               NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                      MOTION AND, IF FILED, DETERMINED


                                             IN THE DISTRICT COURT OF APPEAL
                                             OF FLORIDA
                                             SECOND DISTRICT



THE BANK OF NEW YORK MELLON                  )
f/k/a THE BANK OF NEW YORK, as               )
Trustee for the Certificate Holders          )
CWalt, Inc., Alternative Loan Trust          )
2006-19CB, Mortgage Pass-Through             )
Certificates Series 2006-19CB,               )
                                             )
             Appellant,                      )
                                             )
v.                                           )      Case No. 2D16-2405
                                             )
ESTATE OF JAMES D. PETERSON                  )
a/k/a JAMES DANIEL PETERSON, and             )
BANK OF AMERICA, N.A.,                       )
                                             )
             Appellees.                      )
                                             )

Opinion filed January 18, 2017.

Appeal from the Circuit Court for Pinellas
County; Bruce Boyer, Judge.

K. Denise Haire of Pearson Bitman, LLP,
Maitland, for Appellant.

Michael P. Fuino of Weidner Law, P.A., St.
Petersburg, for Appellee Estate of James D.
Peterson.

No appearance for Appellee Bank of
America, N.A.


VILLANTI, Chief Judge.
              The Bank of New York Mellon ("the Bank") appeals the trial court's

postjudgment order that vacated a final judgment entered in foreclosure proceedings

against the Estate of James D. Peterson. Because the Estate neither alleged nor

proved a basis for vacating the final judgment, we reverse and remand for reinstatement

of the final judgment.

              The Bank originally filed its foreclosure action against James Daniel

Peterson as mortgagor and Bank of America as a junior lienholder on June 10, 2009.

Bank of America failed to appear or respond to the complaint, and a clerk's default was

entered against it on April 9, 2010. After Peterson died, his Estate was substituted as a

defendant, and on June 23, 2015, the Estate and the Bank filed a joint stipulation for

entry of a consent final judgment. Based on this stipulation by the Estate and on Bank

of America's earlier default, a final judgment of foreclosure was entered against both the

Estate and Bank of America on June 26, 2015.

              Three months later, Bank of America filed an "unopposed" motion to set

aside the clerk's default against it while leaving the ensuing final judgment of foreclosure

intact. Counsel for the Estate was apparently not consulted before this "unopposed"

motion was filed; however, the certificate of service shows that the motion was in fact

served on counsel for the Estate. The trial court subsequently granted the "unopposed"

motion and set aside the clerk's default against Bank of America, but the order doing so

specifically provided that the final judgment of foreclosure was unaffected by the ruling

and remained in force. This order, which had the effect of changing the final judgment

against Bank of America from one based on its default to one based on its consent, was

timely served on counsel for the Estate.



                                           -2-
              Despite being served with both the "unopposed" motion to set aside the

default and the trial court's order granting it, the Estate did not object or act immediately

to address the ensuing order. Instead, on January 14, 2016, the Estate filed a motion to

vacate the final judgment against it and cancel the impending foreclosure sale. The

Estate's unsworn motion did not identify any statute or rule as a basis for vacating the

final judgment, alleging only that the Estate believed that it was legally impermissible for

the trial court to vacate the clerk's default against Bank of America unless the final

judgment was first vacated. Additionally, the Estate cited no authority for this

proposition, and it did not attach either affidavits or any other evidence to the motion.

              At the subsequent hearing on the Estate's motion, the Estate's counsel

argued:

              But what we are here for and the reason why I'm attacking
              the final judgment is the nature of these ex parte
              proceedings. And, again, the docket reflects this document
              being filed three times as an ex parte motion.

The document to which the Estate referred as having been "filed three times as an ex

parte motion" was the Bank's motion to reschedule the foreclosure sale after the clerk's

default against Bank of America was set aside. But contrary to the Estate's assertions,

the record reflects that the motion to reschedule the sale, while captioned as an "ex

parte" motion, was actually served on counsel for the Estate each time it was filed. The

Estate cited to no case law, statute, or rule in support of its position that the original

consent final judgment against it should be vacated because a subsequent motion to

reschedule a foreclosure sale was labelled "ex parte" when it was actually served on its

counsel.




