Tallahassee, Florida - Real Estate lawyer represented Appellees with a routine residential property foreclosure .

The order on appeal granted attorneys' fees to a Mr.

Fernandes, who was not a mortgagor, but purported to hold a

quitclaim deed to the foreclosed property. The quitclaim deed was

dated June 25, 2007, about eleven months before the foreclosure

complaint was filed. The quitclaim deed was not recorded,

however, until May 13, 2009, about ten months after the

foreclosure complaint and notice of lis pendens were filed.

Evidence established that the property was vacant when the

lawsuit and lis pendens were filed. It is undisputed that the

quitclaim deed was recorded long after the twenty-day deadline

established in section 48.23(1)(b) of the Florida Statutes (2008)

(providing that the filing of a notice of lis pendens bars all interests

and liens unrecorded when the lis pendens is filed unless the

holder intervenes within twenty days after the lis pendens is filed).

It is likewise undisputed that Mr. Fernandes did not intervene

within twenty days after the lis pendens was filed. He first

appeared in the foreclosure action sua sponte by filing an answer

to the complaint in May of 2009, when he first recorded the

quitclaim deed. The predecessor plaintiff, as holder of the

mortgage, obtained a final judgment of foreclosure in 2013, but Mr.

Fernandes sought and obtained an order vacating that judgment

and canceling the sale, on grounds that he had not been served

properly with documents leading up to the judgment. The case

languished for a year, until after Nationstar became the holder of

the mortgage. Nationstar initially included Mr. Fernandes in an

amended complaint filed in 2015, but then dropped him because

he was not a proper party.

Without being granted intervention, and without any

participation by the mortgagor, Mr. Fernandes sought discovery

from Nationstar, mirroring discovery he had sought from the

original plaintiff. The requested discovery far exceeded the typical

documents necessary to establish Nationstar's standing as holder

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of the note (the note, mortgage, and indorsement), which both the

original plaintiff and Nationstar did provide to Mr. Fernandes. Mr.

Fernandes sought numerous additional categories of documents,

such as attorney fee agreements; the addresses, phone numbers,

and dates of employment of individuals who had signed documents

related to the mortgage and its transfers; and documents that Mr.

Fernandes himself had signed. Nevertheless, he claimed to be

dissatisfied with Nationstar's responses throughout several

rounds of motions.

Nationstar consistently objected to these discovery requests

on their merits and on the grounds that Mr. Fernandes lacked

standing and was statutorily barred from participation.

Nationstar consistently argued that Mr. Fernandes was not a

proper intervenor because he had failed to meet the statutory

deadline after the filing of the notice of lis pendens.

Mr. Fernandes did not move to intervene until 2016, relying

on an alleged earlier "grant” of intervention. Apparently, a

predecessor judge had written a case note in the file indicating

intervention had been granted. The note did not reference or

analyze the statutory deadline problem or any other reasoning.

The record does not include any evidence of a hearing or rendition

of a written order on intervention.

This case note prompted the successor judge to send the case

back to the predecessor judge for clarification on whether and why

Mr. Fernandes had been allowed to intervene. The intervention

issue languished for nearly two years, until the successor judge

entered an order granting intervention in September of 2018. The

order contained no recitation of facts and no analysis.

After finally obtaining this grant of intervenor status, Mr.

Fernandes continued to press for additional discovery. Nationstar

moved for reconsideration of the order granting intervention,

asserting that Mr. Fernandes lacked standing and was barred

from participating in the litigation. Nationstar also asserted that

the requested discovery was overbroad and the responses it

provided were appropriate. In September of 2019, Mr. Fernandes

moved for sanctions for Nationstar's allegedly deficient responses

to his voluminous and wide-ranging discovery requests. Over a

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year later, after a hearing, the trial court granted sanctions, later

setting the amount, including fees for litigating the issue of fees.

Nationstar moved for rehearing, which the court denied, later

entering an amended judgment awarding fees and setting the

amount with appropriate words of finality. Nationstar timely

appealed, correctly asserting that such an order is an appealable

final order. See Hastings v. Osius, 104 So. 2d 21, 22 (Fla. 1958)

(noting that an order determining entitlement to attorneys' fees,

setting the amount, and reciting "for which let execution issue,”

was a final appealable order, rendering certiorari review

inappropriate); Saye v. Pieschacon, 750 So. 2d 759, 761 (Fla. 1st

DCA 2000) (citing Hastings and other cases in support of holding

that fee order determining entitlement and amount, and

executable, was an immediately appealable final order).

