Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT VIVIAN E. CASTRO, Appellant, v. SUN 'N LAKE OF SEBRING IMPROVEMENT DISTRICT, Appellee. No. 2D20-1102 August 13, 2021 Appeal from the Circuit Court for Highlands County; David V. Ward, Judge. Allegra P. Fung of Korte & Associates, West Palm Beach, for Appellant. Scott R. LeConey of Ables, Craig & LeConey, Sebring, for Appellee. LABRIT, Judge. This is a case of "could have, should have." Appellee Sun 'N Lake of Sebring Improvement District (Sun 'N Lake) could and should have brought the deficiency in the dismissal order underlying this appeal to the trial court's attention within a year of the date the order was entered. Because Sun 'N Lake didn't do so, the trial court lacked authority to relieve Sun 'N Lake from the dismissal order. Background Sun 'N Lake filed the foreclosure action underlying this appeal (Castro I) after Vivian Castro failed to pay operation and maintenance assessments due to Sun 'N Lake. During trial, Ms. Castro's ore tenus motion for involuntary dismissal was granted, but the trial court orally indicated that the dismissal was "without prejudice." Ms. Castro's counsel prepared a proposed order granting her motion for involuntary dismissal; the order was silent as to whether the dismissal was with or without prejudice, but it stated that "[d]efendant shall go hence without" day.1 Sun 'N Lake's counsel agreed to entry of the proposed order. The dismissal order was entered August 27, 2018. 1 For reasons that are unclear on this record, the order that ultimately was entered states that "defendant shall go hence without delay," but this is immaterial to our analysis and disposition. 2 In March 2019, Sun 'N Lake brought a separate action (Castro II) seeking foreclosure of the property at issue in Castro I, as well as foreclosure of another property Ms. Castro owned. On July 3, 2019, Ms. Castro answered the complaint and asserted affirmative defenses (including res judicata based on the dismissal in Castro I), and on July 22, 2019, Ms. Castro moved for partial summary judgment. She argued that res judicata barred Sun 'N Lake's foreclosure claim as to the property that was the subject of Castro I because the dismissal order was a final adjudication on the merits. The trial court agreed and, in December 2019, granted partial summary judgment in favor of Ms. Castro. Several weeks later (and well over a year after the dismissal order was entered), Sun 'N Lake moved for relief from the dismissal order in Castro I pursuant to Florida Rule of Civil Procedure 1.540(b)(5), requesting the trial court to amend the order to reflect that the dismissal was without prejudice. Sun 'N Lake's counsel acknowledged his acquiescence to the dismissal order Ms. Castro had drafted but claimed to be "unaware" that the order would 3 operate as an adjudication on the merits.2 To support its contention that it was no longer equitable for the dismissal order to have prospective application, Sun 'N Lake argued that Ms. Castro's counsel had "misrepresented" to the Castro II trial court that the written dismissal order in Castro I was an adjudication on the merits; according to Sun 'N Lake, this "misrepresentation" constituted "new circumstances" warranting relief under rule 1.540(b)(5). The trial court granted Sun 'N Lake's motion. Ms. Castro appeals this order as well as the denial of her motion for attorney's fees and costs stemming from the involuntary dismissal of Sun 'N Lake's foreclosure action. Motion for Relief from Dismissal Order As this and other courts have explained repeatedly, "[e]xcept as provided by Rules 1.530 and 1.540, Florida Rules of Civil Procedure, the trial court has no authority to alter, modify or vacate an order or judgment." Shelby Mut. Ins. Co. of Shelby, Ohio v. Pearson, 236 So. 2d 1, 3 (Fla. 1970); Bank One, N.A. v. Batronie, 884 So. 2d 346, 2 Subject to specified exceptions that aren't applicable here, Florida Rule of Civil Procedure 1.420(b) provides that an order for involuntary dismissal "operates as an adjudication on the merits" unless the order specifies otherwise. 