                                        IN THE DISTRICT COURT OF APPEAL
                                        FIRST DISTRICT, STATE OF FLORIDA

WELLS FARGO BANK, N.A.,                 NOT FINAL UNTIL TIME EXPIRES TO
                                        FILE MOTION FOR REHEARING AND
      Appellant,                        DISPOSITION THEREOF IF FILED

v.                                      CASE NO. 1D13-3336

MICHELLE A. GIESEL, et al.,

      Appellees.

_____________________________/

Opinion filed December 31, 2014.

An appeal from the Circuit Court for Alachua County.
Mary Day Coker, Judge.

Angela L. Leiner, Douglas C. Zahm, and Douglas M. Bales, St. Petersberg, for
Appellant.

No appearance, for Appellees.




WETHERELL, J.

      Wells Fargo Bank, N.A. (the bank) appeals the order dismissing this

foreclosure action in response to its motion to vacate the final judgment, the judicial

sale, and the certificates of sale and title. Because dismissal was not requested by

the bank or required under the circumstances of this case, we reverse and remand for

further proceedings.
       This case started out as a run-of-the-mill foreclosure action. The bank filed a

complaint to foreclose the mortgage securing the promissory note executed by

Appellees (the borrowers) after the borrowers failed to make the payments required

by the note. After languishing for several years, the case proceeded to a non-jury

trial and culminated in a final judgment of foreclosure in favor of the bank.1 The

judgment was not appealed. The bank purchased the property at the judicial sale and

the trial court thereafter issued certificates of sale and title to the bank.

       The case took an unusual turn when, eight months after the certificate of title

was issued (and nine months after the final judgment was entered), the bank filed a

motion pursuant to Florida Rule of Civil Procedure 1.540(b) to vacate the final

judgment, the judicial sale, and the certificates of sale and title. The basis for the

motion was that the mortgage contained an erroneous legal description that was

carried into the final judgment, the notice of sale, and the certificates of sale and

title. The motion explained that vacating the final judgment and the subsequent

actions “is necessary to allow the [bank] to reform the Mortgage . . . and to

foreclosure [sic] the Property with the correct legal description.” The motion closed



1
  The foreclosure complaint was filed in December 2009 and only one of the three
borrowers (Michelle Giesel) filed an answer. A default was entered against the other
two borrowers (James and Marilyn Giesel) in February 2010. There was very little
record activity in the case over the next eight months, and there was no record
activity whatsoever between October 2010 and June 2012. The final judgment was
entered in August 2012.
                                            2
with a generic “wherefore clause” asking the court to enter an order granting the

motion “and for such other the [sic] further relief that is appropriate.”

         The borrowers did not file a response to the motion and the trial court did not

hold a hearing on the motion. The court disposed of the motion in the following

order:

                ORDER DISMISSING CASE, ORDER ON MOTION
                TO VACATE JUDICIAL SALE, CERTIFICATE OF
                  SALE, CERTIFICATE OF TITLE, AND FINAL
                       JUDGMENT OF FORECLOSURE

                      THIS CAUSE came on for consideration of [the
               bank]’s Motion to Vacate Judicial Sale, Certificate of Sale,
               Certificate of Title and Final Judgment of Foreclosure.
               The Court having reviewed the court file and pleadings
               filed by the [bank], it is

                      ORDERED AND ADJUDGED

                1. The Foreclosure Sale held in this action is hereby
               vacated.

                2. The Certificate of Sale is [sic] in this action is hereby
               vacated.

                3. The Certificate of Title issued and recorded on
               October 3, 2012 is hereby vacated.

                4. That the Final Judgment entered on August 2, 2012 is
               hereby vacated.

                5. This Action is Dismissed, without prejudice.




                                            3
The bold-italicized portions of the order were handwritten by the trial court. The

remainder of the order was the typewritten proposed order submitted by the bank

with its motion.

