IN THE SUPREME COURT OF FLORIDA CASE NO. SC CHRISTINE BAUER and THOMAS BAUER, Petitioners, ONE WEST BANK, FSB, Respondent.

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1 Filing # Electronically Filed 08/13/ :11:43 PM RECEIVED, 8/13/ :13:41, John A. Tomasino, Clerk, Supreme Court IN THE SUPREME COURT OF FLORIDA CASE NO. SC CHRISTINE BAUER and THOMAS BAUER, Petitioners, v. ONE WEST BANK, FSB, Respondent. On Petition for Discretionary Review from The Second District Court of Appeal of Florida, Case No. 2D Trial Court Case No CI-11 PETITIONERS BRIEF ON JURISDICTION Charles R. Gallagher III, Esquire Florida Bar No Gallagher & Associates Law Firm, P.A Central Avenue St. Petersburg, Florida Telephone: (727) Service s: service@attorneyoffices.org fax@attorneyoffices.org Counsel for Petitioners

2 TABLE OF CONTENTS TABLE OF CONTENTS... i TABLE OF CITATIONS... ii STATEMENT OF THE CASE AND FACTS... 1 SUMMARY OF THE ARGUMENT... 3 ARGUMENT... 4 The Second District s Decision Expressly and Directly Conflicts with the First District Court s Decision in Douglass v. Buford, 9 So. 3d 636 (Fla. 1st DCA 2009) CONCLUSION... 8 CERTIFICATE OF SERVICE... 9 CERTIFICATE OF COMPLIANCE... 9 i

3 TABLE OF CITATIONS Cases Douglass v. Buford, 9 So. 3d 636 (Fla. 1st DCA 2009)... passim Fox v. Prof'l Wrecker Operators of Fla., Inc., 801 So. 2d 175 (Fla. 5th DCA 2001)... 6 Hunter v. State, 87 So. 3d 1273 (Fla. 1st DCA 2012)... 5 Mortgage Elec. Registration Sys., Inc. v. Azize, 965 So. 2d 151 (Fla. 2d DCA 2007) One West Bank, F.S.B. v. Bauer, 39 Fla. L. Weekly D1160 (Fla. 2d DCA May 30, 2014)...1, 8 Rules Fla. R. App. P (a)(2)(A)(iv)... 8 Constitutional Provisions Art. V, 3(b)(3), Fla. Const ii

4 STATEMENT OF THE CASE AND FACTS Petitioners Christine Bauer and Thomas Bauer ( the Bauers ) seek discretionary jurisdiction of the Second District Court of Appeal s decision, One West Bank, F.S.B. v. Bauer, 39 Fla. L. Weekly D1160 (Fla. 2d DCA May 30, 2014), as it expressly and directly conflicts with a decision of the First District Court of Appeal, Douglass v. Buford, 9 So. 3d 636 (Fla. 1st DCA 2009). In 2009, Respondent One West Bank, FSB ( One West ) brought suit against the Bauers to foreclose a mortgage, alleging that Christine Bauer executed a promissory note with IndyMac Bank, F.S.B. and that the Bauers executed a mortgage securing the note. Moreover, in its complaint, One West alleged it owned and held the note and mortgage via assignment. In response to the complaint, the Bauers filed a motion to dismiss for lack of standing and a multi-count counterclaim. The trial court bifurcated the foreclosure complaint and the counterclaim. A non-jury trial was held only as to the foreclosure complaint. At the close of testimony, the trial court granted judgment on behalf of the Bauers based on lack of standing. The trial court determined that there was a conflict as to evidence presented and the allegations in One West s complaint that it was the owner and holder of the note and mortgage as One West provided testimony that another entity owned the loan and that One West was the servicer of the loan (rather than the owner). 1

5 One West appealed the trial court s ruling, and the Second District Court of Appeal converted the appeal to a certiorari proceeding because the Bauers counterclaim consisted of claims related and unrelated to the foreclosure action. The Second District Court of Appeal concluded that the trial court departed from the essential requirements of law in finding that One West failed to establish its standing to foreclose and granted the petition for writ of certiorari. Additionally, the appellate court erroneously determined that although One West incorrectly pleaded that it held and owned the Bauers note and mortgage, there is no dispute that One West was in possession of the note at the time suit was filed. Furthermore, the appellate court found that in requiring One West to prove ownership to establish standing, the trial court departed from the essential requirements of law by imposing a condition not required resulting in irreparable harm. The Second District ordered that the foreclosure action be reinstated. The Bauers filed a Motion for Rehearing which the Second District Court of Appeal denied without opinion. The Bauers timely filed their Notice to Invoke Discretionary Jurisdiction of this Court. 2

6 SUMMARY OF THE ARGUMENT Discretionary review should be granted because the Second District Court of Appeal s decision expressly and directly conflicts with the First District Court of Appeal s decision in Douglass v. Buford, 9 So. 3d 636 (Fla. 1st DCA 2009). In accordance with Douglass, an appellate court is precluded from making factual findings in the first instance. Id. at 637 (citations omitted). However, in the instant case, the Second District made factual findings not made by the trial court. Although the Second District stated that the there was no dispute that One West was in possession of the note at the time suit was filed, the trial court did not make a finding of fact on this issue because its ruling was based on One West having provided conflicting evidence as to ownership of the note and mortgage. Once the trial court determined One West lacked standing for failing to prove ownership, it did not make additional factual findings as to possession of the note. Rather than making its own factual determinations as to possession, the Second District should have remanded the case to the trial court to make that determination. In making initial findings of fact, the Second District s ruling expressly and directly conflicts with Douglass that an appellate court is precluded from making factual findings for itself in the first instance. Thus, this Court should exercise its discretionary jurisdiction and review the Second District s decision. 3