4 348 (Fla. 2d DCA 2004) ("After rendition of a final judgment, the trial court loses jurisdiction over the case except to enforce the judgment and except as provided by rule 1.540."); see also Bane v. Bane, 775 So. 2d 938, 941 (Fla. 2000) ("[T]he one exception to the rule of absolute finality is rule 1.540, 'which gives the court jurisdiction to relieve a party from the act of finality in a narrow range of circumstances.' ") (quoting Miller v. Fortune Ins. Co., 484 So. 2d 1221, 1223 (Fla. 1986)). Bank of N.Y. Mellon v. Estate of Peterson, 208 So. 3d 1218, 1221 (Fla. 2d DCA 2017) (second alteration in original) (quoting Miami- Dade County v. Second Sunrise Inv. Corp., 56 So. 3d 82, 85 (Fla. 3d DCA 2011)). Put differently, Florida law treats rule 1.540(b) as a "jurisdictional boundary." Romero v. Wells Fargo Bank, N.A., 209 So. 3d 633, 635 (Fla. 2d DCA 2017). And once "beyond the reach of rule 1.540(b)," a final order or judgment "pass[es] into the unassailable realm of finality." Id. (alteration in original). Presumably because its motion would have been untimely if filed under subsections (1) through (3) of rule 1.540(b), Sun 'N Lake invoked subsection (5) of rule 1.540(b), which in relevant part authorizes relief from an order if "it is no longer equitable that the . . . order should have prospective application." Fla. R. Civ. P. 1.540(b)(5). Rule 1.540(b)(5) was intended to provide " 'extraordinary relief' reserved for 'exceptional circumstances' " and 5 is narrowly construed. In re Guardianship of Schiavo, 792 So. 2d 551, 559 (Fla. 2d DCA 2001). To qualify for relief under rule 1.540(b)(5), a movant must "allege new circumstances affecting the decision made by the trial judge" and "establish that these new circumstances make it no longer equitable for the trial court to enforce its earlier order." Estate of Peterson, 208 So. 3d at 1223 (cleaned up). "At its core, there must be some new postjudgment fact or occurrence that requires the trial court, in equity, to recede from its prior order or judgment." Id. According to Sun 'N Lake, Ms. Castro's filing of the motion for summary judgment "occurred after the entry of the order" and therefore constitutes a new postjudgment fact or occurrence sufficient to invoke rule 1.540(b)(5). We reject this argument. Sun 'N Lake's motion for relief from judgment was expressly predicated on Ms. Castro's alleged misrepresentations and purported misconduct concerning the effect of the dismissal order relative to the second foreclosure action. Rule 1.540(b)(3) authorizes relief from an order based on "misrepresentation[] or other misconduct of an adverse party." To obtain relief under subsection (3), Sun 'N 6 Lake was required to file its motion "not more than 1 year after" entry of the dismissal order. Fla. R. Civ. P. 1.540(b). It didn't. By July 2019 (when Ms. Castro asserted the res judicata defense in Castro II), Sun 'N Lake admittedly knew of the infirmity of the dismissal order and could have sought relief within the one-year window prescribed by rule 1.540(b). Because Sun 'N Lake didn't do so, its motion was time-barred, and the trial court wasn't authorized to grant relief from the dismissal order. See Pure H2O Biotechnologies, Inc. v. Mazziotti, 937 So. 2d 242, 246 (Fla. 4th DCA 2006); Dep't of Revenue ex rel. Stephens v. Boswell, 915 So. 2d 717, 720–21 (Fla. 5th DCA 2005). Even if Sun 'N Lake's motion for relief from the dismissal order could be said to fall within the ambit of subsection (5), rule 1.540(b) requires such a motion to be brought "within a reasonable time." Sun 'N Lake didn't file its motion until sixteen months after the dismissal order was entered; more importantly, Sun 'N Lake knew in July 2019 that Ms. Castro took the position that the dismissal order operated to preclude the second foreclosure action, yet Sun 'N Lake unreasonably delayed filing its motion until December 31, 2019. 7 Relying on a handful of criminal cases involving written sentencing and probation orders that conflicted with oral pronouncements, the trial court concluded that it could grant Sun 'N Lake's motion because the written dismissal order conflicted with the earlier oral pronouncement. It is generally true that a trial court's oral pronouncement controls over a written order,3 but rule 1.540(b) and the precedent interpreting that rule require a party seeking relief from an order to do so within the time and manner prescribed by rule 1.540(b). Any other conclusion would render the provisions of rule 1.540(b) "meaningless and superfluous." See Boswell, 915 So. 2d at 722. Like the facts in Boswell, Sun 'N Lake "had the full range of remedies under Rule 1.540(b) available to [it] had [it] exercised them timely." See id. at 723. Since Sun 'N Lake failed to do so, the trial court erred reversibly by granting Sun 'N Lake's motion for relief from the dismissal order. See id.; see also Peterson, 208 So. 3d at 1223; Pure H2O, 937 So. 2d at 246. 