IN THE SECOND DISTRICT COURT OF APPEAL IN AND FOR THE STATE OF FLORIDA

Transcription

1 IN THE SECOND DISTRICT COURT OF APPEAL IN AND FOR THE STATE OF FLORIDA KIPPS COLONY II CONDOMINIUM ASSOCIATION, INC., v. Appellant, CHARLES C. KNIGHTON, et. al., Case No.: 2D L.T. No.: CI-11 Appellee. / ON APPEAL FROM THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT IN AND FOR PINELLAS COUNTY, FLORIDA APPELLEE S ANSWER BRIEF Mark P. Stopa, Esquire FBN: STOPA LAW FIRM 2202 N. Westshore Blvd. Suite 200 Tampa, FL (727) foreclosurepleadings@stopalawfirm.com ATTORNEY FOR APPELLEE, INLAND

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3 TABLE OF CONTENTS TABLE OF AUTHORITIES... iii-viii STATEMENT OF THE CASE AND FACTS... 1 SUMMARY OF THE ARGUMENT... 5 STANDARD OF REVIEW... 6 ARGUMENT... 8 I. THE LOWER COURT CORRECTLY DENIED KIPPS REQUESTED CHANGE TO THE FINAL JUDGMENT UNDER FLA.R.CIV.P (a) WHERE IT WAS SUBSTANTIVE, NOT CLERICAL... 8 II. THE LOWER COURT CORRECTLY DENIED KIPPS REQUESTED CHANGE TO THE FINAL JUDGMENT WHERE INLAND PURCHASED THE PROPERTY AS A THIRD-PARTY PURCHAER AT A PUBLIC AUCTION IN RELIANCE THEREON III. KIPPS JURISDICTIONAL CHALLENGES LACK MERIT CONCLUSION CERTIFICATE OF SERVICE CERTIFICATE OF FONT COMPLIANCE i

4 TABLE OF AUTHORITIES Aills v Boemi, 29 So. 3d 1105 (Fla. 2010) Alexdex Corp. v. Nachon Enters., Inc., 641 So. 2d 858 (Fla. 1994) Anderson v. State, 93 So. 3d 1201 (Fla. 1st DCA 2012) Bank of America, N.A. v. Lane, 76 So. 3d 1007 (Fla. 1st DCA 2011) Bolton v. Bolton, 787 So. 2d 237 (Fla. 2d DCA 2001) Condo. Assn. of La Mer Estates, Inc. v. Bank of New York Mellon Corp., 137 So. 3d 396 (Fla. 4th DCA 2014) Davock v. Whealen, 24 So. 2d 46 (Fla. 1945) Edwards v. City of Fort Walton Beach, 271 So. 2d 136 (Fla. 1972)... 7, 8 Frisard v. Frisard, 497 So. 2d 885 (Fla. 4th DCA 1986) Hutchinson v. Wintrode, 286 So. 2d 231 (Fla. 4th DCA 1973)... 10, 11 Klinger v. Milton Holding Co., 186 So. 526 (Fla. 1939) ii

5 Lake Charleston Homeowners Assn., Inc. v. Haswell, 77 So. 3d 922 (Fla. 4th DCA 2012)... passim Lindsley v. Phare, 155 So. 812 (Fla. 1934) LPP Mort. Ltd. v. Bank of America, N.A., 826 So. 2d 462 (Fla. 3d DCA 2002)... 7, 8 Malone v. Percival, 875 So. 2d 1286 (Fla. 2d DCA 2004)... 9, 10 McKibbon v. Fujarek, 283 So. 2d 724 (Fla. 4th DCA 1980) Mills v. Mills, 353 So. 2d 954 (Fla. 1st DCA 1978)... 10, 12 Peters v. Peters, 479 So. 2d 840 (Fla. 1st DCA 1985) Schultz v. Time Warner Entertainment Co., 906 So. 2d 297 (Fla. 5th DCA 2005)... 7, 8 Schwab & Co. v. Breezy Bay, Inc., 360 so. 2d 117 (Fla. 3d DCA 1978)... 7, 8 State v. Oswath, 661 So. 2d 1252 (Fla. 3d DCA 1995) State v. Thomas, 675 So. 2d 1024 (Fla. 1st DCA 1996)... 10, 12 Town of Hialeah Gardens v. Hendry, 376 So. 2d 1162 (Fla. 1979)... 9 iii

