       Third District Court of Appeal
                               State of Florida

                         Opinion filed November 9, 2016.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                         Nos. 3D13-2607 & 3D13-2379
                         Lower Tribunal No. 10-39316
                              ________________


                  The Bank of New York Mellon, etc.,
                           Appellant/Cross-Appellee,

                                        vs.

                      Poker Run Acquisitions, Inc.,
                           Appellee/Cross-Appellant.


      Appeals from the Circuit Court for Miami-Dade County, Jennifer D. Bailey,
Judge.

     Liebler Gonzalez & Portuondo and J. Randolph Liebler, Tricia J. Duthiers,
and Adam M. Topel, for appellant/cross-appellee.

      Cohen│Ruiz P.A. and Mario M. Ruiz, for appellee/cross-appellant.


Before SHEPHERD, LAGOA, and EMAS, JJ.

      LAGOA, J.
      Appellant/Cross-Appellee, the Bank of New York Mellon, etc. (“the Bank”),

appeals from an Amended Final Judgment Determining Amounts Due and Owing

(“Amended Final Judgment”) and an Order on Plaintiff’s Motion for Rehearing

and to Alter or Amend Judgment. The Bank argues that the trial court did not

possess jurisdiction to enter the Amended Final Judgment after it filed a Notice of

Voluntary Dismissal.     Appellee/Cross-Appellant, Poker Run Acquisitions, Inc.

(“Poker Run”), appeals from the Amended Final Judgment and an order denying

its motion for prevailing party attorneys’ fees and costs. Poker Run asserts that the

trial court erred in awarding the Bank additional interest in the Amended Final

Judgment, and that the trial court erred in denying its motion for prevailing party

attorneys’ fees and costs.

      Based on Pino v. Bank of New York, 121 So. 3d 23 (Fla. 2013), we are

compelled to reverse and vacate the Amended Final Judgment as the Bank’s

Notice of Voluntary Dismissal divested the trial court of jurisdiction. Because the

trial court lacked jurisdiction to enter the Amended Final Judgment, we also vacate

the trial court’s order denying Poker Run’s motion for prevailing party attorneys’

fees and costs.

I.    FACTUAL & PROCEDURAL HISTORY

      In June 2008, Poker Run sued the Bank’s borrower, Alvaro Gorrin (the

“Borrower”), for breach of an unlimited personal guaranty (the “Guaranty Case”).



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The trial court entered final summary judgment in favor of Poker Run and the

Borrower appealed.     While the appeal was pending, Poker Run executed on

various assets of the Borrower, including the real property (the “Property”) at issue

in this matter. Poker Run took title to the Property pursuant to a sheriff’s deed

recorded on May 6, 2010.

      On July 20, 2010, the Bank filed a Complaint against the Borrower seeking

to foreclose on its $2,360,000.00 mortgage lien recorded against the Property (the

“Foreclosure Case”). Poker Run moved to intervene. On October 8, 2010, the trial

court granted Poker Run’s motion and ordered the Bank to provide Poker Run

payoff figures limited to the amount due when the sheriff’s deed was filed. On

October 20, 2010, the Bank filed an Amended Complaint naming Poker Run as the

sole defendant and owner of the Property. Pursuant to an order entered April 6,

2011, Poker Run ultimately tendered payment to the Bank in the amount of

$2,581,227.15, which the Bank rejected.

      On November 23, 2011, while the Foreclosure Case was pending, this Court

reversed the final summary judgment in the Guaranty Case and remanded for a

new trial.1 See Gorrin v. Poker Run Acquisitions, Inc., 77 So. 3d 739 (Fla. 3d

DCA 2011).

1 On remand, the trial court ruled that the Property would remain in Poker Run’s
possession due to the Borrower’s attempt to fraudulently transfer the Property
during Poker Run’s execution. On June 24, 2013, the trial court entered final
judgment in favor of Poker Run. This Court affirmed the final judgment in Gorrin

                                          3
      On February 10, 2012, the Bank filed a Second Amended Complaint in the

Foreclosure Case re-naming the Borrower as a defendant.2 Poker Run denied the

Bank’s claimed damages and asserted various affirmative defenses. The trial court

then transferred the Foreclosure Case to the same division as the Guaranty Case.

