author: LAGOA, J.

text:
    Bjon LEE, Petitioner, v. Sean CONDELL and Jose Estache, Respondents.
    No. 3D15-2316
    District Court of Appeal of Florida, Third District.
    Opinion filed December 14, 2016

      Eugene F. Zenobi, Criminal Conflict and Civil Regional Counsel, Third Region of Florida and Philip Louis Reizenstein, Assistant Regional Counsel, for petitioner.
    Richard K. Houlihan; Richard C. Klugh, for respondent Sean Condell; Jeffrey H. Fink, for respondent Jose Estache.
    Before SHEPHERD, LAGOA, and LOGUE, JJ.
   LAGOA, J.

Petitioner, Bjon Lee (“Lee”), seeks a writ of certiorari directed toward the trial court’s discovery order compelling production of Lee’s own handwritten notes (the “Notes”). Because we find that Lee’s Notes are not subject to the attorney-client privilege as a “communication” under section 90.502(l)(c), Florida Statutes (2014), we deny the petition.

I. FACTUAL & PROCEDURAL HISTORY

On July 16, 2013, pursuant to a written plea agreement with the State, Lee entered a plea of guilty to reduced charges of second degree murder, and attempted felony murder (Counts I and II). In consideration of a deferred sentence, Lee agreed to give a sworn statement detailing both his involvement in the crime, as well as the involvement of his co-defendants, provide assistance and cooperation to the State, and testify truthfully in depositions and at trial. The trial court accepted Lee’s plea and ratified the terms of the plea agreement.

Counsel for Lee’s co-defendants, Sean Condell (“Condell”) and Jose Estache (“Estache”) (collectively, “Respondents”), deposed Lee over multiple days. On September 22, 2014, during his deposition, Lee disclosed that, while he was awaiting trial in jail, he prepared the Notes on two or three occasions for his “personal use.” Lee also stated that he did not give his attorney a copy of the Notes, but that he “discussed it with her.” Specifically, at his deposition, Lee testified as follows:

BY MR. HOULIHAN [Counsel for Con-dell]:
Q. Have you ever to this date written out anything in your own hand concerning this case?
A. Yes, sir.
Q. How many times?
A. Two or — two times or three times.
Q. And to who did you write it out for?
A. Por me, my personal use, and one time, I wrote a letter to Damian.
Q. Okay. So two or three times, you just wrote to yourself and I guess it’s to help you remember things?
A. Yes, sir.
Q. About keeping your story straight; right?
A. Yes, sir.
MR. GILBERT [Counsel for State]: Objection to the form of the question.
MR. LEDEE [Counsel for State]: Come on, man.
Q. Do you still have those?
A. Yes, sir.
Q. Okay, because you keep referring to them; right?
A. Yes, sir.
Q. And this is your own statement about our case in your own words?
A. Yes, sir.
BY MR. JEPEWAY [Counsel for Rayon Samuels]:
Q. You wrote out three statements; correct?
A. Yeah, for my personal use.
Q. Yes.
A. Yes, sir.
Q. All right. Would you mind producing those?
MR. GILBERT: I have an objection.
MS. PETERSON [Counsel for Lee]: I would object as well; privilege.
MR. JEPEWAY: Okay, and why is that?
MS. PETERSON: I would object to privilege.
MR. NALLY [Counsel for Damian Lewis]: What privilege?
MR. PETERSON: Preparation for trial.
MR. NALLY: What privilege is that?
MR. JEPEWAY: He said it’s for his personal use.
MR. GILBERT: Attorney-client privilege.

Counsel for Respondents moved to compel production of the Notes and Lee filed a memorandum in opposition, asserting that the Notes were not discoverable pursuant to the attorney-client privilege. At an evi-dentiary hearing on Respondents’ motion to compel, counsel for Lee advised the trial court that they were unaware of the existence of the Notes until Lee’s deposition was underway. At that hearing, Lee testified — for the first time — that he wrote the Notes in anticipation of trial in order to discuss “strategy” with his attorneys. During cross-examination by Condell’s counsel, however, Lee again acknowledged that the Notes were for his personal use.

Following an in camera inspection and hearing, the trial court issued a comprehensive, detailed written order containing findings of fact and conclusions of law. Specifically, the trial court found that the Notes did not reflect any conversations Lee had with counsel or any trial strategy his attorneys shared with him. The trial court further found that the Notes contained Lee’s recitation and musings concerning certain facts of the case and his relationships with Respondents. On September 9, 2015, the trial court granted Respondents’ motion to compel production, stating “[n]o privilege exists and the notes are subject to the discovery rules.” This petition followed.

II. ANALYSIS

“A writ of certiorari is an extraordinary type of relief that is granted in very limited circumstances.” Rousso v. Hannon, 146 So.3d 66, 69 (Fla. 3d DCA 2014). To be entitled to certiorari, the petitioner must establish the following three elements: “‘(1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case (3) that cannot be corrected on postjudgment appeal.’” Reeves v. Fleetwood Homes of Fla., Inc., 889 So.2d 812, 822 (Fla. 2004) (quoting Bd. of Regents v. Snyder, 826 So.2d 382, 387 (Fla. 2d DCA 2002)). “The latter requirements constitute irreparable harm, and irreparable harm is a condition precedent to invoking certiora-ri jurisdiction that should be considered first.” Lacaretta Rest. v. Zepeda, 115 So.3d 1091, 1092 (Fla. 1st DCA 2013) (citing Spry v. Prof'l Employer Plans, 985 So.2d 1187, 1188 (Fla. 1st DCA 2008)); see also Bd. of Trs. of the Internal Improvement Tr. Fund v. Am. Educ. Enters., LLC, 99 So.3d 450, 454-55 (Fla. 2012) (stating that irreparable harm is a condition precedent to invoking a district court’s certiorari jurisdiction); Nucci v. Target Corp., 162 So.3d 146, 151 (Fla. 4th DCA 2015) (same).

Certiorari jurisdiction is not available to review every erroneous discovery ruling. See Bd. of Trs. of the Internal Improvement Trust Fund, 99 So.3d at 456; Nucci, 162 So.3d at 151. However, “[discovery of information protected by privilege ‘may reasonably cause material injury of an irreparable nature.’ ” Lacaretta, 115 So.3d at 1092 (quoting Allstate Ins. Co. v. Langston, 655 So.2d 91, 94 (Fla. 1995)). Therefore, “if there has been a departure from the essential requirements of law regarding [the attorney-client] privilege, the harm is indeed irreparable.” Lacaretta, 115 So.3d at 1092-93. “‘Departure from the essential requirements of law’ is defined the same way across all uses of certiorari review: ‘a violation of a clearly established principle of law resulting in a miscarriage of justice.’ ” Id. at 1093 (citations omitted).

The attorney-client privilege governed by the Florida Evidence Code, is codified at section 90.502, Florida Statutes (2014), which states that a communication between lawyer and client is “confidential” if it is not intended to be disclosed to third persons, other than:

1. Those to whom disclosure is in furtherance of the rendition of legal services to the client.
2. Those reasonably necessary for the transmission of the communication.

§ 90.502(l)(c), Fla. Stat.

“[T]he privilege exists to protect not only the giving of professional advice to those who can act on it but also the giving of information to the lawyer to enable him to give sound and informed advice.” Upjohn Co. v. U.S., 449 U.S. 383, 390, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981) (citing Trammel v. U.S., 445 U.S. 40, 51, 100 S.Ct. 906, 63 L.Ed.2d 186 (1980)). “Confidential disclosures by a client to an attorney made in order to obtain legal assistance are privileged.” Fisher v. U.S., 425 U.S. 391, 403, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976). Nevertheless, “since the privilege has the effect of withholding relevant information from the fact-finder, it applies only where necessary to achieve its purpose.” Id.

Indeed, as the Law Revision Council Note to section 90.502, Florida Statutes, states, “the privilege belongs to the client and is applicable only when a communication is for the purpose of facilitating the rendition of professional legal services to the client. No communication, no matter how confidential or relevant to the client’s business or personal affairs, is privileged unless it materially facilitates the rendition of legal services by a lawyer.” § 90.502, Fla. Stat. Ann. (West 1999) (Law Revision Council Note — 1976).

Consequently, the issue before this Court rests on whether the Notes are a “communication” as referenced in section 90.502(l)(c), and therefore subject to the attorney-client privilege. If the Notes are subject to the attorney-client privilege, Lee would meet his burden of proving the elements necessary for certiorari relief.

After an evidentiary hearing and after conducting an in camera review of the Notes, the trial court “concluded that the notes do not reflect any conversations Lee had with counsel or any trial strategy his counsel shared with him.” Specifically, the trial court found that “Lee’s claims that he wrote these notes for the purpose of using them for ‘trial strategy’ with his attorneys and that the notes were made during meetings with counsel totally lacking in credibility.” Moreover, the trial court in its written order found that, “[ejven a cursoiy review of the notes reflects that the notes were a stream of consciousness rather than notes for a strategy session or done while taking notes during a conversation with another person.”

