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Date: 07-06-2022
Case Style:
NATIONSTAR MORTGAGE LLC v. LUCIMEIRE DESOUZA a/k/a Lucimere E. DeSouza, et al.
Case Number: 1D21-2288
Judge:
Susan L. Kelsey
Court:
FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA
On Appeal From The Circuit Court for Duval County
Eric C. Roberson
Judge
Plaintiff's Attorney: Hallie S. Evans, Troutman Pepper Hamilton Sanders LLP
Defendant's Attorney:
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Description:
Tallahassee, Florida - Real Estate lawyer represented Appellees with a routine residential property foreclosure .
The order on appeal granted attorneys’ fees to a Mr.
Fernandes, who was not a mortgagor, but purported to hold a
quitclaim deed to the foreclosed property. The quitclaim deed was
dated June 25, 2007, about eleven months before the foreclosure
complaint was filed. The quitclaim deed was not recorded,
however, until May 13, 2009, about ten months after the
foreclosure complaint and notice of lis pendens were filed.
Evidence established that the property was vacant when the
lawsuit and lis pendens were filed. It is undisputed that the
quitclaim deed was recorded long after the twenty-day deadline
established in section 48.23(1)(b) of the Florida Statutes (2008)
(providing that the filing of a notice of lis pendens bars all interests
and liens unrecorded when the lis pendens is filed unless the
holder intervenes within twenty days after the lis pendens is filed).
It is likewise undisputed that Mr. Fernandes did not intervene
within twenty days after the lis pendens was filed. He first
appeared in the foreclosure action sua sponte by filing an answer
to the complaint in May of 2009, when he first recorded the
quitclaim deed. The predecessor plaintiff, as holder of the
mortgage, obtained a final judgment of foreclosure in 2013, but Mr.
Fernandes sought and obtained an order vacating that judgment
and canceling the sale, on grounds that he had not been served
properly with documents leading up to the judgment. The case
languished for a year, until after Nationstar became the holder of
the mortgage. Nationstar initially included Mr. Fernandes in an
amended complaint filed in 2015, but then dropped him because
he was not a proper party.
Without being granted intervention, and without any
participation by the mortgagor, Mr. Fernandes sought discovery
from Nationstar, mirroring discovery he had sought from the
original plaintiff. The requested discovery far exceeded the typical
documents necessary to establish Nationstar’s standing as holder
3
of the note (the note, mortgage, and indorsement), which both the
original plaintiff and Nationstar did provide to Mr. Fernandes. Mr.
Fernandes sought numerous additional categories of documents,
such as attorney fee agreements; the addresses, phone numbers,
and dates of employment of individuals who had signed documents
related to the mortgage and its transfers; and documents that Mr.
Fernandes himself had signed. Nevertheless, he claimed to be
dissatisfied with Nationstar’s responses throughout several
rounds of motions.
Nationstar consistently objected to these discovery requests
on their merits and on the grounds that Mr. Fernandes lacked
standing and was statutorily barred from participation.
Nationstar consistently argued that Mr. Fernandes was not a
proper intervenor because he had failed to meet the statutory
deadline after the filing of the notice of lis pendens.
Mr. Fernandes did not move to intervene until 2016, relying
on an alleged earlier “grant” of intervention. Apparently, a
predecessor judge had written a case note in the file indicating
intervention had been granted. The note did not reference or
analyze the statutory deadline problem or any other reasoning.
The record does not include any evidence of a hearing or rendition
of a written order on intervention.
This case note prompted the successor judge to send the case
back to the predecessor judge for clarification on whether and why
Mr. Fernandes had been allowed to intervene. The intervention
issue languished for nearly two years, until the successor judge
entered an order granting intervention in September of 2018. The
order contained no recitation of facts and no analysis.
After finally obtaining this grant of intervenor status, Mr.
Fernandes continued to press for additional discovery. Nationstar
moved for reconsideration of the order granting intervention,
asserting that Mr. Fernandes lacked standing and was barred
from participating in the litigation. Nationstar also asserted that
the requested discovery was overbroad and the responses it
provided were appropriate. In September of 2019, Mr. Fernandes
moved for sanctions for Nationstar’s allegedly deficient responses
to his voluminous and wide-ranging discovery requests. Over a
4
year later, after a hearing, the trial court granted sanctions, later
setting the amount, including fees for litigating the issue of fees.
