       Third District Court of Appeal
                               State of Florida

                        Opinion filed September 17, 2014.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D13-2708
                         Lower Tribunal No. 11-16278
                             ________________


                                Mary Handel,
                                    Appellant,

                                        vs.

           Sam Nevel, James Pollack, and Leopoldo Bellon,
                                    Appellees.



      An Appeal from the Circuit Court for Miami-Dade County, Norma S.
Lindsey, Judge.

     Conrad & Scherer, LLP, and Daniel S. Weinger, Matthew Seth Sarelson,
and Michael E. Dutko, Jr., for appellant.

      Cole, Scott & Kissane, P.A., and Scott A. Cole and Kathryn L. Smith, for
appellee James Pollack.

      Leopoldo Bellon, in proper person.

Before ROTHENBERG, LOGUE, and SCALES, JJ.

      ROTHENBERG, J.
      The plaintiff below, Mary Handel (“Handel”), appeals the trial court’s order

denying her motion for relief from judgment pursuant to Florida Rule of Civil

Procedure 1.540(b). Because we conclude that the trial court did not abuse its

discretion when it denied Handel’s rule 1.540 motion, we affirm.

                            FACTUAL BACKGROUND

      Handel filed a complaint alleging claims against several defendants for

breach of contract, unjust enrichment, various securities violations under Chapter

517 of the Florida Statutes, fraud in the inducement, and civil conspiracy. Some of

the defendants filed motions to dismiss the causes of action against them, and the

trial court conducted a hearing on those motions on March 30, 2012. At that

hearing, the trial court orally dismissed Count II of the complaint for alleged

breach of personal guaranty against defendants Leopoldo Bellon (“Bellon”), Allen

R. Greenwald (“Greenwald”), and Sam B. Nevel (“Nevel”) and dismissed Count V

of the complaint for an alleged breach of fiduciary duty against defendant James

Pollack (“Pollack”). Count II was the only cause of action alleged against Bellon,

Greenwald, and Nevel, and Count V was the only cause of action alleged against

Pollack.   The trial court specifically stated that the dismissal would be with

prejudice for the reasons indicated on the record. Pollack’s attorney, Joshua

Goldstein (“Goldstein”), indicated to all parties present that he would draft the

proposed dismissal order.



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      On April 29, 2012, Goldstein sent a draft of the order to all of the dismissed

defendants’ counsel via email.       After some recommendations and revisions,

Goldstein sent out a second draft of the proposed order to all the parties on May

11, 2012. Handel’s trial counsel, Matthew Sarelson (“Sarelson”), responded by

email to the second draft of the order and told Goldstein, “I think [the order]

should say that the motions are granted for the reasons stated on the record and

nothing else.” The other defendants’ counsel echoed this sentiment. Goldstein

sent out a third draft of the order on May 25, 2012. The text in the body of that

email stated: “In order to avoid any further debate, the order simply states that

Counts II and V are dismissed with prejudice.” In addition to stating that Counts II

and V were dismissed with prejudice, the attached order included a paragraph

stating:

      Plaintiff, MARY HANDEL, takes nothing by this action from the
      Defendants, James Pollak, Leopoldo Bellon, Allen R. Greenwald and
      Sam B. Nevel, and that the Defendants, James Pollack, Leopoldo
      Bellon, Allen R. Greenwald and Sam B. Nevel, shall go hence without
      day. The Court reserves ruling on the issue of costs and attorneys’
      fees.

      Sarelson received the email containing the third draft of the order and read

the text in the body of the email, but did not open and read the proposed order

itself, which was attached as a PDF file. Sarelson responded to Goldstein’s email

containing the attached order by simply saying “ok.” Goldstein then sent the

proposed order to the trial court, and the trial court entered the order as drafted on


                                          3
May 29, 2012 (“the May 29 Order”). The parties agree that the May 29 Order

constituted a partial final judgment in favor of the named defendants.

