       Third District Court of Appeal
                               State of Florida

                        Opinion filed December 21, 2016.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D16-2210
                          Lower Tribunal No. 09-4405
                             ________________


                              Renovaship, Inc.,
                                    Petitioner,

                                        vs.

                        Barclay Quatremain, et al.,
                                  Respondents.



      A Writ of Certiorari to the Circuit Court for Miami-Dade County, Rosa I.
Rodriguez, Judge.

      Schatzman & Schatzman and Arnold D. Schatzman, for petitioner.

      Behar, Gutt & Glazer and Ira Gutt and Robert J. Edwards (Fort Lauderdale);
David J. Schottenfeld (Plantation), for respondents.


Before EMAS, FERNANDEZ and SCALES, JJ.

      EMAS, J.
      INTRODUCTION

      Petitioner Renovaship, Inc. filed a petition seeking certiorari review of the

trial court’s order vacating an earlier order dismissing the action for lack of

prosecution. Renovaship asserts that the trial court lacked jurisdiction to vacate its

earlier dismissal order and to continue exercising jurisdiction over the case. We

agree, treat this proceeding as a petition for writ of prohibition1 and, for the reasons

that follow, grant the petition, and quash the order on review.

      FACTS

      Petitioner Renovaship, together with Dennis Carbee, Oscar Medina and

Denny Rodrigues, were the defendants below.2 Respondent Barclay Quatremain

was the plaintiff below, and commenced the action on January 21, 2009.

Renovaship and the other defendants answered the complaint, and Renovaship

filed a counterclaim against Quatremain, to which Quatremain filed an answer and

affirmative defenses.



1 See Fla. R. App. P. 9.040(c) (providing: “If a party seeks an improper remedy,
the cause shall be treated as if the proper remedy had been sought. . . .”). A writ of
prohibition is the appropriate remedy to prevent a trial court from proceeding in a
cause over which it no longer has jurisdiction. English v. McCrary, 348 So. 2d 293
(Fla. 1977); Fonseca v. Taverna Imports, Inc., 193 So. 3d 92 (Fla. 3d DCA 2016).
2 Though Carbee, Medina and Rodrigues were, together with Renovaship, the

defendants below, they are designated as respondents in the instant petition only
because they did not join in the petition filed by Renovaship. See Fla. R. App. P.
9.020(g)(4). In their response to the petition, however, they adopt the position
advocated by Renovaship and urge this court to grant the petition.

                                           2
         On November 20, 2014, the trial court sua sponte issued a Notice of Lack of

Prosecution, see Fla. R. Civ. P. 1.420(e),3 and Notice of Hearing on the Court’s

Motion to Dismiss for Lack of Prosecution. The notice included a hearing date of

March 12, 2015, and required any party opposing dismissal to show good cause in

writing, at least five days before the March 12, 2015 hearing, why the case should

remain pending.

         The order further provided that the parties were required to attend the March

12, 2015 hearing, and advised that “[t]he failure of the party opposing the motion

to appear at the hearing and to timely file a showing of good cause in writing, if

required, shall constitute an abandonment of any justified defense to the motion


3   Fla. R. Civ. P. 1.420(e) provides:

         Failure to Prosecute. In all actions in which it appears on the face of
         the record that no activity by filing of pleadings, order of court, or
         otherwise has occurred for a period of 10 months, and no order
         staying the action has been issued nor stipulation for stay approved by
         the court, any interested person, whether a party to the action or not,
         the court, or the clerk of the court may serve notice to all parties that
         no such activity has occurred. If no such record activity has occurred
         within the 10 months immediately preceding the service of such
         notice, and no record activity occurs within the 60 days immediately
         following the service of such notice, and if no stay was issued or
         approved prior to the expiration of such 60-day period, the action shall
         be dismissed by the court on its own motion or on the motion of any
         interested person, whether a party to the action or not, after reasonable
         notice to the parties, unless a party shows good cause in writing at
         least 5 days before the hearing on the motion why the action should
         remain pending. Mere inaction for a period of less than 1 year shall
         not be sufficient cause for dismissal for failure to prosecute.

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and the above styled action shall be dismissed for lack of prosecution upon further

order of the Court on the date of the hearing. . . .”

      Quatremain failed to file any separate pleading of good cause in response to

the notice. Also, and importantly, Quatremain (and his counsel) failed to appear at

the March 12, 2015 hearing. On March 12, 2015, the trial court entered an order

dismissing the action for lack of prosecution. No motion for rehearing was filed,

and no appeal was taken from this dismissal order.