3 See, e.g., City of Hallandale Beach v. Sharkey, 281 So. 3d 515, 516 (Fla. 4th DCA 2019). 8 Fees and Costs Ms. Castro also contends the trial court erroneously denied her motion for attorney's fees and costs associated with the involuntary dismissal of Sun 'N Lake's foreclosure claim. She argues that under the operative statute (and county ordinance), attorney's fees were to be taxed as costs and assessed automatically under rule 1.420(d). Because the trial court's order is based on a legal interpretation, our review of this issue is de novo. Ferere v. Shure, 65 So. 3d 1141, 1144 (Fla. 4th DCA 2011). When a foreclosure suit is involuntarily dismissed, a homeowner is entitled to taxable costs under rule 1.420(d). See, e.g., Fassy v. Bank of N.Y. Mellon, 273 So. 3d 52, 53 (Fla. 4th DCA 2019). The same is true in special assessment suits like this case. See, e.g., City of Venice v. Valente, 429 So. 2d 1241, 1243 (Fla. 2d DCA 1983). Furthermore, where a statute or the parties' agreement provides that the term "costs" includes attorney's fees, attorney's fees are taxable under rule 1.420(d). See Wilson v. Rose Printing Co., 624 So. 2d 257, 258 (Fla. 1993). It is well-established that "a claim for attorney's fees, whether based on statute or contract, must be pled. Failure to do so 9 constitutes a waiver of the claim." Stockman v. Downs, 573 So. 2d 835, 837–38 (Fla. 1991). Ms. Castro's answer and affirmative defenses to Sun 'N Lake's foreclosure complaint make no mention of any fee claim. We reject Ms. Castro's argument that she wasn't required to plead entitlement to attorney's fees because they are taxable as costs under section 170.10, Florida Statutes (2019), and entitlement to costs is automatic under rule 1.420(d). Even where fees are treated as costs, a party still must notify her opponent of the intent to seek fees by including a fee claim in her pleadings. See Lopez v. Bank of Am., N.A., 153 So. 3d 922, 924 (Fla. 2d DCA 2014). Lopez is directly on point and negates Ms. Castro's argument. See id. Ms. Castro claims that a cursory reference to fees in her summary judgment motion should be deemed a motion for fees under Stockman and Lopez. However, as the supreme court has clarified, use of the phrase "must be pled" is to be construed in accord with the Florida Rules of Civil Procedure. Complaints, answers, and counterclaims are pleadings pursuant to Florida Rule of Civil Procedure 1.100(a). A motion to dismiss is not a pleading. Stockman is to be read to hold that the failure to set forth a claim for attorney fees in a complaint, answer, or counterclaim, if 10 filed, constitutes a waiver. Green v. Sun Harbor Homeowners' Ass'n, 730 So. 2d 1261, 1263 (Fla. 1998) (emphasis added). Because Ms. Castro's answer to the complaint is bereft of any reference to attorney's fees, she waived her attorney's fee claim. Ms. Castro is correct that she is entitled to costs under rule 1.420(d). That rule "clearly provides that '[c]osts in any action dismissed under this rule shall be assessed and judgment for costs entered in that action, once the action is concluded as to the party seeking taxation of costs.' " Fassy, 273 So. 3d at 53 (quoting Fla. R. Civ. P. 1.420(d)); see Torres v. Bank of N.Y. for Certificate Holders CWABS, Inc. Asset Backed Certificates Series 2006-26, 252 So. 3d 274, 274 (Fla. 4th DCA 2018) ("Because the case was involuntarily dismissed, the homeowner [wa]s entitled to taxable costs [under rule 1.420(d)]."), quashed on other grounds by, No. SC18-1617, 2021 WL 2182368 (Fla. May 28, 2021). We affirm the trial court's denial of Ms. Castro's motion for attorney's fees but reverse the denial of her motion for costs. Affirmed in part; reversed in part; remanded for taxation of Ms. Castro's costs. 11 BLACK and ATKINSON, JJ., Concur. Opinion subject to revision prior to official publication. 12