SUPREME COURT OF FLORIDA CASE NO. SC11-2146 MARILYN ANN NUNES, Personal Representative of the Estate of KATHLEEN L. PHILLIPS and MARILYN ANN NUNES, individually Petitioners vs. ALLSTATE INVESTMENT PROPERTIES, INC., GILMAN H. C. NUNES, DANIELLE A. INTILI, JESUS M. ALVAREZ, JULISSA ALVAREZ, husband and wife, and WASHINGTON MUTUAL BANK, N.A., Respondents. ON REVIEW FROM THE DISTRICT COURT OF APPEAL, FOURTH DISTRICT, CASE NO. 4D10-992 PETITIONERS JURISDICTIONAL BRIEF KOPPEN & WATKINS, P.A. R. DANIEL KOPPEN Fla. Bar No. 0230065 900 W. Linton Blvd., Suite 202 Delray Beach, FL 33444 Phone/Fax: (561) 279-9872/561-279-9873 E-mail: law@koppwatpa.com Attorneys for Petitioners
TABLE OF CONTENTS TABLE OF CITATIONS ii JURISDICTIONAL STATEMENT. 1 STATEMENT OF THE CASE AND FACTS. 1 SUMMARY OF ARGUMENT.. 3 ARGUMENT.. 5 CONCLUSION 8 CERTIFICATE OF SERVICE 10 CERTIFICATE OF RULE 9.210 COMPLIANCE. 11 APPENDIX. 12 i
TABLE OF CITATIONS Cases: Coram v. Palmer 58 So. 721 (Fla. 1912). 2, 3, 5, 7 Hagan v. Ellis 22 So. 727 (Fla. 1897). 7 Jenkins v. State of Florida 385 So. 2d 1356 (Fla. 1980) 1, 5 Moore v. Smith-Snagg 793 So. 2d 1000 (Fla. 5 th DCA 2001). 1, 4, 6 Wiser v. Lawler 189 U.S. 260, 23 S. Ct. 624. 47 L. Ed. 802 (1903)... 7 Zurstrassen v. Stonier 786 So. 2d 65 (Fla. 4 th DCA 2001). 3, 6 ii
JURISDICTIONAL STATEMENT This Honorable Court is respectfully requested to invoke its discretionary jurisdiction, based on the express and direct conflict, on the same question of law; which legal principles are of importance to the public. The 4 th District Court of Appeal in its Opinion rendered in 4D10-992, announced new law relating to forged deeds; and misapplied equitable estoppel as an affirmative defense. The ruling in Moore v. Smith-Snagg, 793 So. 2d 1000 (Fla. 5 th DCA 2001) precludes any defense against a forged deed, which is the prevailing law. Florida Rule of Appellate Procedure (a)(2)(a)(iv) is applicable. Jenkins v. State of Florida, 385 So. 2d 1356 (Fla. 1980). STATEMENT OF THE CASE AND FACTS A Summary Final Judgment was entered in favor of the Respondents, Allstate Investment Properties, Inc., Gilman H. C. Nunes, Danielle A. Intili, Jesus M. Alvarez Julissa Alvarez, husband and wife, and Washington Mutual Bank, N.A., in Case No.: 50 2005 CA 007807 XXXXMB in the Circuit Court of the 15 th Judicial Circuit in and for Palm Beach County, 1
Florida. The trial court denied the Petitioners claim that deeds forged against the Petitioners, must be declared void; and, instead approved the Respondents equitable estoppel defense to deny the Petitioners claim of ownership of real property. The Petitioner(s) signatures were forged, on the deed(s) delivered to Allstate Investment Properties, Inc., who the Petitioner(s) had refused to have any contact with in a transaction with Petitioner(s) ex-husband, Gilman H. C. Nunes, at a time and in circumstances which were unknown to the Petitioners. The original grantee then conveyed to a subsequent grantee who then delivered a deed to the Respondents, Alvarez, whose identity and whose intention to purchase the subject real property was unknown to the Petitioners. The opinion of the majority, in the case at bar, analyzed the elements necessary to establish equitable estoppel as an affirmative defense, which the court then applied, for the first time against a forged deed. Such ruling is of importance to the public as, forged deeds do frequently appear in the public records. The Court cited Coram v. Palmer, 58 So. 721 (Fla. 1912) as its authority, and then proceeded to misapply the law relating to the Petitioners forged deeds. The Court held that the Petitioners passive silence (Meaning delay in the filing of an action to contest the forged deeds) was: tantamount to affirmative representation to the public as a whole that go ahead and buy as I don t 2
have an interest in this property. (This quote is the expression of this court, and is not language from the text any reported case.) The Respondents presented no Summary Judgment proof and made no claim that such representation had ever been made by the Petitioners to the Respondents. The Respondents presented their claim of estoppel based only on their position as a bona fide purchaser for value. The trial court s finding of facts and application of law ruling has been confirmed, in its entirety, in the District Court s Opinion, which Opinion is to be presented for review in the case at bar. (Appendix #1) The Petitioners Motion for Rehearing was denied by the District Court. (Appendix #2) SUMMARY OF ARGUMENT The Fourth District Court of Appeal s Opinion in Case No. 4D10-992, misapplied the doctrine set forth in Coram v. Palmer, 58 So. 2d (Fla. 1912), cited in Zurstrassen v. Stonier, 786 So. 2d 65 (Fla. 4 th DCA 2001) relating to the elements required for application of the affirmative defense of Equitable Estoppel to deny the Petitioners demand that the recorded deeds bearing their forged signatures be declared void. There is no other reported case that 3
