IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT IN AND FOR HILLSBOROUGH COUNTY, FLORIDA APPELLATE DIVISION

Transcription

1 IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT IN AND FOR HILLSBOROUGH COUNTY, FLORIDA APPELLATE DIVISION Appellate Case No: 12 CA (Division X) Lower Tribunal Case No: 11 CC (Division I) JANE DOE, APPELLANT v. FIRSTSECOND CREDIT UNION (Successor by merger to XYZ Credit Union) APPELLEE. APPELLANT S INITIAL BRIEF Jane Doe, pro se 4218 Druid Road Temple Terrace, Florida Telephone: (813) E mail: jane299.doe@gmail.com 1

2 PRELIMINARY STATEMENT Appellant, JANE DOE, will be referred to herein as Defendant, and FIRSTSECOND CREDIT UNION will be referred to as the Plaintiff. For purposes of this brief, the following abbreviations have the following meanings: R = Record A = Appendix References to the Appendix are required because parts of the record were omitted. The omissions were discovered only a few days before this brief was due. Defendant has filed a Motion to Supplement the Record. The omitted documents are included in the Appendix for the convenience of the Court. 2

3 STATEMENT OF THE CASE AND FACTS This is an appeal of two orders: (1) denial of Defendant's motion to dismiss for failure to state a cause of action and (2) a final summary judgment for Plaintiff. Factual History: Defendant executed a loan contract with XYZ Credit Union. (R: 10 22). Plaintiff, claiming to succeed XYZ Credit Union by virtue of merger, sued Defendant for failure to repay the loan. (R: 5 23). Plaintiff later filed a certificate of merger in the official records of Hillsborough County. (R: 57 59). Procedural History: On January 12, 2011, Plaintiff filed its original complaint against Defendant for failure to repay an installment loan. (R: 5 23). Defendant denied the claim generally and moved to dismiss for failure to state a cause of action on the grounds that Plaintiff was not the true owner of the claim, the Court lacked subject matter jurisdiction to hear the case and Plaintiff failed to establish standing by virtue of exhibits attached to its complaint. (R: 24 31). On March 11th, Defendant filed an amended answer with affirmative defenses. (R: 39 41). After oral arguments on Defendant s motion to dismiss, the court dismissed the case with leave to amend the complaint. (R: 43). On April 3

4 13th, Plaintiff filed an amended statement of claim, attaching to it a certificate of merger. (R: 44 49). On April 29t2011, Defendant moved to dismiss on the grounds that the certificate of merger attached to the complaint had not been filed in Hillsborough County as required by Fla. Stat. (R: 50 53). On June 1st, Plaintiff filed a notice that the certificate of merger had been recorded in Hillsborough County the prior day (R: 57 59). In lieu of answering the motion to dismiss, Plaintiff scheduled a hearing on the issue for June 14th. (R: 62). After oral arguments, the Court denied Defendant s motion to dismiss the amended complaint. (R: 63). On June 29, 2011, Defendant filed amended affirmative defenses (R: 64 66) and discovery requests. (R: 67 70) (A: A&B). Plaintiff responded to the discovery requests on July 6th and July 8th. (R: 71 72; 73 78; 79). Plaintiff filed for summary judgment on July 20th. (R: 82 83). On August 2nd, Defendant filed a second discovery request, a motion to compel discovery, and a motion to strike an affidavit purporting to authenticate the alleged debt. (A: E&F) (R: 87 89; 90 92; 93 96). Defendant responded to the summary judgment motion on August 2 nd. (R: 84 86). The summary judgment hearing was held on August 30th. (R: 101). Plaintiff submitted a verified petition for attorney s fees on September 1st. (R: 4