6 Venetian Salami Co. v. Parthenais, 554 So. 2d 499 (Fla. 1989) Woods v. Thompson, 31 So. 2d 62 (Fla. 1947) Fla.R.Civ.P (a)... passim Fla.R.Civ.P (b)... passim Fla.Stat iv

7 STATEMENT OF THE CASE AND FACTS In its Statement of the Case and Facts, Appellant, KIPPS COLONY II CONDOMINIUM ASSOCIATION, INC. ( Kipps ), generally sets forth the procedural history of the case, but Kipps statement contains several glaring omissions, misstatements, and understatements that merit clarification. Kipps initiated the underlying lawsuit, an association foreclosure lawsuit, against Appellees, Charles and Megan Knighton ( Knighton ) and Bank of America, N.A. ( BOA ). On December 16, 2011, the lower court entered a Summary Final Judgment of Foreclosure against BOA and Knighton ( Final Judgment ). The Final Judgment, recorded in the Pinellas County Official Records on December 28, 2011, reflects that all interests of BOA were foreclosed: The lien of [Kipps] is superior in dignity to any right, title, interest or claim of the defendants through or under the defendants and all persons, corporations, or other entities claiming by, through or under the defendants or any of them and the property will be sold free and clear of all claims of the defendant with the exception of any assessments that are superior pursuant to sections or , Florida Statutes. Appendix, 1 (Appendix is hereafter App. ). Appellee, Inland Assets, LLC, a New Mexico LLC, as Trustee of the 6250 Kipps Colony Ct Land Trust ( Inland ), was not a party below. Rather, at the judicial foreclosure auction on January 28, 2013, and in reliance on the recorded 1

8 Final Judgment, Inland bought the property as a third-party purchaser. On February 13, 2013, there being no objections to the sale, the clerk of the lower court issued a Certificate of Title to Inland. App., 2. On February 19, 2013, having obtained title to the subject property, Inland filed a one-count, quiet-title lawsuit against BOA and Knighton in Pinellas County Case No CI-7 ( the 1801 Case). In its Complaint, Inland alleged BOA s interest in the property is inferior to that of Plaintiff, having already been foreclosed in the lawsuit. App., 3. This is, of course, precisely what the plain language of the Final Judgment provided. App., 1. BOA was personally served in the 1801 Case but did not respond, resulting in a clerk s default. On March 18, 2013, after Inland moved for final judgment pursuant to the default, the lower court entered a Final Judgment ( Quiet Title Judgment ). The Quiet Title Judgment provides: App., 4. [Inland Assets] is the rightful and lawful owner of the Property, free and clear of any liens or encumbrances by BOA (or any persons claiming by, through, or under BOA) and to the exclusion of any claims, liens, or mortgages of BOA, including but not limited to the mortgages recorded in the Official Records of Pinellas County, Florida at OR Book 13524, Page 595. BOA did not move for rehearing of the Quiet Title Judgment in the 1801 Case 2