      Handel did not timely appeal the partial final judgment. Instead, on June 18,

2012, Handel filed a “Motion for Entry of a Partial Final Judgment” (“PFJ

Motion”), which requested that the trial court finalize what Handel believed to be a

“garden variety dismissal order” so that she could appeal from the dismissal of her

claims. Pollack was expressly excluded from the PFJ Motion. With respect to

Pollack, Handel filed a Motion for Leave to Amend to Allege Additional Counts

Against Pollack (“Motion to Amend”).         The trial court heard argument on

Handel’s PFJ Motion and Motion to Amend on August 9, 2012, and denied both

motions, finding that it had no jurisdiction because no timely motion for rehearing

was filed after the May 29 Order was entered.

      Handel filed a petition for writ of mandamus or certiorari in this Court and a

rule 1.540 motion with the trial court seeking relief from the trial court’s May 29

Order. This Court summarily denied the petition, Handel v. Sebastian River Park

160 LLC, 108 So. 3d 1101 (Fla. 3d DCA 2013) (Table), and the trial court denied

Handel’s rule 1.540 motion after conducting an evidentiary hearing. Specifically,

the trial court found as follows:

            All right. Based on the testimony, I don’t find that there’s a
      prima facie case of fraud, misrepresentation, or misconduct. The
      Court accepts and credits the testimony of Mr. Goldstein, that he
      thought Mr. Sarelson was going to read the order. Similarly, the


                                         4
      Court accepts and credits the testimony of Mr. Sarelson, that he
      thought there was nothing new in the order. So perhaps we have a
      mutual mistake as to the order.
            Irrespective of what was submitted to the Court, Courts are
      presumed to intend the language of the orders they enter when they
      sign the order, irrespective of what is submitted by the parties. I’ve
      reviewed the transcript that you all passed up of the August 9th
      hearing and this issue came up before Judge Langer. It’s also
      undisputed that this issue of this May [29] order has gone to the Third
      DCA already.
            So all things considered, at this point, the motion to vacate is
      denied. So you can just assemble a blank order on that. Okay?

This appeal followed.

                                      ANALYSIS

      Florida Rule of Civil Procedure 1.540 provides a mechanism through which

trial courts may set aside final judgments, decrees, or orders for certain enumerated

reasons. Subsection 1.540(b) is the only relevant provision of the rule asserted in

this case,1 and it allows a trial court the option to set aside a final judgment for:

      (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly
      discovered evidence which by due diligence could not have been
      discovered in time to move for a new trial or rehearing; (3) fraud
      (whether heretofore denominated intrinsic or extrinsic),
      misrepresentation, or other misconduct of an adverse party; (4) that
      the judgment or decree is void; or (5) that the judgment or decree has
      been satisfied, released, or discharged, or a prior judgment or decree
      upon which it is based has been reversed or otherwise vacated, or it is
      no longer equitable that the judgment or decree should have
      prospective application.


1 Subsection 1.540(a) allows for the correction of simple clerical mistakes in a
judgment. This simpler process is much simpler and less rigorous, but it is not at
issue in the case before us.

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      We review a trial court’s ruling on a rule 1.540(b) motion to vacate for an

abuse of discretion, Rodriguez-Faro v. M. Escarda Contractor, Inc., 69 So. 3d

1097, 1098 (Fla. 3d DCA 2011), and we will not disturb that ruling unless no

reasonable judge would have reached the same decision. See Schwab & Co. v.

Breezy Bay, Inc., 360 So. 2d 117, 118 (Fla. 3d DCA 1978) (“The discretion

reposed in the trial judge by Fla. R. Civ. P. 1.540 is of the broadest scope and in

order to reverse a judge’s ruling thereunder, there must be a showing of a gross

abuse of discretion.”).

      Handel contends that she is entitled to relief from judgment in this case

under subsections 1.540(b)(1) and 1.540(b)(3). Specifically, she argues that her

failure to closely read the proposed order and take an appeal therefrom was due to

Sarelson’s mistake or excusable neglect, or alternatively, that the partial final

judgment itself was procured by fraud or misconduct perpetrated by Goldstein

because the body of the email belied the actual contents of the attached proposed

order. The trial court, however, found that the May 29 Order was not the product

of fraud or misconduct, and while we believe the issue of mistake or neglect is a

close one, we cannot say that the trial court abused its discretion in finding that it

was not.

