# Third District Court of Appeal

State of Florida

Opinion filed October 19, 2016.

Not final until disposition of timely filed motion for rehearing.

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No. 3D16-735

Lower Tribunal No. 11-37387

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### Eduardo Garcia

, Petitioner,

vs.



### Christiana Trust, etc., et al.

,

Respondents.

A Writ of Certiorari to the Circuit Court for Miami-Dade County, Antonio

Marin, Judge.

Sordo & Associates, P.A.; Arnaldo Velez

, for petitioner.

John L. Penson, P.A. and John L. Penson, for respondent Christiana Trust.

Before SUAREZ, C.J., and FERNANDEZ and SCALES, JJ.

SUAREZ, C.J.

Eduardo Garcia petitions this court to enforce a mandate issued on June 5,

2014, or alternatively, for a writ of certiorari or prohibition. We treat this appeal asa proceeding for a writ of certiorari and for the reasons stated below, grant the writ

and quash the order under review.

This ongoing and factually tortured litigation began when BankUnited

sought to foreclose on a mortgage purportedly signed by Eduardo Garcia and

Bertha Garcia, who were husband and wife at the time. Eduardo Garcia and

Bertha Garcia held title to the property as tenants by the entireties. A bench trial

on the foreclosure action was held and the trial court determined that Eduardo

Garcia’s signature on the mortgage documents had been forged by Bertha, his

wife. As such, in the final judgment of foreclosure, the trial court determined that

BankUnited held a lien for the total sum owed, but not as to defendant Eduardo

Garcia as his signature had been forged. The Final Judgment of Foreclosure

rendered February 28, 2013, ordered the sale of the property but specifically

provided that “[t]he sale shall not include the interest of the Defendant, Eduardo

Garcia, who prevailed in this action.” Only the interest of Bertha Garcia was to be

sold. Published notice of the sale did not indicate that only one of the two parties’

interests was salable but indicated the sale was for the entire fee. The Garcias filed

an emergency motion in the trial court to cancel the sale, citing their ownership by

the entirety, and arguing that Eduardo Garcia’s interest could not be separated out

for purposes of foreclosure and sale. The trial court denied the emergency motion

and the online sale went forward with no changes being made to the publication.

2Rocketrider Pictures, LLC, was the purchaser. When Rocketrider, after the

sale, discovered that the property had been held as tenants by the entireties, it filed

an Objection to Sale in the trial court stating that its bid was based on the

assumption it was bidding on the entire fee and because the property had been held

by the entireties and could not be severed, Rocketrider actually received nothing in

the purchase. The trial court denied the motion and Rocketrider appealed. On that

appeal, this Court reversed the order denying Rocketrider’s objections to the

judicial sale and ordered the trial court to cancel the certificate of title issued to

Rocketrider as the buyer, and to return Rocketrider’s bid money. Rocketrider

Pictures, LLC v. BankUnited, et al.

, 138 So. 3d 1223 (Fla. 3d DCA 2014).

Although the propriety of the foreclosure itself was not an issue in or subject of

that appeal, this Court also, however, in its opinion reversed the Final Judgment of

Foreclosure to which Rocketrider was not a party. A mandate on that opinion then

issued.

Subsequent to the mandate, Eduardo Garcia sought entry in the trial court of

a judgment finding that he is not liable on the note and mortgage, and to quiet title.

On October 20, 2015, Christiana Trust, the successor in interest to BankUnited,

filed a motion for leave to file an Amended Complaint in foreclosure and to add

new counts for breach of promissory note and equitable lien. Relying on the 2014

Rocketrider opinion from this Court that purportedly reversed the Final Judgment

3below, the trial court denied Eduardo Garcia’s motion for judgment on the

pleadings and final judgment. The trial court, relying on this Court’s opinion in

Rocketrider that in part ordered reversal of the final judgment in foreclosure,

granted the Trust’s leave to amend the Complaint in Foreclosure. Eduardo Garcia

appealed bringing us to this point in this tangled litigation.

First, it is important to note that the Final Judgment in Foreclosure entered

February 28, 2013, was not appealed and is now, therefore, final. See Makar v.

Inv'rs Real Estate Mgmt.

, 553 So. 2d 298, 299 (Fla. 1st DCA 1989) (holding a

judgment is a final adjudication of the merits of an action). Indeed, the 2013

Rocketrider appeal was not from the Final Judgment of Foreclosure but was

strictly limited to vacating the post-foreclosure judicial sale and returning

Rocketrider’s bid money. The only parties to that appeal were the parties to the

foreclosure sale, Rocketrider and the Bank; Eduardo Garcia was not a party to that

appeal. The Final Judgment of Foreclosure was not at issue in that appeal and the

language in Rocketrider purporting to reverse that final judgment is without legal

effect. See, e.g.

, Kippy Corp. v. Colburn

, 177 So. 2d 193, 197 (Fla. 1965) (“The

jurisdiction of appellate courts to correct error in an order is likewise limited by

statute and rule in that such a court has no power whatsoever to act in a cause

unless the application for review be brought within the time and in the manner

provided.”); Denny v. Denny

, 334 So. 2d 300, 302 (Fla. 1st DCA 1976) (holding

4that as the final judgment became a final decision, appealable as such, and where

no appeal was taken within the time prescribed by the Florida Appellate Rules,

neither the trial court nor appellate court has jurisdiction to review it).

As the foreclosure (between Eduardo Garcia and the Bank) was already final

at the time Rocketrider filed its June 6, 2013 appeal from the post-judgment sale,

the Final Judgment of Foreclosure cannot be reversed nor, for that matter, can it be

re-opened. 1 See Liberty Ins. Corp. v. Milne

, 98 So. 3d 613, 615 (Fla. 4th DCA

2012) (finding a trial court loses jurisdiction of a cause after a judgment or final

decree has been entered and the time for filing petition for rehearing or motion for

new trial has expired or same has been denied); Harbor Bay Condominiums, Inc. v.

Basabe

, 856 So. 2d 1067, 1070 (Fla. 3d DCA 2003).

In this matter, notwithstanding the language contained in the 2014

Rocketrider opinion, neither this Court nor the trial court had jurisdiction to modify

or reopen the Final Judgment of Foreclosure because that judgment was final as to

Eduardo Garcia and the Bank, and Eduardo Garcia was not a party to the

1 “A trial judge is deprived of jurisdiction, not by the manner in which the

proceeding is terminated, but by the sheer finality of the act, whether judgment,

decree, order or stipulation, which concludes litigation. Once the litigation is

terminated and the time for appeal has run, that action is concluded for all time.

There is one exception to this absolute finality, and this is rule 1.540, which gives

the court jurisdiction to relieve a party from the act of finality in a narrow range of

circumstances.” Miller v. Fortune Ins. Co.

, 484 So. 2d 1221, 1223 (Fla. 1986).

That rule was not invoked by the Bank, and the circumstances described by Rule

1.540 were not present in this record.

5Rocketrider appeal. We therefore treat Eduardo Garcia’s present petition as a

request for writ of certiorari, grant the writ and quash the order below granting

Christiana Trust’s motion for leave to amend its complaint in foreclosure, and

remand with directions to reinstate the February 28, 2013 Final Judgment of

Foreclosure.

Petition granted, remanded with directions.

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