The trial court further found that it was only after Lee’s counsel went to see him in jail during a recess of the hearing on Respondents’ motion to compel that Lee— for the first time — testified that he wrote the Notes as “trial preparations” so he could discuss “strategy” with his lawyers. Notably, the trial court found that as “Lee never gave the notes to his attorney (or even discussed them with her until after the deposition) — and obviously only after a plea was reached — they were not written for trial preparation or strategy purposes.” Significantly, there was no testimony or other evidence presented that Lee’s attorney requested he make the Notes, or that Lee intended the Notes to be delivered to his attorney. See Merlin v. Boca Raton Cmty. Hosp., Inc., 479 So.2d 236, 239 (Fla. 4th DCA 1985) (concluding that a client’s notes were protected by the attorney-client privilege because they were prepared for and transmitted to the attorney either in contemplation of or during the litigation); accord U.S. v. DeFonte, 441 F.3d 92 (2d Cir. 2006); Clark v. Buffalo Wire Works Co., Inc., 190 F.R.D. 93 (W.D.N.Y. 1999); Eernbach v. Timex Corp., 174 F.R.D. 9 (D. Conn. 1997).

In its written order, the trial court resolved Lee’s conflicting testimony. “It is not the function of an appellate court to substitute its judgment for that of the trial court or to reweigh the evidence, absent a lack of substantial competent evidence.” State, Fla. Highway Patrol v. In re: Forfeiture of Twenty Nine Thousand Nine Hundred & Eighty (29,980.00) in U.S. Currency, 802 So.2d 1171, 1172 (Fla. 3d DCA 2001). Because substantial, competent evidence exists to support the trial court’s ruling, this Court will not disturb on appeal the trial court’s resolution of the conflicting evidence. See State v. Stephens, 441 So.2d 171 (Fla. 3d DCA 1983).

III. CONCLUSION

Given these facts, we conclude that the trial court’s findings rejecting the credibility of Lee’s claim that the Notes were to be used for communication with counsel are supported by the record and will not be second guessed by the Court. See, e.g., Jenkins v. State, 978 So.2d 116, 127 (Fla. 2008) (“[W]e are not permitted to second guess the credibility assessments of the trial court.”). In compelling production of the Notes, the trial court made direct findings as to the purpose for which the Notes were made. See Merlin, 479 So.2d at 238. The trial court’s findings were based not only on Lee’s deposition testimony that he prepared the Notes for his “personal use,” but also Lee’s counsel’s statement at the evidentiary hearing that they were unaware of the existence of the handwritten Notes until Lee’s deposition was underway. As such, we cannot conclude that the trial court’s comprehensive order results in a miscarriage of justice. See Lacaretta, 115 So.3d at 1093. In reaching our conclusion, this Court reiterates well-established law that trial courts are in the best position to evaluate the credibility of witnesses and appellate courts are obligated to give great deference to the findings of the trial court. See Porter v. State, 788 So.2d 917, 923 (Fla. 2001) (“We recognize and honor the trial court’s superior vantage point in assessing the credibility of witnesses and in making findings of fact.”). Accordingly, because the Notes are not a “communication” pursuant to section 90,502(l)(c), they are not protected from disclosure, and Lee s petition for certiorari is denied.

PETITION DENIED.

      . Pursuant to the plea agreement, the State agreed to abandon Counts III to VI.

      . While section 90.502(4), Florida Statutes, provides several exceptions to the attorney-client privilege, none apply here.


source: Caselaw Access Project

author: SUAREZ, C.J.

license: Public Domain

text:
    Jaime Javier Costa PARDELL, Appellant, v. Ana Maria Bonaduce COSTA, Appellee.
    No. 3D15-773
    District Court of Appeal of Florida, Third District.
    Opinion filed December 14, 2016
    Jaime Javier Costa Pardell, in proper person.
    Susana Rice Roque, for appellee.
    Before SUAREZ, C.J., and WELLS and EMAS, JJ.
   SUAREZ, C.J.

Appellant Jamie Javier Costa-Pardell appeals an amended final judgment on his foxmer wife’s petition for payment of past-due child support. We affirm. The trial court did not abuse its discretion in finding that the general master’s report and recommendation was supported by competent substantial evidence and was not clearly erroneous in its application of the law. Lascaibar v. Lascaibar, 156 So.3d 547, 549 n.1 (Fla. 3d DCA 2015); Cerase v. Dewhurst, 935 So.2d 575, 578 (Fla. 3d DCA 2006); Robinson v. Robinson, 980 So.2d 360, 361 (Fla. 3d DCA 2006).

Affirmed.


author: LOGUE, J. SCALES, J.

text:
    Yoanky DE LA OSA, Appellant, v. WELLS FARGO BANK, N.A., Appellee.
    No. 3D14-1455
    District Court of Appeal of Florida, Third District.
    Opinion filed December 14, 2016
    Feiler & Leach, P.L., and Martin E. Leach, for appellant.
    Carlton Fields Jorden Burt, P.A., and Michael K. Winston, Dean A. Morande, and Donna L. Eng (West Palm Beach), and Nancy C. Ciampa, for appellee.
    Before, SUAREZ, C.J, and WELLS, SHEPHERD, ROTHENBERG, LAGOA, SALTER, EMAS, FERNANDEZ, LOGUE, and SCALES, JJ.
   On Motion for Rehearing En Banc

LOGUE, J.

The final order underlying this appeal dismissed a case because the Plaintiff failed to appear for trial. The Plaintiff, however, was given no notice to appear for trial and no copy of the dismissal order. Although labeled “without prejudice,” the order is final and uncontestably void. The trial court set aside this void final order pursuant to Florida Rule of Civil Procedure 1.540(b)(4), which authorizes a court to relieve a party from a void “judgment or decree.” The Defendant appealed arguing that Rule 1.540(b)(4) applies only to a void “judgment or decree” and not to a void final “order.” The original panel assigned to the case agreed with the Defendant and reversed. De La Osa v. Wells Fargo Bank, N.A., No. 3D14-1455, 2016 WL 517466, at *4 (Fla. 3d DCA 2016). On rehearing en banc, we vacate the panel opinion and affirm the trial court’s order setting aside the void final order.

ANALYSIS

Florida Rule of Civil Procedure 1.540(b) reads as follows:

(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. A motion under this subdivision does not affect the finality of a judgment or decree or suspend its operation. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, decree, order, or proceeding or to set aside a judgment or decree for fraud upon the court.
Writs of coram nobis, coram vobis, audi-ta querela, and bills of review and bills in the nature of a bill of review are abolished, and the procedure for obtaining any relief from a judgment or decree shall be by motion as prescribed in these rules or by an independent action,

(emphasis added).

Observing that the first sentence of Rule 1.640(b) refers to “a final judgment, decree, order, or proceeding,” the Defendant took as his first premise that the drafters intended these terms to have distinct and different meanings. Applying a negative implication, the Defendant reasoned that, because subsection (4) of 1.540(b) refers only to a judgment or decree, subsection (4) applies only to a void “judgment” or “decree” and not to a void final “order.” The Defendant’s conclusion follows a certain logic. But the premise is incorrect. Any difference between the terms final “judgment,” final “decree,” and final “order” disappeared long ago, at least for procedural purposes.

Over forty years ago, the Florida Supreme Court held that the term “judgment” as used in the Florida Rules of Civil Procedure included final “orders.” Laytner v. Humble Oil & Ref. Co., 262 So.2d 675, 677 (Fla. 1972). Laytner dealt with Rule 1.530, the companion rule to Rule 1.540. Otherwise, the issue in Laytner was virtually identical to the issue here.

The question in Laytner was whether Rule 1.530’s authority to rehear “judgments” included the authority to rehear “an order dismissing a complaint with prejudice.” The Court held that the term “judgment” included a final “order” for purposes of the Rule. The Court explained:

We hold that a motion to rehear an order dismissing a complaint with prejudice is proper under F.R.C.P. 1.530 because it is directed to an otherwise ap-pealable final judgment heard without a jury within the terms of the rule. This being a judgment, a motion filed within ten (10) days of its entry is proper and tolls the time for appeal. This was the procedure under the former equity rules, O’Steen v. Thomas, 1941, 146 Fla. 73, 200 So. 230, and is therefore encompassed by Rule 1.530 of our modern rules of procedure in which law and equity have been merged.

Id. (citation omitted) (emphasis added).

The principle that “judgment” as used in Rule 1.530 includes a final “order” has been repeatedly upheld in the ensuing decades. Capone v. Philip Morris USA, Inc., 116 So.3d 363, 372 (Fla. 2013) (“[Rule 1.530] has been consistently construed to authorize rehearings of orders and judgments which are final in nature”). In fact, the term “judgment” as used in Rule 1.530 has always been understood to include final orders of dismissal without prejudice exactly like the one in this case.