Nationstar moved for rehearing, which the court denied, later
entering an amended judgment awarding fees and setting the
amount with appropriate words of finality. Nationstar timely
appealed, correctly asserting that such an order is an appealable
final order. See Hastings v. Osius, 104 So. 2d 21, 22 (Fla. 1958)
(noting that an order determining entitlement to attorneys’ fees,
setting the amount, and reciting “for which let execution issue,”
was a final appealable order, rendering certiorari review
inappropriate); Saye v. Pieschacon, 750 So. 2d 759, 761 (Fla. 1st
DCA 2000) (citing Hastings and other cases in support of holding
that fee order determining entitlement and amount, and
executable, was an immediately appealable final order).
On appeal, Nationstar argues only that Mr. Fernandes was
not a proper intervenor, and therefore was not entitled to litigate
against Nationstar at all, let alone to obtain monetary relief from
Nationstar. Mr. Fernandes responds that we lack jurisdiction to
address this issue in this appeal.
We agree with Nationstar that we have jurisdiction to review
the propriety of Mr. Fernandes’s intervenor status. We write
further to explain why, and why we reverse the order on appeal.
ANALYSIS.
1. Procedure.
Mr. Fernandes first raises a procedural argument that
Nationstar is not entitled to seek review of his intervenor status in
the litigation because the order granting intervention in
September of 2018 was not referenced in or attached to the notice
of appeal. This argument is wrong in both respects. A timely notice
of appeal of an appealable order gives us jurisdiction to review
earlier interlocutory orders. See Fla. R. App. P. 9.110(h) (“[T]he
court may review any ruling or matter occurring before filing of the
notice.”). No rule or case requires that all such interlocutory orders
be attached to the notice of appeal or referenced in it.
5
Mr. Fernandes’s remaining arguments address his status as
an intervenor, which as already noted are the only arguments
Nationstar raises. We agree with both parties that the order
appealed is final and appealable; but in this posture, we must
determine what issues we can adjudicate.
Mr. Fernandes does not argue that we should avoid
addressing intervention because Nationstar can challenge
intervention on a plenary appeal from a future final judgment of
foreclosure. Nevertheless, we have considered this possibility in
addition to others, as part of our obligation to determine the scope
of our jurisdiction. See Wade v. Fla. Dep’t of Child. & Fams., 57 So.
3d 869, 870 (Fla. 1st DCA 2011) (“We are required to examine our
jurisdiction in every case.”); see also Philip J. Padovano, Florida
Appellate Practice, § 1:5 (2022 ed.) (“The appellate court has an
independent duty to determine the existence of jurisdiction in
every case and to dismiss a case that is not within its
jurisdiction.”). Further, we have “such jurisdiction as may be
necessary for a complete determination of the cause.” Fla. R. App.
P. 9.040(a).
The theoretically available alternative options for review
might include appealing from the intervention order itself, and
appealing from a final judgment of foreclosure at the end of the
case. As to the first option, Nationstar could not immediately
appeal the order granting intervention. Such an order is a nonfinal order that is not among the limited class of appealable nonfinal orders under Florida Rule of Appellate Procedure 9.130. See
Padovano, supra, § 23:4 & n.14 (citing Carlisle v. U.S. Bank, Nat’l
Ass’n, 225 So. 3d 893 (Fla. 3d DCA 2017)).*
* In contrast, orders denying intervention are final and
appealable, because they eliminate the proposed intervenor as a
party. See Fla. R. App. P. 9.110(k) (“If a partial final judgment
totally disposes of an entire case as to any party, it must be
appealed within 30 days of rendition.”); De Sousa v. JP Morgan
Chase, 170 So. 3d 928, 929 (Fla. 4th DCA 2015) (holding that order
denying intervention is a final, appealable order as to the
aggrieved party).
6
As to the second option, assuming Nationstar ultimately
obtains a final judgment of foreclosure in its favor, it is difficult to
suggest that it, as the prevailing party, should be required to wait
and appeal a favorable judgment to gain review of an earlier
adverse intervention order. This is especially true here, where
there exists an undeniably final, appealable attorneys’-fee
judgment that rests on the foundational but previously nonappealable ruling that Mr. Fernandes has standing as an
intervenor to collect fees from Nationstar.