has approved equitable estoppel to be applied as a shield to deny the true owners recovery of their real property against anyone claiming ownership under the true owners forged deeds. Delay in filing an action to have a forged deed declared void does not constitute a failure to perform any duty on the part of the true owners towards a good faith purchaser without notice of the forgery. The Petitioners had no knowledge of the purchasers identity, or of the Respondents intention to purchase the property. The fact of the forgery does not remain in dispute. The elements required in an appropriate factual situation in which the doctrine of equitable estoppel may be approved as an affirmative defense, are relevant to the issue to be presented in this appeal. Application, by the 4 th DCA, of equitable estoppel, as a defense denying the Petitioners the right to have forged deeds from being declared void, is an epress and direct conflict relating to the same questions of law ruled upon by the Fifth DCA in Moore v. Smith-Snagg, 793 So. 2d, 1000 (5 th DCA 2001), acknowledging no defense against a forged or wild deed. The recording of a forged deed does not benefit a good faith purchaser for value; and knowledge alone of a forged deed does not impose a duty on part of the true owner to the public as a whole to file an action within any 4
period of time to have the forged deed judicially declared void; as determined in the Opinion of the 4 th DCA in the case at bar; which is a misapplication of the law. ARGUMENT The express and direct conflict between the opinions issued in the 4 th and 5 th District Courts of Appeal, regarding forged deeds, is the focus of this jurisdictional brief. An express conflict, as discussed in Jenkins v. State, 385 So. 2d 1356 (Fla. 1980), appears in the 4 th District s opinion rendered in the case at bar, in its analysis relating to the same question of law; i.e. Whether there is any defense against a forged or a wild deed. The 4 th DCA misapplied the law in its opinion approving the defense of equitable estoppel against a forged deed, as a new legal principal of great importance to the public. The 4 th DCA misapplied the doctrine announced in Coram v. Palmer, 58 So. 721 (Fla. 1912) improperly imputing a duty on the part of the Petitioners to speak out and not remain silent in the circumstances appearing in the case at bar, where the Petitioners did not know the identity of the Respondents, or of their intention to purchase the subject parcel of real property. The ruling to be reviewed determined that there was a duty on the 5
part of the Petitioners, after discovering that their signatures had been forged on a recorded deed, to speak out to the public as a whole, and that the Petitioners delay was tantamount to an affirmative representation to the public as a whole, that go ahead and buy as I do not have an interest in this property (This quote is the expression of this court and is not language from the text of any reported case). The new Panel, in the case at bar, cited Zurstrassen v. Stonier, 786 So. 2d 65 (Fla. 4 th DCA 2001) as authority to support its ruling. The Court ruled: Accordingly we affirm the Trial Court s Order granting Summary Final Judgment in favor of Alvarez (Respondents) and deem that because of Nunes (Petitioners) knowledge of the forgery prior to the purchase by Alvarez (Respondents), Nunes (Petitioners) is equitable estoppel from asserting her interest. No other court has applied equitable estoppel to deny the true owners forged deed from being declared void. This ruling is new law and is bad law, and its effect is of great public interest relating to the rights of all victims whose signatures have been forged, and the forged deed recorded The Fifth District Court of Appeals Opinion rendered in Moore v Smith-Snagg, 793 So. 2d 1000 (Fla. 5 th DCA 2001), held: The only way an owner can lose title based on a forged or wild deed is by application of 6
the Marketable Record Title Act, and in that case, it is the Marketable Record Title Act, and not the forged or wild deed, which created the new title. The 4 th DCA has misapplied the law to the facts in its ruling that the conduct of Nunes clearly falls within the doctrine established in Coram v. Palmer, 58 So. 721 (Fla. 1912), to wit: If you believe the plaintiffs or those with whom they may be in privity, and under whom they claim, stood by and saw other parties delivering title to the land in question, cultivating and improving them for 20 years or more when there was no impediment to bring suit and recover them, and during the time made no claim to the land, their claim becomes stale, and they cannot recover the land although they may have legal title to it. In the first instance, the Coram court was not considering the rights of an owner claiming under a forged deed. The Coram case involved a claim for ejectment and cites, with approval, Hagan v. Ellis, 22 So. 727 (Fla. 1897). The close personal relationship (or the lack thereof) between the parties is explicitly reflected in both Coram and Hagan. The Panel s ruling is also in direct conflict with the holding, relating to the issue of silence, set forth in Wiser v. Lawler, 189 U.S. 260, 23 S. Ct. 624, 47 L. Ed. 802 (1903): 7