On appeal, Nationstar argues only that Mr. Fernandes was

not a proper intervenor, and therefore was not entitled to litigate

against Nationstar at all, let alone to obtain monetary relief from

Nationstar. Mr. Fernandes responds that we lack jurisdiction to

address this issue in this appeal.

We agree with Nationstar that we have jurisdiction to review

the propriety of Mr. Fernandes's intervenor status. We write

further to explain why, and why we reverse the order on appeal.

ANALYSIS.

1. Procedure.

Mr. Fernandes first raises a procedural argument that

Nationstar is not entitled to seek review of his intervenor status in

the litigation because the order granting intervention in

September of 2018 was not referenced in or attached to the notice

of appeal. This argument is wrong in both respects. A timely notice

of appeal of an appealable order gives us jurisdiction to review

earlier interlocutory orders. See Fla. R. App. P. 9.110(h) ("[T]he

court may review any ruling or matter occurring before filing of the

notice.”). No rule or case requires that all such interlocutory orders

be attached to the notice of appeal or referenced in it.

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Mr. Fernandes's remaining arguments address his status as

an intervenor, which as already noted are the only arguments

Nationstar raises. We agree with both parties that the order

appealed is final and appealable; but in this posture, we must

determine what issues we can adjudicate.

Mr. Fernandes does not argue that we should avoid

addressing intervention because Nationstar can challenge

intervention on a plenary appeal from a future final judgment of

foreclosure. Nevertheless, we have considered this possibility in

addition to others, as part of our obligation to determine the scope

of our jurisdiction. See Wade v. Fla. Dep't of Child. & Fams., 57 So.

3d 869, 870 (Fla. 1st DCA 2011) ("We are required to examine our

jurisdiction in every case.”); see also Philip J. Padovano, Florida

Appellate Practice, § 1:5 (2022 ed.) ("The appellate court has an

independent duty to determine the existence of jurisdiction in

every case and to dismiss a case that is not within its

jurisdiction.”). Further, we have "such jurisdiction as may be

necessary for a complete determination of the cause.” Fla. R. App.

P. 9.040(a).

The theoretically available alternative options for review

might include appealing from the intervention order itself, and

appealing from a final judgment of foreclosure at the end of the

case. As to the first option, Nationstar could not immediately

appeal the order granting intervention. Such an order is a nonfinal order that is not among the limited class of appealable nonfinal orders under Florida Rule of Appellate Procedure 9.130. See

Padovano, supra, § 23:4 & n.14 (citing Carlisle v. U.S. Bank, Nat'l

Ass'n, 225 So. 3d 893 (Fla. 3d DCA 2017)).*

* In contrast, orders denying intervention are final and

appealable, because they eliminate the proposed intervenor as a

party. See Fla. R. App. P. 9.110(k) ("If a partial final judgment

totally disposes of an entire case as to any party, it must be

appealed within 30 days of rendition.”); De Sousa v. JP Morgan

Chase, 170 So. 3d 928, 929 (Fla. 4th DCA 2015) (holding that order

denying intervention is a final, appealable order as to the

aggrieved party).

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As to the second option, assuming Nationstar ultimately

obtains a final judgment of foreclosure in its favor, it is difficult to

suggest that it, as the prevailing party, should be required to wait

and appeal a favorable judgment to gain review of an earlier

adverse intervention order. This is especially true here, where

there exists an undeniably final, appealable attorneys'-fee

judgment that rests on the foundational but previously nonappealable ruling that Mr. Fernandes has standing as an

intervenor to collect fees from Nationstar.

Nationstar proposes a third option: that the intervention

foundation of the attorneys'-fee order is appealable under rule

9.110(k), the partial final judgment rule. We think not. That rule

on its face defines a partial final judgment as one that "disposes of

an entire case as to any party,” or "disposes of a separate and

distinct cause of action that is not interdependent with other

pleaded claims.” Fla. R. App. P. 9.110(k). The attorneys'-fee

judgment does neither.