There is no reason why the term “judgment” would include final “order” in Rule 1.530 but not Rule 1.540: the two Rules complement each other. Between' them, they provide just, speedy, and inexpensive ways for litigants to bring errors in final orders to the attention of the trial court. See generally Balmoral Condo. Ass’n v. Grimaldi, 107 So.3d 1149, 1151 (Fla. 3d DCA 2013) (“[R]ule 1.530 provides a short window of time for a court to reconsider a final order for a broad range of reasons; rule 1.540, on the other hand, provides a larger window of time for a court to change a final order but only for a narrow, enumerated list of reasons.”). For the Defendant’s argument to be correct, we would have to hold that the term “judgment” has different meanings in different parts of the rules of civil procedure — different even in companion rules.

As the Florida Supreme Court noted in Laytner, the interchangeability of the terms final “judgment” and final “order” stems from the merger of law and equity for procedural purposes. Laytner, 262 So.2d at 677. Significantly, the authors’ comment to Rule 1.540 also specifically cite to the merger of law and equity to explain the use of language in the rule. Fla. R. Civ. P. 1.540 (authors’ cmt. 1967) (noting the term "decrees” was included in the Rule to ensure decrees “rendered prior to January 1, 1967 [the date of the merger of law and equity] may come -within this rule”).

Modern lawyers often overlook the merger for procedural purposes of law and equity. But the merger of the procedures governing law and equity into one body of rules was one of the most revolutionary and beneficial changes in American procedural law. This revolution was accomplished by the deceptively simple and often-overlooked language of Florida Rule of Civil Procedure 1.040, which quietly provides “[t]here shall be one form of action to be known as ‘civil action.’” Because Rule 1.040 “eliminat[ed] the distinction between law and equity,” the drafters of the Rules of Civil Procedure considered Rule 1.040 “the most fundamental rule of all.” Fla. R. Civ. P. 1.040 (authors’ cmt. 1967).

Consistent with this historic change, the Florida Rules of Appellate Procedure expressly recognize the interchangeability of the terms final “order” and “judgment.” Rule 9.020(f) defines “order” as a “decision, order, judgment, decree, or rule of a lower tribunal, excluding minutes and minute book entries.” (emphasis added). This definition refutes the Defendant’s entire argument: the contention that the terms are distinct cannot be reconciled with this definition indicating the terms are interchangeable. ■

Florida Rule of Judicial Administration 2.430(2) also expressly uses the term “judgment” as interchangeable with “final order, final judgment, final docket entry, final dismissal, or nolle prosequi [that] has been entered as to all parties” for procedural matters relating to document retention.

Rule 1.540 itself uses these terms interchangeably. Rule 1.540(b) expressly applies to a “judgment, decree, order, or proceeding,” but the rule also provides that “a motion under this subdivision does not affect the finality of a judgment or decree or suspend its operation.” If we were to accept the Defendant’s premise and use of negative implication, the continuation of finality would apply only to a “judgment or decree” and not to a final order. This makes no sense.

Likewise, the Rule provides “[t]his rule does not limit the power of a court ... to set aside a judgment or decree for fraud upon the court.” Accepting the Defendant’s premise and use of negative implication, this rale would limit the power of a court to set aside a final order for fraud upon the court: an absurd result because there is no reason for the drafters to treat fraud in procuring final orders any less seriously than fraud in procuring final judgments and decrees. In addition, the authors’ comment notes that Rule 1.540 does not apply to “interlocutory judgments,” an expression that makes sense only if “judgment” also refers to “order” in contravention to the Defendant’s interpretation.

This understanding of Rule 1.540 is deeply embedded in decades of case law. This year, the Supreme Court indicated, albeit in a very short opinion, that the term “judgment” as used in the Rule included the term “order.” Francois v. Brinkmann, 2016 WL 634609 (Fla. 2016) (“The petition for writ of prohibition is hereby denied. Our decision is without prejudice to either party moving in the circuit court to vacate the circuit court’s January 6, 2016, order. See Fla. R. Civ. P. 1.540(b)(4).”) (citation omitted).

As recently as 2014, this court held that “judgment” included final “order” for purposes of Rule 1.540(b)(4). In Courtney v. Catalina, Ltd., 130 So.3d 739, 740 (Fla. 3d DCA 2014), we reversed a trial court order that failed to grant a motion under rule 1.540(b)(4) to set aside an order of dismissal for lack of prosecution “because it is undisputed in the record that he did not receive either the notice of inactivity or the final order of dismissal.” (emphasis added). Thus, in direct conflict to the Defendant’s argument, this Court has held that the term “judgment” as used in Rule 1.540(b)(4) included final “orders.”

This reasoning is not new. In 1998, this court held that the term “judgment,” as specifically used in Rule 1.540(b)(4), included final “orders.” Dep’t of Revenue v. Thurmond, 721 So.2d 827, 828 (Fla. 3d DCA 1998). In Thurmond, we reversed a trial court that declined to vacate a final order dismissing a case because the Department of Revenue failed to appear for a “final hearing and/or status conference” when the uncontested record reflected the Department was given no notice of the hearing. Id. Failure to grant the Department’s motion, which was filed under Rule 1.540(b)(4), was error because “[t]he passage of time cannot make valid that which has always been void.” Id. (quotation and citation omitted). After discussing void “judgments,” this Court held “we conclude that the lower court abused its discretion when it denied the state’s motion seeking to vacate the order of dismissal.” Id. (emphasis added).

In fact, this Court has consistently so ruled. See U.S. Bank Nat’l Ass’n v. Proenza, 157 So.3d 1075, 1076 (Fla. 3d DCA 2015) (holding the term “judgment” as used in Rule 1.540(b)(4) included final “orders”); Falkner v. Amerifirst Fed. Sav. & Loan Ass’n, 489 So.2d 758, 759 (Fla. 3d DCA 1986) (reversing an order denying a motion to vacate “orders” of dismissal under rule 1.540(b)(4)).

The First and Fourth Districts have similarly held that the term “judgment” as used in Rule 1.540(b)(4) includes final orders. Cheshire v. Wells Fargo Bank, N.A., 175 So.3d 886, 887 (Fla. 1st DCA 2015) (reversing an order denying a motion to vacate an order dismissing counterclaims with prejudice under Rule 1.540(b)(4) and remanding for the limited purpose of determining whether the order dismissing the counterclaims was void because it was entered simultaneously with the trial judge’s recusal order); Garcia v. Stewart, 906 So.2d 1117, 1123 (Fla. 4th DCA 2005) (granting Rule 1.540(b)(4) relief on an “order” that disbursed surplus funds generated by a foreclosure sale and explaining that a “void final order or judgment may be attacked under rule 1.540(b)”).

At bottom, the flaw in the Defendant’s argument is that it interprets Rule 1.540 without considering context. It treats Rule 1.540 as an isolated regulation with no past, no future, no purpose, and no relation to the body of law of which it is a part. But context matters. Justice Antonin Scalia, the preeminent jurist in the field of textual interpretation wrote, “words are given meaning by their context.” Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 56 (2012).

We cannot end this analysis without considering the unfortunate consequences that would result from the adoption of the Defendant’s argument. Due process requires some mechanism to set aside void final orders. After all, “by definition a void order is a nullity.” McMurrer v. Marion Cty., 936 So.2d 19, 21 (Fla. 5th DCA 2006) (citation and quotation omitted). See also Synchron, Inc. v. Kogan, 757 So.2d 564, 566 (Fla. 2d DCA 2000) (“[I]t is not contempt to disobey a void order.”) (citation and quotation omitted). Currently, Rule 1.540(b)(4) provides a just, speedy, and inexpensive method to place the factual issues that arise from a claim that an order is void in front of the judge who entered the order. If adopted, the Defendant’s argument would eliminate this useful mechanism to address void orders. The Defendant’s position ultimately serves to complicate, prolong, and increase the expense of setting aside a void matter, which the law already recognizes as a nullity.

Moreover, if the term “judgment” does not include final “orders” for purposes of Rule 1.540(b)(4), it necessarily follows that the term “judgment” does not include final “orders” for purposes of Rule 1.530, either. This means that Rule 1.530 would no longer be available as a just, speedy, and inexpensive vehicle to bring errors in final orders to the attention of the trial judge, contrary to well-established law. See, e.g., Capone, 116 So.3d at 372 (“[Rule 1.530] has been consistently construed to authorize rehearings of orders and judgments which are final in nature”).

And if this were not enough, adopting the Defendant’s argument would ultimately upend the long line of eases holding that the filing of a motion for rehearing of a final order tolls the rendition of the final order for purposes of timely filing an appeal. See id. A new cottage industry would emerge of litigation focused purely on drawing an imaginary line in procedure between final judgments and final orders, because this legal fiction would control whether a matter could be reheard under Rule 1.530 or a void matter could be set aside under Rule 1.540.

