          DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                            FOURTH DISTRICT

                         EUGENE CORNELIUS,
                             Appellant,

                                   v.

  STEPHEN HOLZMAN and UNKNOWN TENANTS OF 4395 ELEVEN
          MILE ROAD, FT. PIERCE, FLORIDA 34995,
                         Appellees.

                             No. 4D15-549

                             [June 8, 2016]

  Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St.
Lucie County; James W. Midelis, Senior Judge; L.T. Case No.
562011CA000948.

  Aaron V. Johnson of Collins, Brown, Barkett, Garavaglia & Lawn,
Chartered, Vero Beach, for appellant.

  Mary Ellen R. Himes of Fidelity National Law Group, Fort Lauderdale,
and Eric L. Hostetler of Widerman Malek, PL, Melbourne, for appellees.

MAY, J.

   The borrower purchased a home and borrowed money from the lender.
The two parties executed a note and mortgage. The mortgage contained
the address and a legal description that read:

      The South 278 feet of the East 295 feet of the Northeast 1/4
      of the Southeast 1/4 of Section 33, Township 35 South, Range
      39 East, St. Lucie County, Florida; less and except therefrom
      the right of way for Eleven Mile road.

(Emphasis added).

   Subsequently, the borrower received a corrective warranty deed for the
property, which had a slightly modified legal description:

      The South 278 feet of the East 295 feet of the Northeast 1/4
      of the Southwest 1/4 of Section 33, Township 35 South,
      Range 39 East, St. Lucie County, Florida; less and except
      therefrom the right of way for Eleven Mile road.

(Emphasis added).

   The lender filed a three-count foreclosure complaint alleging: (1) breach
of note, (2) mortgage foreclosure, and (3) reformation of part of the note
concerning the payment date. Both the complaint and the attached
mortgage contained the incorrect legal description indicating “Southeast.”

   Upon the lender’s motion, a clerk’s default was entered against the
borrower. The trial court then entered a final judgment after default in
favor of the lender, who then bought the property. The borrower moved to
vacate the final judgment and set aside the sale because he was not
properly served. The parties entered into an agreed order to vacate the
final judgment, set aside the sale, and waive service of the complaint.

   The lender again moved for a default when the borrower failed to file a
responsive pleading. The clerk again defaulted the borrower. The lender
moved for a final judgment after default, which the trial court granted and
entered on March 11, 2013. The final judgment contained the incorrect
legal description with “Southeast,” which was also contained in the
mortgage and complaint.

   On February 14, 2014, the lender filed a “Motion to Vacate Final
Judgment and for Leave to File Amended Verified Foreclosure Complaint.”
The lender asked the trial court to vacate the final judgment because it
contained an incorrect legal description. He also requested leave to amend
the complaint pursuant to Florida Rule of Civil Procedure 1.190, and
attached an amended complaint with the correct legal description. The
court heard argument on the motion and denied it without prejudice.

    On July 30, 2014, almost one year and five months after the final
judgment, the lender filed an “Amended Motion to Amend Final Judgment,
or in the Alternative, Vacate Final Judgment and for Leave to File Amended
Verified Complaint and Request for Hearing.” He requested relief under
rule 1.540(b)(4), arguing the final judgment was void due to the incorrect
legal description. He also argued the final judgment could be amended
and requested leave to amend the complaint.

   On October 13, 2014, the trial court heard argument on the amended
motion and granted it under rule 1.540(a). It determined that the final
judgment contained “a clerical or scrivener’s error arising from oversight
or omission,” because of the difference in the incorrect “Southeast” and

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the correct “Southwest.” It found rule 1.540(a) applied and granting the
motion would not prejudice the borrower.