                                             -3-
               Also at the same hearing, the Estate produced a document that purported

to be a 2012 recorded satisfaction of the Bank of America junior mortgage, and the

Estate argued that the trial court should vacate the consent final judgment so that the

import of this document could be investigated. However, the Estate did not explain why

it had not addressed this satisfaction of the junior mortgage before it agreed to the

consent final judgment in 2015.

               In response to these arguments, the Bank pointed out that the final

judgment against the Estate was based on its consent agreement and that the Estate

had not argued any matter relating to its consent. The Bank argued that the motions

attempting to reset the foreclosure sale months after the final judgment was entered—

whether ex parte or not—had no bearing on the validity of the final judgment. The Bank

also argued that the Estate had failed to identify in its motion any statute or rule under

which it was entitled to have the final judgment vacated. Finally, the Bank argued that

the Estate had not established that the act of setting aside the default against Bank of

America was prejudicial to the Estate or any of its rights. In sum, the Bank argued that

the Estate had not proved that it was legally entitled to the relief it sought. Without

addressing the substance of these arguments, the trial court granted the Estate's motion

to vacate the consent final judgment. This appeal ensued.

               We begin our analysis by noting that once a trial court has entered a final

judgment, its jurisdiction to revisit that final judgment is limited.

                   "Except 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, 348 (Fla.
               2d DCA 2004) ("After rendition of a final judgment, the trial



                                              -4-
              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)).

Miami-Dade Cty. v. Second Sunrise Inv. Corp., 56 So. 3d 82, 85 (Fla. 3d DCA 2011).

Moreover, if a party is seeking relief under Florida Rule of Civil Procedure 1.540, "[t]he

moving party must produce sufficient evidence of mistake, accident, excusable neglect

or surprise as contemplated by rule 1.540(b)[] before the court's equity jurisdiction may

be invoked." Rude v. Golden Crown Land Dev. Corp., 521 So. 2d 351, 353 (Fla. 2d

DCA 1988) (emphasis added). If the moving party fails to present evidence supporting

a legal ground for relief from the judgment, it is an abuse of the trial court's discretion to

vacate that judgment. See Lee v. Chung, 528 So. 2d 1313, 1315-16 (Fla. 2d DCA

1988).

              Here, the Estate's motion did not allege a basis for relief from the final

judgment under rule 1.540, nor did the Estate argue entitlement to relief under rule

1.540 at the hearing on its motion. Because the trial court had no jurisdiction outside of

rule 1.540 to vacate the final judgment of foreclosure, the Estate's failure to seek relief

under this rule, by itself, compels reversal of the order vacating that judgment.

              Nevertheless, in this appeal, the Estate argues that this court can affirm

the trial court's ruling under either of two subdivisions of rule 1.540(b).1 First, the Estate



              1
                 While the Estate did not argue its entitlement to relief under rule 1.540 in
either its written motion or at the hearing, it relies on this rule in this appeal under the
tipsy coachman doctrine. See Butler v. Yusem, 3 So. 3d 1185, 1186 n.3 (Fla. 2009)
("The 'tipsy coachman' doctrine allows an appellate court to affirm a trial court that
'reaches the right result, but for the wrong reasons' so long as 'there is any basis which


                                             -5-
contends that the substance of its argument in the trial court would have allowed the

court, on its own, to set aside the final judgment under rule 1.540(b)(3), which permits

the court to vacate a final judgment based on the misconduct of an adverse party.

However, it is incumbent on the party seeking to vacate a judgment under that rule to

come forward with evidence to support its position, see Rude, 521 So. 2d at 353, and

arguments of counsel do not constitute evidence, see, e.g., Justice v. State, 944 So. 2d

538, 540 (Fla. 2d DCA 2006) ("Representations by an attorney for one of the parties

regarding the facts . . . do not constitute evidence." (quoting Eight Hundred, Inc. v. Fla.