Nationstar proposes a third option: that the intervention
foundation of the attorneys’-fee order is appealable under rule
9.110(k), the partial final judgment rule. We think not. That rule
on its face defines a partial final judgment as one that “disposes of
an entire case as to any party,” or “disposes of a separate and
distinct cause of action that is not interdependent with other
pleaded claims.” Fla. R. App. P. 9.110(k). The attorneys’-fee
judgment does neither.
While we respectfully disagree with the dissent on outcome,
we agree with the dissent that the linchpin of the analysis is
whether the intervention issue “relate[s] to” the attorneys’-fee
judgment within the meaning of rule 9.110(h)’s reference to a
court’s having jurisdiction to review any “ruling or matter
occurring before filing of the notice [of appeal].” Florida courts have
construed “ruling or matter” as used in rule 9.110(h) as meaning
rulings and orders “directly related to and an aspect of the final
[order]” under review. Portis v. Seatruck, Inc., 98 So. 3d 1234, 1235
(Fla. 3d DCA 2012). Using that analytical framework, we have
rejected an attempt to include unrelated rulings denying motions
for new trial within an appeal from an order imposing attorney’s
fees and costs. Saye, 750 So. 2d at 761. By similar reasoning, the
Fourth District has held that an appeal of a final summary
judgment in favor of one defendant did not encompass a separate
order on another defendant’s unrelated affirmative defense. Cygler
v. Presjack, 667 So. 2d 458, 461 (Fla. 4th DCA 1996). The Second
District has refused to allow one of several co-defendants to use
another co-defendant’s appealable judgment to file an appeal
bringing up an unrelated issue. Merkle v. Home Shopping
Network, Inc., 916 So. 2d 841, 842–43 (Fla. 2d DCA 2005).
7
In contrast, the court in C.P. Motion, Inc. v. Goldblatt, 193 So.
3d 39, 41 n.1 (Fla. 3d DCA 2016), found that it could review the
trial court’s order denying a motion to substitute a party (a nonappealable order standing alone), upon review of an appealable
interlocutory order dismissing the same party’s counterclaim.
Similarly, in Deutsche Bank National Trust Co. v. Plageman, 133
So. 3d 1199, 1200 (Fla. 2d DCA 2014), on appeal from dismissal
with prejudice of an amended foreclosure complaint, the court
found that it could review earlier, non-appealable interlocutory
orders finding verification of a foreclosure complaint improper.
These cases illustrate the limits on interlocutory review, while
recognizing the propriety of review of an order where there is a
direct relationship as to the parties whose rights are adjudicated
and the issues are “an aspect of” the order to be reviewed. We find
the requisite nexus of parties and issues in the order under review.
We, like all Florida courts, adhere to the rule that an attorneys’-
fee judgment is final and appealable only when it resolves both
entitlement and amount. See, e.g., Tyson v. Tyson, 310 So. 3d 1292,
1292 (Fla. 1st DCA 2021); Magnolia Fla. Tax Certificates v. Alexa1,
229 So. 3d 1288, 1288 (Fla. 1st DCA 2017). The judgment before
us encompasses both issues; otherwise it would not be appealable,
and neither party argues that it is not appealable.
Entitlement in this case has always centered first on Mr.
Fernandes’s status in the foreclosure case, not just on whether
Nationstar committed sanctionable discovery violations. The
record clearly demonstrates Nationstar’s consistent and
protracted preservation of its challenges to Mr. Fernandes’s
standing and status in the litigation. It is irrefutable that without
the party-status aspect of his entitlement, Mr. Fernandes could not
obtain an attorneys’-fee award. This makes the issue of his status
in the litigation “directly related to” the attorneys’-fee judgment,
and gives us jurisdiction over the issue of his status.
It makes no difference that the judgment on appeal did not
repeat the earlier interlocutory, non-appealable ruling as to Mr.
Fernandes’s status. Courts do not have to repeat or re-incorporate
all previous rulings that bear on a subsequent appealable order,
for us to have jurisdiction to review the earlier orders. See Fla. R.
App. P. 9.110(h). Having concluded that the intervention issue is
8
properly before us, we turn to the merits of that issue, which are
clear and briefly disposed.