9 and did not appeal. Instead, BOA filed a Motion to Quash Service of Process and to Vacate Clerk s Default and Final Judgment After Default ( Motion to Vacate ). App., 5. The lower court denied that motion, App., 6, and, again, BOA did not appeal. Hence, what remains in place is the unappealed Quiet Title Judgment (which judgment BOA attacked via motion but lost) holding: App., 4. [Inland Assets] is the rightful and lawful owner of the Property, free and clear of any liens or encumbrances by BOA (or any persons claiming by, through, or under BOA) and to the exclusion of any claims, liens, or mortgages of BOA, including but not limited to the mortgages recorded in the Official Records of Pinellas County, Florida at OR Book 13524, Page 595. In June of 2014 more than two years after the Final Judgment and more than a year after Inland purchased the property at a judicial auction and obtained the Quiet Title Judgment - Kipps asked the lower court to amend the Final Judgment ( Motion to Amend ). Specifically, Kipps asked that the Final Judgment be amended to indicate that a mortgage of BOA remained an encumbrance on the property ( Motion to Amend ). In so moving, Kipps limited its request for relief to Fla.R.Civ.P (a), arguing the Final Judgment should be amended based on a clerical mistake. The Motion to Amend was not verified or supplemented by an affidavit, and Kipps never introduced any testimony or other evidence in support thereof. 3

10 App., 6. Meanwhile, having done nothing for over two years, BOA moved to vacate the Final Judgment, arguing service of process was defective and the Final Judgment was void ( Motion to Vacate ). After an evidentiary hearing, the lower court denied that motion. 1 App., 7 (motion), 8 (Order), 9 (transcript). Notably, Kipps opposed the Motion to Vacate (both via a lengthy, written memo in opposition and argument at the hearing), taking the position the Final Judgment was not void and that BOA was not entitled to relief under Fla.R.Civ.P (b). App., 10 (memo), 9 (transcript). As Kipps now argues otherwise, taking the position the Final Judgment is void, this Court should take heed of the position Kipps took before the lower court. On July 25, 2014, the lower court conducted a duly-noticed hearing on the Motion to Amend. Upon hearing arguments from both sides, the court ruled the requested change to the Final Judgment was substantive, not clerical, and denied the motion. App., 11 (Order), 12 (transcript). On these facts, Kipps now appeals. 1 BOA is appealing the denial of that motion in this Court, but that argument is being briefed separately. 4

11 SUMMARY OF THE ARGUMENT Inland, a non-party below, bought the subject property at an association foreclosure sale, having bid in reliance on a recorded Final Judgment specifying all interests of BOA were extinguished. After obtaining title from the clerk, Inland successfully obtained a Quiet Title Judgment against BOA in a separate suit. On such facts, the lower court did not abuse its discretion by denying Kipps request to amend the Final Judgment by specifying a mortgage of BOA remained in place. Quite simply, the requested amendment was not a clerical mistake under Fla.R.Civ.P (a). As a bona-fide purchaser, Inland s property rights cannot be taken based on Kipps years-after-the-fact complaints about the propriety of the Final Judgment. The Final Judgment was not void, and Kipps argument otherwise for the first time on appeal are not preserved and, in the face of its own arguments otherwise to the lower court, barred by the invited error doctrine. Kipps jurisdictional challenges, interposed on behalf of BOA for the first time on appeal, plainly lack merit and should be summarily rejected. This Court should affirm the Order at bar without need for a written opinion. 5

12 STANDARD OF REVIEW Kipps argues the Order at bar is reviewed de novo. Kipps is mistaken. Under established law, Kipps appeal of the Order denying relief under Fla.R.Civ.P (a) is reviewed for an abuse of discretion. See Jacobson v. Sklaire, 50 So. 3d 1 (Fla. 3d DCA 2010). This is consistent with a long line of cases holding whether relief should be granted pursuant to Rule is a fact-specific question and the trial court s ruling should not be disturbed on appeal absent a gross abuse of discretion. LPP Mortg. Ltd. v. Bank of America, N.A., 826 So. 2d 462, (Fla. 3d DCA 2002) (citing Schwab & Co. v. Breezy Bay, Inc., 360 So. 2d 117 (Fla. 3d DCA 1978) and Edwards v. City of Fort Walton Beach, 271 So. 2d 136 (Fla. 1972)); see also Schultz v. Time Warner Entertainment Co., 906 So. 2d 297, 299 (Fla. 5th DCA 2005) ( Generally, the standard of review of an order entered pursuant to Rule is a gross abuse of discretion. ). Kipps points to case law incorporating a de novo standard of review where a trial court misapplies its findings to the law. See e.g. Lake Charleston Homeowners Assn, Inc. v. Haswell, 77 So. 3d 922 (Fla. 4th DCA 2012). Lake Charleston, however, is inapposite. There, the lower court found there was no intent to defraud yet declined relief under Fla.R.Civ.P (a) based on an obvious clerical mistake. Id. Here, by contrast, the lower court made no factual findings certainly not any 6