In this way, adopting the Defendant’s argument would set off a series of legal changes that would reverse much of the procedural streamlining accomplished in the last half century. It would trap many unwary lawyers, delay correction of errors in final orders, and clog the appellate courts.

We do not have to drive off this cliff. A judge is not required to check his or her common sense in the robing room. Justice Scalia explained that the canon of statutory interpretation that requires related statutes to be read together is “based upon a realistic assessment of what the legislature ought to have meant. It rests on two sound principles: (1) that the body of the law should make sense, and (2) that it is the responsibility of the courts, within the permissible meanings of the text, to make it so.” Scalia & Garner, supra at 252. The requirement that we interpret texts in a manner that causes the body of law to make sense applies with particular force where we are interpreting the Rules of Civil Procedure, which are designed to function as a consistent and coherent whole.

Indeed, the Rules themselves mandate that they “shall be construed to secure the just, speedy, and inexpensive determination of every action.” Fla. R. Civ. P. 1.010. As we have previously held, the “rules of procedure essential to administer justice should never be permitted to become so technical, fossilized and antiquated that they obscure the justice of the cause and lead to results that bring its administration into disrepute.” Sundell v. State, 354 So.2d 409, 410 (Fla. 3d DCA 1978) (citing In re Estate of Gottschalk, 143 Fla. 371, 196 So. 844 (Fla. 1940)), As appellate judges, we have the responsibility to avoid the many unfortunate, unintended, and negative results that follow from adopting the Defendant’s argument where, as here, the language of the Rule, understood in context, allows us to do so.

REFERRAL TO RULES COMMITTEE

As provided in Florida Rule of Judicial Administration 2.140(a), we direct the Clerk of the Court to mail a copy of this opinion to the Clerk of the Florida Supreme Court for referral to the Civil Procedure Rules Committee to consider whether the language of the Rules would be made more clear and simple by adding a definition modeled after Florida Rule of Appellate Procedure 9.020(f), Florida Rule of Judicial Procedure 2.430(2), or Federal Rule of Civil Procedure 54(a). While Rule 1.540(b)(4) should be preserved as a just, speedy, and inexpensive vehicle to set aside final orders that are void, updating the Rules will cause no harm and may eliminate potential confusion as increasingly fewer lawyers and judges remember the effects of the merger of law and equity in procedure.

CONCLUSION

The Defendant’s argument is based on the mistaken premise that there exists a difference between a final “judgment,” final “decree,” and final “order” in procedural law. Any such difference, however, was collapsed long ago when equity was merged with law for purposes of procedure, as the rules themselves expressly recognize. Adopting the Defendant’s argument would require us to overrule decades of case law and will cause confusion, delay, and unnecessary expense to courts and litigants.

Affirmed.

SUAREZ, C.J., and WELLS, SHEPHERD, and FERNANDEZ, JJ., concur.

ROTHENBERG, J., concurs in the result. See Laytner v. Humble Oil and Refining Co., 262 So.2d 675 (Fla. 1972); Reyes v. Aqua Life Corp., No. 3D15-2304 (Fla. 3d DCA Dec. 14, 2016).

LAGOA, J., concurs in the result. See Laytner v. Humble Oil and Refining Co., 262 So.2d 675 (Fla. 1972).

SCALES, J.

(dissenting)

I respectfully dissent. The language of rule 1.540(b)(4) of the Florida Rules of Civil Procedure is clear and unambiguous. In the absence of ambiguity or of other doubt as to meaning, I would not apply this Court’s interpretive power of statutory construction to create a new definition for the term “judgment or decree” in rule 1.540(b)(4). I concur, however, in the en banc majority’s referral of this matter to the Florida Bar’s Civil Procedure Rules Committee.

I. Facts

It is telling that the majority opinion scuttles over the facts as if they were hot coals. See majority opinion at 1. The facts reveal a litigant — the Bank — who was neither attentive to its own case nor diligent in the simplest matters of pursuing it. While I vigorously agree that due process requires fair notice, I view the Bank as bearing a good measure of responsibility for the muddle here. But for virtually abandoning its ease, the Bank would have discovered the clerical error at the heart of the notice problem and timely moved to vacate the subject order under rule 1.540(b)(1). In my view, this case is simply not one that warrants a judicial rewrite of rule 1.540(b).

In 2008, the Bank filed a foreclosure action against De La Osa, seeking to foreclose on De La Osa’s condominium, located in Miami-Dade County. On May 19, 2011, the trial court entered an order dismissing the Bank’s case without prejudice because the Bank failed to appear at the trial scheduled for that day (the “2011 Dismissal Order”).

On July 19, 2013, more than two years later and more than five years after filing its complaint, the Bank, citing rule 1.540(b)(4), filed a motion seeking to vacate the trial court’s 2011 Dismissal Order. The Bank appears to have lost track of its case and, faced with a potential statute of limitations issue, it sought relief through the procedural mechanism of rule 1.540. The Bank argued in its rule 1.540 motion that the trial court’s 2011 Dismissal Order was void because the Bank never received notice of the trial.

On July 24, 2013, the trial court entered an order vacating its 2011 Dismissal Order (the “2013 Vacatur Order”), and on January 30, 2014, the trial court entered an order setting the Bank’s case for trial on March 14, 2014. On that date, the trial court entered a final judgment of foreclosure against De La Osa.

De La Osa, through counsel, filed his Verified Motion to Vacate Order Vacating Dismissal and all Subsequent Orders (“De La Osa’s Motion”), seeking to have the trial court vacate its 2013 Vacatur Order, which had vacated the trial court’s 2011 Dismissal Order. De La Osa’s Motion sought to have all orders entered after the 2011 dismissal similarly vacated. De La Osa argued that the trial court lost jurisdiction over the case after it entered the 2011 Dismissal Order, and therefore lacked subject matter jurisdiction to enter the 2013 Vacatur Order more than two years later.

De La Osa appealed the trial court’s May 16, 2014 order denying De La Osa’s Motion, and a .unanimous panel of this Court reversed the trial court’s order. De La Osa v. Wells Fargo Bank, N.A., No. 3D14-1455 (Fla. 3d DCA Feb. 10, 2016). Noting that rule, 1.540(b) provides extremely limited grounds for a trial court to revisit a final order, the panel determined that the clear and unambiguous language of rule 1.540(b)(4) applied only to “judgments and decrees,” and the 2013 Vacatur Order was neither a “judgment” nor a “decree.” Id.

II. Analysis

While the en banc majority opinion quashing the panel ruling is well reasoned and produces a logical result, it most assuredly rewrites rule 1.540(b). While such a rewrite might be in order, I prefer the formal rule-drafting process over the adjudicatory version of rule-writing employed by the majority.

Rule 1.540(b) reads in its entirety, as follows:

(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 proceedr ing was entered or taken. A motion under this subdivision does not affect the finality of a judgment or decree or suspend its operation. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, decree, order, or proceeding or to set aside a judgment or decree for fraud upon the court.

Fla. R. Civ. P. 1.540 (emphases added).

A. Rule 1.54.0(b) U) Applies Only to Judgments and Decrees, Not to Orders

Pursuant to the express language of subsections (4) or (5), relief under these subsections is limited to a “judgment or decree.” Nothing in subsections (4) or (5) indicates that these subsections provide jurisdiction to a movant seeking relief from an “order” or a “proceeding.”

The language in subsections (4) and (5) is clear and unambiguous. In my view, while we may question whether a party who is the victim of a void order is any less deserving of relief than a victim of a void judgment or decree, we are constrained by the rules of statutory construction to give the rule’s language its plain meaning. Fla. Dep’t of Transp. v. Clipper Bay Invs., LLC, 160 So.3d 858, 862 (Fla. 2015); Barco v. Sch. Bd. of Pinellas Cty., 975 So.2d 1116, 1121-22 (Fla. 2008) (applying the principles of statutory construction to the Florida Rules of Civil Procedure). Indeed, rule 1.540(b)’s language is resistant to the canon of statutory construction employed by the majority to achieve a result that seems more harmonious with other case decisions. Wright v. City of Miami Gardens, 200 So.3d 765, 771 (Fla. 2016) (“Because this language is clear and unambiguous, there is no basis or authority to apply rules of construction.”) (citation omitted).

I submit that rule 1.540(b)(4) provides a trial court a limited jurisdictional basis to grant relief from only “judgments” and “decrees” previously entered by the trial court.

B. The 2011 Dismissal Order is Not a Judgment

Because rule 1.540(b)(4) is available to revisit only “judgments or decrees,” it is necessary to determine whether the 2011 Dismissal Order is a “judgment or decree” for the purpose of rule 1.540(b) relief.

Unlike the Rules of Appellate Procedure — which expressly and broadly define the word “order” — and unlike the Federal Rules of Civil Procedure — which expressly define the word “judgment” to include “any order from which an appeal lies”— Florida’s Rules of Civil Procedure do not supply definitions for the identified acts of finality — “judgment,” “decree,” “order,” and “proceeding” — from which a party may seek relief under rule 1.540(b).