While we respectfully disagree with the dissent on outcome,

we agree with the dissent that the linchpin of the analysis is

whether the intervention issue "relate[s] to” the attorneys'-fee

judgment within the meaning of rule 9.110(h)'s reference to a

court's having jurisdiction to review any "ruling or matter

occurring before filing of the notice [of appeal].” Florida courts have

construed "ruling or matter” as used in rule 9.110(h) as meaning

rulings and orders "directly related to and an aspect of the final

[order]” under review. Portis v. Seatruck, Inc., 98 So. 3d 1234, 1235

(Fla. 3d DCA 2012). Using that analytical framework, we have

rejected an attempt to include unrelated rulings denying motions

for new trial within an appeal from an order imposing attorney's

fees and costs. Saye, 750 So. 2d at 761. By similar reasoning, the

Fourth District has held that an appeal of a final summary

judgment in favor of one defendant did not encompass a separate

order on another defendant's unrelated affirmative defense. Cygler

v. Presjack, 667 So. 2d 458, 461 (Fla. 4th DCA 1996). The Second

District has refused to allow one of several co-defendants to use

another co-defendant's appealable judgment to file an appeal

bringing up an unrelated issue. Merkle v. Home Shopping

Network, Inc., 916 So. 2d 841, 842–43 (Fla. 2d DCA 2005).

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In contrast, the court in C.P. Motion, Inc. v. Goldblatt, 193 So.

3d 39, 41 n.1 (Fla. 3d DCA 2016), found that it could review the

trial court's order denying a motion to substitute a party (a nonappealable order standing alone), upon review of an appealable

interlocutory order dismissing the same party's counterclaim.

Similarly, in Deutsche Bank National Trust Co. v. Plageman, 133

So. 3d 1199, 1200 (Fla. 2d DCA 2014), on appeal from dismissal

with prejudice of an amended foreclosure complaint, the court

found that it could review earlier, non-appealable interlocutory

orders finding verification of a foreclosure complaint improper.

These cases illustrate the limits on interlocutory review, while

recognizing the propriety of review of an order where there is a

direct relationship as to the parties whose rights are adjudicated

and the issues are "an aspect of” the order to be reviewed. We find

the requisite nexus of parties and issues in the order under review.

We, like all Florida courts, adhere to the rule that an attorneys'-

fee judgment is final and appealable only when it resolves both

entitlement and amount. See, e.g., Tyson v. Tyson, 310 So. 3d 1292,

1292 (Fla. 1st DCA 2021); Magnolia Fla. Tax Certificates v. Alexa1,

229 So. 3d 1288, 1288 (Fla. 1st DCA 2017). The judgment before

us encompasses both issues; otherwise it would not be appealable,

and neither party argues that it is not appealable.

Entitlement in this case has always centered first on Mr.

Fernandes's status in the foreclosure case, not just on whether

Nationstar committed sanctionable discovery violations. The

record clearly demonstrates Nationstar's consistent and

protracted preservation of its challenges to Mr. Fernandes's

standing and status in the litigation. It is irrefutable that without

the party-status aspect of his entitlement, Mr. Fernandes could not

obtain an attorneys'-fee award. This makes the issue of his status

in the litigation "directly related to” the attorneys'-fee judgment,

and gives us jurisdiction over the issue of his status.

It makes no difference that the judgment on appeal did not

repeat the earlier interlocutory, non-appealable ruling as to Mr.

Fernandes's status. Courts do not have to repeat or re-incorporate

all previous rulings that bear on a subsequent appealable order,

for us to have jurisdiction to review the earlier orders. See Fla. R.

App. P. 9.110(h). Having concluded that the intervention issue is

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properly before us, we turn to the merits of that issue, which are

clear and briefly disposed.

2. Merits.

Nationstar correctly argues that under section 48.23(1)(b),

Florida Statutes (2008), any person with an unrecorded interest in

mortgaged real property was required to intervene in a foreclosure

suit within 20 days after the notice of lis pendens was filed. It is

undisputed that the lis pendens in this case was filed July 24,

2008, and equally undisputed that Mr. Fernandes did not timely

move to intervene. The statute is clear and unambiguous. Mr.