      There is record evidence that supports the trial court’s finding that the May

29 Order was not procured by fraud or misconduct. Goldstein discussed the



                                          6
substance of the order with counsel for all of the parties, including Handel, via

email on many occasions. He also attached the proposed order to the email for

everyone’s review and copied all counsel on the transmittal email to the trial court.

Even if the paragraph Goldstein added changed the substance of the order, nothing

about his actions indicates malicious or fraudulent intent. Because the trial court’s

factual finding that Goldstein’s actions were in good faith is supported by

competent substantial evidence, we are bound by that finding. Siewert v. Casey,

80 So. 3d 1114, 1116 (Fla. 4th DCA 2012).

      Whether the May 29 Order is a result of excusable neglect or mistake on

Sarelson’s part is a closer question, and our ruling is based largely out of deference

to the trial court. The only identifiable excusable neglect or mistake is Sarelson’s

failure to review the proposed order on two occasions and to read the May 29

Order itself when it was entered by the trial court, as well as his failure to appeal

that order because he did not believe it to be a final appealable order. Had

Sarelson noticed the additional language, it would have been clear that the May 29

Order was a final appealable order.2 However, “[t]he law is well settled that

2 Incidentally, it is entirely possible that the paragraph added by Goldstein had no
effect on the finality or appealability of the order, and that the mere dismissal with
prejudice to which Sarelson agreed would have operated as a partial final judgment
subject to immediate appeal. 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.”). However, whether a dismissal with prejudice
operates as a partial final judgment is a complicated question. An order merely
granting a motion to dismiss clearly is not a final appealable order, Gries Inv. Co.

                                          7
unilateral mistakes of law such as this and misunderstanding of possible results of

judicial decrees and judgments are not grounds for relief [under rule 1.540(b)].”

Skinner v. Skinner, 579 So. 2d 358, 359 (Fla. 4th DCA 1991). Additionally, to the

extent that Handel’s decision to seek leave to amend her complaint or have the trial

court enter a partial final judgment rather than filing a motion for rehearing or

reconsideration was a tactical one, rule 1.540 does not provide relief for that type

of mistake either. Hermitage Ins. Co. v. Oxygen in the Grove, 30 So. 3d 549, 551

(Fla. 3d DCA 2010). Accordingly, we do not find that the trial court abused its

discretion by denying Handel’s rule 1.540 motion.

v. Chelton, 388 So. 2d 1281, 1282 (Fla. 3d DCA 1980) (“An order granting a
motion to dismiss [with prejudice] is not final and not appealable.”), while an order
expressly dismissing the entire complaint clearly is a final appealable order. Bd. of
Cnty. Comm’rs of Madison Cnty. v. Grice, 438 So. 2d 392, 394 (Fla. 1983) (“An
order on a motion to dismiss may not be final, but an order which actually
dismisses the complaint is.”). Many orders, including the order at issue in this case
(sans the additional paragraph), do not fall neatly into these two categories, instead
creating a type of “hybrid order” that may or may not be a final appealable order
depending on the precise language and circumstances in the case. Hayward &
Assocs. v. Hoffman, 793 So. 2d 89, 90 (Fla. 2d DCA 2001) (“The order
[dismissing all counts of the complaint with prejudice] is a textbook example of a
hybrid order, mixing concepts of finality and nonfinality.”); see also Carol A. Gart,
Orders on Motions to Dismiss for Failure to State a Cause of Action—When are
they Final for Purposes of Filing Notice of Appeal?, 87-OCT Fla. B.J. 24 (2013)
(explaining that the determination of whether a dismissal order is a final appealable
order is a complex one). In this case, a finding that the order as written—prior to
Goldstein’s addition of the last paragraph conclusively making it a final order—
would have been a final order would preclude Handel from relief. We do not reach
that complicated question in this case, as we find that the trial court did not abuse
its discretion regardless of whether the order would have been final without
Goldstein’s added words of finality.


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Affirmed.




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