Redmond v. First Guaranty Mortg. Corp.
Redmond v. First Guaranty Mortg. Corp.
Opinion of the Court
Eric M. Redmond timely appeals the trial court's denial of his Florida Rule of Civil Procedure 1.540(b) motion for relief from a final judgment of foreclosure. Concluding that the court reached the right result, albeit for the wrong reason, we affirm.
The appellee, First Guaranty Mortgage Corporation ("First Guaranty"), sued Redmond and his codefendant, Kimberly Thomas-Tornillo, in foreclosure because they failed to make the March 1, 2017 payment on their Note and Mortgage and all subsequent monthly payments. On August 24, 2017, Redmond was personally served with process at the address of the mortgaged property. He attended an unsuccessful conciliation conference
On March 2, 2018, First Guaranty and the codefendant entered into a joint stipulation for the entry of a consent final judgment of foreclosure with a sale date to be set no earlier than thirty-five days from the date of the judgment. Although Redmond did not execute the stipulation, a copy of this document was contemporaneously mailed to him. Thereafter, on April 11, 2018, the trial court entered a final judgment of foreclosure against Redmond and the codefendant, setting the foreclosure sale for May 29, 2018. A copy of the judgment was mailed to Redmond the following day.
Subsequently to the entry of the judgment, Redmond retained counsel; and on May 21, 2018, his counsel filed a motion for relief from final judgment pursuant to Florida Rule of Civil Procedure 1.540(b) with an embedded motion to vacate the clerk's default. Redmond explained in his supporting affidavit attached to the motion that he did not file an answer to the complaint because no one at the October 9, 2017 conciliation conference told him to do so because he had been in discussions with his mortgage servicer about a loan modification. Redmond also filed an emergency motion to cancel the May 29 foreclosure sale.
On Friday, May 25, 2018, Redmond noticed his motion to cancel the sale for hearing on the morning of May 29, 2018. On Sunday, May 27, First Guaranty's counsel cross-noticed Redmond's motion *920for relief from final judgment and to vacate the default for the same May 29 hearing. Although Redmond's counsel had reserved the time on May 29 for his hearing on the motion to cancel the sale, counsel did not attend the hearing. The trial court entered separate orders that day, denying both motions with the explanation that the denial was due to Redmond's counsel having "failed to appear for the hearing." Redmond's counsel filed an unsworn motion for rehearing of these orders, and thereafter filed a notice of appeal.
Redmond's sole argument on appeal regarding trial court error is that he was denied due process when his motion for relief from judgment was heard and denied without proper notice. He contends that First Guaranty's cross-notice of the hearing on the motion for relief from judgment sent on the Sunday afternoon before the Tuesday morning hearing was not reasonable notice for this substantive hearing. We agree. See Fla. R. Civ. P. 1.090(d) (requiring that a notice of hearing on a party's motion "shall be served a reasonable time before the time specified for the hearing"); Russ v. State ,
We nevertheless affirm the trial court's order under the "Tipsy Coachman" doctrine, which allows an appellate court to affirm a trial court that reaches the right result, even for the wrong reason, where the record supports a legal basis for the order. See Robertson v. State ,
To be entitled to a hearing on a rule 1.540(b) motion, the allegations in the motion and accompanying affidavits must show a "colorable entitlement to relief." See Smith v. Smith ,
We conclude that Redmond's motion for relief from the final judgment was lacking for two reasons. First, Redmond failed to show excusable neglect. Neither his argument that no one at the October 9, 2017 conciliation conference told him that he still needed to respond to the complaint nor his belief that his attendance at this conference qualified as a response to the complaint is excusable neglect. See Joe-Lin, Inc. v. LRG Rest. Grp., Inc. ,
Second, Redmond failed to show due diligence by waiting almost seven months from the time the default was mailed to him before moving to vacate the default and for relief from the final judgment. See Szucs ,
Because the allegations in Redmond's motion and his supporting affidavit clearly did not establish either excusable neglect or due diligence, he was not entitled to relief, and the hearing on his motion, although insufficiently noticed, was not required. See Richards ,
AFFIRMED.
COHEN and EISNAUGLE, JJ., concur.
A conciliation conference is defined as a relatively unstructured method of dispute resolution in which a neutral third party meets with the parties in an attempt to help the parties explore and settle their differences. Conciliation , Black's Law Dictionary (10th ed. 2014). There is no indication in our limited record whether the trial court ordered the parties to attend the conciliation conference or if they attended this conference voluntarily.
Although not fully explained in our record, it appears that the foreclosure sale set for May 29 did not take place.
Redmond raised one other argument in his initial brief. He contended that this court should have granted his motion to relinquish jurisdiction to the trial court to allow that court to rule on his timely filed motion for rehearing. We disagree. Florida Rule of Civil Procedure 1.530 permits courts to rehear matters only after entry of a "judgment." An order denying a rule 1.540 motion for relief from judgment is not a "judgment" as contemplated under rule 1.530. See Helmich v. Wells Fargo Bank, N.A. ,
Case-law data current through December 31, 2025. Source: CourtListener bulk data.