Garcia v. Stewart
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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
July Term 2005
AMADO EVARITO GARCIA,
Appellant,
v.
RENEE STEWART, WOODGATE CONDOMINIUM ASSOCIATION, INC.,
JOHN TENANT and JANE TENANT,
Appellees.
No. 4D04-1836
[July 27, 2005]
ON MOTION FOR REHEARING
GROSS, J.
The Association’s motion for rehearing has called our attention to
additional facts that were not previously made a part of the record. The
facts pertain to the Association’s participation in a separate circuit court
lawsuit involving the foreclosure of a first mortgage on the property.
These additional facts do not change the result in this case. Even
though the Association filed a lien foreclosure cross-claim in the other
lawsuit, Garcia still had the right to challenge the disbursement of funds
in this action through a rule 1.540(b) motion.
There were two mortgages on Garcia’s property. The holder of the
first mortgage was M&T Mortgage Corp. The holder of the second
mortgage, which was at issue in this case, was Renee Stewart.
M&T filed a mortgage foreclosure action in March, 2002, naming
Garcia and the Association as defendants. The M&T action was assigned
to Judge Lynch. The Association answered the M&T action and filed a
cross-claim against Garcia seeking foreclosure on its claim of lien.
Garcia filed no responsive pleading in the M&T action.
The following month, Stewart filed a second foreclosure suit to
foreclose her second mortgage. The Stewart action was assigned to
Judge Burnstein under a different case number than the M&T action.
The Association filed an answer in the Stewart action, but Garcia filed no
responsive pleading.
M&T acquired a summary final judgment against Garcia from Judge
Lynch on July 14 of that year; Stewart acquired a default final judgment
from Judge Burnstein on July 18. Although the Association secured a
default against Garcia on its lien foreclosure claim in the M&T action, it
never obtained a final judgment. In the Stewart action, Judge Burnstein
dismissed the Association as a defendant in the final judgment of
foreclosure.
The foreclosure sale in the Stewart action occurred on February 10,
2003; there had not yet been a foreclosure sale in the M&T action. The
buyer was Escala Homes & Mortgages. On February 21, after the clerk
paid off the junior lienholders and issued a certificate of title to Escala, a
surplus remained in the court registry. Escala moved to intervene in the
M&T action, explaining that it had recently purchased the property in the
Stewart action foreclosure sale and that it was willing to pay off M&T’s
first mortgage.
On March 20, 2003, t e Association secured an order from Judge
h
Lynch, the M&T action judge, disbursing the proceeds from the Stewart
action, the case presided over by Judge Burnstein, from which the
Association had been dismissed as a party.
Based on these new facts, the Association argues that the panel’s
opinion incorrectly assumed that the “Association filed no pleading
concerning its claim of lien.” The non-existence of a pleading in this case
was significant, because it went to Garcia’s entitlement to challenge the
disbursement order under rule 1.540.
However, that critical fact
remains unchanged because the pleadings the Association filed were in a
separate lawsuit. We are aware of no rule of procedure or administrative
order that authorized the trial judge in the M&T action to reach over into
a different lawsuit, before a different judge, and enter an order
disbursing funds in that case to a party that had been dismissed by a
final judgment. This is not a case where the Association had secured a
final judgment in the M&T action and was pursuing some post-judgment
remedy. The existence of the Association’s pleadings in the M&T action
did not affect Garcia’s right to attack the March 26, 2003 order in the
Stewart action under rule 1.540(b)(4).
The Association’s motion for rehearing is denied.
-2-
STEVENSON , C.J., and SHAHOOD, J., concur.
*
*
*
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Thomas M. Lynch, IV, Judge; L.T. Case No. 027571(21).
Brenda Cox of Brenda Cox, P.A., Boca Raton, for appellant.
Ronald E. D’Anna and Jennifer J. Kramer of McClosky, D’Anna &
Dieterle, LLP, Boca Raton, for appellee Woodgate Condominium
Association, Inc.
-3-
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