5 ). On September 9th, the trial court entered final judgment granting Plaintiff's motion for summary judgment and attorney s fees. (R: ). Defendant timely filed a notice of appeal. (R: ). SUMMARY OF ARGUMENTS The trial court committed several errors, culminating in two orders under review: (1) the lower court denied Defendant s motion to dismiss on grounds of Plaintiff s failure to state a cause of action and that courts in Hillsborough County had no jurisdiction to hear the case, and (2) the lower court granted Plaintiff's motion for summary judgment despite its lack of particularity, its failure to address affirmative defenses, outstanding discovery and issues of material fact regarding the existence of the debt and amounts owed. Plaintiff alleged that Defendant Doe, a resident of Hillsborough County, had an unpaid debt to XYZ Credit Union and that Plaintiff was the successor by merger to XYZ Credit Union. Plaintiff had been allowed to amend his original complaint by attaching a certificate of merger that would give him standing to sue. The certificate, however, had not been filed in the official records of Hillsborough County as required by Fla. Stat. (7). 5

6 The consummation clause of the Florida statute governing the merger of credit unions requires, in clear, unambiguous language, that a certificate of merger must be recorded in the public records of all counties in which the merging credit union owned property. No certificate of merger between Plaintiff and XYZ Credit Union had been filed prior to commencement of the case. Since no certificate of merger was filed in Hillsborough County prior to commencement of the case, no court in that county had jurisdiction to hear the case. Attachment of an unrecorded certificate of merger contradicted Plaintiff s assertion of standing, and thus the Plaintiff failed to state a cause of action. The trial court erred in denying Defendant s motion to dismiss. By failing to dismiss the case, the trial court prevented any mediation that could have taken place between the date of the dismissal and the date of Plaintiff s potential refiling. Instead, the case was allowed to continue for months and accumulate attorneys fees that were then assessed to the Defendant. The trial court s second error was the grant of summary judgment in favor of Plaintiff despite (1) Plaintiff s failure to state with particularity the grounds and laws upon which his motion was based, (2) Plaintiff s failure to address affirmative defenses, (3) an outstanding motion to strike an affidavit purporting to authenticate the amounts owed, and (2) outstanding relevant discovery requests 6

7 from Defendant. Thus, there were genuine issues of material fact and the trial court erred in granting summary judgment. For the foregoing reasons, the trial court's denial of Defendant's motion to dismiss should be reversed and the case remanded with instructions to dismiss. In the alternative, the trial court's grant of summary judgment should be reversed and the case remanded for trial. ARGUMENTS I. THE TRIAL COURT ERRED IN DENYING DEFENDANT S MOTION TO DISMISS. A. The trial court lacked jurisdiction to hear the case because the cause of action relied upon a merger that had not been recorded in the Official Records of Hillsborough County. Plaintiff amended its original complaint to include an unrecorded merger certificate. (R: 44 49). The statute defining consummation of a merger of credit unions, Fla. Stat. (7), states as follows: A merger with a resulting state credit union may not take place or be effective unless approved by the National Credit Union Administration and the office issues a certificate of merger. Upon consummation of the merger, the certificate of 7

8 authorization of the merged credit union shall be returned to the proper authority to be canceled. Also, at consummation, all property and property rights of, and members interest in, the merged credit union shall vest in the surviving credit union without deed, endorsement, or other instrument of transfer, and all debts, obligations, and liabilities of the merged credit union must be assumed by the surviving credit union under the certificate of authorization under which the merger was affected. All members of the surviving credit union have the same rights, privileges, and responsibilities after the merger is completed. The certificate of merger must be recorded in the public records of all counties in which the merging credit union owned any real property at the effective date of the merger. [Italics added.] Plaintiff s failure to comply with the last mandate in this section is undisputed. Plaintiff filed a certificate of merger in the Official Records of Hillsborough County on or about May 31, 2011, more than four months after the case was filed (R: 57 59). One cannot acquire standing after a case has been filed. Progressive Express Insurance Company v. McGrath Community Chiropractic, 913 So.2d 1281 (Fla. 2d DCA 2005). In Fla. Stat. (7) the Legislature used the term must in regards to filing the certificate of merger in...all counties in which the 8

