IN THE SECOND DISTRICT COURT OF APPEAL STATE OF FLORIDA FIFTH THIRD MORTGAGE COMPANY, Appellant, v. Appeal No. 2D13-6052 ALCIDES HERNANDEZ, Appellee. / APPEAL FROM THE THIRTEENTH JUDICIAL CIRCUIT HILLSBOROUGH COUNTY, FLORIDA APPELLANT'S INITIAL BRIEF THOMAS M. WOOD Fla. Bar No. 10080 Shumaker, Loop & Kendrick, LLP 101 East Kennedy Blvd., Suite 2800 Tampa, Florida 33602 (813) 229-7600 (813) 229-1660 (Fax) twood@slk-law.com Attorneys for Appellant
TABLE OF CONTENTS Page Table of Contents... i Table of Citations... ii Statement of the Facts and of the Case... 1 Statement of the Issues... 4 Summary of the Argument... 4 Standard of Review... 5 Argument... 6 A. The trial court erred in failing to allow fifth third leave to amend upon determining the complaint was subject to dismissal without prejudice... 6 B. Alternatively, the trial court erred in granting summary judgment despite the clear existence of genuine issues of material fact, or on grounds not raised by any party prior to the hearing..... 7 Conclusion... 10 Certificate of Service... 10 Certificate of Compliance... 11 i
TABLE OF CITATIONS Cases Downtown Investments, Ltd. v. Segall, 551 So. 2d 561 (Fla. 3d DCA 1989)...6 Gee v. U.S. Bank National Association, 72 So. 3d 211 (5th DCA 2011)...9 Gilbert v. Jacor Communications, Inc., 629 So. 2d 309 (Fla. 2d DCA 1993)...6 Hervey v. Alfonso, 650 So. 2d 644 (Fla. 2d DCA 1995)...8 Joan B. Taylor v. City of Riviera Beach, 801 So. 2d 259 (Fla. 4th DCA 2001)...5 Kennedy v. Santa Rosa Island Authority, 530 So. 2d 520 (Fla. 1st DCA 1988)...6 Soucy v. Casper, 658 So. 2d 1017 (Fla. 4th DCA 1995)...5 Thompson v. McNeill Company, Inc., 464 So. 2d 244 (Fla. 1st DCA 1985)...6 Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126 (Fla. 2000)...5 Wizikowski v. Hillsborough County, 651 So. 2d 1223 (2d DCA 1995)...8 Statutes and Other Authorities Rule 1.510(c), FLA. R. CIV. P....8 ii
STATEMENT OF THE FACTS AND OF THE CASE Statement of the Facts This appeal arises from a residential foreclosure brought by Appellant, Fifth Third Mortgage Company ( Fifth Third ) as the mortgagee, and naming Appellee Alcides Hernandez ( Hernandez ) as the mortgagor/defendant in the action below. (R:6-33). Hernandez is alleged to have signed a Note and Mortgage in favor of Fifth Third, defaulted thereon, and after failing to cure the default upon notice from Fifth Third, was named as a defendant in the foreclosure action, along with homeowners associations claiming a lien interest in the subject property. (R:6-33). Statement of the Case In response to the Complaint, Hernandez filed a Motion to Dismiss on or about July 15, 2013. (R:41-44). Hernandez motion was based on three grounds: (i) a standing argument based largely on Hernandez assertion that the allegations of the Complaint failed to identify the owner of the Note at issue, despite a clear allegation in Paragraph 3 of the Complaint as the statutory basis for bringing the action; (ii) Fifth Third s failure to comply with Florida Statutes 57.011 by filing a cost bond in connection with the Complaint; and (3) a claim that Fifth Third failed to attach any documentary evidence supporting its claim that the contractually required notice of default and opportunity to cure had been given. A Notice of Hearing was filed by Hernandez on or about August 22, 2013, 1
setting a hearing on the Motion to Dismiss for 11:00 a.m. on November 8, 2013. (R:3). Hernandez filed an Amended Motion to Dismiss and for Summary Judgment on or about October 24, 2013. (R:106-109). Hernandez Amended Motion was based on three grounds: (i) failure to timely file a cost bond under Florida Statutes 57.011; (ii) Capacity based upon Hernandez assertion that Fifth Third failed to allege any facts of its existence as a corporation or other legal entity duly organized in a jurisdiction recognized under Florida law[,] and reasserting the claim that Appellant failed to plead that it owns and holds the Note in question; and (iii) failure to comply with a condition precedent based upon a claim that Fifth Third failed to give Hernandez the contractually required notice of