      On June 29, 2016, more than fifteen months after entry of the dismissal

order, Quatremain filed a motion to vacate the March 12, 2015 order dismissing

the action for lack of prosecution. Attached to the motion was an Affidavit of

Good Cause, in which Quatremain’s counsel averred, inter alia, that:

      - He did not receive the November 20, 2014 Notice of Lack of Prosecution
          until December 11, 2014;
      - He filed a notice of trial on January 28, 2015, and this was good cause
          and record activity within the 60-day time period required by the Notice
          and by rule 1.420(e);4




4 Rule 1.420(e) provides that record activity may occur within sixty days following
service of the notice of lack of prosecution. Quatremain asserts that his filing of
the notice of trial on January 28, 2015 meets this requirement, contending that he
did not receive the court’s November 20, 2014 notice of lack of prosecution until
December 11, 2014. Given our holding in this case, we need not reach the
question.

                                            4
      - He did not receive the March 12, 2015 order dismissing the case for lack
         of prosecution, and thereafter continued to litigate the case, under the
         belief that the action remained pending; 5
      - He first learned of the March 12, 2015 dismissal order on April 26, 2016,
         when he contacted the trial court’s judicial assistant regarding the status
         of a pretrial order.

      Renovaship opposed the motion to vacate, contending, inter alia, that the

trial court no longer had jurisdiction and was therefore without authority to vacate

the dismissal order. The trial court granted Quatremain’s motion, and on August

29, 2016, entered an order vacating its earlier dismissal order of March 12, 2015.

      ANALYSIS

      As a general rule, “a trial court loses jurisdiction upon the rendition of a

final judgment and expiration of the time allotted for altering, modifying or

vacating the judgment.” Ross v. Wells Fargo Bank, 114 So. 3d 256, 257 (Fla. 3d

DCA 2013).6 The trial court retains jurisdiction to the extent such is specifically

5 Inexplicably, the parties continued to engage in discovery during the period
between the March 15, 2015 dismissal order and the June 29, 2016 motion to
vacate the dismissal order. This included: serving interrogatories and answers to
interrogatories; a May 15, 2015 hearing at which the trial court entered an order
compelling better answers to interrogatories; and Quatremain’s notice to set cause
for non-jury trial, filed on April 12, 2016.
6 This court (and regrettably, this author) has on prior occasions referred to this

issue as one involving subject-matter jurisdiction. See Ross, 114 So. 3d at 256.
However, subject-matter jurisdiction does not involve the power of the court to
hear the particular case, but instead concerns itself with “the power of the trial
court to deal with a class of cases to which a particular case belongs.” Cunningham
v. Standard Guar. Ins. Co., 630 So. 2d 179, 181 (Fla. 1984). The type of

                                         5
reserved in the final judgment or as otherwise provided by statute or rule. Id. In

the instant case, the order dismissing the action for lack of prosecution contained

no reservation of jurisdiction, and the order became final when no motion for

rehearing was served within the fifteen-day period following the order of

dismissal. See Fla. R. Civ. P. 1.530(b). Thus, Quatremain’s only avenue to alter,

modify or vacate that dismissal order was by motion filed pursuant to Florida Rule

of Civil Procedure 1.540(b), which, under limited circumstances and time

constraints, provides relief from a judgment, order or decree. Pruitt v. Brock, 437

So. 2d 768 (Fla. 1st DCA 1983). That rule provides in relevant part:

      (b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered
      Evidence; Fraud; etc. On motion and upon such terms as are just, the
      court may relieve a party or a party's legal representative from a final
      judgment, decree, order, or proceeding for the following reasons: (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. The motion shall be filed within a reasonable
      time, and for reasons (1), (2), and (3) not more than 1 year after the
      judgment, decree, order, or proceeding was entered or taken.

jurisdiction at issue in this case is therefore more accurately characterized as
“procedural jurisdiction,” “case jurisdiction” or “continuing jurisdiction.” See
Paulucci v. General Dynamics Corp., 842 So. 2d 797, 801 n. 3 (Fla. 2003); U.S.
Bank Nat. Ass’n v. Anthony-Irish, 41 Fla. L. Weekly D2330 at *2 n.3 (Fla. 5th
DCA Oct. 14, 2016).

                                         6
      Quatremain’s motion to vacate contained no mention of rule 1.540 or any

rule upon which he asserted an entitlement to vacatur of the dismissal order.

