EQUIPMENT SALES OF SOUTH FLORIDA, LLC.

v.

PRO MAX INVESTMENT HOLDINGS, INC.

Third District Court of Appeal

State of Florida

Opinion filed October 14, 2026.

Not final until disposition of timely filed motion for rehearing.

No. 3D25-2501

Lower Tribunal No. 24-145104-CC-26

Equipment Sales of South Florida, LLC, Appellant,

vs.

Pro Max Investment Holdings, Inc., Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Christopher Green, Judge.

Schwartz, Sladkus, Reich, Greenberg, Atlas LLP and Jonathan

T. Mann, for appellant.

Jones Walker, LLP and Matthew Maranges and Lauren S. Rose, for appellee.

Before LOGUE, GORDO and LOBREE, JJ.

GORDO, J.

Equipment Sales of South Florida ("Tenant") appeals an order denying its second motion to vacate a final judgment of eviction under Florida Rule of Civil Procedure 1.540(b)(5). We dismiss for lack of jurisdiction because Tenant's second motion is not authorized or timely filed pursuant to Florida Rule of Appellate Procedure 9.130(a)(5).

Pro Max Investment Holdings, Inc. (“Landlord”) leased commercial property to Tenant. Landlord commenced an eviction action after Tenant failed to pay rent. Tenant failed to respond and a clerk's default and final judgment for removal were entered against Tenant. Tenant subsequently moved to vacate that final judgment under rule 1.540(b), arguing excusable neglect as to its failure to file a responsive pleading and, as its meritorious defense, that Landlord's acceptance of rent waived the eviction under § 83.202, Fla. Stat. The trial court denied the first motion on its merits, finding that Tenant had not shown either excusable neglect or due diligence. Tenant appealed the denial and then voluntarily dismissed that appeal.

Tenant then filed a second motion to vacate the same final judgment under rule 1.540(b)(5), arguing that Landlord's post-judgment acceptance of rent, failure to obtain a writ of possession and later filing of a second eviction action rendered continued enforcement of the judgment inequitable. At a hearing on the motion, Tenant conceded the arguments it raised “could have"

been raised in its first motion. The trial court denied Tenant's second motion, reasoning that it was “undisputed that the factual basis" for Tenant's second motion to vacate final judgment “was known to [Tenant] at the time of filing the first motion.” This appeal followed.

This Court and our sister courts have exercised appellate jurisdiction to review orders entered on rule 1.540 motions under rule 9.130(a)(5). See Fabre v. 4647 Block, LLC, 401 So. 3d 523, 526-27 (Fla. 3d DCA 2024) (holding that rule 9.130(a)(5) is the correct procedural vehicle to seek review of an authorized rule 1.540 motion); Lehner v. Durso, 816 So. 2d 1171, 1173 (Fla. 4th DCA 2002) (“[W]e have jurisdiction under rule 9.130(a)(5) to review orders entered on motions filed under rule 1.540."); JP Morgan Chase Bank, N.A. v. Wells Fargo Bank, N.A., 103 So. 3d 282, 282 n.2 (Fla. 5th DCA 2012) (“This court has jurisdiction over this [rule 1.540] appeal pursuant to [rule] 9.130(a)(5)[.]”). That rule makes “[o]rders entered on an authorized and timely motion for relief from judgment . . . reviewable by the method proscribed by this rule.” Fla. R. App. P. 9.130(a)(5) (emphasis added).

This Court does not have jurisdiction to review unauthorized or untimely motions. A motion is “authorized" only when it is “specifically contemplated by a specific rule of procedure” and directed at a final order. See Fla. R. App. P. 9.130(a)(5) committee notes on 2008 amendment;

Fabre, 401 So. 3d at 526–27 (citing Fla. R. Civ. P. 1.540(b)). A motion is "timely” only when a notice of appeal is filed within 30 days of rendition of the order to be reviewed. Fla. R. App. P. 9.130(b).

In Perez v. Saima Group Corp., this Court held that "we lack appellate jurisdiction to review an order denying a successive rule 1.540(b) motion where . . . the grounds asserted in the successive motion were known to the movant at the time the movant filed the first rule 1.540(b) motion." 347 So. 3d 421, 422 (Fla. 3d DCA 2022); see Anderson v. Estate of Quintero, 388 So. 3d 938 (Fla. 3d DCA 2024); Flagstar Bank, F.S.B. v. Cleveland, 87 So. 3d 63, 65 (Fla. 4th DCA 2012) (“This court has long held, however, that '[a] trial court is without jurisdiction to entertain a second motion for relief from judgment which attempts to relitigate matters settled by a prior order denying relief.'" (citation omitted)). The rule contemplates a single, comprehensive motion for relief, and a party may not resurrect an expired opportunity to seek relief by refiling on grounds it already possessed.¹ See

Perez, 347 So. 3d at 422; Fla. R. App. P. 9.130(a)(5). As we explained in Perez, if a movant is dissatisfied with the ruling on its first rule 1.540 motion, its "remedy [is] by appeal, not . . . filing successive motions to vacate containing the same general grounds or even new ones, which could have been raised in the first motion.” 347 So. 3d at 422 (citation omitted).

Here, Tenant's first rule 1.540 motion was denied on its merits, and Tenant made that ruling final by voluntarily dismissing its appeal. Tenant's second motion, raising rule 1.540(b)(5) specifically, was also denied. The controlling question is whether the grounds were known when the first motion was filed. Here, it was undisputed that every fact underlying the second motion was known to Tenant when it filed its first motion. The second motion was therefore not an “authorized” motion under rule 9.130(a)(5). Nor was it "timely” within the meaning of that rule—a successive rule 1.540 motion based on previously available grounds cannot restart the appellate clock and create a new opportunity for review. See Parkhomchuck v. AlY, Inc., 338 So. 3d 397, 400 (Fla. 3d DCA 2022); Cordero v. Washington Mut. Bank, 241 So. 3d 967, 968 (Fla. 3d DCA 2018). Accordingly, this Court lacks jurisdiction under rule 9.130(a)(5) to review Tenant's rule 1.540(b)(5) motion. See Perez, 347 So. 3d at 422; Fla. R. App. P. 9.130(a)(5).

We emphasize the first appeal is generally the last hurrah² to a 1.540 denial. A litigant who lets the judgment become final, moves for relief, loses, and abandons the appeal from that loss cannot return to the trial court and start over on grounds aware to them when they filed their first motion. To permit that would defeat the finality rule 1.540 is designed to protect and would make the thirty-day appellate clock meaningless. See Adams v. Estate of Henderson, 155 So. 3d 485, 488 n.3 (Fla. 4th DCA 2015) ("Although the rule does not explicitly address successive motions, it is axiomatic that successive motions alleging the same grounds cannot be allowed under rule 1.540 if there is going to be finality to litigation.").3

the merits of successive rule 1.540 motions and barring them as res judicata. We find the proper disposition is dismissal for lack of jurisdiction in light of Perez. 347 So. 3d at 422; see Florida Dept. of Transp. v. Juliano, 801 So. 2d 101, 107–08 (Fla. 2001) (“Because this case involves the issue of what preclusive effect the prior appeal affirming the denial of summary judgment should have on the trial court in the same case and in a subsequent appeal in the same case, the doctrine of res judicata is inapplicable under these circumstances.").

Appeal dismissed.