9 merging credit union owned any real property at the effective date of the merger. Must is clear and unambiguous. It is one of common usage that means it is mandatory, not discretionary, that someone do something. The Legislature also used the word consummate. According to West's Encyclopedia of American Law, To consummate an agreement is to carry it out completely, as in a consummated sale. It is to bring to completion whatever was either intended or undertaken to be done. Black s Law Dictionary defines consummate as to bring to completion. Likewise, Ballentine's Law Dictionary defines it as to complete; to carry out, as, to consummate an agreement for the exchange of property. Ballantine's cites Connor v. Riggins, 21 Cal App 756, 760, 132 P. 849 (1913). When the language of the statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning. Knowles v. Beverly Enterprises Florida, Inc., 898 So.2d 1, 30 (Fla. 2004) (quoting Holly v. Auld, 450 So.2d 217, 219 (Fla.1984)). In Knowles, the Words of common usage, when used in a statute, should be construed in the plain and ordinary sense, because it must be assumed that 9

10 the Legislature knows the plain and ordinary meaning of words used in statutes and that it intended the plain and obvious meaning of the words used. Dadeland Depot, Inc. v. St. Paul Fire and Marine Ins. Co., 945 So.2d 1216 ( Fla. 2006). Though the words must and consummation may be clear, whether the Legislature intended the final statement of Fla. Stat. (7) as a condition of consummation is ambiguous. Since the Legislature did not actually use the word consummation in the sentence, its importance may be subject to interpretation. If parts of a statute are ambiguous, the court may apply various rules to determine the intent of the Legislature in enacting the statute. Thus, the language of the statute and placement of words is important. The word consummation has additional import in that it can be assumed that the entirety of section 7 describes the conditions and implications of consummating or completing a merger. The second statement is not isolated from the rest of the paragraph. Section 7 consists of five statements. The first: A merger with a resulting state credit union may not take place or be effective unless approved by the National Credit Union Administration and the office issues a certificate of merger. This statement 10

11 is a mandate and prescribes conditions precedent to completing the merger. If those conditions are not met, the merger is ineffective. The second sentence: Upon consummation of the merger, the certificate of authorization of the merged credit union shall be returned to the proper authority to be canceled. This statement is a mandate and prescribes a condition precedent to completing the merger. If the condition is not met, the merged credit union still exists and the merger is ineffective. The third and fourth sentences: Also, at consummation, all property and property rights of, and members interest in, the merged credit union shall vest in the surviving credit union without deed, endorsement, or other instrument of transfer, and all debts, obligations, and liabilities of the merged credit union must be assumed by the surviving credit union under the certificate of authorization under which the merger was affected. All members of the surviving credit union have the same rights, privileges, and responsibilities after the merger is completed. Neither statement is a mandate, but each describes the implications of consummating the merger. Like the first and second sentences, the final sentence is a mandate. It states, The certificate of merger must be recorded in the public records of all counties in which the merging credit union owned any real property at the 11

12 effective date of the merger. The Legislature intended the Certificate of Merger to be filed in Hillsborough County in relation to consummation of the merger agreement. There must be a consequence to not following the mandate of a statue. In the words of Alexander Hamilton, Government implies the power of making laws. It is essential to the idea of a law, that it be attended with a sanction; or, in other words, a penalty or punishment for disobedience. If there be no penalty annexed to disobedience, the resolutions or commands which pretend to be laws will, in fact, amount to nothing more than advice or recommendation. This penalty, whatever it may be, can only be inflicted in two ways: by the agency of the courts and ministers of justice, or by military force; by the COERCION of the magistracy, or by the COERCION of 1 arms Fla. Stat. does not state specific consequences of failing to record the certificate of merger. However, case law is instructive. For 1 Alexander Hamilton, Federalist 15: Insufficiency of the Present Confederation to Preserve the Union, Independent Journal (Dec. 1, 1787). 12

13 instance, Fla. Stat. states that [e]ach hospital with a participating physician on its staff and each participating physician, other than residents, assistant residents, and interns deemed to be participating physicians under Fla. Stat. (4)(c), under the Florida Birth Related Neurological Injury Compensation Plan shall provide notice to the obstetrical patients as to the limited no fault alternative for birth related neurological injuries. Nowhere does the statute prescribe consequences for failing to provide the required notice. However, case law regards this notice requirement as a condition precedent to invoking NICA as a patient s exclusive remedy for injuries. Galen of Florida, Inc. v. Braniff, 696 So. 2d 308 (Fla. 1997). In Galen, the parents of a patient who suffered brain damage as a result of negligence by physicians filed a medical malpractice suit against the doctors. The doctors moved to dismiss on the grounds that Fla. Stat. ( 2 ) provided an exclusive remedy for birth related neurological injury to physicians participating in the Florida Birth Related Neurological Injury Compensation Plan (NICA). The Supreme Court held that the health care providers were required by Fla. Stat. to give patients notice of their participation in NICA as a condition precedent to invoking NICA as a patient's exclusive remedy. As a result, the physicians were not allowed to invoke a privilege 13