      On February 11, 2013, the trial court held a pretrial hearing in the Guaranty

Case, which the Bank attended.       At that hearing, Poker Run raised concerns

regarding the sale of the Property,3 including the pendency of the Foreclosure

Case.4 Two days later, the trial court entered a Closing Order in the Guaranty Case

requiring Poker Run to pay the Bank the full amount of its claimed payoff upon the

sale of the Property. The Closing Order also “reserve[d] jurisdiction to adjudicate

v. Poker Run Acquisitions, Inc., 163 So. 3d 1207 (Fla. 3d DCA 2015) (table).
2  The Bank re-named Gorrin as a defendant in the Foreclosure Case as a result of
this Court’s reversal of the final judgment in the Guaranty Case.
3In August of 2012, the trial court had entered an order appointing a receiver in the
Guaranty Case. That order required Poker Run to immediately turn over possession
of the Property to the Receiver and allowed the Receiver to list the Property for
sale.
4 In its Objections to the Closing Documents regarding the sale of the Property,
Poker Run objected to the closing statement requiring a payoff in full of the
Property’s mortgage. Specifically, Poker Run asserted that “[t]he appropriate
amount of the mortgage payoff is precisely the issue being litigated before this
Court in . . . (the “Foreclosure Action”), where Poker Run has argued (and Judge
Cohen Lando previously ruled) that the amount due to the Bank is hundreds of
thousands of dollars less than what is claimed. However, the closing statement,
received yesterday, requires payment in full of the entire amount claimed by the
Bank, which effectively adjudicates the Foreclosure Action without a trial.”


                                         4
Poker Run’s or [the Borrower’s] claim . . . that the amount due is less.”5 The

Property was then sold and the Bank accepted $3,033,089.65 from the sale as its

payoff.   The Bank subsequently filed a motion to vacate the Closing Order,

contending that it was not present when the Closing Order was entered. The trial

court found that the Bank, as a non-party in the Guaranty Case, lacked standing to

file the motion to vacate.

      On March 26, 2013, the Bank filed a Notice of Voluntary Dismissal (the

“Notice”) in the Foreclosure Case. Poker Run filed a Motion to Strike the Notice,

arguing that the Bank could not accept the payoff from the Property’s sale in the

Guaranty Case and then deprive the trial court of jurisdiction to adjudicate Poker

Run’s claims.     On April 15, 2013, the trial court held a bench trial in the

Foreclosure Case.     The Bank contended that the trial court’s reservation of

jurisdiction in the Guaranty Case Closing Order did not survive the Notice filed in

the Foreclosure Case. Poker Run argued that the Bank was not entitled to keep the
5 The Closing Order also contains the following language:



      1. Bank of N.Y. Mellon shall be paid the amount it claims is due at
      closing, but the court reserves jurisdiction to adjudicate Poker Run’s
      or [the Borrower’s] claim . . . that the amount due is less, and if
      appropriate to order said Bank to return any overpayment, or disputed
      amount.
      2. Bank of NY Mellon, shall upon receipt of payment of the amount it
      claims due, shall issue a voluntary dismissal with prejudice of its
      foreclosure action, with the court to reserve jurisdiction as noted
      above in part 1, shall discharge its lis pendens and provide a
      Satisfaction of Mortgage.


                                        5
full payoff amount it received from the sale of the Property. In its May 15, 2013

Final Judgment, the trial court found that it maintained jurisdiction in the

Foreclosure Case pursuant to its reservation of such in the Guaranty Case’s

Closing Order. The trial court ruled that the Bank was required to remit to Poker

Run $435,934.30 of the payoff amount.