Fernandes's failure to comply with the statute deprived him of any

legal right to participate as a party in the foreclosure litigation.

See Westburne Supply, Inc. v. Cmty. Villas Partners, Ltd., 508 So.

2d 431, 434 (Fla. 1st DCA 1987) (holding that the principal purpose

of the statute requiring filing of a notice of lis pendens is to bar

unrecorded interests in the property). Mr. Fernandes's belated

recordation of his quitclaim deed did not cure his lack of standing

to intervene. See Bank of N.Y. Mellon v. HOA Rescue Fund, LLC,

249 So. 3d 731, 733–34 (Fla. 2d DCA 2018) (reversing dismissal

based on subsequent purchaser's intervention, after finding that

the intervention was improper).

The trial court had no discretion in the matter and no

authority to allow Mr. Fernandes to participate in the foreclosure

action as if he were a proper party. We addressed a similar issue

in another foreclosure case, Bank of America, N.A. v. Mirabella

Owners' Ass'n, Inc., 238 So. 3d 405 (Fla. 1st DCA 2018). There, the

foreclosure action was already pending when a non-party, Horizon,

purchased the property. Id. at 406. We reversed the trial court's

order allowing Horizon to intervene, as well as the trial court's

order granting Horizon's motion to dismiss the case and dissolve

the lis pendens. Id. at 407. Yet the relief we reversed in Mirabella

is exactly what Mr. Fernandes would have us approve here. We

have considered, and reject on their merits, these and Mr.

Fernandes's other arguments.

We strongly suggest that this fourteen-year-old foreclosure

case be concluded promptly.

REVERSED and REMANDED.

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MAKAR, J., concurs with opinion; BILBREY, J., dissents with

opinion.

_____________________________

Not final until disposition of any timely and

authorized motion under Fla. R. App. P. 9.330 or

9.331.

_____________________________

MAKAR, J., concurring with opinion.

My panel colleagues have reasonable positions about the

disposition of the procedural and substantive issues in this

unusual appeal. I concur in reversal, however, noting a few

pragmatic factors that lean in that direction.

First, it makes practical sense to permit review of an

intervention order at the earliest point in a proceeding, provided a

reasonable nexus exists with the final order under review. That's

because an unauthorized intervenor can impose unrecoverable

costs and irremediable delays on legal proceedings, making it

important to ferret out those who don't belong, earlier rather than

later.

Second, the language of Rule 9.110(h), Florida Rules of

Appellate Procedure, which states that a "court may review any

ruling or matter occurring before filing of the notice” of appeal from

a final order, is flexible enough to encompass a non-final order

permitting intervention when the intervention results in

burdensome discovery that would not otherwise occur, as well as a

final appealable order related to the discovery itself. Fla. R. App.

P. 9.110(h) (emphasis added). This case is not one in which a party

has attempted to "bootstrap” review of an unrelated prior order.

See, e.g., Portis v. Seatruck, Inc., 98 So. 3d 1234, 1235 (Fla. 3d DCA

2012) (prohibiting a party from bootstrapping review of a final

order "to an order affecting her rights against another

defendant[]”). Enough of a reasonable nexus exists to warrant

review of the intervention order.

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Third, appellate practitioners—by virtue of their training and

perhaps their nature—are risk averse. When confronted with a

final appealable order, such as the fees order in this case, the

question will be asked "What if I don't pursue an appeal now?” If

the answer is that review of the final order (and potentially earlier

related orders) will be lost, the filing of a notice of appeal will likely

follow to preserve review of the final order and prior related orders.

Doing so is understandable, particularly when a Catch-22

situation exists, which is the case here. If Nationstar does not

appeal the fees order, it becomes final and enforceable; Nationstar

would thereby forfeit its ability to vacate the fee order at the end

of the case on any basis, including that intervention was improper.

For the reasons in Judge Kelsey's opinion as well as these

pragmatic factors, appellate review and reversal of the

intervention order is proper.

BILBREY, J., dissenting.