13 that could possibly be deemed favorable to Kipps. App., 11, 12. Hence, the issue at bar is not the application of the lower court s fact-findings to existing law, but whether the court abused its discretion (or grossly abused its discretion) by denying the Motion to Amend. See Jacobson, LPP, Schwab, Edwards, and Schultz, supra. 7

14 ARGUMENT I. THE LOWER COURT CORRECTLY DENIED KIPPS REQUESTED CHANGE TO THE FINAL JUDGMENT UNDER FLA.R.CIV.P (a) WHERE IT WAS SUBSTANTIVE, NOT CLERICAL. After the lower court entered the Final Judgment in December of 2011, Kipps did not seek rehearing and did not appeal. As a result, the avenues for relief available to Kipps were limited. Fla.R.Civ.P (b)(1) - (3) authorize relief where the movant can show excusable neglect, mistake, or the like, but Kipps sought no such relief (undoubtedly knowing it was outside the one-year time limitation to do so). Similarly, Fla.R.Civ.P (b)(4) authorizes relief if a final judgment is void, but Kipps did not even argue the Final Judgment was void and, in fact, vigorously opposed BOA s argument on this basis. App., 9, 10. As such, and as the plain language of its Motion to Amend reflects, Kipps was limited to Fla.R.Civ.P (a), which authorizes relief only upon a clerical mistake. In Malone v. Percival, this Court explained the clerical mistakes referenced in Fla.R.Civ.P (a) are only errors or mistakes arising from accidental slip or omission, and not errors or mistakes in the substance of what is decided by the judgment or order. 875 So. 2d 1286, 1288 (Fla. 2d DCA 2004) (quoting Town of Hialeah Gardens v. Hendry, 376 So. 2d 1162 (Fla. 1979)); see also Bolton v. Bolton, 8

15 787 So. 2d 237 (Fla. 2d DCA 2001) (denying 1.540(a) relief because the error that occurred below was a judicial error that affected the substance of the judgment ). As the Fourth District appropriately expounded, clerical mistakes under Fla.R.Civ.P (a) includ[e] such things as mistakes in mathematical computations, misnomers or misdescriptions of the parties. Hutchinson v. Wintrode, 286 So. 2d 231, 232 (Fla. 4th DCA 1973). Established Florida precedent sets forth a clear dichotomy between what constitutes a clerical mistake and what does not. For instance, a change in the amount of child support owed does not qualify, State v. Thomas, 675 So. 2d 1024 (Fla. 1st DCA 1996); Peters v. Peters, 479 So. 2d 840 (Fla. 1st DCA 1985), nor does amending a voluntary dismissal with prejudice to one without prejudice, McKibbin v. Fujarek, 385 So. 2d 724 (Fla. 4th DCA 1980), amending a final judgment to include a reservation of jurisdiction to award attorneys fees, even where the lower court verbally announced its intention to do so upon ruling, Frisard v. Frisard, 497 So. 2d 885 (Fla. 4th DCA 1986), adding a provision requiring a husband provide proof to his wife that he was in compliance with certain provisions of the judgment, Malone, 875 So. 2d at 1288, or adding a fee award to a judgment that lacked same. Mills v. Mills, 353 So. 2d 954 (Fla. 1st DCA 1978). By contrast, relief under Fla.R.Civ.P (a) was authorized where Lake Charleston 9