Where the words used in a rule or statute are not defined, we should apply the plain and ordinary meaning to those words. Greenfield v. Daniels, 51 So.3d 421, 425 (Fla. 2010). In giving plain and ordinary meanings to “judgment,” “decree,” “order” and “proceeding,” we should recognize that these words have distinct meanings from one another.

In other words, notwithstanding the majority’s historical references to the merger of law and equity (see majority opinion at 4, 6), if the drafters of rule 1.540(b)(4) had intended for the word “judgment” to encompass the meaning of the word “order,” the drafters would not have enlisted each word for separate duty in the sentence. Similarly, had the drafters intended for “judgment” to include all final orders, it certainly had available the Federal rules template that expressly defines the word “judgment” to include all such orders. For whatever reason, the drafters chose not to employ the definitional scheme of either the Federal or appellate rules and we should not fix the omission through deci-sional law. Limbaugh v. State, 887 So.2d 387, 395 (Fla. 4th DCA 2004) (“Judges are not meant to be fixers of statutory omissions and have no authority to fill statutory voids or enlarge the domain of statutes already adopted .... This means that Judges are not free to reconstruct statutes dealing only with subpoenas and extend them to cover search warrants as well.”) (citation omitted).

A judgment is a final adjudication of the merits of an action. Makar v. Inv’rs Real Estate Mgmt., 553 So.2d 298, 299 (Fla. 1st DCA 1989). A decree is a judgment in an equitable action. See Nichols v. Bodenwein, 107 Fla. 25, 146 So. 86, 93 (1932). An order is a command, direction or instruction delivered by the trial court. Order, BLACK’S LAW DICTIONARY (10th ed. 2014). A proceeding generally encompasses certain other acts of litigation finality, such as a party’s voluntary dismissal. See Pino v. Bank of New York, 121 So.3d 23, 29 (Fla. 2013).

To be clear, while the 2011 Dismissal Order might have been a final, appealable order, this factor does not convert the 2011 Dismissal Order into a “judgment” for rule 1.540(b) purposes. The 2011 Dismissal Order did not adjudicate with finality any issue in the Bank’s foreclosure action against De La Osa; it simply dismissed the Bank’s claims without prejudice as a sanction for the Bank not showing for trial. Therefore, for the purposes of rule 1.540(b), the 2011 Dismissal Order was an “order,” not a “judgment,” “decree” or “proceeding.”

Because the 2011 Dismissal Order is an “order,” by the express terms of rule 1.540(b), the trial court’s subject matter jurisdiction to revisit the 2011 Dismissal Order existed only pursuant to rule 1.540(b)(1), (2), or (3); and also, pursuant to the express terms of rule 1.540, any motion seeking relief under subsections (1), (2) or (3) must have been brought within one year of entry of the 2011 Dismissal Order.

The 2011 Dismissal Order was entered on May 19, 2011; the Bank’s motion to vacate the 2011 Dismissal Order was filed on July 19, 2013, well beyond the one year authorized by rule 1.540(b). Consequently, because rule 1.540(b)(4) did not provide the trial court jurisdiction to revisit and vacate the 2011 Dismissal Order, I must conclude that the 2013 Vacation Order and all proceedings thereafter, including the March 14, 2014 Final Judgment, are void.

C. Only Orders That Are the Functional Equivalent of Judgments Should Be Treated as “Judgments”

The majority opinion identifies four decisions of this Court in which this Court treated orders of dismissal as “judgments” for the purposes of rule 1.540(b)(4). See U.S. Bank Natl Ass’n v. Proenza, 157 So.3d 1075 (Fla. 3d DCA 2015); Courtney v. Catalina, Ltd., 130 So.3d 739 (Fla. 3d DCA 2014); Dep’t of Revenue v. Thurmond, 721 So.2d 827 (Fla. 3d DCA 1998); Falkner v. Ameriflrst Fed. Sav. & Loan Ass’n, 489 So.2d 758 (Fla. 3d DCA 1986). See majority opinion at 8-10.

It bears noting, though, that this Court and others have been careful to differentiate a judgment from a final order, rather than to merge them. In Do v. GEICO General Insurance Co., 137 So.3d 1039, 1044-45 (Fla. 3d DCA 2014), this Court had the opportunity to construe precisely the same term found in rule 1.540(b)(4)— “judgment or decree” — and expressly de-dined the invitation to construe a dismissal order as a judgment.

Specifically, in Do, an insured filed a declaratory judgment action against his automobile insurer and the insurer filed a counterclaim. Eventually, after the insurer paid the loss, the trial court dismissed the insurer’s counterclaim for lack of prosecution. Id. at 1042. The insured then sought recovery of his attorney’s fees for having to defend against the insurer’s counterclaim. The insured’s motion for attorney’s fees was brought pursuant to section 627.428(1) of the Florida Statutes, which reads, in relevant part, as follows:

(1) Upon the rendition of a judgment or decree by any of the courts of this state against an insurer and in favor of any ... insured ... the trial court ... shall adjudge or decree against the insurer and in favor of the insured ... a reasonable sum as fees ... for the insured’s ... attorney prosecuting the suit in which the recovery is had.

Id. at 1042 (emphasis added).

We affirmed the trial court’s denial of the insured’s motion seeking fees, holding that the trial court’s order dismissing the insurer’s counterclaim was not a “determination on the merits,” and therefore did not constitute a “judgment in favor of the insured” entitling the insured to fees under the statute. Id at 1044. This holding was entirely consistent with this Court’s holding in O.A.G. Corp. v. Britamco Underwriters, Inc., 707 So.2d 785, 787 (Fla. 3d DCA 1998) abrogated on other grounds by Caufield v. Cántele, 837 So.2d 371 (Fla. 2002), in which we held that an insurer’s voluntary dismissal did not constitute an adjudication on the merits and, therefore, did not entitle the prevailing insured to fees under section 627.428(1). See also Guarantee Ins. Co. v. Worker’s Temp. Staffing, Inc., 61 So.3d 1233, 1235 (Fla. 5th DCA 2011) (an insurer’s voluntary dismissal without prejudice is not a judgment or its functional equivalent so to entitle insured to fees under section 627.428(1)).

In each of these cases, the issue before the court was the same as the issue before the Court in this case: whether the dismissal order should be treated as a judgment. In each case, the district courts, following the directive of the Florida Supreme Court in Wollard v. Lloyd’s & Cos, of Lloyd’s, 439 So.2d 217 (Fla. 1983), resolved the question by inquiring whether the dismissal was the functional equivalent of a judgment. The panel decision sought to resolve the issue using this approach. De La Osa v. Wells Fargo Bank, N.A., No. 3D14-1455 (Fla. 3d DCA Feb. 10, 2016).

The majority rejects this approach, preferring to rewrite the rule. The majority declares that a trial court’s dismissal order should be considered a judgment “at least for procedural purposes.” See majority opinion at 4. In my view, it seems unworkable that precisely the same term — “judgment or decree” — has such a vastly different meaning depending on whether one is reading a statute or a rule. In my estimation, a more reasoned approach to determining whether an order should be treated as a “judgment” is to follow the approach established by Wollard and its progeny, at least until a formal rulemaking process can be convened.

The majority opinion refers the matter raised in this case to the Florida Bar’s standing committee on the Rules of Civil Procedure. See majority opinion at 13-14. I agree, and hope the committee will accept the referral. Formal rulemaking brings precision and clarity, and strives to avoid the inconsistencies highlighted by this case. I do not agree, however, with the majority’s effort at adjudicatory rulemak-ing. I would reverse the trial court’s Final Judgment and either would recede from any earlier cases to the limited extent they might impliedly conflict with the analysis in this dissent, or would distinguish those cases, each on its appropriate basis, rather than rewrite the rule to make synonyms of “judgment” and “order.”

SALTER and EMAS, JJ., concur.

      . A negative implication reflects the assumption that the expression of one thing implies the exclusion of the other. "Virtually all the authorities who discuss the negative-implication canon emphasize that it must be applied with great caution, since its application depends so much on context.” Antonin Scalia & Bryan A. Gamer, Reading Law: The Interpretation of Legal Texts 107 (2012)). Because this maxim is easily misapplied it has been dubbed "a valuable servant, but a dangerous master.” Crews v. Fla. Pub. Employers Council 79, AFSCME, 113 So.3d 1063, 1071-72 (Fla. 1st DCA 2013) (citation omitted).

      . Francisco v. Victoria Marine Shipping, Inc., 486 So.2d 1386, 1390 n.6 (Fla. 3d DCA 1986) ("To the extent that rule 1.530 authorizes rehearings on final orders that are not true final judgments, it is our conclusion that such authorization extends only to those orders that partake of the character of a final judgment, i.e., orders that complete the judicial labor oh a portion of the cause.”); Derma Lift Salon, Inc. v. Swanko, 419 So.2d 1180, 1180-81 (Fla. 3d DCA 1982) ("The trial court's order of dismissal entered May 11, 1982, albeit ‘without prejudice,’ was a final appeal-able order ... subject to the further jurisdiction of the trial court only upon a timely filed motion for rehearing under Florida Rule of Civil Procedure 1.530 ... or on its own initiative within the time allowed for a rehearing motion.”).