   The borrower moved for rehearing, arguing the trial court lacked
jurisdiction to amend the final judgment, allowing the amendment violated
his due process rights, the incorrect legal description is not a scrivener’s
error under rule 1.540(a), and the lender would have to vacate the
judgment and re-file his complaint. The court denied the borrower’s
motion for rehearing. The court entered the amended final judgment with
the correct legal description. From this order, the borrower now appeals.1

          Orders on rule 1.540(b) motions generally are reviewed for
       an abuse of discretion. However, where there is no factual
       dispute and the trial court’s decision is based on a pure
       question of law, the review is de novo. Furthermore, when the
       underlying judgment is void, the trial court has no discretion
       and is obligated to vacate the judgment.

Segalis v. Roof Depot USA, LLC, 178 So. 3d 83, 85 (Fla. 4th DCA 2015)
(internal citations omitted).

    The borrower argues the lender’s rule 1.540(b) motion was untimely
because he filed the motion outside the one-year time limit and the final
judgment was voidable, not void. The lender responds that the borrower
failed to provide a transcript of the hearing to show what was argued to
the trial court. Because the trial court based its decision on rule 1.540(a),
the borrower’s timeliness arguments are irrelevant.

    A hearing transcript is unnecessary for us to determine the issues
raised. “Where the hearing at issue is non-evidentiary and consists only
of legal argument, the failure to provide a transcript is not necessarily fatal
to appellate review.” Rollet v. de Bizemont, 159 So. 3d 351, 357 (Fla. 3d
DCA 2015); see Shahar v. Green Tree Servicing LLC, 125 So. 3d 251, 254
(Fla. 4th DCA 2013).

    Rule 1.540(b) states, in part:

       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

1  This was the subject of a motion to dismiss, which we denied. The borrower
filed an amended notice of appeal when the trial court entered the amended final
judgment.

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       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.

Fla. R. Civ. P. 1.540(b) (emphasis added). Here, the allegation must have
been under subsection (1), because the lender argued the legal description
was incorrect.

    To move under subsection (1), the lender would have to move under
rule 1.540(b) within one year of the final judgment. Id. The trial court
entered the final judgment on March 11, 2013. The lender did not file his
amended motion to amend final judgment until July 30, 2014, which does
not meet the time constraints enumerated in rule 1.540(b) for subsections
(1), (2), and (3).

   Although the lender also filed a motion to vacate on February 14, 2014,
the lender moved under rule 1.190, an incorrect rule, and the trial court
summarily denied it. The amended motion to amend final judgment
asserted some arguments similar to the motion to vacate, but it also
requested new relief. This rendered the amended motion to amend final
judgment a new motion that was untimely under rule 1.540(b). 2 In short,
the trial court lacked jurisdiction to rule on the motion. Absent an
exception from subsections (4) or (5), the trial court lost jurisdiction over
the case to address the lender’s claim. See NAFH Nat’l Bank v. Aristizabal,
117 So. 3d 900, 902 (Fla. 4th DCA 2013).



2 Although the trial court cited rule 1.540(a) of the Florida Rules of Civil Procedure
in its order and amended the final judgment as a clerical mistake, the amendment
was substantive in nature because it changed the legal description of the property
foreclosed upon. “A trial court has no authority under [r]ule 1.540(a) to make
substantive changes.” Lorant v. Whitney Nat’l Bank, 162 So. 3d 244, 245 (Fla.
1st DCA 2015) (citation omitted) (internal quotation marks omitted).

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   The lender argues his motion could travel under subsection (4) of rule
1.540(b) because the incorrect legal description made the final judgment
void. See Epstein v. Bank of Am., 162 So. 3d 159, 161 (Fla. 4th DCA 2015).
However, Epstein held that an erroneous legal description in a final
judgment makes the final judgment voidable, not void. Id. at 160–62.
Thus, the trial court lacked jurisdiction to hear the amended motion to
amend final judgment because it was filed more than one year after
rendition of the final judgment and no exceptions apply.

   Reversed and remanded for the court to vacate the amended final
judgment of foreclosure.

CIKLIN, C.J., and TAYLOR, J., concur.

                            *           *    *

   Not final until disposition of timely filed motion for rehearing.




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