LINDSEY, J.
Harvard Financial, RJR Charitable Holdings, and Tessa Iacoboni appeal an order granting Remy-Calixte's two motions for relief pursuant to Florida Rule of Civil Procedure 1.540 and her motion for summary judgment. For the reasons set forth below, we reverse
This appeal arises from a 2007 foreclosure action (the "2007 Foreclosure Action") that Residential Funding Company brought against Derrick Marbles, Ramon Garcia, and Janice Gessa, three owners of a residential property in Biscayne Park (the "Property"). The procedural history is extensive.
Nearly four months after the trial court entered the July 2009 Dismissal Order, Residential filed a motion to reschedule the foreclosure sale. The trial court granted this motion. Residential, again the highest bidder, obtained certificate of title.
In February 2015, Gessa and Garcia (two of the three original owners of the Property) transferred their interest to appellant RJR Charitable Holdings. In October 2015, two of the three 2007 money judgments against Marbles were assigned to Harvard Financial, also an appellant herein. Harvard sought and obtained in the trial court an order directing the levy and sale of the Property.
In February 2016, in a new civil action, Remy-Calixte, represented by counsel retained by the title insurer, sought to enjoin the sheriff's sale. Harvard filed an action for declaratory relief and to foreclose its judgment lien on Marbles's interest in the Property. Harvard was later joined by cross-claimant Tessa Iacoboni, the remaining party with a 2007 money judgment against Marbles. The circuit court granted Remy-Calixte's motion to stay the foreclosure sale, which was affirmed on appeal. Both cases—Remy-Calixte's injunction action and Harvard/Iacoboni's foreclosure action—were then consolidated below.
Remy-Calixte moved for summary judgment seeking to quiet title. She also filed two motions pursuant to Rule 1.540 seeking to vacate (1) the January 2008 Vacatur Order (which vacated the 2007 Foreclosure Judgment) and (2) the July 2009 Dismissal Order (which dismissed the 2007 Foreclosure Action) for lack of prosecution. In March 2017, the circuit court entered final summary judgment in favor of Remy-Calixte, finding that she was the successor in interest to Residential and an innocent bona fide purchaser for value. The court also granted Remy-Calixte's two Rule 1.540 motions, finding (1) that the January 2008 Vacatur Order was a clerical error and the portion of that order that vacated the 2007 Foreclosure Judgment was void for lack of notice, and (2) that the July 2009 Dismissal Order was void for lack of notice. Harvard, RJR, and Iacoboni timely appeal.
The first issue before us is whether, in March of 2017, there was a legal basis to vacate the January 2008 Vacatur Order. The trial court relied, as does Remy-Calixte, on an equitable approach to do so. However, we are compelled to reverse because the Florida Rules of Civil Procedure do not provide a legal basis for correcting the January 2008 Vacatur Order over eight years after it was entered.
Florida Rule of Civil Procedure 1.540 provides a method for obtaining relief from judgments, decrees, or orders. Pursuant to Rule 1.540(a) a trial judge is authorized to correct "clerical mistakes . . . at any time. . . ." The trial court is also authorized to correct non-clerical or substantive mistakes under Rule 1.540(b)(1); however, a motion to correct a non-clerical mistake must be filed "not more than 1 year after the judgment, decree, order, or proceeding was entered or taken."
While it arguably appears that the January 2008 Vacatur Order mistakenly vacated the 2007 Foreclosure Judgment, Remy-Calixte did not move to vacate the 2008 Vacatur Order until October of 2016. Based on the clear language of Rule 1.540, the trial court would only have been authorized to vacate the January 2008 Vacatur Order in 2016 if the mistake were clerical. Harvard argues the alleged mistake is a judicial mistake and not a clerical mistake and is therefore not subject to correction "at any time." We agree.
We look first to the plain language of the January 2008 Vacatur Order. The Order is titled "ORDER VACATING FINAL SUMMARY JUDGMENT, FORECLOSURE SALE, CERTIFICATE OF SALE, AND CERTIFICATE OF TITLE[.]" Further, the order explicitly states that the "Final Summary Judgment entered on September 5, 2007 is hereby vacated." Although this order may have been mistakenly entered because Residential never requested that the 2007 Foreclosure Judgment be vacated, such a mistake, if any, is a mistake in the substance of what was decided and not merely an accidental slip or omission. Consequently, subsection (a) does not provide a basis for vacating the January 2008 Vacatur Order.
Remy-Calixte asserts that the mistake was a "typographical error" yet provides no explanation nor legal basis to support this theory. She also argues that the circumstances surrounding the January 2008 Vacatur Order provide sufficient evidence from which the trial court could have found that the January 2008 Vacatur Order, which vacated the 2007 Foreclosure Judgment, was unintentional. However, based on the language of the January 2008 Vacatur Order itself, the judge intentionally, although perhaps mistakenly, vacated the 2007 Foreclosure Judgment.
Moreover, when Residential requested that the sale be vacated, it included a proposed order that did not vacate the 2007 Foreclosure Judgment, which for reasons unknown, the judge did not adopt. Thus, the January 2008 Vacatur Order was at most judicial error rather than a mere clerical mistake.
Remy-Calixte also argues that even if Rule 1.540(a) is not available to correct a substantive mistake, relief is available under Rule 1.540(b)(5) because "it is no longer equitable that the judgment or decree should have prospective application." We reject this argument because Rule 1.540(b) only applies to final judgments, and the January 2008 Vacatur Order is not a final order.
Finally, Remy-Calixte argues that even if the trial court incorrectly vacated the January 2008 Vacatur Order pursuant to Rule 1.540, the Tipsy Coachman rule applies because a trial court judge is authorized to vacate or modify interlocutory rulings or orders of a predecessor judge.
Because the Florida Rules of Civil Procedure do not provide a means of vacating the January 2008 Vacatur Order to correct what the trial court believed to be an order
Finally, there was no valid foreclosure judgment on the Property after entry of the January 2008 Vacatur Order. Thus, thus the 2010 Foreclosure Sale to Residential was void. Accordingly, we reverse and remand for proceedings consistent herewith.
Reversed and remanded.