Dep't of Revenue, 837 So. 2d 574, 576 (Fla. 1st DCA 2003))); see also Aziz v. Aziz, 45

So. 3d 975, 978 (Fla. 2d DCA 2010) (noting that "unsworn representations by counsel

about factual matters do not have any evidentiary weight in the absence of a stipulation"

(quoting Daughtrey v. Daughtrey, 944 So. 2d 1145, 1148 (Fla. 2d DCA 2006))). Here,

counsel for the Estate argued at the hearing that the Bank engaged in improper ex parte

dealings with the court; however, this argument, which is frankly contradicted by the

record on appeal, does not constitute evidence of any actual misconduct.2 In the

absence of any such evidence, the record cannot support this argument as a basis for

affirmance.



would support the judgment in the record.' " (quoting Robertson v. State, 829 So. 2d
901, 906 (Fla. 2002))). We address these unpreserved arguments under this doctrine.
              2
               The term "ex parte" is defined as some action being "[d]one or made at
the instance and for the benefit of one party only, and without notice to, or argument by,
anyone having an adverse interest." Ex parte, Black's Law Dictionary (10th ed. 2014)
(emphasis added). Here, when the motion to reschedule the foreclosure sale was
clearly served on counsel for the Estate, it was not "without notice to" the party having
an allegedly adverse interest. We recognize that the title of the Bank's motion conflicted
with its substance, but a party may not elevate form over substance to gain an improper
advantage in litigation.


                                            -6-
              Second, the Estate contends that the trial court could have, again on its

own, properly vacated the final judgment under rule 1.540(b)(5), which permits the trial

court to vacate a judgment when it is "no longer equitable that the judgment or decree

should have prospective application." However, rule 1.540(b)(5) requires the moving

party to "allege new circumstances affecting the decision made by the trial judge."

Gotham Ins. Co. v. Matthew, 179 So. 3d 437, 442 (Fla. 5th DCA 2015) (quoting In re

Guardianship of Schiavo, 792 So. 2d 551, 561 (Fla. 2d DCA 2001)). In addition, the

movant must establish that these new circumstances "make it 'no longer equitable' for

the trial court to enforce its earlier order." In re Guardianship of Schiavo, 792 So. 2d at

560. 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.

              Here, the Estate did not allege any new or changed circumstances in its

written motion. And while the Estate did establish at the hearing that a change had

occurred after the entry of the final judgment, i.e., the setting aside of the clerk's default

against Bank of America, the Estate did not establish why or how this change made it

"no longer equitable" for the trial court to enforce the consent final judgment against the

Estate. In fact, the Estate failed to offer even an argument from its counsel as to how it

was prejudiced in any way by an order that simply converted a default final judgment

against Bank of America into a consent final judgment against Bank of America. This

superficial change in the nature of the judgment against Bank of America did not alter

the equities of the situation so as to require the judgment against the Estate to be

vacated.




                                             -7-
              Finally, the Estate's "discovery" of the satisfaction of Bank of America's

junior mortgage cannot entitle it to relief under rule 1.540(b)(5). "The law is clear that

something must have happened after the entry of final judgment that should 'equitably

limit[ ]' the judgment's application." Second Sunrise Inv. Corp., 56 So. 3d at 86; see

also Baker v. Baker, 920 So. 2d 689, 692 (Fla. 2d DCA 2006) ("[T]his court has held

that the equities mentioned in the rule's fifth ground are limited to ones that come to

fruition after the final judgment."). Here, the satisfaction of Bank of America's mortgage

was recorded in 2012, and the consent final judgment was not entered against the

Estate until 2015. Because this satisfaction of mortgage was recorded three years

before the final judgment was entered, it cannot possibly form the basis for relief under

rule 1.540(b)(5).

              In sum, because the Estate failed to either allege or prove any basis for

vacating the final judgment of foreclosure against it, the trial court abused its discretion

in vacating that judgment. Therefore, we must reverse and remand for reinstatement of

the final judgment of foreclosure.

              Reversed and remanded.



CASANUEVA and BADALAMENTI, JJ., Concur.




                                            -8-
