     FIRST DISTRICT COURT OF APPEAL
            STATE OF FLORIDA
                   _____________________________

                          NO. 1D17-236
                  _____________________________

WELLS FARGO BANK, N.A.,

    Appellant,

    V.

ROY F. SMITH, JR., As Trustee Under
The Provisions Of A Trust Agreement
Dated October 25, 2005, Known As
The Roy F. Smith, Jr. Trust, et al.,

    Appellee.

                     _____________________________

On appeal from the Circuit Court for Duval County.
Kevin A. Blazs, Judge.

                        November 20, 2018

FORST, ALAN O., Associate Judge.

     Appellant Wells Fargo Bank, N.A. (“the Bank”) appeals a
successor judge’s order awarding attorney’s fees and costs to
appellee Roy F. Smith, Jr., as trustee of the Roy F. Smith, Jr. Trust
(“the Trust”). The original judge had summarily denied the Trust’s
motion for fees and motion for rehearing of the order denying fees.
A successor judge later awarded fees to the Trust following the
Trust’s successful motion to disqualify the original judge and
subsequent motion seeking to vacate the original judge’s orders on
the motion for fees. Because the trial court lost jurisdiction after
the denial of rehearing, and should have conducted an evidentiary
hearing on reinstating its jurisdiction, we reverse the order on
appeal and remand for further proceedings. Accordingly, it is
unnecessary to address the remaining issue on appeal.

                           Background

     After the original trial judge dismissed the Bank’s underlying
foreclosure case against the Trust, the Trust moved for its
attorney’s fees and costs. Without explanation, the original judge
denied the Trust’s motion. The Trust then moved for rehearing,
arguing it had no notice or opportunity to be heard on the fees
issue. The original judge denied this motion, again without
conducting a hearing.

     The following day, the Trust filed a motion for recusal and
disqualification of the original judge. The Trust asserted that it
had just discovered an improper ex parte communication between
the Bank’s counsel and the original judge, and that this
communication resulted in the order denying its motion for fees.
The Trust argued that the orders denying its fees motion and a
rehearing should be vacated and the motion for fees should be set
for a proper hearing before a different judge. One week later, the
original judge granted the request for disqualification and recused
himself from the case.

     Citing Florida Rule of Judicial Administration 2.330(h), * the
Trust next filed a Motion to Find Void and/or Vacate, Rescind, Set
Aside, Reconsider and/or Rehear the original judge’s order denying
its motion for fees and subsequent order denying rehearing. In
that motion, the Trust asserted that both of the prior judge’s orders
were void because both were entered without notice or a hearing.
A successor judge granted the Trust’s motion and vacated both
orders. After a hearing on the request for fees before another
successor judge, an order was entered awarding fees and costs to
the Trust.

    *  Rule 2.330(h), “Prior Rulings,” states that “[p]rior factual or
legal rulings by a disqualified judge may be reconsidered and
vacated or amended by a successor judge based upon a motion for
reconsideration, which must be filed within 20 days of the order of
disqualification, unless good cause is shown for a delay in moving
for reconsideration or other grounds for reconsideration exist.”
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                              Analysis

     “Generally, a trial court’s determination on jurisdiction is
reviewed de novo.” Giuffre v. Edwards, 226 So. 3d 1034, 1037 (Fla.
4th DCA 2017).

     The Bank argues the successor trial judge lacked jurisdiction
to vacate the original judge’s orders denying fees, because the case
was already final at that time, and the Trust did not file a proper
motion pursuant to Florida Rule of Civil Procedure 1.540. The
Bank also argues the trial court lacked jurisdiction to rule on the
motion for disqualification once it had denied rehearing.

     We agree with the Bank that the trial court lost jurisdiction
after its denial of rehearing. See Shelby Mut. Ins. Co. of Shelby,
Ohio v. Pearson, 236 So. 2d 1, 3 (Fla. 1970) (“Except as provided by
Rules 1.530 and 1.540, Florida Rules of Civil Procedure, the trial
court has no authority to alter, modify or vacate an order or
judgment.”); Kippy Corp. v. Colburn, 177 So. 2d 193, 199 (Fla.
1965) (“[A] trial court has no authority to modify, amend or vacate
a final order, except in the manner and within the time provided
by rule or statute . . . .”); Arleo v. Garcia, 695 So. 2d 862, 862 (Fla.
4th DCA 1997) (“Upon entering the order on respondent’s first
motion for rehearing, the trial court lost jurisdiction to rule on the
second motion for rehearing and to consider the merits of the
case.”).

     However, we conclude that the Trust’s subsequent Motion to
Find Void and/or Vacate, Rescind, Set Aside, Reconsider and/or
Rehear the original judge’s orders on fees contained sufficient
allegations to be considered a rule 1.540 motion, which could
reinstate the court’s jurisdiction. See Fla. R. Civ. P. 1.540(b)
(providing a mechanism to “relieve a party or a party’s legal
representative from a final judgment” based on: “(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 . . .
misrepresentation, or other misconduct of an adverse party; [or]
(4) that the judgment or decree is void . . . .”).



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    It is well-settled Florida law that a pleading will be construed
according to its substance rather than its form. See Estate of Willis
v. Gaffney, 677 So. 2d 949, 951 (Fla. 2d DCA 1996). “Thus, the
character of a motion will depend upon its grounds or contents, and
not on its title.” Id. (citation and internal quotation marks
omitted).

     Here, although the Trust mistitled its motion and did not
mention the proper rule, we conclude that it was in fact seeking
relief under rule 1.540(b), by alleging that the original judge’s
orders were void. Accordingly, the motion was properly before the
court and should have prompted an evidentiary hearing. See, e.g.,
Cottrell v. Taylor, Bean & Whitaker Mortg. Corp., 198 So. 3d 688,
691 (Fla. 2d DCA 2016) (“Where a motion under rule 1.540(b) sets
forth ‘a colorable entitlement to relief,’ the trial court should
conduct an evidentiary hearing to determine whether such relief
should be granted.” (citation omitted)).

     As noted above, the Trust’s motion to disqualify the original
judge was filed before its Motion to Find Void and/or Vacate,
Rescind, Set Aside, Reconsider and/or Rehear. The Bank is correct
that the original judge lacked jurisdiction to hear this motion, and
we thereby vacate the original judge’s recusal order. See Nilio v.
State, 143 So. 3d 424, 426 (Fla. 1st DCA 2014) (holding that the
petitioner’s motion for disqualification “having been filed at a time
when the trial court’s jurisdiction had not been invoked for any
other purpose, was void ab initio.”); cf. Kozell v. Kozell, 142 So. 3d
891, 894 (Fla. 4th DCA 2014) (declining to exercise jurisdiction to
review the order denying the husband’s motion to disqualify the
trial judge, “which he filed a week and a half after the court denied
his motion for rehearing,” but noting that the husband’s motion
was untimely “because the husband did not file the motion to
disqualify until after the proceedings had already ended”).

                            Conclusion

     Based on the foregoing discussion, we reverse and remand
with directions to conduct an evidentiary hearing on the merits of
the Trust’s Motion to Find Void and/or Vacate, Rescind, Set Aside,
Reconsider and/or Rehear the court’s orders denying the Trust’s
motion for attorney’s fees.

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ROWE and RAY, JJ., concur.

                _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________


Michael K. Winston and Dean A. Morande of Carlton Fields Jorden
Burt, P.A., West Palm Beach, for Appellant.

R. Kyle Gavin of Liles Gavin, P.A., Jacksonville; and William R.
Blackard, Jr., Jacksonville, for Appellee.




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