      On May 24, 2013, the Bank filed a motion for rehearing, arguing that the

Final Judgment contained mathematical errors pertaining to the payoff amount the

Bank was required to remit to Poker Run. The trial court granted the motion for

rehearing and entered an Amended Final Judgment on August 15, 2013, which

corrected the calculation errors, but did not otherwise modify the Final Judgment.6

The Bank appealed. Poker Run filed a motion for attorneys’ fees and costs,

contending that it was the prevailing party under section 57.105(7), Florida

Statutes (2013).   The trial court denied Poker Run’s motion, and Poker Run

appealed.

II.   ANALYSIS

      A.    The Bank’s Appeal

      The Bank argues that the trial court erred in proceeding with trial in the

Foreclosure Case and ultimately entering the Amended Final Judgment because it

was divested of jurisdiction when the Bank filed its Notice. Based on Pino v. Bank

6The Amended Final Judgment corrected the payoff amount owed by the Bank to
Poker Run from $435,934.30 to $325,934.20.

                                        6
of New York, 121 So. 3d 23 (Fla. 2013), we agree. In Pino, the Florida Supreme

Court noted that “[t]he voluntary dismissal serves to terminate the litigation, to

instantaneously divest the court of its jurisdiction to enter or entertain further

orders that would otherwise dispose of the case on the merits, and to preclude

revival of the original action.” Id. at 32.

      There are some limited exceptions to the rule articulated in Pino.       For

example, a distinction exists between a party filing a simple voluntary dismissal

with prejudice and an order by the trial court dismissing an action but reserving

jurisdiction or incorporating the parties’ settlement agreement. As this Court has

previously explained:

                    There is a difference between presenting a
             settlement agreement to the trial court for approval prior
             to dismissal of an action and cases where the parties
             voluntarily dismiss the action without an order of the
             court pursuant to Florida Rule of Civil Procedure 1.420.
             A voluntary dismissal under rule 1.420(a) divests the trial
             court of continuing jurisdiction over the case. However,
             where the parties, prior to dismissal, present a settlement
             agreement to the trial court for approval and the trial
             court enters an order of dismissal predicated on the
             parties' settlement agreement, the trial court retains
             jurisdiction to enforce the terms of the settlement
             agreement.

Albert v. Albert, 36 So. 3d 143, 147 (Fla. 3d DCA 2010) (citations omitted).

      Contrary to Poker Run’s assertion, however, the Closing Order in the

separate Guaranty Case does not fall within an exception to Pino for purposes of



                                              7
the Foreclosure Case.     The Closing Order in the Guaranty Case was not a

settlement agreement entered in the Foreclosure Case. Indeed, the Closing Order

was not entered in the Foreclosure Case, and it did not otherwise purport to reserve

the trial court’s jurisdiction to take any further action in the Foreclosure Case. In

fact, the trial court subsequently concluded that the Bank could not challenge the

Closing Order because the Bank had not been made a party to the Guaranty Case.

The trial court, therefore, could not rely on its inherent powers to enforce, in the

Foreclosure Case, the Closing Order entered in the Guaranty Case, since once the

Bank’s Notice was filed, the trial court was immediately divested of jurisdiction in

the Foreclosure Case and no exception to Pino applied.

      We note that it is clear from the record that the trial court intended to enter

the Closing Order in both the Guaranty and Foreclosure Cases. As the trial court

stated at the hearing on Poker Run’s Motion to Strike the Bank’s Notice:

             The bottom line is [the Property] closed with the Court
             reserving jurisdiction to address the outstanding claims
             that Poker Run are [sic] asserting are due and owing.

             ....

             The bottom line is they can’t handle both claims. You
             can’t have it where I order that the case—that the
             property be closed subject to certain circumstances, take
             advantage of that closing, and now say well, because you
             closed we’re not making a claim anymore. That’s not
             fair.

             ....


                                         8
              But there was a lot going on and we did it on Monday
              and we brought you back on Wednesday. Everybody
              was trying to get it closed because it was in everybody’s
              economic interest to get it closed.
              ....