14 given to them by Fla. Stat. until they complied with the notice provision in the statute. A similar interpretation should be made in the present case, especially in light of the stronger word must in Fla. Stat. rather than shall in Fla. Stat. Recording the certificate of merger in Hillsborough County is a condition precedent to the Court s jurisdiction to enforce Plaintiff s claim on any merged assets in Hillsborough County. To repeat, Hillsborough County courts lacked jurisdiction to enforce a claim on the alleged merged assets until the Plaintiff complied with the merger statute. Because the merger was improperly consummated, a question remained as to whether Plaintiff even had a claim on the assets of XYZ Credit Union when the case was filed. Plaintiff's failure to consummate or bring to completion the merger with XYZ Credit Union before filing suit created a defect in the complaint that could not be cured within the case. The date of the filing of a case cannot be amended. As a result, Plaintiff failed to state a cause of action. B. Plaintiff's attachment of an unrecorded Certificate of Merger to the complaint contradicted and thereby cancelled his assertion of standing, so the complaint failed to state a cause of action. 14

15 The complaint asserted Plaintiff s ownership of the subject note based on completion of the merger (R: 44 49). The Plaintiff alleged that (1) FirstSecond Credit Union is the successor by Merger to XYZ Credit Union; and (2) FirstSecond Credit Union owned and held the loan documents. Yet, the complaint included as an exhibit a certificate of merger that did not comply with the requirements of Fla. Stat. (7), showing that the Plaintiff did not have standing to bring the action on the date it was filed. Since the merger between FirstSecond Credit Union and XYZ Credit Union had not been recorded at the time the complaint was filed, the allegation that FirstSecond Credit Union was successor to XYZ Credit Union and that it thereby owned and held the loan documents was contradicted by attachment of the unrecorded certificate of merger. Exhibits attached to a pleading become a part of the pleading for all purposes. Fla. R. Civ. P (b). Where a document on which the pleader relies in the complaint directly conflicts with the allegations of the complaint, the variance is fatal and the complaint is subject to dismissal for failure to state a cause of action. Appel v. Lexington Ins. Co., 29 So.3d 377 (Fla. 5th DCA 2010). See also Arvanetes v. Gilbert, 143 So.2d 825 (Fla. 3d 15

16 DCA 1962) (holding that a lease attached to complaint was part of the complaint for all purposes). The trial court should have dismissed the case and required Plaintiff to refile its complaint. By failing to dismiss the case, the trial court prevented any mediation that could have taken place in the interval between dismissal and Plaintiff s potential refiling. Instead, the case was allowed to continue for months and accumulate attorneys fees that were then assessed to the Defendant. II. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT FOR PLAINTIFF. A. Summary judgment is improper where the movant fails to state with particularity the grounds and laws upon which the motion is based. The full text of Plaintiff s summary judgment motion was as follows: Plaintiff, FIRSTSECOND Credit Union, Successor by Merger to XYZ Credit Union, by and through its undersigned attorney, moves that this Honorable Court enter a Summary Judgment against Defendant, Jane Doe, on the grounds that the pleadings, admissions and affidavits previously filed herein and filed herewith show 16

