# Third District Court of Appeal

State of Florida

Opinion filed April 27, 2016

. Not final until disposition of timely filed motion for rehearing.

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No. 3D15-1415

Lower Tribunal No. 09-77359

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### U.S. Bank National Association, etc.

,

Petitioner,

vs.



### Gladys Rivera, et al.

, Respondents.

A Case of Original Jurisdiction

– Prohibition.

Burr & Forman, Nicholas S. Agnello and John R. Chiles, (Fort Lauderdale),

for petitioner.

Tony Stabenow

, for respondents, Gladys Rivera and Dennis Rivera.

Before WELLS, EMAS and LOGUE, JJ.

WELLS, Judge.U.S. Bank National Association petitions this court to issue a writ

prohibiting the court below from entering further orders in this now long-dismissed

foreclosure action. We agree that the court below no longer enjoys jurisdiction to

entertain any further motions in this matter but withhold our writ confident that the

trial court will comply with this decision.

This petition arises from a foreclosure action filed in October of 2009.

Purportedly unable to locate borrowers Dennis and Gladys Rivera, the Bank served

them by publication. When the Riveras failed to respond, the bank secured a

default and ultimately a final judgment of foreclosure against them.

The Riveras sought Chapter 13 bankruptcy protection and a scheduled

foreclosure sale was cancelled. Gladys Rivera also filed a Chapter 7 bankruptcy

petition. Both bankruptcy actions were quickly discharged.

In the meantime, on October 12, 2011, the Bank, citing to irregularities in

the actions taken by its former counsel in prosecuting a number of foreclosure

actions on its behalf, filed a rule 1.540 motion to vacate the final judgment in its

favor entered in this case. See Fla. R. Civ. P. 1.540. The Riveras also sought rule

1.540 relief claiming that the final judgment was void because (1) no good faith

effort had been made to locate and serve them; (2) the affidavit of due diligence

was defective; (3) no non-military affidavit had been filed; (4) the affidavits in

support of the judgment were insufficient; and (5) the complaint was defective

2because it failed to properly allege standing, jurisdiction over Dennis Rivera, or

that proper notice of a default had been given. 1 In conjunction with this motion,

the Riveras sought to take discovery from the Bank. When the Bank failed to

comply with the Riveras’ discovery demands, sanctions were sought and twice

imposed against the Bank.

On December 12, 2013, the Bank’s earlier-filed rule 1.540 motion to vacate

the final judgment was granted. The following day, the Bank sought and

subsequently was granted relief from the previously entered discovery sanction

orders. See U.S. Bank Nat’l Ass’n v. Rivera

, 128 So. 3d 907 (Fla. 3d DCA 2013).

Because the sanction orders had been quashed in part because the Riveras’ fraud

claim was unsupported by any sworn testimony, the Riveras filed an amended

verified motion to vacate the final judgment of foreclosure. Shortly thereafter, the

Bank voluntarily dismissed the foreclosure action which had already been

reinstated the year before.

The Riveras thereafter sought to set aside the voluntary dismissal so that the

court below could dismiss the action with prejudice for fraud on the court. The

Riveras also sought to take discovery in conjunction with this latest motion. When

1 The Riveras also filed a separate class action in the Eleventh Judicial Circuit, in

which U.S. Bank was not named as a party, alleging that U.S. Bank’s prior servicer

and its counsel had committed fraud in various foreclosure actions. In that action,

the Riveras alleged that “the claims in this case involve the same facts and legal

issues as the claims in Case No. 09-77359 CA 27 [the instant action].”

3the Bank again refused to engage in discovery, the Riveras moved to compel and

for the imposition of sanctions. The Bank moved to strike the Riveras’ motion to

vacate the voluntary dismissal and sought to avoid sanctions claiming that because

the action had been voluntarily dismissed, the court below had no jurisdiction to

continue to entertain further discovery or motions. The motion to strike was

denied with the trial court holding in relevant part:

With respect to the P[etitioner]’s objection that this Court is without

jurisdiction to enter discovery orders based on the notice of voluntary

dismissal and order vacating the final judgment, the objection is

overruled.

The Riveras’ renewed motion to compel discovery and for an award of fees

as a sanction was granted orally; however, no written orders have been entered.

The Bank now seeks to preclude the court below from entertaining further

discovery or motions relating to this now dismissed action. Specifically, the Bank

points to the trial court’s order determining that it continues to enjoy jurisdiction to

entertain discovery motions despite the fact that there are no grounds on which this

action may be reopened. We agree because this issue has already been decided in

Pino v. Bank of New York

, 121 So. 3d 23 (Fla. 2013), where the Florida Supreme

Court held that a trial court has neither the authority under rule 1.540 nor the

inherent authority to grant relief from a voluntary dismissal where fraud on the

court is alleged but no affirmative relief has been granted to the dismissing

4plaintiff. There, the Court responded “in the negative” to the following certified

question:

DOES A TRIAL COURT HAVE JURISDICTION AND

AUTHORITY UNDER RULE 1.540(B), FLA. R. CIV. P., OR

UNDER ITS INHERENT AUTHORITY TO GRANT RELIEF

FROM A VOLUNTARY DISMISSAL WHERE THE MOTION

ALLEGES A FRAUD ON THE COURT IN THE PROCEEDINGS

BUT NO AFFIRMATIVE RELIEF ON BEHALF OF THE

PLAINTIFF HAS BEEN OBTAINED FROM THE COURT?