default/intent to accelerate and opportunity to cure. (R:106-109). Also on October 24, 2013, in support of the Amended Motion, Hernandez filed a Notice of Filing Affidavit Regarding Summary Judgment, and the Affidavit Regarding Summary Judgment. (R:103-105;110-112). Hernandez affidavit solely addresses the claim that he never received the contractually required notice of default/intent to accelerate and opportunity to cure. (R:110-112). A Notice of Hearing as to the Amended Motion to Dismiss and for Summary Judgment, as well as a previously filed Motion to Disqualify Counsel, was filed on October 29, 2013, setting those 2
motions for the previously scheduling hearing at 11:00 a.m. on November 8, 2013. (R:3). On November 5, 2013, Fifth Third filed a Notice of Filing Supplemental Affidavit as to Notice Requirements of Note and Mortgage (R: 119-123) and Plaintiff s Response to Amended Motion to Dismiss and for Summary Judgment (R124-132). Fifth Third s affidavit addresses its delivery of the contractually required notice of default/intent to accelerate and opportunity to cure to Hernandez, and provides a copy of the actual notice letter mailed to Hernandez. (R: 119-123). A hearing was held on November 8, 2013 (without a court reporter present), and the trial court issued its Order of Dismissal on November 8, 2013, indicating only that: 1. The motion is granted. [and] 2. This case is dismissed without prejudice to Plaintiff filing a new lawsuit. (R: 133). There is no transcript of the hearing, or other record evidence of the basis for the trial court s order. Fifth Third filed its Plaintiff s Motion for Rehearing on November 18, 2013 (R: 134-141), arguing the trial court improperly granted summary judgment in favor of Hernandez on the grounds that the Notice of Intent to Accelerate letter did not meet the contractual requirements of the Mortgage, although that argument was not raised prior to the hearing. (R: 134-141) Plaintiff s Motion for Rehearing was 3
denied without hearing on December 11, 2013. (R:144). Appellant timely filed a Notice of Appeal on December 11, 2013. (R:145-148). STATEMENT OF THE ISSUES Whether the trial court abused its discretion by issuing an Order of Dismissal in response to Hernandez Amended Motion to Dismiss and For Summary Judgment, dismissing the case without allowing Fifth Third leave to amend its Complaint? Alternatively, whether the trial court erred in granting summary judgment despite the clear existence of genuine issues of material fact, or on grounds not raised by any party prior to the hearing? SUMMARY OF THE ARGUMENT The Order of Dismissal on appeal is unclear as to which portion of Defendants Amended Motion to Dismiss and For Summary Judgment it was issued in response to the Motion to Dismiss or the Motion for Summary Judgment. Based upon the language of the order, including the fact that dismissal was specifically without prejudice, as well as no mention of the absence of genuine issues of material fact or summary judgment being granted, it is presumed that it was issued in response to the motion to dismiss. As such, absent any claim or evidence that whatever pleading defect found by the trial court could not be corrected, the trial court erred in failing to allow Fifth Third leave to amend its 4
Complaint upon determining that the Complaint was subject to dismissal without prejudice. Alternatively, in the event the trial court s Order is determined to be granting summary judgment in favor of Hernandez, the trial court erred in hearing a motion for summary judgment on less than 20 days notice, and in granting summary judgment despite the clear existence of genuine issues of material fact, and/or on grounds not raised by any party prior to the hearing. The issue presented by Hernandez Motion was whether he ever got the contractually required Notice of Intent to Accelerate, which a cursory review of the record will reveal was a contested issue of fact between the parties. If the trial court somehow made a determination that the Notice of Intent to Accelerate was received, but was somehow legally deficient, it erred by ruling on an issue not raised by the parties prior to the hearing. STANDARD OF REVIEW The standard of review on a motion to dismiss is de novo. See Joan B. Taylor v. City Of Riviera Beach, 801 So. 2d 259 (Fla. 4th DCA 2001). The standard of review for summary judgment is de novo. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000). The standard of review for orders denying leave to amend a complaint is abuse of discretion. See Soucy v. Casper, 658 So. 2d 1017, 1018 (Fla. 4th DCA 1995). 5