7 ARGUMENT The Second District s Decision Expressly and Directly Conflicts with the First District Court s Decision in Douglass v. Buford, 9 So. 3d 636 (Fla. 1st DCA 2009). This Court has jurisdiction to review the decision of a district court that expressly and directly conflicts with a decision of another district court of appeal. Art. V, 3(b)(3), Fla. Const. The Second District erred in making factual findings in the first instance, thereby creating express and direct conflict with Douglass. In Douglass v. Buford, 9 So. 3d 636, 637 (Fla. 1st DCA 2009), the First District Court of Appeal reviewed a final declaratory judgment in a contract dispute. The trial court, after a non-jury trial, concluded that the relevant contractual language was not ambiguous and entered a judgment on that basis. Id. Once the trial court concluded there was no ambiguity, it declined to consider any evidence other than the written terms of the contract(s) and did not make findings of fact. Id. On appeal, the First District stated that [w]hether a contract is ambiguous is a question of law. Id. The appellate court reviewed the issues of contractual ambiguity de novo and found that the contract was ambiguous and that parol evidence was necessary in order to determine the parties intent. Id. (citations omitted). However, the First District explained that as an appellate court, it was 4

8 precluded from making findings of fact in the first instance. Id. (citations omitted); see also Hunter v. State, 87 So. 3d 1273, 1275 (Fla. 1st DCA 2012) ( a fundamental principle of appellate procedure is that an appellate court is not empowered to make findings of fact. (citations omitted)). Consequently, the First District reversed the trial court s judgment and remanded with directions to the trial court to take further evidence if necessary and to make findings on matters relating to the parties intent in entering into their agreement(s). Douglass, 9 So. 3d at 637. As in Douglass, the trial court in the instant case did not make findings of fact on all relevant matters to standing. Once the trial court concluded that One West did not prove ownership of the note and mortgage (as One West pleaded in its complaint it was the owner and holder of the note and mortgage), the trial court held that One West lacked standing and did not make further findings of fact as to whether One West held the note and mortgage. The trial court made its ruling based on conflicting testimony as to who owns the note and mortgage and did not make a determination as to possession of the note. Because it had already determined that One West lacked standing by not proving ownership, the trial court did not reach the issue of whether One West also held the note and mortgage. Like Douglass, where contractual ambiguity is a question of law and reviewed de novo, standing is also reviewed de novo. See Mortgage Elec. 5

9 Registration Sys., Inc. v. Azize, 965 So. 2d 151, 153 (Fla. 2d DCA 2007) (citing Fox v. Prof'l Wrecker Operators of Fla., Inc., 801 So. 2d 175 (Fla. 5th DCA 2001)). However, even under de novo review, the appellate court is still precluded from making factual determinations not made by the trial court. See generally Douglass, 9 So. 3d 636. In Douglass, even after the appellate court determined the contract was ambiguous, as it was a question of law subject to de novo review, the First District did not make factual findings on its own in the first instance. Instead, it remanded the case to the trial court to take further evidence and to make findings of fact on all relevant matters. Here, the Second District Court of Appeal made factual findings not made by the trial court, which is in express and direct conflict with Douglass. The Second District determined that there was no dispute that One West was in possession of the note at the time suit was filed, but the trial court never made such a factual determination. Once the trial court determined that One West lacked standing by providing conflicting evidence as to ownership, it did not make additional findings of fact as to possession of the note. Although standing is reviewed de novo, the trial court did not make sufficient findings of fact as to possession to allow the Second District to determine standing. In accordance with Douglass, the Second District should have 6

10 remanded the case to the trial court to make a factual finding as to possession of the note rather than making its own factual determination. Consequently, the Second District s opinion expressly and directly conflicts with Douglass. 7

11 CONCLUSION The Second District s decision in One West Bank, F.S.B. v. Bauer, 39 Fla. L. Weekly D1160 (Fla. 2d DCA May 30, 2014) expressly and directly conflicts with Douglass v. Buford, 9 So. 3d 636 (Fla. 1st DCA 2009) by making factual findings in the first instance not made by the trial court. In making factual findings not made by the trial court, the Second District s opinion is inconsistent with the rule of law under Douglass. Accordingly, based on the foregoing, it is respectfully requested that this honorable Court exercise its discretionary jurisdiction pursuant to Florida Rule of Appellate Procedure 9.030(a)(2)(A)(iv) to resolve this express and direct conflict. 8

12 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished via eportal on this 13th day of August, 2014, to: Owen H. Sokolof, Esquire Morris Hardwick Schneider 5110 Eisenhower Blvd., Suite 120 Tampa, FL osokolof@closingsource.net MHSinbox@closingsource.net S. Douglas Knox, Esquire Quarles & Brady, LLP 101 E. Kennedy Blvd., Suite 3400 Tampa, FL douglas.knox@quarles.com christy.soberanis@quarles.com DocketFL@quarles.com /s/ Charles R. Gallagher III CHARLES R. GALLAGHER III, Esquire Florida Bar No Gallagher & Associates Law Firm, P.A Central Avenue St. Petersburg, FL Telephone (727) Facsimile (727) crg@attorneyoffices.org Primary service@attorneyoffices.org Secondary fax@attorneyoffices.org Counsel for Petitioners CERTIFICATE OF COMPLIANCE Counsel for Petitioners Christine Bauer and Thomas Bauer hereby certifies that the foregoing Brief on Jurisdiction satisfies the font requirements of Rule 9.210(a)(2) of the Florida Rules of Appellate Procedure. /s/ Charles R. Gallagher III CHARLES R. GALLAGHER, Esquire 9