16 Maintenance Association, Inc. misnamed itself in the affidavit in support of its motion for summary judgment as Lake Charleston Homeowners Association, Inc. Lake Charleston, 77 So. 3d at Here, Kipps sought to amend the Final Judgment years after it was entered by specifying that a mortgage of BOA had not been extinguished by the terms thereof. This requested amendment was not only contrary to the terms of the Final Judgment the court entered in this case (specifying that all interests of BOA had been foreclosed), App., 1, but also contrary to the Quiet Title Judgment that Inland successfully prosecuted against BOA in the 1801 Case (specifying that Inland owned the property free and clear of the mortgage). App., 4. As such, under the clear line of cases set forth, supra, the requested change to the Final Judgment was clearly substantive, not clerical. 3 At minimum, the lower court cannot be said to have abused its discretion by so ruling, particularly where Kipps introduced no affidavits 2 Tellingly, Lake Charleston is the only case which Kipps cites in its Initial Brief which authorized relief under Fla.R.Civ.P (a). 3 Kipps primary argument otherwise is based on one sentence of dicta in Hutchinson, 286 So. 2d at 232. This argument is unpersuasive, as it ignores the obvious dichotomy between the two lines of cases set forth herein and disregards Inland s purchase of the property, as a third-party purchaser, without objection, after entry of the Final Judgment as well as the Quiet Title Judgment. See Issue II herein. 10

17 or other evidence in support of its Motion to Amend. 4 In the face of the foregoing, Kipps argues at length that associations cannot foreclose a first mortgage, seeming to suggest any judgment so ruling is void. The question at bar, however, was whether the Final Judgment contained a clerical mistake, not whether the Final Judgment was void. 5 To wit, not only did Kipps not argue the Final Judgment was void under Fla.R.Civ.P (b), App., 6, it vigorously opposed BOA s argument in that regard. App., 9, 10. Hence, regardless of how Kipps may feel about what transpired vis a vis BOA s mortgage after the Final Judgment was entered, the Motion to Amend was correctly denied, as the requested change did not constitute a clerical mistake under Fla.R.Civ.P (a). In light hereof, this Court should affirm the Order at bar. 4 In Thomas, the First District reversed an order changing the amount of child support awarded where there was no evidence that the trial judge who entered the final judgment meant to award only $400 in child support, by through an accidental slip or omission, awarded $500 instead. 675 So. 2d at Likewise, in Mills, the Fourth District emphasized the absence of any evidence that the lower court had intended to rule on the issue of attorneys fees, precluding a subsequent amendment to that final judgment under Rule 1.540(a). 497 So. 2d at 887. The facts at bar are the same. Kipps introduced no evidence showing the lower court did not intend to enter the Final Judgment in such a way that it foreclosed all mortgages of BOA. 5 BOA did so argue, but that argument is the subject of an entirely different brief. 11

18 II. THE LOWER COURT CORRECTLY DENIED KIPP S REQUESTED CHANGE TO THE FINAL JUDGMENT WHERE INLAND PURCHASED THE PROPERTY AS A THIRD-PARTY PURCHASER AT A PUBLIC AUCTION IN RELIANCE THEREON. Well-established Florida law protects third-party purchasers from being stripped of property rights as a result of irregularities in cases in which they were not a party. In the words of the Florida Supreme Court: It is well settled that restitution, on reversal of a judgment, can be compelled only from parties to the record, or from their beneficial assigns, or in the case of the death of the execution plaintiff, from his executor or administrator. Restitution cannot be compelled from third persons, strangers to the record, who were bona fide purchasers at a sale under process dependent upon a judgment subsequently reversed, or who acquired bona fide collateral rights thereunder and their rights are in no way affected by the subsequent reversal of the judgment. Particularly should restitution be denied as against a stranger to the record when sought in a summary manner by motion, rule or petition as was attempted in this case. Lindsley v. Phare, 155 So. 812, 814 (Fla. 1934). held: Speaking specifically about judicial sales, the Florida Supreme Court likewise A bona fide grantee from a purchaser at a judicial sale is not affected by irregularities, mistakes or fraud, of which he did not have notice, although as to the grantor, sale might have been set aside. The bill does not allege that Mrs. Lummus acquired the title without the payment of any valuable consideration, or that there was any collusion between her and the Milton Holding Company, or that she had any notice at the time she took the deed of any lack of diligence on the part of Milton Holding Company with respect to the constructive 12