       The bank timely filed a motion for rehearing challenging the sua sponte

dismissal of the case. The motion explained that the bank “did not seek dismissal of

the action” and pointed out that “the Court gave no findings as to why it felt the

dismissal of the action was an appropriate remedy.” The trial court summarily

denied the motion. This appeal followed.2

       The bank argues on appeal that it was denied due process by the trial

court’s sua sponte dismissal of the case. We agree. The bank did not request such

relief in its motion, and contrary to the dissent’s contention, the generic request for

“further relief that is appropriate” in the “wherefore clause” in the bank’s motion did

not give the trial court authority to dismiss this action without at least affording the



2
  We have jurisdiction. See Fla. R. App. P. 9.030(b)(1)(A); Wells Fargo Bank, N.A.
v. Chatham, 114 So. 3d 1062, 1064 (Fla. 1st DCA 2014) (“The dismissal order is a
final order for purposes of appellate review because, even though it dismissed this
case ‘without prejudice,’ the order precluded Wells Fargo from refiling a complaint
under the same case number.”); Martinez v. Collier Cnty. Pub. Sch., 804 So. 2d 559,
560 (Fla. 1st DCA 2002) (“Dismissal without prejudice is final if its effect is to bring
an end to judicial labor.”); Carlton v. Wal-Mart Stores, Inc., 621 So. 2d 451, 452
(Fla. 1st DCA 1993) (“While the dismissal is ‘without prejudice,’ it is clear that it is
‘without prejudice’ to file another, separate, action, rather than ‘without prejudice’
to file an amended complaint in the first action. We believe that, because the
dismissal ends the judicial labor in the first action, the dismissal is sufficiently ‘final’
to permit an appeal.”).
                                             4
bank notice and an opportunity to be heard on the issue. See BAC Home Loans

Servicing, Inc. v. Headley, 130 So. 3d 703, 706 (Fla. 3d DCA 2013) (rejecting “tipsy

coachman” argument that judgment for defendants on their counterclaim in a

foreclosure action could be affirmed based upon the “wherefore clause” in the

counterclaim seeking “such other relief as the court deems just and proper under the

circumstance” because that clause did not provide the lender meaningful notice that

the defendants were seeking the form of relief ultimately granted by the court); and

cf. Liton Lighting v. Platinum Television Grp., Inc., 2 So. 3d 366, 367 (Fla. 4th DCA

2008) (“When a trial judge sua sponte dismisses a cause of action on grounds not

pleaded, the trial judge denies the parties due process because the claim is being

dismissed without notice and an opportunity for the parties and counsel to be

heard.”) (internal quotations omitted).

      Moreover, on the merits, we conclude that dismissal was not required under

the circumstances of this case and, thus, the dismissal of “[t]his action” ordered by

the trial court cannot be justified as “further appropriate relief” in any event. The

dissent’s reliance on Lucas v. Barnett Bank of Lee County, 705 So. 2d 115 (Fla. 2d

DCA 1998), and Fisher v. Villamil, 56 So. 559 (Fla. 1911), in support of the contrary

conclusion is misplaced.

      Lucas involved an effort to reform the legal description in a foreclosure deed

in a separate proceeding after the foreclosure sale. See 705 So. 2d at 115. The court


                                          5
held that the deed could not be reformed in this manner because the sale was

premised upon the erroneous legal description and other potential bidders may have

acted in reliance on that description. Id. at 116. The court explained that the legal

description must be corrected before the foreclosure judgment and not in a

subsequent separate action. Id. (“If . . . the mistaken legal description is not corrected

before final judgment of foreclosure, and the mistake is carried into the

advertisement for sale and the foreclosure deed, a court cannot reform the mistake

in the deed and judgment; rather, the foreclosure process must begin anew.”). The

court explained that the proper procedure is to vacate the sale and set aside the

foreclosure judgment so as to return the parties to their “original status,” whereupon

the bank could then seek to reform the legal description in the mortgage and

foreclose based upon the revised legal description. Id. The case said nothing about

dismissal of the original foreclosure case being required.