Id. at 25, 26.

In determining that no jurisdiction exists under these circumstances, the

Florida Supreme Court confirmed that a rule 1.420(a)(1) voluntary dismissal is

jurisdictional and serves to terminate the litigation, instantaneously divesting the

lower court of jurisdiction to entertain further motions or to enter further orders

that would otherwise either dispose of the case on the merits or revive the original

action. Id. at 32.

As the Court in Pino recognized, a voluntary dismissal irrevocably

terminates an action and because no judgment exists, rule 1.540 generally does not

apply:

The problem with the defendant’s attempt to use rule 1.540(b)

to have this case reinstated is found in the actual language of rule

1.540(b). While rule 1.540(b) may be used to afford relief to all

litigants who can demonstrate the existence of one of the five grounds

enumerated therein, including fraud, the rule is nevertheless limited in

its application to ‘ reliev[ing] a party or a party’s legal representative

from a final judgment, decree, order, or proceeding.’ Fla. R. Civ. P.

1.540(b) (emphasis added).

5Pino

, 121 So. 3d at 35.

While a litigant may secure relief from a voluntary dismissal under rule

1.540(b) where the litigant has been subjected to some adverse impact from which

the litigant needs to be relieved, no such adverse impact has been alleged or

demonstrated to exist here. See Id. (stating “[w]e agree

. . . that in the context of a

litigant seeking relief from a plaintiff’s voluntary dismissal, he or she may obtain

such ‘relief’ only where the voluntary dismissal being challenged under rule

1.540(b) subjects the litigant to some adverse impact from which he or she must be

relieved.”).

In Pino

, the defendant in a mortgage foreclosure action sought to set aside a

voluntary dismissal and for entry of a dismissal with prejudice claiming fraud on

the court. There, as here, the defendant alleged that the bank had engaged in

fraudulent conduct in an attempt to foreclose a mortgage. But because the bank

had secured no affirmative relief detrimental to the defendant, the Supreme Court

concluded that rule 1.540(b) provided no authority on which the trial court could

rely to either strike or disregard the notice of voluntary dismissal filed by the bank:

In sum, to obtain the benefit of rule 1.540(b) on the basis of a

plaintiff’s voluntary dismissal, a defendant must suffer adverse impact

as a result of the plaintiff’s receipt of affirmative relief from which the

defendant should be alleviated. This requirement is found in the

language of the rule itself, which is limited in application to

“ reliev[ing] a party or a party’s legal representative from a final

judgment, decree, order, or proceeding.” Fla.R.Civ.P. 1.540(b)

6(emphasis added). In other words, the voluntary dismissal being

challenged under rule 1.540(b) must subject the litigant to some

adverse impact from which he or she needs relief. Applied in the

context of a voluntary dismissal taken after fraudulent conduct by a

plaintiff, any affirmative relief the plaintiff obtained against the

defendant as a result of fraudulent conduct would clearly have an

adverse impact on the defendant, thereby entitling the defendant to

seek redress under rule 1.540(b)(3). On the other hand, where the

alleged fraud does not lead to the plaintiff obtaining affirmative relief

to the detriment of the defendant, rule 1.540(b)(3) would not be the

proper vehicle for a trial court to reopen an case voluntarily dismissed

by a plaintiff.

Id. at 39.

The Court also concluded that trial courts currently enjoy no inherent

authority to disregard voluntary dismissals. Rejecting the reasoning of a line of

“older equity cases decided by the Court during the first half of the twentieth

century,” the Court held that “[u]nder a plain reading of rule 1.420(a)(1), the trial

court now has no authority or discretion to deny a plaintiff’s service of a notice of

voluntary dismissal, as the dismissal is effective upon service.” Id. at 40 (citing

Fla. R. Civ. P. 1.420(a)(1)). 2

2 The Court also rejected the notion that Florida Rule of Civil Procedure 1.110(b)

requiring verification of foreclosure complaints, provides a trial court with the

authority to reopen a case that has been voluntarily dismissed:

While the intended purpose of the rule amendment was to give trial

courts more power to sanction plaintiffs who make false allegations in

mortgage foreclosure filings, it did not vest trial courts with the

authority to strike a voluntary dismissal, reinstate the dismissed

action, and then dismiss the action with prejudice as a consequent

sanction.

7In summary, here as in Pino

, no basis exists to strike, set aside, or otherwise

disregard the voluntary dismissal filed below. Because this action effectively was

terminated upon service of the Bank’s notice of voluntary dismissal, the court

below was without jurisdiction to entertain the motions filed by the Riveras

following the filing of that notice. We therefore quash all orders, oral or written,

entered by the court below following the Bank’s notice of voluntary dismissal but

withhold issuance of this court’s writ confident that the court below will refrain

from further action in this matter.

Id. at 41.

The Court did, however, conclude that where a defendant has filed a section

57.105 motion before an action is dismissed and the plaintiff has either failed to

withdraw the offending pleading or voluntarily dismissed the action within the 21-

day safe harbor period, the defendant may file, and the trial court will have

continuing jurisdiction to consider, a sanction motion. Id. at 41 (citing §

57.105(4), Fla. Stat. (2009)).

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