Opinion
No. 3D18-1382
07-24-2019
Giselle PORRAS, Appellant, v. WACHOVIA BANK NA, Appellee.
Giselle Porras, in proper person. McGuireWoods LLP, and Sara F. Holladay-Tobias (Jacksonville), Emily Y. Rottmann (Jacksonville) and C.H. Houston, III (Jacksonville), for appellee.
Giselle Porras, in proper person.
McGuireWoods LLP, and Sara F. Holladay-Tobias (Jacksonville), Emily Y. Rottmann (Jacksonville) and C.H. Houston, III (Jacksonville), for appellee.
Before EMAS, C.J., and FERNANDEZ and MILLER, JJ.
PER CURIAM.
Giselle Porras appeals from the trial court's order denying her motion to vacate a final judgment of foreclosure and to cancel the foreclosure sale. None of the issues raised on appeal has merit; however, we write to address Porras' contention that the final judgment is void and must be vacated because she was denied due process.
In May 2010, a hearing was held on Wachovia Bank's motion for summary judgment, and the trial court granted Wachovia's motion. Porras contends that neither she nor her attorney received notice of (or attended) the hearing, and that Wachovia Bank instead sent the notice to her former attorney, who had been granted leave to withdraw well before the summary judgment had been set and noticed for hearing.
While the record supports Porras' factual premise that the notice of hearing was sent to her former attorney, it does not support her legal conclusion that she was denied due process of law. That is because after the trial court granted Wachovia's summary judgment motion and entered a final judgment, Porras' new counsel filed a timely motion for relief from judgment based on the lack of notice and any opportunity to be heard on Wachovia's motion for summary judgment. The trial court properly treated the motion as one seeking rehearing under Florida Rule of Civil Procedure 1.530, and ordered that Wachovia's summary judgment motion be reheard, with proper notice to Porras' new counsel.
By treating the motion as one seeking rehearing under rule 1.530, rendition of the final judgment was tolled, and with it the thirty-day time period for Porras to appeal the final judgment. See Fla. R. App. P. 9.020(h)(1)(B) (providing that an authorized and timely motion for rehearing tolls rendition of a final order); Fla. R. App. P. 9.020(h)(2)(C) (providing that a motion for rehearing tolls rendition and the 30-day time period for filing notice of appeal).
Thereafter, a new hearing was held on Wachovia's motion for summary judgment, with proper notice to Porras' new counsel, who was in attendance and had an opportunity to be heard on the merits of whether Wachovia was entitled to summary judgment. Following rehearing, the trial court determined Wachovia was entitled to summary judgment and reaffirmed the final judgment entered in its favor. The trial court's commendable actions in conducting a rehearing on the merits of the summary judgment motion extinguished any potential error and ensured Porras was afforded due process. See, e.g., Renovaship, Inc. v. Quatremain, 208 So. 3d 280 (Fla. 3d DCA 2016) (reaffirming the well-established principle that a final judgment entered without notice of the hearing and an opportunity to be heard is void for lack of due process; but holding that the final judgment in that case was not void because appellant received notice of the hearing that resulted in the judgment on appeal, and had an opportunity to be present and be heard).
Porras never appealed the 2010 final judgment. Instead, between 2010 and 2018 she filed multiple suggestions of bankruptcy, resulting in a number of cancellations and rescheduling of the foreclosure sale. On July 9, 2018, more than eight years after entry of the final judgment, Porras filed her "Motion to Stop Foreclosure Sale of 7/11/2018 & to Vacate Final Judgment" which was denied in the instant order on appeal.
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The final judgment in the instant case is not void and Porras' remaining challenges to that judgment are either untimely, without merit, or both.
Affirmed.