      . See, e.g., Cape Royal Realty, Inc. v. Kroll, 804 So.2d 605, 606 (Fla. 5th DCA 2002) (recognizing the trial court could use Rule 1.530 to rehear a “final order dismissing [plaintiff's] case for failure to prosecute”); Beverly Enterprises-Florida, Inc. v. Lane, 855 So.2d 1172 (Fla. 5th DCA 2003) (recognizing the trial court could rehear an order which "dismissed without prejudice for failure to prosecute”).

      . Not surprisingly, Florida Statutes often use the terms final "judgment,” "decree,” and “order" interchangeably for procedural matters, see, e.g., § 55.502(1), Florida Statutes (2016) (" ‘[Fjoreign judgment’ means a judgment, decree, or order of a court of any other state....”), as do the federal rules. The federal rules of civil procedure define "judgment" as "a decree and any order from which an appeal lies.” Fed. R. Civ. P. 54(a). With this in mind, federal courts often enter "judgments of dismissal [of the case] without prejudice,” Ford v. Shinseki, 538 Fed.Appx. 803, 804 (9th Cir. 2013) (affirming "judgment of dismissal without prejudice” because veterans claims could only be heard by Court of Appeals for Veterans Claims); Brown v. Crum, 210 F.3d 367 (5th Cir. 2000) (affirming "judgment dismissing the complaint without prejudice” because plaintiff failed to exhaust administrative remedies); Berry v. Gen. Motors Corp., 848 F.2d 188 (6th Cir. 1988) (affirming "the judgment of dismissal without prejudice” for failure to allege grounds establishing subject matter jurisdiction).

      . While not relevant to the issue on appeal, other than for the irony, I note that: (1) the certificate of service attached to the Bank’s rule 1.540 motion did not include De La Osa’s counsel; (2) De La Osa was not served with the 2013 Vacatur Order or the order setting the Bank’s case for trial; and (3) De La Osa was not served with the final judgment of foreclosure.

      . De La Osa did not make the alternate argument that the March 14, 2014 Final Judgment against him is void because he was not made aware of the post-dismissal proceeding that resulted in the Final Judgment.

      .The en banc majority opinion has overturned a panel opinion that was based on a textual analysis of rule 1.540(b),. Perhaps to soothe its conscience, the majority twice refers to the late Justice Antonin Scalia as if to ask, “What would Scalia do?” See majority opinion at 11, 12-13. My response is that Justice Scalia would not judicially rewrite an unambiguous rule. "That is of course quite absurd .... ” King v. Burwell, — U.S. -, 135 S.Ct. 2480, 2496, 192 L.Ed.2d 483 (2015) (Scalia dissenting) (rejecting majority’s determination that the term “exchanges established by the State” includes exchanges established by the Federal government).

      . "Order. A decision, order, judgment, decree, or rule of a lower tribunal, excluding minutes and minute book entries." Fla. R. App. P. 9.020(f).

      . Fed. R. Civ. P. 54(a).

      . One could speculate as to why the drafters chose not to include "orders” within rule 1.540(b)(4)’s purview: the value of finality in litigation. A challenge to a sanction order (such as the 2011 Dismissal Order) that merely has dismissed a party’s case without prejudice — and that has adjudicated absolutely nothing — should be brought within one year. Similarly, one could speculate that the drafters of rule 1.540(b)(5), which allows relief from satisfied judgments and decrees, limited the purview of this rule to "judgment or decree” because it is unclear how one would "satisfy” an order dismissing a case without prejudice. My point is that the formal rule-drafting process, as opposed to the majority’s adjudicatory rule-writing, is better equipped to solicit input from all potential stakeholders and to forestall unintended consequences. While only the parties who have a stake in this case’s outcome have briefed this issue, formal rule-drafting provides a more thorough and objective approach to crafting the rules governing all parties to Florida civil litigation.

      . I note that rule 1.540 is substantially modeled on rule 60 of the Federal Rules of Civil Procedure, Federal rule 60(b)(6) — which has no corollary in rule 1.540(b) — provides a mechanism for a trial court to relieve a party from a final judgment, order or proceeding for “any other reason that justifies relief.” While motions made pursuant to rule 60(b)(6) must be filed "within a reasonable time,” the one-year time limit of Federal rule 60(c)(1) does not apply to motions made pursuant to rule 60(b)(6).

      . The majority opinion identifies decisions of the First and Fourth Districts that also use the term "judgment” to include final orders: Cheshire v. Wells Fargo Bank, N.A., 175 So.3d 886 (Fla. 1st DCA 2015) and Garcia v. Stewart, 906 So.2d 1117 (Fla. 4th DCA 2005), respectively. While I agree that the panel opinion in this case might have conflicted implicitly with the holdings of the cases cited by the majority, none of these cases specifically addressed De La Osa’s jurisdictional argument that an order dismissing a case without prejudice could not be reviewed several years later via a rule 1.540(b)(4) motion. In none of the allegedly conflicting cases does it appear that the issue addressed in this case was raised, much less adjudicated.

      . Rule 2.140 of the Florida Rules of Judicial Administration outlines the formal process for amending the Florida Rules of Civil Procedure. The process includes input and deliberation by the Florida Bar's Civil Procedure Rules Committee after notice and plenty of opportunity for that input. Ultimately, proposed rule changes are considered by the Florida Supreme Court, after published notice and, if desired by the Court, oral argument. See section II G.3, Fla. Sup. Ct. Manual of Internal Operating Procedures.


text:
    Derrick MCPHEE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D14-1025
    District Court of Appeal of Florida, Third District.
    Opinion filed December 14, 2016.

      Joseph W. Gibson, Jr., for appellant.
    Pamela Jo Bondi, Attorney General, and Jill D. Kramer, Assistant Attorney General, for appellee.
    Before SUAREZ, C.J., and WELLS and FERNANDEZ, JJ.
   ON MOTION FOR REHEARING

SUAREZ, C.J.

The State of Florida moves for rehearing of this Court’s denial of its motion to recall the August 29, 2014 mandate in order to allow appellate review of transcripts from a Rule 3.850 evidentiary hearing. Although we grant the State’s motion for rehearing, withdraw our prior November 3, 2016 opinion and substitute it with the following, we do so solely to correct the legal basis for denying the State’s motion to recall the mandate.

We agree with the State that State Farm Mut. Auto Ins. Co. v. Judges of the District Court, 405 So.2d 980, 982 (Fla.1981) is no longer valid in light of the Florida State legislature’s repeal of Florida Statute section 35.10 by Laws 2013, c. 2013-25, § 1, effective January 1, 2014. That repeal eliminated terms of court for purposes of recalling an appellate mandate. The Court’s ability to recall a mandate, however, is still limited by Florida Rule of Appellate Procedure 9.340(a), which states that “the court may direct the clerk to recall the mandate, but not more than 120 days after its issuance.” Because the State moved to recall the mandate more than 120 days from its issuance on August 29, 2014, this Court is without jurisdiction to recall the mandate.

Motion for rehearing granted and denial of the motion to recall the mandate and to reopen the case affirmed.


author: EDWARDS, J.

text:
    Desmond T. KENNER, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-1192
    District Court of Appeal of Florida, Fifth District.
    Opinion filed December 16, 2016
    Rehearing Denied January 20, 2017

      James S. Purdy, Public Defender, and Noel A. Pelella, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   EDWARDS, J.

A sentence cannot stand if it is or appears to be based in part on a defendant’s decision to maintain his innocence even after being found guilty. Desmond Kenner (“Appellant”) appeals a conviction of second-degree murder with a firearm following his second jury trial on the same charges. His first conviction was reversed because of an improper jury instruction. Kenner v. State, 48 So.3d 117 (Fla. 5th DCA 2010). In the present appeal, Appellant raises four issues. We affirm his conviction and specifically affirm the denial of Appellant’s motion for judgment of acquittal, the admission of the victim’s dying declaration that Appellant shot him, and the exclusion of copies of the victim’s felony judgments from the evidence. However, for the reasons discussed below we are compelled to reverse for resentencing before a different judge.

In March 2008, Appellant and Charles Coleman had an altercation that resulted in both of them being shot. Appellant told two different people that he was going to retaliate against Coleman. Natalin Collier testified that on the night of Coleman’s death, Appellant said he was “going to handle it in the streets” without getting the police involved, referring to the previous dispute and shooting involving Coleman. Another witness, Jessica Brown, similarly testified that Appellant told her that he was going to “get” Coleman. In the early morning hours of June 25, 2008, Coleman arrived at his parents’ home after being shot. His mother testified that Coleman said, “He got me. He got me, Mom. He got me this time.” As he lay bleeding on the floor, Coleman told his family he knew he was dying, that he loved them, and repeated that Appellant shot him. Coleman’s father testified that he heard Coleman say, “Roo Roo [Appellant’s nickname] shot me again.” Coleman died from the gunshot wounds.