      The 1911 Fisher case cited in Lucas for the proposition that “the foreclosure

process must begin anew” was likewise a separate, post-sale effort to reform the

legal description in a foreclosure deed. See 56 So. at 561. Fisher said nothing about

the dismissal of the foreclosure case being required; it simply held that an erroneous

legal description in a mortgage cannot be corrected by reforming the deed resulting

from the foreclosure sale. Id. There is nothing in Fisher (or Lucas) that precludes

the reformation of the mortgage from occurring in the original foreclosure


                                            6
proceeding once the judgment and resulting certificates are set aside. Indeed, that

appears to be precisely what happened in Fisher on remand. See Fisher v. Villamil,

62 So. 481 (Fla. 1913) (affirming decree entered on remand cancelling the deed and

then reforming and foreclosing the mortgage, and rejecting argument that the

“amended bill” filed on remand “ma[d]e an entirely new case”).

      Here, the bank was not asking the trial court to do what Lucas and Fisher

prohibit: reform the legal description in the certificate of title resulting from the

foreclosure sale. Instead, the bank was asking the court to do precisely what Lucas

and Fisher contemplate: vacate the final judgment of foreclosure, the sale, and the

certificates of sale and title, so the bank could reform the mortgage. Had the trial

court simply granted the relief requested in bank’s motion (without adding the

dismissal language to the order), the parties would have been put back into their pre-

judgment positions, whereupon the bank could have filed a motion to amend the

original complaint to include a count to reform the mortgage to correct a legal

description and then the case could have proceeded on the amended complaint. The

borrowers would not be prejudiced by this procedure because they will have an

opportunity to defend against the amended complaint (if they choose to do so 3), and



3
  This seems unlikely because two of borrowers were defaulted when they did not
respond to the original complaint, and none of the borrowers appealed the final
judgment of foreclosure or participated in this appeal.

                                          7
this procedure will also avoid the problems outlined by the bank in its brief that

would result if it was required to initiate an entirely new case to foreclose the

borrowers’ mortgage.

      We recognize that the bank brought these problems on itself by including an

incorrect legal description in the mortgage. However, once the bank became aware

of the error, it acted diligently to undo what had already been done in order to return

the case to its pre-judgment posture so that it could reform the mortgage and restart

the foreclosure process as contemplated by Lucas and Fisher. There is simply no

reason that the bank should be required to initiate an entirely new action to achieve

this result when it would have sufficed for the trial court to simply vacate the

foreclosure judgment and the resulting certificates (as requested by the bank) and

then allow the litigation to proceed in the existing case.

      Accordingly, for the reasons stated above, we reverse the portion of the

challenged order dismissing “[t]his action” and we remand for further proceedings

consistent with this opinion.

      REVERSED and REMANDED for further proceedings.

MAKAR, J., CONCURS; VAN NORTWICK, J., DISSENTS WITH OPINION.




                                           8
VAN NORTWICK, J., dissenting.

      I respectfully dissent from the reversal of the trial court’s order that, inter alia,

dismissed Wells Fargo’s foreclosure action without prejudice.               In my view,

governing Florida case law requires affirmance.

      In Lucas v. Barnett Bank of Lee County, 705 So. 2d 115, 115 (Fla. 2d DCA

1998), the Second District reviewed a final summary judgment that modified “a legal

description in a mortgage, partial release of security agreement, and certificate of

title,” when the mortgagor had previously obtained a final judgment of foreclosure

and purchased the subject property at a foreclosure sale. The appealed modified

judgment sought to correct an erroneous legal description of the subject property that

was utilized in the original foreclosure judgment and related documents. Id.