It cannot be that A would be estopped by silence with respect to title to property which B is about to purchase, when he has no knowledge that B contemplates buying and B has no knowledge that A is connected to the property. (Pg. 272) The Panel has determined that the Petitioners knowingly let the bad guy walk. This finding is not relative to any of the issues in this appeal. There is nothing in the law to establish that the Petitioners, as victims themselves, have a duty to determine who forged their signatures, before having their deeds declared void. The opinion rendered by the 4 th DCA, regarding the approval of an equitable estoppel defense to confirm ownership of real property in a bona fide purchaser for value, must not be confirmed as new law affecting the claims of victims, whose signatures have been forged on recorded deeds. CONCLUSION The 4 th District Court of Appeal has misapplied the law relating to forged deeds, and has misapplied the defense of equitable estoppel; and has failed to consider the gravity and effect that its ruling will have on the marketability of title to real property throughout the State of Florida. A forged deed will always remain void, and the application of estoppel to prevent the true owner from having a forged deed declared void, would not 8
change the fact that the deed remains void. If allowed, some other proceeding would be required to quiet title, whenever disputed, relevant facts appear between the parties. Equitable estoppel as a defense against a claim of possession, by a party not claiming under a forged deed, requires proof of facts to establish that all of the required elements have been fulfilled. Representation, as a necessary element, can not be imputed from mere delay in the filing of an action to contest a forged deed. Equating passive silence as a fact tantamount to an imputed representation would require actual knowledge by the true owner of an intent by another to acquire an interest in the property; which knowledge would establish a duty, on the part of the party against whom the estoppel is made, to speak out, and make known the owner s claim to prevent the purchaser s loss: There is the significant difference between delay and silence. The principles involved, relating to forged deeds, are of importance to the public. The discretionary review that rests in the Supreme Court is founded on a concern that its decisions will become precedent, which will be important to the public as a whole; as opposed to the adjudication of rights between particular parties. There can be no right of greater importance to 9
the public than the right not to be deprived ownership of real property by forgery of their signatures. The reversal of the 4 th DCA s ruling, approving equitable estoppel as a defense, does not prevent any party in possession of property from claiming ownership on some other legal theory, such as adverse possession, quiet title, mistake, fraud, etc. whenever factual circumstances may justify such claims; However, no such claim can change the prevailing law that a forged deed is void ab initio. The 4 th DCA stands alone in its announcement of the new law applying equitable estoppel against a forged deed. Such new law would have a negative effect on titles to real property impacting all property owner s whose signatures have been forged. The Petitioners forged deed must be declared void. The ruling of the 4 th DCA, announcing new law, must be reversed upon review, after invoking the discretionary jurisdiction of this Honorable Court. KOPPEN, WATKINS, PARTNERS & ASSOCIATES, P.A. 900 W. Linton Blvd., Ste. 202 Delray Beach, FL 33444 Phone: 561-279-9872 Fax: 561-279-9873 E-mail: law@koppwatpa.com BY: R. DANIEL KOPPEN, ESQ. Fla. Bar No.: 0230065 10
CERTIFICATION OF MAILING I HEREBY CERTIFY that a copy of the foregoing was furnished to the following attorney for Respondents by U.S. Mail to David I. Brodt, Esq., 214 Brazilian Ave., Ste. 200, Palm Beach, FL 33480 this day of November, 2011. BY: R. DANIEL KOPPEN, ESQ. Fla. Bar No.: 0230065 CERTIFICATION OF TYPE SIZE AND STYLE The undersigned attorney hereby certifies that this brief was prepared using a 14-point Times New Roman font in accordance with Rule 9.210(a)(2), Florida Rules of Appellate Procedure. BY: R. DANIEL KOPPEN, ESQ. Fla. Bar No.: 0230065 11
APPENDIX #1 Corrected Opinion Marilyn Ann Nunes, Etc., et al, Appellant/Petitioners v. Allstate Investment Properties, Inc. et al, Appellee/Respondent(s), 4 th DCA. Case No. 4D10-992. #2 Order - October 10, 2011, Order Denying Appellants 9-19-11, Motion for Rehearing. 12