19 service purported to have been obtained in the foreclosure suit against Klinger. Klinger v. Milton Holding Co., 186 So. 526, (Fla. 1939); see also Davock v. Whealen, 24 So. 2d 46 (Fla. 1945); Woods v. Thompson, 31 So. 2d 62 (Fla. 1947) ( As between the parties the sale was voidable but considering that the subject matter was an automobile capable of being speedily moved to any part of the country, that there is evidence that part of the purchase price was actually paid, that plaintiff gave Abner an invoice reciting there was no collateral agreement or understanding and that the law favors bona fide purchasers for value, it is our conclusion that the record supports the verdict. ). This line of cases plainly applies on the facts at bar. Inland was not a party below, purchased the property at a judicial sale as a third-party purchaser (in reliance on the recorded Final Judgment), and is not alleged to have done anything wrong in the slightest way. App., Kipps presents no legal authority to support its position that it can take away the property rights of a third-party who purchased a property at a judicial foreclosure auction, having bid in reliance on the plain language of an unappealed final 13

20 judgment. 6 In fact, Kipps ignores this issue altogether in its Initial Brief, even though Inland argued it extensively to the lower court. App., 12. Kipps would have this Court believe the Final Judgment should not have or, perhaps, could not have extinguished the mortgage in question. As between Kipps and BOA, that may have been so (presuming Kipps had timely sought relief or actually challenged the Final Judgment as void, which it never did). Regardless, as between Kipps and Inland, Kipps presents no authority for the position that the Final Judgment can be amended as a clerical mistake where Inland bid in reliance thereon. See n.6. Moreover, Kipps presents no authority for the position that the Final Judgment can be amended as a clerical mistake where the proposed amendment would plainly conflict with the unappealed Quiet Title Judgment in the 6 The fact pattern at bar is not like those set forth in the cases in Kipps Initial Brief. To wit, Inland agrees that, generally, purchasers at an association foreclosure sale take title subject to an existing first mortgage. Here, however, the Final Judgment expressly reflects all mortgages of BOA were extinguished, App., 1, and Inland successfully prosecuted a quiet title lawsuit against BOA through entry of the unappealed Quiet Title Judgment. App., 4. Kipps cites no case law holding Kipps property rights can be taken away on such facts, as no such authority exists. That is particularly so here, where the mechanism for relief was limited to Fla.R.Civ.P (a). 14

21 1801 Case. 7 Clearly, no such authority exists. The rationale from the Fourth District s en banc decision in Condo. Assn. of La Mer Estates, Inc. v. Bank of New York Mellon Corp., 137 So. 3d 396 (Fla. 4th DCA 2014), applies here. In La Mer, a mortgagee moved to vacate a quiet title judgment as void under Fla.R.Civ.P (b)(4), where that judgment extinguished a first mortgage. Id. The entire Fourth District (with not a single dissenting opinion) affirmed, ruling in favor of the property owner, explaining: Id. at 401. To rule that a judgment affecting title to property is void if the complaint on which it is based failed to state a cause of action could cloud a title for years and years, rendering it unsellable. What title insurance company would hazard insuring a title containing a default final judgment in its chain if that judgment could be vacated at any time even though the defaulted party had notice of the proceedings? The uncertainty generated by declaring such judgments void is magnified when one considers that courts may differ as to what constitutes sufficient allegations to state a cause of action. No matter how Kipps may try to present the facts, first mortgages are extinguished, in certain circumstances, where mortgagees such as BOA fail to interpose appropriate, timely challenges. Id. On the facts at bar, this Court should 7 Kipps involvement in the 1801 Case, or lack thereof, is irrelevant. Once the Certificate of Title was issued to Inland, Kipps had no dog in the fight. Inland had no reason/basis to join it as a party in the 1801 Case. 15

