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.
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No. 3D25-2501
Lower Tribunal No. 24-145104-CC-26
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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.

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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”

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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;

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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
1 “A party usually only has one opportunity to seek relief under Rule 1.540(b).
That is, a party is precluded from seeking relief a second time when the
motion merely alleges grounds for relief which were previously asserted or
could have been asserted in the initial motion. In fact, a court is without
jurisdiction to entertain a second motion for relief which does nothing more
than attempt to relitigate the matters decided by the court, or which could
have 	been 	decided 	by 	the 	court, 	on 	the 	first 	motion 	for 	relief.”
4 Bruce J. Berman & Peter D. Webster, Berman’s Florida Civil Procedure
pt. 1, ch. 1, § 1.540:13 (2026 ed.).

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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. AIY, 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).

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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
2 “Hurrah” began as a battle-cry and has long carried that combative, cross-
linguistic pedigree. 	Surveying a running debate over the origins of “hurrah”
and other war-cries, one nineteenth-century correspondent traced the shout
to a Tartar word meaning “strike”—such that to raise it was, by his account,
to have “caught a Tartar”—and also linked it to the Russian battlefield cry
“Hourra!,” raised as the signal to launch an attack. 	See J.W. Thomas,
“Hurrah!”, 	8 N OTES & QUERIES: 	A 	M EDIUM 	OF 	I NTER- COMMUNICATION 	FOR
LITERARY 	M EN, 	ARTISTS, 	ANTIQUARIES, 	GENEALOGISTS, 	ETC. 	422 	(1853)
(internal quotation marks omitted) (citations omitted). 	An appeal is the
paradigmatic “last hurrah” in precisely that sense—a party’s final battle-cry,
raised after the field below is already lost. 	In our modern usage, the idiom
itself is traced to Edwin O’Connor’s 1956 novel The Last Hurrah, which
followed an aging politician through his final campaign and fixed the phrase
in its modern sense of a last, defining act before the curtain falls. See Edwin
O’Connor, The Last Hurrah (Little, Brown & Co. 1956).
3 We scrutinize our jurisdiction in every case. 	See 2 Philip J. Padovano,
Florida Appellate Practice pt. 1, ch. 1, § 1:5 (2026 ed.) (A court “either has
jurisdiction under the Constitution and the Rules of Appellate Procedure or it
does not.”). 	We recognize that scrutiny has sometimes led to us reaching

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Appeal dismissed.
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.”).