However, we can discern, from the contents of his motion, two potential bases for

which he sought relief:

      1. Under rule 1.540(b)(1), that the order of dismissal for lack of prosecution

      was erroneously entered because there was evidence of record activity; that

      Quatremain, through mistake, inadvertence, surprise or excusable neglect,

      was unaware that this order had been entered; and that both parties had

      continued to engage in discovery and motion practice despite the dismissal

      order.

      2. Because neither Quatremain nor his counsel ever received the March 12,

      2015 order, and did not became aware of its existence until April 26, 2016,

      the dismissal order must be vacated.

      We decline to reach the merits of the first claim: any asserted error in the

trial court’s entry of a dismissal order should have been appealed by Quatremain or

raised in a rule 1.540 motion filed within one year of the order. See Fla. R. Civ. P.

1.540(b)(1) (providing that a motion seeking relief from a judgment based upon

mistake, inadvertence, surprise or excusable neglect shall be filed “not more than 1

year after the judgment, decree, order, or proceeding was entered or taken.”)




                                         7
Having been filed fifteen months after entry of the dismissal order, Quatremain’s

motion was untimely under rule 1.540(b)(1).7

      Quatremain’s second argument is that neither he nor his counsel ever

received the dismissal order and did not become aware of its existence until more

than a year later.     While not expressly set forth in the motion to vacate,

Quatremain’s argument implied that the failure to receive the dismissal order

constituted a denial of due process, rendering the order “void” under rule

1.540(b)(4) and subject to attack at any time. However, such a contention is

unavailing here, and the cases holding a judgment void on due process grounds are

inapposite.

      The general principle of law is well-settled: a final judgment8 entered

without adequate notice of the hearing and an opportunity to be heard is void. See,

e.g., Curbelo v. Ullman, 571 So. 2d 443 (Fla. 1990); U.S. Bank Nat. Ass’n v.

Proenza, 157 So. 3d 1075 (Fla. 3d DCA 2015); Rodriguez v. ALS Commercial

7 Because the motion to vacate was filed more than one year after entry of the
order, we do not address whether Quatremain might have prevailed had he timely
sought relief under rule 1.540(b)(1), on the basis that the trial court failed to serve a
copy of the dismissal order, preventing Quatremain from timely filing a notice of
appeal. See, e.g., United Funding, LLC v. Brandao, 77 So. 3d 710 (Fla. 3d DCA
2011); Rosso v. Golden Surf Towers Condo. Ass’n, 711 So. 2d 1298 (Fla. 4th
DCA 1998).
8 By its terms, rule 1.540(b)(4) provides relief only from a “judgment or decree.”

However, this court has recently held that the term “judgment” includes a final
order of dismissal, and that such a final order is subject to attack as void under
subsection (b)(4). See De La Osa v. Wells Fargo Bank, N.A., No. 3D14-1455 (Fla.
3d DCA Dec. 14, 2016) (en banc).

                                           8
Funding, LLC, 138 So. 3d 491 (Fla. 3d DCA 2014); State ex rel. Prinzee v.

Thurmond, 721 So. 2d 827 (Fla. 3d DCA 1998) and cases cited.

      However, Quatremain does not claim that he was not given notice of the

hearing on the motion to dismiss for lack of prosecution; nor does Quatremain

contend that his failure to attend the hearing was the result of any lack of notice, or

that he was denied the opportunity to be heard at that hearing. Indeed Quatremain

and his counsel concede they received the notice of hearing months in advance of

the hearing date.9 Further, Quatremain and his counsel knew, from the express

language of that notice, that the parties were required to attend the March 12, 2015

hearing, and that “[t]he failure of the party opposing the motion to appear at the

hearing and to timely file a showing of good cause in writing, if required, shall

constitute an abandonment of any justified defense to the motion and the above

styled action shall be dismissed for lack of prosecution upon further order of the

Court on the date of the hearing.” (Emphasis added.)




9The notice of hearing was issued by the court and sent to counsel on November
20, 2014. Quatremain’s counsel avers that he did not receive this notice until
December 11, 2014. That passage of time, however, is irrelevant to the analysis of
whether the order of dismissal was void on due process grounds. Even if
Quatremain received the notice of hearing three weeks after it was rendered, there
was no prejudice to Quatremain, since the hearing was not held until March 12,
2015—more than three months after Quatremain’s counsel received the notice, and
with more than enough time for Quatremain to comply with all of the directives
contained in the notice.

                                          9
      The fact that Quatremain and his counsel never received a copy of the order

entered at the conclusion of the hearing of which they had notice (and at which

they were required to appear) does not constitute a denial of due process so as to

render that order void and subject to vacatur at any time. This case is therefore

distinguishable from situations in which a party did not receive notice of the

hearing or an opportunity to be heard, amounting to a denial of due process.