Nationstar Mortgage, LLC, appeals pretrial orders

sanctioning it for failure to sufficiently answer interrogatories or

produce requested documents.1 The trial court awarded Luciano

Fernandes, the intervenor/defendant below, the attorney's fees he

incurred to obtain court orders compelling Nationstar's

supplemental responses to discovery. Because Nationstar's initial

brief contains no argument challenging the merits of the attorney's

fee orders, instead challenging only Fernandes' intervention, I

would affirm. Since the majority reverses based on the unrelated

issue of Fernandes' intervention, I respectfully dissent.

In the initial brief, Nationstar argues that the order granting

Fernandes' motion to intervene as a defendant in Nationstar's

foreclosure action, entered a year before the sanction orders on

appeal, contradicts the law and must therefore be reversed.

Nationstar's argument on appeal is that upon reversal of the trial

court's order allowing intervention, the basis for the orders

sanctioning Nationstar for failure to comply with Fernandes'

discovery requests will collapse. The majority agrees with this

1 I agree with the majority that the sanctions order was an

appealable final judgment and not a partial final judgment.

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argument, but I believe that the issue of intervention is too far

removed for us to address it here.

Nationstar's initial brief asserts legal error only in the order

allowing Fernandes to intervene. The brief lacks any challenge to

the trial court's exercise of discretion in sanctioning Nationstar.

No fundamental error is involved here. See generally Yau v.

IWDWarriors, Corp., 144 So. 3d 557, 560 (Fla. 1st DCA 2014)

(holding that no fundamental error in awarding fees, even if the

basis to do so is suspect). So we are constrained to limit our

consideration to the arguments in the briefs. See Rosier v. State,

276 So. 3d 403, 406 (Fla. 1st DCA 2019) (en banc).

Nationstar argues reversible error in the order allowing

Fernandes to intervene has caused needless litigation and delay in

the disposition of Nationstar's foreclosure action. That may well

be so. However, review of the order allowing Fernandes to

intervene is beyond the scope of this appeal. The attorney's fee

sanction for discovery violations is ancillary to the merits of the

foreclosure action and therefore cannot provide the vehicle for

appellate review of the previous order granting intervention. See

Fla. R. App. P. 9.110(h) (providing the scope of review in an appeal

of a final judgment).

Other DCAs have addressed the limits of the scope of review

under this rule as follows:

We recognize Florida Rule of Appellate

Procedure 9.110(h) authorizes an appellate court to

review "any ruling or matter occurring before filing of the

notice [of appeal].” We construe the phrase "ruling or

matter” in Rule 9.110(h) to mean rulings and orders

"directly related to and an aspect of the final [order]”

under review. Cygler v. Presjack, 667 So. 2d 458, 461 (Fla.

4th DCA 1996) (finding an adverse summary judgment

on a defendant's affirmative defense was a non-final, nonappealable order in the plaintiff's appeal of summary

final judgment in favor of the co-defendant).

Portis v. Seatruck, Inc., 98 So. 3d 1234, 1235 (Fla. 3d DCA 2012);

see also Deutsche Bank Nat'l Tr. Co. v. Plageman, 133 So. 3d 1199,

1200 (Fla. 2d DCA 2014).

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The order granting Fernandes' motion to intervene is not

directly related to the fees sanction. To hold otherwise would mean

that if a trial court grants a motion to intervene, then that motion

can be challenged in any subsequent appeal no matter how distant

the issue on appeal is from the merits of intervention issue. The

court in Portis warned of the "jurisdictional mischief” that an

expansive reading of rule 9.110(h) "invites” in creating "a second

window within which to obtain review.” Portis, 98 So. 3d at 1235.

Under this expansive view adopted by the majority, a party

wishing to challenge a grant of intervention could willfully defy

discovery intending to get sanctioned or otherwise gin up an

appealable order to provide a means to appeal the intervention

order pretrial.2 We should not allow such "bootstrap review of this

order” granting intervention to occur. Id.

Based on the record and briefs filed in this appeal, appellate

review of the trial court’s order granting Fernandes’ motion to

intervene should be available only on appeal of a final judgment

disposing of the entire case. See, e.g., Bank of Am., N.A. v.

Mirabella Owners’ Ass’n, Inc., 238 So. 3d 405, 407 (Fla. 1st DCA

2018). For this reason, I would affirm the sanctions order against

Nationstar. Since the majority addresses intervention and

reverses, I respectfully dissent