17 that there is no genuine issue of any material fact and that the Plaintiff is entitled to Summary Judgment as a matter of law. (R: 82 83). In regards to summary judgments, Fla. R. Civ. P (c) states in pertinent part: The motion shall state with particularity the grounds upon which it is based and the substantial matters of law to be argued and shall specifically identify any affidavits, answers to interrogatories, admissions, depositions, and other materials as would be admissible in evidence ( summary judgment evidence ) on which the movant relies. The purpose of this rule is to place the nonmoving party on notice of issues, facts and substantial matters of law to be argued at the summary judgment hearing. City of Cooper City v. Sunshine Wireless Co., Inc., 654 So. 2d 283 (Fla. 4th DCA 1995), wherein the court reversed summary judgment against a city because the Plaintiff did not state with particularity all issues that were the subject of the motion for summary judgment. 17

18 Because Plaintiff s motion lacked particularity and failed to show that there were no genuine issues of material fact, Plaintiff did not meet the burden required for a summary judgment. The trial court erred in granting summary judgment based on a general statement in the motion. B. Summary judgment for a plaintiff is improper where affirmative defenses remain unaddressed. In response to the complaint, the Defendant alleged three affirmative defenses: (1) failure to state a cause of action by failing to comply with the merger consummation requirements of Fla. Stat. ; (2) lack of privity by the transfer of a defaulted note pursuant to Fla. Stat. (b)(3); and (3) extortionate extension of credit pursuant to Fla. Stat. and Fla. Stat. (R: 64 66). Neither the summary judgment motion nor the trial court s final order addressed any of these defenses. It is well established that summary final judgment is appropriate only where each affirmative defense has been conclusively refuted on the record. Pandol Bros. v. NCNB Nat l Bank of Fla., 450 So.2d 592 (Fla. 4 th DCA 1984) quoting Spear v. Martin, 330 So.2d 543 (Fla. 4th DCA 1976). In Pandol, the court overturned an order of summary judgment on a 18

19 determination that an issue raised by way of affirmative defense was never addressed. The moving party must establish that the affirmative defenses are legally insufficient. Morroni v. Household Fin. Corp. III, 903 So. 2d 311, 312 (Fla. 2d DCA 2005) (reversing an order of summary judgment where a finance company never factually refuted the defendants affirmative defenses or established that they were legally insufficient.) See also Emile v. First Nat'l Bank of Miami, 126 So. 2d 305 (Fla. 3d DCA 1961) (reversing a grant of summary judgment where the defendant raised an affirmative defense and the plaintiff had not presented any evidence in contradiction or opposition to that defense). Likewise, in Alejandre v. Deutsche Bank Trust Co. Americas, 44 So. 3d 1288, 1289 (Fla. 4th DCA 2010), the court reversed a grant of summary judgment because the plaintiff did not address the defendant s affirmative defenses. In the current case, the trial court erred in granting summary judgment without a refutation by Plaintiff of affirmative defenses. C. Summary judgment is improper where authentication of the amounts due is in question. When summary judgment was entered for Plaintiff, a motion to 19

20 strike the affidavit of David Hass was in the record and unheard. (R: 93 96). The purpose of the affidavit (R: 80 81) was to verify the loan documents and amounts owed. Defendant s motion to strike argued that neither Hass nor the Plaintiff (1) were engaged by XYZ Credit Union for the purpose of executing the subject loan with the Defendant; or (2) had any contact with the Defendant with respect to the underlying transaction between XYZ Credit Union and Defendant. Thus, the evidence for the amount owed had been brought into question by Defendant s motion to strike the affidavit. Fla. R. Civ. P (e) reads in pertinent part that Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. See also Zoda v. Hedden, 596 So.2d 1225, 1226 (Fla. 2d DCA 1992). In Zoda, the court reversed a grant of summary judgment where an affidavit was based on an affiant s review of public records, not on personal knowledge. Additionally, a corporate officer s affidavit that merely states conclusions or opinion is not sufficient, even if it is based on personal 20

21 knowledge. Nour v. All State Supply Co., So. 2d 1204, 1205 (Fla. 1st DCA 1986), wherein an affidavit that amounted to a statement that the allegations of the complaint were true and that the affiant was personally knowledgeable was insufficient to support summary judgment. In this case, Defendant s motion to strike argued that Hass was in no position to witness or take part in transactions between the Defendant and XYZ Credit Union. Thus, it was argued, Hass statements in the Affidavit were not based upon personal knowledge. The affidavit was conclusory and incomplete, and if stricken from evidence, would have deprived Plaintiff of its only means to authenticate the loan documents or the amounts owed. Further, the motion to strike presented a genuine issue of material fact regarding the amount owed. The trial court erred in granting summary judgment without first ruling on the motion to strike Hass affidavit. D. Summary judgment is improper where relevant discovery is outstanding. Discovery was expected to result in additional defenses or facts underlying existing defenses, but before Plaintiff responded to the second 21