Under such circumstances, the subsequent order is subject to attack as a void

judgment under rule 1.540(b)(4). See, e.g., Curbelo, 571 So. 2d at 445; Jade

Winds Ass’n, Inc. v. Citibank, N.A., 63 So. 3d 819 (Fla. 3d DCA 2011); Niki

Unlimited, Inc., v. Legal Services of Greater Miami, 483 So. 2d 46, 48 (Fla. 3d

DCA 1986); See also Shiver v. Wharton, 9 So. 3d 687, 690 (Fla. 4th DCA 2009)

(holding that “[a] judgment is void if, in the proceedings leading up to the

judgment, there is ‘[a] violation of the due process guarantee of notice and an

opportunity to be heard’” (quoting Viets v. Am. Recruiters Enterprs., Inc., 922 So.

2d 1090, 1095 (Fla. 4th DCA 2006)).

      For example, in State ex rel. Johnson v. Haughton, 188 So. 3d 32 (Fla. 3d

DCA 2016), the trial court entered an order terminating a father’s obligation to pay

child support arrearages. The Department of Revenue moved to vacate that order

under rule 1.540(b)(4) because it never received notice of the hearing. The trial




                                        10
court denied the motion to vacate and we reversed, holding that the original order

was void on due process grounds:

      The trial court's order setting aside the arrears owed by Haughton was
      issued without any notice to DOR, and therefore, the trial court's order
      in the instant case was entered in violation of DOR's fundamental due
      process rights. The order is, therefore, void, see Shields [v. Flinn], 528
      So.2d [964] at 968 [Fla. 3d DCA 1988], and the trial court was
      required to grant DOR's rule 1.540(b)(4) motion to set aside the order.

      The most basic requirement of procedural due process is that a party
      to the litigation must be provided with notice and an opportunity to be
      heard. State, Dep't of Revenue ex rel. Lawson v. Young, 995 So.2d
      1080, 1081 (Fla. 1st DCA 2008). “The right to be heard has little
      reality or worth unless one is informed that the matter is pending and
      can choose for himself whether to appear or default, acquiesce or
      contest.” Dep't of Revenue ex rel. Poynter v. Bunnell, 51 So.3d 543,
      546 (Fla. 1st DCA 2010) (internal quotation omitted).

Id. at 34 (emphasis added).

      Here, and unlike the situation in Haughton, Quatremain received notice of

the hearing and did indeed “choose for himself whether to appear or default,

acquiesce or contest.” Quatremain chose not to appear, even though he knew that

his attendance was required, and that his failure to attend would result in a

dismissal of the action. The mere fact that Quatremain’s counsel asserted, more

than a year later, that he never received the dismissal order that was entered on the

day of a hearing which he chose not to attend, provides no rational basis for a

conclusion that the dismissal order was void on due process grounds. See State ex

rel. Coleman v. Williams, 3 So. 2d 152 (Fla. 1941) (holding final judgment was



                                         11
not void where trial court entered final judgment after defendant was given due

notice and opportunity to heard and defendant failed to appear at hearing and failed

to seek to amend or vacate final judgment until time for doing so had expired).

Having been placed on adequate notice that Quatremain’s failure to appear would

result in the trial court’s entry of an order dismissing the case, and thereafter

failing to appear at the hearing, counsel should have, at the very least, checked the

court docket or contacted the trial court or opposing counsel to ascertain what

action the trial court took at the hearing, and should have obtained a copy of the

order entered at that hearing. See Contreras v. Mendez, 194 So. 3d 396 (Fla. 3d

DCA 2016).

      CONCLUSION

      Quatremain’s motion to vacate was untimely, because it was filed more than

one year after the dismissal order was rendered and thus not subject to attack under

rule 1.540(b)(1)-(3). Further, the motion to vacate could not be filed beyond the

one-year time limit because it was not void under rule 1.540(b)(4), and

Quatremain’s failure to receive a copy of the order did not constitute a denial of

due process because he received notice for, yet failed to attend, a hearing at which

his presence was required, and was forewarned that his failure to attend the hearing

would constitute a basis for dismissal of the action.




                                         12
        The trial court was without continuing jurisdiction to vacate the prior

dismissal order and reinstate the action. We therefore grant the petition and quash

the trial court’s order of August 29, 2016. We withhold formal issuance of the

writ.

        Petition granted; order quashed.




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