      Of particular importance for purposes of the disposition of the case under

review, the court observed:

      When a mortgage contains an incorrect legal description, a court may
      correct the mistake before foreclosure. If, however, the mistaken legal
      description is not corrected before final judgment of foreclosure, and
      the mistake is carried into the advertisement for sale and the foreclosure
      deed, a court cannot reform the mistake in the deed and judgment;
      rather, the foreclosure process must begin anew. Fisher v. Villamil, 62
      Fla. 472, 56 So. 559 (1911). The reason behind this policy is that, if
      the mortgage is not reforeclosed, the purchaser would have obtained
      title to a property that was not properly ordered for sale, advertised, or
      sold. While the mortgagee who bid its mortgage at the sale might have
      understood exactly what property was being offered, other potential
      bidders at the sale might not have had the same understanding. 62 Fla.
      at 479, 56 So. at 561. As the Fisher court noted, the mortgage may be
      reformed if a sufficient showing is made, and the reformed mortgage
                                            9
      may be foreclosed. But first, the deed to the property must be canceled,
      and the original foreclosure judgment set aside, such that the parties are
      returned to their original status. 62 Fla. at 480, 56 So. at 561; cf. §
      702.08, Fla. Stat. (1993).

      Id. at 116. Applying the above rule, the Second District reversed the summary

judgment reforming the mortgage and related documents. Id.

      The majority characterizes Fisher and Lucas as requiring that the parties

should be returned to their pre-judgment, post-pleading positions. Respectfully, the

majority misreads these cases. In my mind, the key proposition to be gleaned from

both Fisher and Lucas is that a mistake in the legal description of a foreclosed

property cannot be corrected or reformed if the mistake is not corrected prior to entry

of final judgment of foreclosure and that, in such a situation, “the foreclosure process

must begin anew.” Id. Importantly, this proscription is not limited in application to

cases in which a separate proceeding seeks to reform an erroneously described

property after final judgment of foreclosure. It is not apparent to me why the holding

from Fisher and Lucas should not be applied where, as here, a party files a post-

judgment motion in the foreclosure case seeking to correct an erroneous legal

description.

      Returning to the plain language from the case law, “begin anew” is commonly

and reasonably understood to mean to re-start from the beginning. Because this case

began with the filing of a foreclosure complaint, it seems logical that in order to

“begin anew,” the bank would be required to file a new complaint with a correct
                                          10
legal description of the subject real property. Recasting the parties to the positions

they occupied at any other point ignores, in my opinion, the plain language

from Fisher and Lucas.

      Here, Wells Fargo did not seek reformation of the incorrect legal description

prior to the entry of the final judgment of foreclosure. Although by dismissing the

case the trial court took action that was not specifically requested by Wells Fargo,

the appealed order did grant the relief the bank requested, i.e., vacating the erroneous

judgment and other papers. The trial court’s sua sponte action, furthermore, could

reasonably be interpreted as “such other the [sic] further relief that is appropriate,”

as requested in Wells Fargo’s motion to vacate. Because the appealed order

stemmed from Wells Fargo’s own motion to vacate, the present case is

distinguishable from cases such as BAC Home Loans Servicing, Inc. v. Headley,

130 So. 3d 703 (Fla. 3d DCA 2013), where unrequested relief was inappropriately

granted against a non-pleading party.

      In my view, the trial court was correct in dismissing the entire action and

returning the parties “to their original status,” which I perceive to be the statuses

they maintained before the case was initiated, because “the legal description [did]

not close, and consequently it does not describe an actual parcel of real

estate.” Lucas, 705 So. 2d at 115-16.




                                          11
      Finally, I recognize that allowing Wells Fargo to file an amended complaint

with a correct legal description, as opposed to filing an entirely new complaint,

would allow the bank to avoid some potential complications outlined in the answer

brief. However, Wells Fargo would not be confronted with any foreclosure-related

complications if it had simply used the correct legal description in its original filings.

Put another way, Wells Fargo’s error led to the current state of affairs, yet it now

wants to be relieved of responsibility for its error. In spite of whatever complications

could arise upon the filing anew of a foreclosure complaint, because the dismissal

was without prejudice, the way remains open for Wells Fargo to correct the error

that derailed the original foreclosure litigation.

      Accordingly, I respectfully dissent.




                                           12