2. Merits.
Nationstar correctly argues that under section 48.23(1)(b),
Florida Statutes (2008), any person with an unrecorded interest in
mortgaged real property was required to intervene in a foreclosure
suit within 20 days after the notice of lis pendens was filed. It is
undisputed that the lis pendens in this case was filed July 24,
2008, and equally undisputed that Mr. Fernandes did not timely
move to intervene. The statute is clear and unambiguous. Mr.
Fernandes’s failure to comply with the statute deprived him of any
legal right to participate as a party in the foreclosure litigation.
See Westburne Supply, Inc. v. Cmty. Villas Partners, Ltd., 508 So.
2d 431, 434 (Fla. 1st DCA 1987) (holding that the principal purpose
of the statute requiring filing of a notice of lis pendens is to bar
unrecorded interests in the property). Mr. Fernandes’s belated
recordation of his quitclaim deed did not cure his lack of standing
to intervene. See Bank of N.Y. Mellon v. HOA Rescue Fund, LLC,
249 So. 3d 731, 733–34 (Fla. 2d DCA 2018) (reversing dismissal
based on subsequent purchaser’s intervention, after finding that
the intervention was improper).
The trial court had no discretion in the matter and no
authority to allow Mr. Fernandes to participate in the foreclosure
action as if he were a proper party. We addressed a similar issue
in another foreclosure case, Bank of America, N.A. v. Mirabella
Owners’ Ass’n, Inc., 238 So. 3d 405 (Fla. 1st DCA 2018). There, the
foreclosure action was already pending when a non-party, Horizon,
purchased the property. Id. at 406. We reversed the trial court’s
order allowing Horizon to intervene, as well as the trial court’s
order granting Horizon’s motion to dismiss the case and dissolve
the lis pendens. Id. at 407. Yet the relief we reversed in Mirabella
is exactly what Mr. Fernandes would have us approve here. We
have considered, and reject on their merits, these and Mr.
Fernandes’s other arguments.
We strongly suggest that this fourteen-year-old foreclosure
case be concluded promptly.
REVERSED and REMANDED.
9
MAKAR, J., concurs with opinion; BILBREY, J., dissents with
opinion.
_____________________________
Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________
MAKAR, J., concurring with opinion.
My panel colleagues have reasonable positions about the
disposition of the procedural and substantive issues in this
unusual appeal. I concur in reversal, however, noting a few
pragmatic factors that lean in that direction.
First, it makes practical sense to permit review of an
intervention order at the earliest point in a proceeding, provided a
reasonable nexus exists with the final order under review. That’s
because an unauthorized intervenor can impose unrecoverable
costs and irremediable delays on legal proceedings, making it
important to ferret out those who don’t belong, earlier rather than
later.
Second, the language of Rule 9.110(h), Florida Rules of
Appellate Procedure, which states that a “court may review any
ruling or matter occurring before filing of the notice” of appeal from
a final order, is flexible enough to encompass a non-final order
permitting intervention when the intervention results in
burdensome discovery that would not otherwise occur, as well as a
final appealable order related to the discovery itself. Fla. R. App.
P. 9.110(h) (emphasis added). This case is not one in which a party
has attempted to “bootstrap” review of an unrelated prior order.
See, e.g., Portis v. Seatruck, Inc., 98 So. 3d 1234, 1235 (Fla. 3d DCA
2012) (prohibiting a party from bootstrapping review of a final
order “to an order affecting her rights against another
defendant[]”). Enough of a reasonable nexus exists to warrant
review of the intervention order.
10
Third, appellate practitioners—by virtue of their training and
perhaps their nature—are risk averse. When confronted with a
final appealable order, such as the fees order in this case, the
question will be asked “What if I don’t pursue an appeal now?” If
the answer is that review of the final order (and potentially earlier
related orders) will be lost, the filing of a notice of appeal will likely
follow to preserve review of the final order and prior related orders.
Doing so is understandable, particularly when a Catch-22
situation exists, which is the case here. If Nationstar does not
appeal the fees order, it becomes final and enforceable; Nationstar
would thereby forfeit its ability to vacate the fee order at the end
of the case on any basis, including that intervention was improper.
For the reasons in Judge Kelsey’s opinion as well as these
pragmatic factors, appellate review and reversal of the
intervention order is proper.
BILBREY, J., dissenting.