22 set of discovery requests, the trial court granted summary judgment. (R: ). The following questions were asked in Defendant s Continuing Interrogatories to Plaintiff (A: E2): (8) How did the affiant, David Hass, come to have personal knowledge of the facts to which he affied in Plaintiff s Affidavit of Amounts Due? (9) When did the affiant, David Hass, occupy his current position? (10) What was the affiant, David Hass, previous position and for how long? The goal of this line of questioning was to determine whether the affiant, the credit union s representative, was competent to testify on matters regarding the agreement between XYZ Credit Union and Defendant. The questions are relevant to the Motion to Strike Affidavit, which raises issues of material fact. Yet, Plaintiff did not respond to them, stating that they are irrelevant, etc. (R: 110). Where discovery is still pending, the entry of summary judgment is premature. See Payne v. Cudjoe Gardens Property Owners Ass'n, Inc., 837 So.2d 458, 461 (Fla. 3d DCA 2002), wherein the court reversed a 22

23 grant of summary judgment in an association's action to enforce a deed restriction set back against homeowners because it was entered before completion of discovery. Unless the facts of a case have been developed sufficiently to enable the trial court to determine that no issues of fact exist, summary judgment must not be entered. Kimball v. Publix Super Markets, Inc., 901 So.2d 293 (Fla. 2d DCA 2005) (holding that summary judgment was premature in a personal injury case in which a supermarket had not complied with a customer s discovery request). It is reversible error to enter summary judgment when relevant discovery is pending. Abbate v. Publix Super Mkts., Inc., 632 So. 2d 1141 (Fla. 4th DCA 1994), wherein the court reversed a grant of summary judgment against a grocery store, holding that it was premature where a motion to compel answer to interrogatory was pending. See also Arguelles v. City of Orlando, 855 So.2d 1202 (Fla. 5th DCA 2003) (holding that summary judgment in favor of a city was premature where landowners had scheduled depositions). 23

24 Summary judgment is premature where discovery is ongoing and there may be genuine issues of fact yet to be discovered. Thus, the trial court erred in granting summary judgment that interrupted discovery. CONCLUSION The trial court's denial of Defendant's motion to dismiss should be reversed and the case remanded with instructions to dismiss the case. At the time of filing the complaint, Plaintiff had not complied with the Florida statute governing the merger of credit unions. The statute required that a certificate of merger be recorded in the public records of Hillsborough County. Because the Plaintiff failed to comply with this requirement, Hillsborough County courts lacked jurisdiction to enforce a claim on the alleged merged assets. Further, Plaintiff's failure to consummate or bring to completion the merger with XYZ Credit Union before filing suit created a defect in the complaint that could not be cured within the case. In the alternative, the lower court's grant of summary judgment to the Plaintiff should be reversed and the case remanded for further discovery and trial. The lower court erred in granting Plaintiff's summary judgment motion despite (1) the failure to show that no genuine issues of fact existed, (2) unaddressed 24

25 affirmative defenses, (3) an outstanding motion to strike the affidavit authenticating amounts owed and (4) outstanding discovery. 25

26 CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY THAT this computer generated brief complies with the requirements of Fla. R. App. P and uses Times New Roman 14 point font, a font that is proportionately spaced. Jane Doe, pro se CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was mailed this 14 th day of December, 2011 to o Millicent J. Barbie, Esq., 2505 West Hanover Avenue, Tampa, FL 33613, Attorney for Plaintiff. o Valerie J. Lacil, Esq., Attorney for Plaintiff, 4533 Pine Bluff Blvd., Suite 1000, Orlando, FL Jane Doe, pro se 4218 Druid Road Temple Terrace, Florida Telephone: (813) jane299.doe@gmail.com 26