Other than the victim’s dying declaration, there was no eyewitness testimony regarding the shooting. There was also no DNA evidence connecting Appellant to the shooting, and the murder weapon was never located. Appellant’s recorded phone calls from jail confirmed his former girlfriend’s testimony that he asked her to lie in order to provide him an alibi for the time of the shooting. The medical examiner testified that the fatal bullet could have been fired from a distance ranging from a few feet to one mile. Appellant’s motions for directed verdict were denied.

Based on the evidence presented at his second trial, the jury convicted Appellant of second-degree murder with a firearm. The jury’s verdict included a special finding that Appellant actually possessed and discharged a firearm resulting in death. The judge presiding over Appellant’s second trial adjudicated Appellant guilty of second-degree murder and sentenced him to life in prison with a minimum mandatory term of twenty-five years. His first jury trial and conviction for second-degree murder, before a different judge, resulted in a thirty year prison sentence.

SUFFICIENCY OF EVIDENCE

Second-degree murder is defined as “[t]he unlawful killing of a human being, when perpetrated by any act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual.” § 82.04(2), Fla. Stat. (2008). An act is considered “imminently dangerous to another and evincing a depraved mind regardless of human life” when it is an act that: “(1) a person of ordinary judgment would know is reasonably certain to kill or do serious bodily injury to another, and (2) is done from ill will, hatred, spite or an evil intent, and (3) is of such a nature that the act itself indicates an indifference to human life.” Duckett v. State, 686 So.2d 662, 663 (Fla. 2d DCA 1996). The intent required for second-degree murder may be “inferred from the circumstances.” Perez v. State, 187 So.3d 1279, 1282 (Fla. 1st DCA 2016) (citing Antoine v. State, 138 So.3d 1064, 1074 (Fla. 4th DCA 2014)).

Appellant first argues that the trial court erred in denying his motions for judgment of acquittal, asserting that there was insufficient evidence. We disagree. The victim’s dying declaration identified Appellant as the shooter. The testimony of Collier and Brown, discussed above, provided adequate proof of the requisite ill will, hatred, spite, or evil intent that Appellant harbored, which led Appellant to shoot Coleman. “All facts introduced into evidence are admitted by the defendant, and the court must draw every conclusion favorable to the state. The motion [for judgment of acquittal] should not be granted unless there is no legally sufficient evidence on which to base a verdict of guilty.” Jackson v. State, 419 So.2d 394, 397 (Fla. 4th DCA 1982) (citations omitted). We affirm the denial of Appellant’s motion for judgment of acquittal.

MOTION FOR MISTRIAL

Appellant argues that the trial court erred in denying his motion for mistrial after a State witness, Coleman’s father, repeated his son’s dying declaration in a way that implied that Appellant shot the victim on a previous occasion. “A trial court’s ruling on a motion for mistrial is subject to an abuse of discretion standard of review.” England v. State, 940 So.2d 389, 402 (Fla. 2006) (citation omitted). “A motion for mistrial should only be granted where an error is so prejudicial as to vitiate the entire trial.” Id. at 401-02 (citing Snipes v. State, 733 So.2d 1000, 1005 (Fla. 1999)).

Appellant moved in limine to exclude the dying declaration “Roo Roo shot me again.” The trial court entertained Appellant’s argument that focused in large part on whether Coleman’s mother changed the wording of the dying declaration from her pretrial testimony (“Roo Roo shot me again”) to her trial testimony (“Ma, he got me. He got me this time.”). Appellant argued that the change in wording made the mother’s testimony too unreliable to present to the jury. Ultimately, the trial court found that Coleman’s mother was permissibly using slightly different words to convey the same declaration. The court cautioned that she could not use the word “again” as part of the declaration or otherwise indicate that this was a repeat of a prior shooting episode because the potential prejudice of implying that Appellant shot Coleman previously outweighed the probative value of a completely verbatim statement. Put differently, including the word “again” added nothing to the certainty of Coleman identifying Appellant as his shooter, while it could prejudice the jury against Appellant based on commission of an uncharged prior shooting.

Coleman’s mother followed the court’s admonition and avoided using the word “again” or implying Appellant had previously shot Coleman. However, when Coleman’s father was questioned about Coleman’s dying declaration, he testified that Coleman said, “Roo Roo done shot me again.” The trial court sustained Appellant’s objection, denied his motion for mistrial, and instructed the jury to disregard the answer. The father then repeated his statement, but without the word “again.” When denying the motion for mistrial, the trial court found that the father’s inclusion of the word “again” was inadvertent, and that it was said quickly and only once. The trial court noted that the jury would be or had been advised of the prior episode in which both Coleman and Appellant were shot, even though there was no testimony about who shot either of them in the previous incident.

Importantly, the trial court also concluded that any potential harm was eliminated by the curative instruction. Florida law is clear that an appropriate, timely curative instruction can sufficiently eliminate the harmful nature of the improper comment so that a mistrial is not required. See Walker v. State, 707 So.2d 300, 312 (Fla. 1997); Johnston v. State, 774 So.2d 952, 953-54 (Fla. 5th DCA 2001). Accordingly, we find that the trial court did not abuse its discretion in denying Appellant’s motion for mistrial.

USE OF FELONY JUDGMENTS TO IMPEACH DYING DECLARANT

Appellant next argues that the trial court erred in limiting his impeachment of the victim’s dying declaration by not allowing Appellant to introduce copies of Coleman’s felony judgments and sentences. While cross-examining Coleman’s mother, Appellant attempted to introduce copies of judgments and sentences proving that Coleman had three felony convictions. The State stipulated that Coleman had three felony convictions and agreed that Appellant could inquire of the mother if that were the case. However, the State objected to the introduction of the judgments and sentences. The trial court agreed with the State. The court allowed Appellant to elicit testimony that Coleman had three felony convictions. The parties’ stipulation, that Coleman had three convictions, was read to the jury. The court, however, did not allow Appellant to introduce the three felony judgments into evidence. “A trial court’s ruling on the admission of evidence is reviewed by an appellate court under an abuse of discretion standard.” Troy v. State, 948 So.2d 635, 650 (Fla. 2006) (citation omitted).

Florida law allows the admission of a statement made under the belief of impending death as a hearsay exception. § 90.804(2)(b), Fla. Stat. (2016). Once such a statement is admitted into evidence, “credibility of the declarant may be attacked and, if attacked, may be supported by any evidence that would be admissible for those purposes if the declarant had testified as a witness.” § 90.806(1), Fla, Stat. (2016).

One method of attacking a witness’s credibility is through evidence of prior felony convictions. § 90.610(1), Fla. Stat. (2016). “When there has been a prior conviction, only the fact of conviction can be brought out, unless the witness denies the conviction. If the witness denies ever having been convicted, or misstates the number of previous convictions, counsel may impeach the witness by producing a record of past convictions.” Fulton v. State, 335 So.2d 280, 284 (Fla. 1976) (citations omitted). Here, the trial court did not abuse its discretion by limiting the impeachment of the dying declarant to proof of the number of Coleman’s felony convictions. Indeed, it would have been an abuse of discretion under these circumstances to have allowed introduction of the related felony judgments and sentences. See Mathis v. State, 135 So.3d 484, 485-86 (Fla. 2d DCA 2014) (finding that “the trial court abused its discretion in admitting the certified copies of the prior convictions and sentences” to impeach the defendant-de-clarant’s hearsay statements). Therefore, we affirm as to this issue as well.

SENTENCING CONSIDERATIONS

Appellant asserts that the trial court imposed a vindictive sentence and that it considered inappropriate factors in determining what sentence to impose.

Appellant points out that he was sentenced to thirty years in prison after his first trial, compared to a life sentence with a twenty-five year minimum mandatory following his second trial. “The issue of whether a defendant’s sentence is vindictive is a question of law subject to de novo review.” Simplice v. State, 134 So.3d 555, 556 (Fla. 5th DCA 2014) (citation omitted). When a criminal defendant has a re-trial and receives a higher sentence than after the first trial, the defendant has the burden of showing vindictiveness when the second sentence is imposed by a different judge. Kovaleski v. State, 1 So.3d 254, 258 (Fla. 4th DCA 2009) (“A re-sentence after a reversal and re-trial which is more onerous than the original sentence is presumed vindictive where imposed by the same judge, but when, as in this case, a different judge imposes the increased sentence, the presumption does not apply and the defendant has the burden of demonstrating vindictiveness.” (citing Texas v. McCullough, 475 U.S. 134, 106 S.Ct. 976, 89 L.Ed.2d 104 (1986))). The testimony was similar in many respects in both trials. However, it was only in the second trial that evidence was introduced to establish that Appellant requested his former girlfriend to provide him with a false alibi for the time of the shooting. Appellant did not prove that the second judge imposed a vindictive sentence as punishment for pursuing his appellate rights and insisting on a second trial.