Nationstar Mortgage, LLC, appeals pretrial orders
sanctioning it for failure to sufficiently answer interrogatories or
produce requested documents.1 The trial court awarded Luciano
Fernandes, the intervenor/defendant below, the attorney’s fees he
incurred to obtain court orders compelling Nationstar’s
supplemental responses to discovery. Because Nationstar’s initial
brief contains no argument challenging the merits of the attorney’s
fee orders, instead challenging only Fernandes’ intervention, I
would affirm. Since the majority reverses based on the unrelated
issue of Fernandes’ intervention, I respectfully dissent.
In the initial brief, Nationstar argues that the order granting
Fernandes’ motion to intervene as a defendant in Nationstar’s
foreclosure action, entered a year before the sanction orders on
appeal, contradicts the law and must therefore be reversed.
Nationstar’s argument on appeal is that upon reversal of the trial
court’s order allowing intervention, the basis for the orders
sanctioning Nationstar for failure to comply with Fernandes’
discovery requests will collapse. The majority agrees with this
1 I agree with the majority that the sanctions order was an
appealable final judgment and not a partial final judgment.
11
argument, but I believe that the issue of intervention is too far
removed for us to address it here.
Nationstar’s initial brief asserts legal error only in the order
allowing Fernandes to intervene. The brief lacks any challenge to
the trial court’s exercise of discretion in sanctioning Nationstar.
No fundamental error is involved here. See generally Yau v.
IWDWarriors, Corp., 144 So. 3d 557, 560 (Fla. 1st DCA 2014)
(holding that no fundamental error in awarding fees, even if the
basis to do so is suspect). So we are constrained to limit our
consideration to the arguments in the briefs. See Rosier v. State,
276 So. 3d 403, 406 (Fla. 1st DCA 2019) (en banc).
Nationstar argues reversible error in the order allowing
Fernandes to intervene has caused needless litigation and delay in
the disposition of Nationstar’s foreclosure action. That may well
be so. However, review of the order allowing Fernandes to
intervene is beyond the scope of this appeal. The attorney’s fee
sanction for discovery violations is ancillary to the merits of the
foreclosure action and therefore cannot provide the vehicle for
appellate review of the previous order granting intervention. See
Fla. R. App. P. 9.110(h) (providing the scope of review in an appeal
of a final judgment).
Other DCAs have addressed the limits of the scope of review
under this rule as follows:
We recognize Florida Rule of Appellate
Procedure 9.110(h) authorizes an appellate court to
review “any ruling or matter occurring before filing of the
notice [of appeal].” We construe the phrase “ruling or
matter” in Rule 9.110(h) to mean rulings and orders
“directly related to and an aspect of the final [order]”
under review. Cygler v. Presjack, 667 So. 2d 458, 461 (Fla.
4th DCA 1996) (finding an adverse summary judgment
on a defendant's affirmative defense was a non-final, nonappealable order in the plaintiff's appeal of summary
final judgment in favor of the co-defendant).
Portis v. Seatruck, Inc., 98 So. 3d 1234, 1235 (Fla. 3d DCA 2012);
see also Deutsche Bank Nat’l Tr. Co. v. Plageman, 133 So. 3d 1199,
1200 (Fla. 2d DCA 2014).
12
The order granting Fernandes’ motion to intervene is not
directly related to the fees sanction. To hold otherwise would mean
that if a trial court grants a motion to intervene, then that motion
can be challenged in any subsequent appeal no matter how distant
the issue on appeal is from the merits of intervention issue. The
court in Portis warned of the “jurisdictional mischief” that an
expansive reading of rule 9.110(h) “invites” in creating “a second
window within which to obtain review.” Portis, 98 So. 3d at 1235.
Under this expansive view adopted by the majority, a party
wishing to challenge a grant of intervention could willfully defy
discovery intending to get sanctioned or otherwise gin up an
appealable order to provide a means to appeal the intervention
order pretrial.2 We should not allow such “bootstrap review of this
order” granting intervention to occur. Id.
Outcome: Based on the record and briefs filed in this appeal, appellate
review of the trial court’s order granting Fernandes’ motion to
intervene should be available only on appeal of a final judgment
disposing of the entire case. See, e.g., Bank of Am., N.A. v.
Mirabella Owners’ Ass’n, Inc., 238 So. 3d 405, 407 (Fla. 1st DCA
2018). For this reason, I would affirm the sanctions order against
Nationstar. Since the majority addresses intervention and
reverses, I respectfully dissent
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