              So it seems to me that in 10-39316 [the Foreclosure
              Case], notwithstanding that fact that the order [Closing
              Order] was entered in the ’08 case [Guaranty Case], it
              should have been—if I’d been on top of things—this
              should have been an order entered in 10-39316 [the
              Foreclosure Case] in an abundance of caution
              ....

              Pursuant to the Court’s order, I reserve jurisdiction to
              adjudicate the affirmative defenses, the amount due and
              owing that I ordered. I think it’s clear from the order that
              I ordered that the Bank be paid the most amount it could
              be paid, so that it would feel comfortable releasing the
              lien. The reservation by the Court survives the voluntary
              dismissal, I believe, because of the specific
              circumstances that motivate the voluntary dismissal.

        We are sympathetic to the trial court—this was clearly an oversight and not

an intention to insulate the Foreclosure Case from the effect of the Closing Order.

Nonetheless, because the Guaranty and Foreclosure Cases maintained their

separate existences, cf. Santiago v. Mauna Loa Invs., LLC, 189 So. 3d 752 (Fla.

2016), the Closing Order in the Guaranty Case cannot be imported into the

Foreclosure Case such that an exception to Pino would apply in the Foreclosure

Case.




                                           9
         While we are therefore compelled to reverse, we note that Poker Run is not

without a remedy. The sole reason the Bank received $3,033,089.65 from the sale

of the Property was that the Closing Order directed the payment to be made,7 and it

is

undisputed that the trial court anticipated a subsequent adjudication of the Bank’s

and Poker Run’s dispute over how much the Bank was ultimately entitled to

receive.     Nothing in the record before us precludes Poker Run from filing a

separate suit against the Bank seeking repayment for the sums Poker Run alleges

the Bank is not entitled to keep.8 Presumably, that action would be transferred to



7 To note, counsel for the Bank at the hearing on Poker Run’s Motion to Strike the
Notice did ultimately acknowledge that the reason for filing its Notice was because
it had received the $3,033,089.65 payoff pursuant to the Closing Order:

                      [THE BANK]: We voluntarily dismissed the
               action.
                      THE COURT: Because you were paid.
                      [THE BANK]: Correct.
                      THE COURT: Not because you lost interest.
                      [THE BANK]: That happens too sometimes. But
               no, not in this case.
                      THE COURT: So the question is that the bank
               was paid. And how much the bank was paid, I think it’s
               part of the reserved jurisdiction of the Court. And that
               part survives the voluntary dismissal, and the case should
               not be closed on the adjudication on the amount
               outstanding pursuant to the Court’s reservation.
8    We express no opinion regarding the merits of such a suit.


                                           10
the same division of the trial court that handled both the Foreclosure and Guaranty

Cases in an effort to conserve judicial resources.

       B.    Poker Run’s Cross-Appeal and Consolidated Appeal

       In its cross-appeal, Poker Run argues that it was error for the trial court in

the Amended Final Judgment to award the Bank $2,707,155.45, which included

$141,516.67 in interest and $56,000.00 in insurance charges incurred during the

period from December 1, 2009 to June 30, 2011. Poker Run argues this was error,

and that the Bank was only entitled to the amount Poker Run tendered,

$2,581,227.15. Because as we noted in Section A supra, the Notice divested the

trial court of jurisdiction, the trial court’s Amended Final Judgment must be

vacated.

       The same rationale dictates our resolution of the issue raised in Poker Run’s

consolidated appeal. Poker Run’s motion for attorneys’ fees and costs asserted that

Poker Run was the prevailing party at trial. Because the Notice divested the trial

court of jurisdiction, the trial court’s order denying Poker Run’s motion for

attorneys’ fees and costs must be vacated.

III.   CONCLUSION

       Because the Foreclosure Case terminated when the Bank filed its notice of

voluntary dismissal, the trial court was without jurisdiction to take any further

action in that matter.    We therefore reverse and vacate the Amended Final



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Judgment. We further vacate the trial court’s order denying Poker Run’s motion

for attorneys’ fees and costs as that order was entered after the filing of the Bank’s

notice of voluntary dismissal.

      Reversed and Remanded.




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