However, the trial court appears to have considered an inappropriate factor when determining Appellant’s sentence following his second trial and conviction. “Although an appellate court generally may not review a sentence that is within statutory limits under the Criminal Punishment Code, an exception exists, when the trial court considers constitutionally impermissible factors in imposing a sentence.” Nawaz v. State, 28 So.3d 122, 124 (Fla. 1st DCA 2010); see also Gage v. State, 147 So.3d 1020, 1022 (Fla. 2d DCA 2014) (“Reliance upon improper sentencing factors is fundamental error.” (citations omitted)).

During sentencing, the trial court described Appellant’s attitude during trial as surly and noted that Appellant had no job and failed to support his children. These facts were not relevant to the crime charged. The trial court was apparently offended that Appellant maintained his innocence even though two juries convicted him, and found it “despicable” and “just plainly cruel” that Appellant attacked the victim’s parents in his statement, in which he maintained that he did not shoot their son, that anything to the contrary was a lie, and that Coleman’s parents knew it was a big lie.

Impermissible factors that the trial court may not consider during sentencing include “a defendant’s assertions of his innocence and refusal to admit guilt.” Hannum v. State, 13 So.3d 132, 135 (Fla. 2d DCA 2009) (citing Bracero v. State, 10 So.3d 664, 665-66 (Fla. 2d DCA 2009); Ritter v. State, 885 So.2d 413, 414 (Fla. 1st DCA 2004)). “[D]ue process guarantees an individual the right to maintain innocence even when faced with evidence of overwhelming guilt.” Holt v. State, 573 So.2d 284, 292 (Fla. 1990). When the defendant denies committing the crime, “[i]t is also generally improper for the sentencing court to consider the defendant’s lack of remorse.” Robinson v. State, 108 So.3d 1150, 1151 (Fla. 5th DCA 2013) (citations omitted).

We are aware that the trial court stated that the basis for the staffer sentence was Appellant’s danger to society and Appellant’s attempt to fabricate an alibi. However, we cannot ignore the nature and extent of the trial court’s discussion of irrelevant and impermissible factors during the sentencing hearing. “Because the court’s comments could reasonably be construed as basing the sentence, at least in part, [on impermissible factors], and because we cannot say that the sentence would have been the same without the court’s impermissible consideration of [that factor], we vacate appellant’s sentence and remand for resentencing before a different judge.” Torres v. State, 124 So.3d 439, 442 (Fla. 1st DCA 2013).

Accordingly, we affirm Appellant’s conviction of second-degree murder, but remand for resentencing before a different judge.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

SAWAYA and BERGER, JJ., concur.


author: PER CURIAM.

text:
    Brian Carl RICHARDS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-412
    District Court of Appeal of Florida, Fifth District.
    Opinion filed December 16, 2016
    Rehearing Denied January 18, 2017
    James S. Purdy, Public Defender, and Sean Kevin Gravel, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Andrea K. Totten, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Orange v. State, 983 So.2d 4, 5-6 (Fla. 3d DCA 2007) (noting that when defendant who agrees to appear at sentencing as part of plea is prevented from appearing in court by an arrest, fact of arrest standing alone cannot justify finding that defendant willfully failed to appear; however, when it is established that defendant committed new criminal offense after entering plea, and defendant’s incarceration on the new charge causes failure to appear, defendant’s failure to appear can be considered a willful and material breach of an agreement to appear because it was caused by his willful act of committing the crime).

LAWSON, C.J., EVANDER and COHEN, JJ., concur.


author: COHEN, J.

text:
    Timothy FIELDS, Appellant, v. BENEFICIAL FLORIDA, INC., Appellee.
    Case No. 5D15-4091
    District Court of Appeal of Florida, Fifth District.
    Opinion filed December 16, 2016

      Beau Bowin, of Bowin Law Group, West Melbourne, for Appellant.
    Matthew A. Ciccio, of Aldridge/Pite, LLP Delray, for Appellee.
   COHEN, J.

Timothy Fields appeals an order vacating the involuntary dismissal entered against Beneficial Florida, Inc. (“Beneficial”). Because Fields has not demonstrated that the trial court abused its discretion in vacating the order of dismissal, we affirm.

In September 2014, Fields failed to respond to Beneficial’s mortgage foreclosure complaint, and the clerk entered a default judgment against him. In February 2015, more than five months later, Fields moved to lift the default. A hearing was set on that motion. Prior to the hearing, Beneficial, demonstrating professional courtesy, consented to the default being set aside. However, a case management conference remained - scheduled. Beneficial failed to attend that conference, and the trial court dismissed the case.

Five months after the dismissal, Beneficial filed a motion to vacate, seeking to reinstate the action, to which it attached a supporting affidavit. One might think that Fields would show the same courtesy earlier demonstrated by Beneficial. That would not prove true. At the hearing on the motion, contested by Fields, Beneficial argued that its failure to attend the case management conference was the result of excusable neglect under Florida Rule of Civil Procedure 1.540(b). The trial court accepted Beneficial’s explanation for the delay and granted the motion to vacate. Not dissuaded, Fields filed this appeal.

We review a trial court’s decision to grant or deny relief from judgment for an abuse of discretion. Kemper v. Dep’t of Rev. ex rel. Kemper, 159 So.3d 303, 304 (Fla. 5th DCA 2015). Fields relies on the rule applicable to default judgments and argues that Beneficial’s motion should have been denied because Beneficial failed to argue due diligence in its affidavit seeking relief under rule 1.540(b)(1). See Bojadzijev v. Roanoke Tech. Corp., 997 So.2d 1251, 1253 (Fla. 5th DCA 2009) (requiring that party seeking relief from a default judgment show (1) excusable neglect, (2) a meritorious defense, and (3) due diligence in seeking relief). Fields concedes, however, that he has identified no case law applying the due diligence requirement to motions for relief from an involuntary dismissal.

Although we do not doubt that a party’s diligence in seeking relief plays a role in determining whether to grant relief from involuntary dismissal, we note that the plain language of rule 1.540(b)(1) contains no such requirement. Instead, the rule requires the motion be brought within a reasonable time, not to exceed one year. Fla. R. Civ. P. 1.540(b). The question of whether a party diligently sought relief from an involuntary dismissal is a matter best left to the discretion of the trial court.

At the hearing on Beneficial’s motion, Beneficial argued that it acted diligently in seeking relief from the involuntary dismissal. Although Beneficial’s argument would have been bolstered by including evidence of due diligence in its supporting affidavit, the trial court did not abuse its discretion in granting the motion to vacate.

AFFIRMED.

ORFINGER and LAMBERT, JJ., concur.

      . Even if the trial court had denied the motion to vacate, Beneficial would not have been precluded from filing a new foreclosure action. See Hicks v. Wells Fargo Bank, N.A., 178 So.3d 957, 959 (Fla. 5th DCA 2015) (citing Singleton v. Greymar Associates, 882 So.2d 1004, 1007 (Fla. 2004)). The real source of the conflict, then, seems to have been Field’s outstanding motion for attorney's fees at the time Beneficial moved for relief from the dismissal.

      . We have jurisdiction pursuant to rule Florida Rule of Appellate Procedure 9.130(a)(5).


author: EMAS, J.

text:
    RENOVASHIP, INC., Petitioner, v. Barclay QUATREMAIN, et al., Respondents.
    No. 3D16-2210
    District Court of Appeal of Florida, Third District.
    Opinion filed December 21, 2016.

      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 prohibition 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. 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.

On November 20, 2014, the trial court sua sponte issued a Notice of Lack of Prosecution, see Fla. R. Civ. P. 1.420(e), 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 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);
- 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;
- 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). The trial court retains jurisdiction to the extent such is specifically 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. 1.580(b). Thus, Quatremairis 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.

Quatremain’s motion to vacate contained no mention of rule 1.540 or any rule upon which he asserted an entitlement to vaca-tur 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 Quatre-main, 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.”) Having been filed fifteen months after entry of the dismissal order, Quatremairis motion was untimely under rule 1.540(b)(1).

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 judgment 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 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. 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.)

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 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][967] 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 Haugh-ton, 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, 147 Fla. 514, 3 So.2d 152 (1941) (holding final judgment was 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)(l)-(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.

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.

      . 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).

      . 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.

      . 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.

      . Rule 1.420(e) provides that record activity may occur within sixty days following service of the notice of lack of prosecution. Quatre-main 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.

      . 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.

      .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 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).

      . 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).

      . 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, 208 So.3d 259, 2016 WL 7232272 (Fla. 3d DCA Dec. 14, 2016) (en banc).

      . The 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 Quatre-main’s counsel received the notice, and with more than enough time for Quatremain to comply with all of the directives contained in the notice.