Third District Court of Appeal
                               State of Florida

                        Opinion filed December 14, 2016.

                               ________________

                                No. 3D14-1455
                          Lower Tribunal No. 08-42958
                              ________________


                             Yoanky De La Osa,
                                    Appellant,

                                       vs.

                          Wells Fargo Bank, N.A.,
                                    Appellee.



      An Appeal from the Circuit Court for Miami-Dade County, Herbert Stettin,
Senior Judge.

      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,

, 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


                                           2
      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, audita 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 1.540(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,1 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


1 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.
Garner, 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, 

,
1071-72 (Fla. 1st DCA 2013) (citation omitted).

                                         3
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., 

, 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 appealable 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, 

, 

, and is therefore encompassed by Rule
      1.530 of our modern rules of procedure in which law and equity have
      been merged.

(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,



                                             4
Inc., 

, 372 (Fla. 2013) (“[Rule 1.530] has been consistently

construed to authorize rehearings of orders and judgments which are final in

nature”).2 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.3

      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, 

, 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


2 Francisco v. Victoria Marine Shipping, Inc., 

, 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 on a portion of the cause.”); Derma Lift
Salon, Inc. v. Swanko, 

, 1180-81 (Fla. 3d DCA 1982) (“The trial
court’s order of dismissal entered May 11, 1982, albeit ‘without prejudice,’ was a
final appealable 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.”).
3 See, e.g., Cape Royal Realty, Inc. v. Kroll, 

, 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, 

(Fla. 5th DCA 2003) (recognizing the trial court
could rehear an order which “dismissed without prejudice for failure to
prosecute”).

                                           5
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. 

. 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



                                        6
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.




                                           7
      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 rule 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, 

(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., 

,

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



                                          8
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, 

, 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. 

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.” 

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.” 

      In fact, this Court has consistently so ruled. See U.S. Bank Nat’l Ass’n v.

Proenza, 

, 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, 

, 759 (Fla. 3d DCA 1986)



                                          9
(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., 

, 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, 

, 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)”).4



4  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) (“‘[F]oreign 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 F.
App’x 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, 

(5th Cir. 2000) (affirming
“judgment dismissing the complaint without prejudice” because plaintiff failed to
exhaust administrative remedies); Berry v. Gen. Motors Corp., 

(6th
Cir. 1988) (affirming “the judgment of dismissal without prejudice” for failure to
allege grounds establishing subject matter jurisdiction).

                                         10
      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., 

, 21

(Fla. 5th DCA 2006) (citation and quotation omitted). See also Synchron, Inc. v.

Kogan, 

, 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.



                                        11
      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., 

(“[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 cases 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 

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.




                                          12
      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, 

, 410 (Fla. 3d DCA

1978) (citing In re Estate of Gottschalk, 

(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.



                                         13
                    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.



                                       14
      SUAREZ, C.J., and WELLS, SHEPHERD, and FERNANDEZ, JJ., concur.

      ROTHENBERG, J., concurs in the result. See Laytner v. Humble Oil and
Refining Co., 

(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., 

(Fla. 1972).
                                         De La Osa v. Wells Fargo Bank, N.A.
                                                                   3D14-1455


      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 case, the Bank would have discovered the clerical error at



                                        15
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.5

5 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

                                          16
      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.6

      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.” 

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.
6 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.


                                        17
      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).7

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 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

7 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, 

, 2496 (2015) (Scalia dissenting) (rejecting majority’s
determination that the term “exchanges established by the State” includes
exchanges established by the Federal government).

                                         18
      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 1.540(b)(4) 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, 

,

862 (Fla. 2015);    Barco v. Sch. Bd. of Pinellas Cty., 

, 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, 

, 771 (Fla. 2016) (“Because this language is clear and unambiguous,

there is no basis or authority to apply rules of construction.”) (citation omitted).



                                          19
         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”8 – and unlike the Federal Rules of Civil Procedure – which

expressly define the word “judgment” to include “any order from which an appeal

lies”9 – 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, 

, 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.

8“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).
9   Fed. R. Civ. P. 54(a).

                                           20
      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,10 the

drafters chose not to employ the definitional scheme of either the Federal or

appellate rules and we should not fix the omission through decisional law.

Limbaugh v. State, 

, 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



10 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.

                                        21
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., 

, 299 (Fla. 1st DCA 1989). A decree is a

judgment in an equitable action. See Nichols v. Bodenwein, 

, 93 (Fla.

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, 

, 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




                                         22
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).11 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 Nat’l Ass’n v. Proenza, 

(Fla. 3d DCA

2015); Courtney v. Catalina, Ltd., 

(Fla. 3d DCA 2014); Dep’t of

Revenue v. Thurmond, 

(Fla. 3d DCA 1998); Falkner v. AmeriFirst




11I 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).

                                        23
Fed. Sav. & Loan Ass’n, 

(Fla. 3d DCA 1986).12 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., 

, 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 declined 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. 

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:

12 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., 

(Fla. 1st DCA 2015) and Garcia v. Stewart, 

(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.

                                             24
      (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.

(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. 

This

holding was entirely consistent with this Court’s holding in O.A.G. Corp. v.

Britamco Underwriters, Inc., 

, 787 (Fla. 3d DCA 1998) abrogated

on other grounds by Caufield v. Cantele, 

(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., 

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


                                           25
Supreme Court in Wollard v. Lloyd’s & Cos. of Lloyd’s, 

(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.13

      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


13 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.

                                        26
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

rulemaking. 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.




                                         27