Fabre failed to deposit December and January’s rents. Fabre responded 

that, on January 3, 2024, he made a deposit and on January 4, 2024, he 

made two additional payments. Despite the dates, he maintained that these 

payments were timely. 

The trial court entered the “Final Judgment for Removal of the Tenant.” 

The order states that Fabre failed to timely deposit the disputed rent into the 

court registry pursuant to the agreed order, and it did not have discretion to 

deny the request for entry of default final judgment for possession. 

Section 83.232, Florida Statutes, governs defaults in nonresidential 

leases. “Section 83.232 is designed to protect a commercial landlord from 

irreparable harm where a tenant holds over during eviction proceedings 

without paying rent.” Famsun Invest, LLC v. Therault, 95 So. 3d 961, 963 

(Fla. 4th DCA 2012). It provides in pertinent part,

Failure of the tenant to pay the rent into the court registry 

pursuant to court order shall be deemed an absolute waiver of 
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the tenant’s defenses. In such case, the landlord is entitled to an 

immediate default for possession without further notice or 

hearing thereon.

§ 83.232(5), Fla. Stat.

The trial court correctly noted that it had no discretion under this 

provision. See Sanders v. City of Orlando, 997 So. 2d 1089, 1095 (Fla. 

2008) (“The word ‘shall’ is mandatory in nature.”); Fla. Caucus of Black State 

Legislators, Inc. v. Crosby, 877 So. 2d 861, 863 (Fla. 1st DCA 2004)

(“Because the legislature chose to use the word ‘shall’ throughout section 

944.293, the Department’s obligations are not discretionary.”); Antonin 

Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts

112 (2012) (“Mandatory words impose a duty; permissive words grant 

discretion.”). 

Once Fabre failed to timely pay the rent into the court registry as 

required by the statute and order, the trial court had no discretion in entering 

an immediate default for possession. § 83.232(5), Fla. Stat.; Park Adult 

Residential Facility, Inc. v. Dan Designs, Inc., 36 So. 3d 811, 812 (Fla. 3d 

DCA 2010); Poal Wk Taft, LLC, 45 So. 3d at 39 (“The trial court exercises no 

discretion, and the landlord is entitled to the issuance of the writ of 

possession as a matter of right.”). 
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“When a tenant fails to tender payment on or before the deadline, the 

court must issue a default for possession.” Cove & Deerfield Beach, LLC v. 

R Fast, Inc., 310 So. 3d 413, 415 (Fla. 4th DCA 2020). The trial court was 

statutorily required to do so here. See id. at 415 (“But the reason for failing 

to tender payment on the first day of the month is not relevant.”); Park Adult 

Residential Facility, Inc., 36 So. 3d at 812 (“The trial court may not consider 

the reasons why the deposit was not timely made.”); Kosoy Kendall Assoc., 

LLC v. Los Latinos Rest. Inc., 10 So. 3d 1168 (Fla. 3d DCA 2009) (holding 

default should have been entered on payment that was four days late). 

“[T]here is no equitable exception to the statute.” Poal Wk Taft, LLC, 45 So. 

3d at 39.

Accordingly, we affirm the trial court’s order removing the tenant. The 

trial court acted in accordance with the requirements of section 83.232, 

Florida Statutes. We dismiss for lack of jurisdiction the appeal of the order 

denying the motion for relief of judgment filed under Rule 1.540(b). 

Affirmed in part, dismissed in part.