22 follow La Mer and rule accordingly. In light hereof, this Court should affirm the Order on review. III. KIPPS JURISDICTIONAL CHALLENGES LACK MERIT. In its third issue on appeal, Kipps argues the lower court lacked subject matter and personal jurisdiction over BOA. These arguments are easily rejected. First off, BOA waived any personal jurisdiction challenges by failing to raise that argument in its first filing. See e.g. Bank of America, N.A. v. Lane, 76 So. 3d 1007, 1009 (Fla. 1st DCA 2011) ( a challenge to personal jurisdiction is waived if it is not raised in a party's first filing in the case ). In fact, BOA never challenged the court s jurisdiction over it, and neither did Kipps. App., Clearly, personal jurisdiction is not an argument Kipps can raise on behalf of BOA for the first time on appeal. 8 Likewise, Kipps cannot prevail in its argument that the Final Judgment was void. After all, Kipps never argued such below, as the Motion to Amend was brought under Fla.R.Civ.P (a), not 1.540(b)(4), so this issue is not preserved 8 Inland doubts one party would even have the ability/standing to assert lack of personal jurisdiction on behalf of another, as personal jurisdiction is a defense that is unique to the party asserting it. That said, Inland submits this Court should reject the jurisdictional challenge without even reaching this issue. 16

23 for appeal. 9 See Aills v. Boemi, 29 So. 3d 1105 (Fla. 2010) (setting forth three requirements for preservation of error). Throughout the lower court proceeding, Kipps argued the Final Judgment was not void (both in open court and via written memo). App., 9, 10. As such, the invited error doctrine precludes Kipps from prevailing on a contrary position before this Court. See Anderson v. State, 93 So. 3d 1201, 1206 (Fla. 1st DCA 2012) ( Under the invited-error doctrine, a party may not make or invite error at trial and then take advantage of the error on appeal. ). Kipps jurisdictional challenges are also wrong on the merits. Frankly, any suggestion that Bank of America, N.A. would lack sufficient minimum contacts with Florida would be absurd. See Venetian Salami Co. v. Parthenais, 554 So. 2d 499 (Fla. 1989). Moreover, BOA was served with process (subjecting it to the lower court s jurisdiction), and the lower court rejected BOA s arguments otherwise. 10 App., 8, 9. Similarly, the lower court plainly had subject matter jurisdiction to enter the Final Judgment, which foreclosed an association lien in an amount greater 9 The only exception, when there is fundamental error, plainly does not apply here. See State v. Osvath, 661 So. 2d 1252 (Fla. 3d DCA 1995). 10 BOA has not yet filed its Initial Brief in its appeal of this ruling, but, once it does, Inland will respond with an Answer Brief. That Answer Brief is incorporated herein by reference. 17

24 than $15,000. See Fla. Stat ; Alexdex Corp. v. Nachon Enters., Inc., 641 So. 2d 858 (Fla. 1994). Kipps arguments otherwise have no case support and lack merit. In light hereof, this Court should affirm the Order on review. CONCLUSION In light hereof, and for all of the foregoing reasons, this Court should affirm the Order on review without the need for written opinion. 18

25 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished via electronic mail to Shawn B. Brown, Esq., Lang & Brown, P.A., shawn@langandbrown.com, and Tricia Duthiers, Esq., and Joshua R. Levine, Esq., Liebler Gonzalez & Portuondo, service@lgplaw.com, tjd@lgplaw.com, and jrlevine@lgplaw.com on this 23rd day of January, /s/ Mark P. Stopa Mark P. Stopa, Esquire FBN: STOPA LAW FIRM 2202 N. Westshore Blvd., Suite 200 Tampa, FL Telephone: (727) foreclosurepleadings@stopalawfirm.com ATTORNEY FOR APPELLEES CERTIFICATE OF SERVICE I HEREBY CERTIFY that the font used in this brief is Times New Roman 14-point, in compliance with Fla.R.App.Pro (a)(2). /s/ Mark P. Stopa Mark P. Stopa, Esquire FBN: