IN THE SUPREME COURT OF FLORIDA PAMELA A. BARCLAY 4D RESPONDENT S AMENDED BRIEF ON JURISDICTION. On Review from the District Court

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1 IN THE SUPREME COURT OF FLORIDA ROBERT C. MALT & CO., INC., Petitioner, v. Case No. SCO PAMELA A. BARCLAY 4D Respondent. / RESPONDENT S AMENDED BRIEF ON JURISDICTION On Review from the District Court of Appeal, Fourth District State of Florida Larry E. Bray, Esq. Law Offices of Larry E. Bray, P.A. Attorneys for Respondent 6415 Lake Worth Road, Suite 209 Lake Worth, FL Florida Bar No

2 TABLE OF CONTENTS Table of Citations iii Statement of the Case and Facts 1 Summary of Argument 2 Jurisdictional Statement 3 Argument 3 There is no basis for discretionary jurisdiction by the Florida Supreme Court in this case- The decision of the Fourth District Court of Appeal herein does not expressly or otherwise conflict with the decision of this Court in the case of Baldwin Co. v. Mason, 52 So. 2d 668 (Fla. 1951) Conclusion 8 Certificate of Service 8 Certificate of Typeface Compliance 9 ii

3 TABLE OF CITATIONS Cases: Page No. Baldwin Co. v Mason, 52 So.2d 668 (Fla. 1951) 1, 2, 3, 4, 5, 6, 7, 8 Cook v. Pontious, 123 So. 765 (Fla. 1929) 4 Martyn v. First Federal Savings & Loan Association 5 of West Palm Beach, So.2d 576 (Fla. 4th DCA 1971) Peninsular Naval Stores Co. v. Cox, 5, 7 57 Fla. 505, 49 So. 191 (Fla. 1909) Evins v. Gainesville Nat. Bank, 80 Fla. 84, 85 So (Fla.1920) Atlantic Beach Improvement Corporation v. Hall, So. 464, (Fla. 1940) Hill v. Da Costa, 61 So. 750 (Fla. 1913) 5 Statutes: Page No. Art. V Section 3(b)(3), Fla. Const.; 3 Fla. R. App. P (a)(2)(A)(iv). 3 Fla. Stat iii

4 STATEMENT OF THE CASE AND THE FACTS The undisputed facts are accurately and far more fully set forth in the Fourth District Court of Appeal decision annexed to Petitioner s Jurisdictional Brief. Reference to, and incorporation herein of, said factual account is made. Petitioner s statement of the facts leaves out selected pertinent facts. Thus Petitioner lays the foundation for the misinterpretation and misapprehension of Baldwin Co. v. Mason, 52 So. 2d 668 (Fla. 1951). It is critical to note that it is undisputed that in 2005, Petitioner filed a complaint alleging a claim for adverse possession of the property. Respondent moved for summary judgment and argued that Petitioner (the lender mortgagee) had failed to establish a requisite element of a claim for adverse possession, i.e. the filing of a return of the property to the Property Appraiser s Office within one year after entering possession of the property. Petitioner amended the complaint to state a claim to quiet title to the property under Fla. Stat ; but rather than alleging that Petitioner held legal or equitable title or had adversely possessed the property (the three criteria under the statute), Petitioner instead based its claim upon the Respondent s surrender of the property. Thus, it is important to note that the instant case is not a quiet title action based upon a claim of adverse possession but is an action brought under the quiet title statute based upon a theory of abandonment. On the other hand, Baldwin s holding is based upon adverse 1

5 possession. Further, contrary to the implication of Petitioner s statement in its Statement of the Case and Facts -- the parties initially occupied the roles of mortgagee and mortgagor -- Petitioner and Respondent did in fact maintain at all times, not just initially, the relationship of mortgagee and mortgagor, respectively. On the other hand, in Baldwin the court expressly held that at some point the parties no longer maintained the relationship of mortgagee/mortgagor because mortgagee acquired title through quitclaim deeds. The pertinence of these distinctions shall be more fully explained in the Argument section below. The holding of the Fourth District Court of Appeal in the case at bar does not expressly, directly or otherwise conflict with the Baldwin case. SUMMARY OF THE ARGUMENT It is well established law in Florida that a party must have title to a property to bring an action to quiet title and that a mortgage is only a lien- it transfers no title, right of possession or interest in land and a mortgagee has no right to maintain a suit to remove or prevent a cloud on title. The Fourth District Court of Appeal holding in the instant case does nothing more than follow this proposition. The case of Baldwin v. Mason 52 So.2d 668 (Fla. 1951) does not hold anything different. Baldwin does not reject, flatly, the proposition that a 2

6 mortgagee cannot bring an action to quiet title. Nor did the Florida Supreme Court in Baldwin hold that a mortgagee may be able to bring an action to quiet title depending on a party s conduct subsequent to the establishment of the mortgage relationship. In Baldwin the mortgagee lost his status as a mortgagee because he acquired title through quitclaim deeds. Once title was acquired, the ex-mortgagee could bring a quiet title action. Thus the so-called subsequent conduct to which Petitioner refers is the conveyance of title to the mortgagee in extinguishment of the underlying debt and the loss of mortgagee status. The holding of the Fourth District Court of Appeal in the case at bar follows all prior established case law including Baldwin. There is no express, direct or other conflict between this holding and Baldwin. JURISDICTIONAL STATEMENT There is no basis for discretionary jurisdiction by the Florida Supreme Court in this case - The decision of the Fourth District Court of Appeal herein does not expressly or otherwise conflict with the decision of this Court in the case of Baldwin Co. v. Mason, 52 So. 2d 668 (Fla. 1951). Art. V Section 3(b)(3), Fla. Const.; Fla. R. App. P (a)(2)(A)(iv). ARGUMENT In its attempt to grasp at straws, Petitioner argues that the holding of Fourth 3

7 District Court of Appeal in this matter expressly and directly conflicts with the decision of this Court in Baldwin Co. v. Mason, 52 So.2d 668 (Fla. 1951). Petitioner maintains that Baldwin stands for the proposition that the conduct of the parties subsequent to the establishment of an initial mortgage relationship can serve as the basis for a quiet title action. Surely, this is not the holding of Baldwin; if it was, this Court would have turned a long line of established cases, including Florida Supreme Court cases, on its head. THE LAW- The law has consistently held that a mortgagee may not maintain a quiet title action because a mortgage grants no title to the property and with no title, there is nothing to be quieted. The Florida Supreme Court made it very clear in Cook vs. Pontious, 123 So. 765 (Fla. 1929) that holders of a mortgage are not entitled to maintain an action to quiet title. The basis of this holding was the fact, that under Florida law, a mortgage does not convey any title to property described therein, holders of a mortgage had no such legal or equitable title to property as would entitle them to maintain an action to quiet title... Id., at 764. This case has never been overturned or overruled. Cook v. Pontious spawned numerous progeny, all holding that a mortgagee cannot maintain a suit to quiet title in its name because a mortgagee has no title by 4

8 virtue of his mortgage, but rather has only a specific lien on real property. In order to move in equity to remove or prevent a cloud upon title to real estate a party must be owner of either legal or equitable title of said property. Martyn v. First Federal Savings & Loan Association of West Palm Beach, 257 So.2d 576 (Fla. 4th DCA 1971) (cited by the Fourth District Court of Appeal in this case), Peninsular Naval Stores Co. v. Cox, 57 Fla. 505, 49 So. 191 (Fla. 1909), Evins v. Gainesville Nat. Bank, 80 Fla. 84, 85 So. 659 (Fla.1920), Atlantic Beach Improvement Corporation v. Hall, 197 So. 464, (Fla. 1940), Hill v. Da Costa, 61 So. 750 (Fla. 1913). None of these cases have been overturned or overruled. These cases indeed establish a principle deeply rooted in Florida law- that a mortgagee may not maintain a quiet title action because a mortgage grants no title, legal or equitable, which may be quieted. These cases are the basis of the Fourth District Court of Appeal decision in the instant case. Baldwin Co. v. Mason- Petitioner now argues that Baldwin is somehow different from the rest of the cases on quiet title, even those cases that come after it. Petitioner maintains that the Florida Supreme Court somehow carved out an exception to the general rule whereby the conduct of a party after the establishment of a mortgagee/mortgagor relationship can allow a mortgagee to now bring a quiet title action. It is respectfully submitted that this is a tortured and incorrect interpretation of 5

9 Baldwin. Petitioner has indeed misapprehended the Court s holding. Petitioner fails to mention that in Baldwin, the mortgagor had in fact executed quitclaim deeds to the subject property in favor of mortgagee. The Court stated It was knowledge of these deeds that motivated the appellee in bringing the instant suit. Id., at 669. Thus, the mortgagee in Baldwin was given title by way of these deeds thereby clearing the way to bring a quiet title action. That clearly distinguishes the facts in that case from the facts in the afore-cited authorities as well as the instant case. It has never even been alleged that Respondent executed a deed to Petitioner thereby conveying title to Petitioner. It is readily apparent that the Florida Supreme Court ruled that the holder of the mortgage was entitled to quiet title in that particular case because the mortgagor s successor in title, after negotiation, conveyed the subject property to the mortgagee by quitclaim deed, with the express and acknowledged purpose of canceling the outstanding mortgage (emphasis provided). The appellee received from him [grantor] a quitclaim deed which was intended by both to accomplish cancellation of the outstanding mortgage... One of the partners likewise executed a quitclaim deed to appellee to effect cancellation of the debt... Id., at 669. The Court stated It was knowledge of these deeds that motivated the appellee in bringing the instant suit. Id., at 669. The Court in Baldwin specifically posed the question whether a mortgagee may bring suit to quiet title and said the question 6

10 cannot simply be answered by citing Peninsular Naval Stores Co. v. Cox, 57 Fla. 505, 49 So. 191 (Fla. 1909). That is because the property in question had been surrendered (conveyed) to the mortgagee by quitclaim deed, after negotiation, in payment of the debt. Indeed, it is critical to note that in Baldwin the parties lost their status as mortgagor and mortgagee. There was no dispute about those facts. And it is that conduct, after the initial establishment of a mortgagor/mortgagee relationship, that this Court was referring to- the loss of the mortgagor/mortgagee relationship and the mortgagee s acquisition of title - that allowed for an application for quiet title. Another major fact which Petitioner fails to mention is that Baldwin was a suit to quiet title based on adverse possession. Petitioner s original Complaint was indeed a claim for adverse possession. However, after Respondent filed a Motion for Summary Judgment Petitioner amended its Complaint and dropped its claim of title by adverse possession. Petitioner did not fulfill the requirements of the statute for adverse possession and that is why such action was abandoned for a quiet title action not based on adverse possession. Therefore, the ruling in the case at bar does not conflict with Baldwin, and Baldwin has no direct bearing on the issues in this case for two reasons: (i) the mortgagor in Baldwin executed a deed to the mortgagee to extinguish the underlying debt and therefore the mortgagee lost his status as a mortgagor and 7

11 acquired title and (ii) the case at bar is not a quiet title case based upon the ground of adverse possession while Baldwin was a quiet title action based on the ground of adverse possession. Thus, the holding in the instant case is not inconsistent, expressly, directly or otherwise, with Florida case law, including Baldwin. CONCLUSION There is no basis for discretionary jurisdiction by the Florida Supreme Court in this case - The decision of the Fourth District Court of Appeal herein does not expressly or otherwise conflict with the decision of this Court in the case of Baldwin Co. v. Mason. CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing was served by U.S. mail this 11 TH day of September, 2008, to Richard S. Tolbert, Esq., Attorney for Appellee, 1615 Forum Place, Suite 500, West Palm Beach, FL Dated: September 11, 2008 Larry E. Bray, Esq. Law Offices of Larry E. Bray, P.A. Attorneys for Appellant 6415 Lake Worth Road, Suite 209 Lake Worth, FL (561) Florida Bar No

12 CERTIFICATE OF TYPEFACE COMPLIANCE I HEREBY CERTIFY that the undersigned has complied with the font requirements as mandated by Florida Rule of Appellate Procedure Dated: September 11, 2008 Larry E. Bray, Esq. Law Offices of Larry E. Bray, P.A. Attorneys for Appellant 6415 Lake Worth Road, Suite 209 Lake Worth, FL (561) Florida Bar No