ARGUMENT A. The Trial Court Erred in Failing to Allow Fifth Third Leave to Amend Upon Determining the Complaint was Subject to Dismissal Without Prejudice. The Order of Dismissal does not specifically address the grounds for the dismissal, or whether the order issued in response to Hernandez Motion to Dismiss or his Motion for Summary Judgment. Given the title is Order of Dismissal, and the lack of any finding of no genuine issues of material fact, the Order on appeal must be viewed as resolving Hernandez Motion to Dismiss. The operative language states that the case is dismissed without prejudice. (R: 133). However, the trial court erred in failing to allow Fifth Third leave to amend upon determining that the Complaint was subject to dismissal without prejudice. Without regard to the merits of a trial court s decision to dismiss a complaint, Florida case law is clear that, although granting leave to amend rests within the sound discretion of a trial court, all doubts should be resolved in favor of allowing amendment, and leave to amend should not be denied unless the privilege to amend has been abused or the complaint is not amendable. Kennedy v. Santa Rosa Island Authority, 530 So. 2d 520 (Fla. 1st DCA 1988), citing Thompson v. McNeill Company, Inc., 464 So. 2d 244 (Fla. 1st DCA 1985). See also Downtown Investments, Ltd. v. Segall, 551 So. 2d 561 (Fla. 3d DCA 1989); Gilbert v. Jacor Communications, Inc., 629 So. 2d 309, (Fla. 2d DCA 1993). 6
In this case, the alleged deficiencies identified in the Amended Motion to Dismiss related to curable technical pleading issues i.e., the failure to post a cost bond, or the failure to allege Fifth Third s capacity to bring the foreclosure action. (R:106-109). Fifth Third had not yet amended the Complaint in this action, so there could be no issue of abusing the privilege to amend. (R:6-33). Under these circumstances, the trial court should have allowed Fifth Third an opportunity to amend, prior to dismissing the action. 1 On de novo review, this Court should reverse the Order of Dismissal, and remand with instructions to allow Fifth Third leave to amend. B. The Trial Court Erred in Granting Summary Judgment Despite the Clear Existence of Genuine Issues of Material Fact, or on Grounds Not Raised by any Party Prior to the Hearing. Alternatively, if this Court finds the Order of Dismissal to be an Order granting Hernandez untimely Motion for Summary Judgment, notwithstanding the fact that the Order makes no finding regarding the absence of genuine issues of material fact or even mentions summary judgment, Fifth Third must still prevail on this appeal. Under this scenario, the trial court erred granting Hernandez untimely Motion for Summary Judgment because of the clear existence of genuine 1 A dismissal without prejudice is not the equivalent of allowing leave to amend. The dismissal opens Fifth Third to exposure for prevailing party attorney fees and costs which are now being sought by Hernandez in the trial court. (R:142-43). 7
issues of material fact, or based upon grounds not raised by any party prior to the hearing. 2 In addition to the lack of required notice, the record on appeal makes it clear that there is a genuine issue of material fact that should have prevented summary judgment. Hernandez Motion, and the affidavit filed in support, focus exclusively on his claim that he never got the Notice of Intent to Accelerate letter required under the Mortgage. In direct opposition to this claim, the Supplemental Affidavit as to Notice Requirements of Note and Mortgage filed by Fifth Third prior to the hearing specifically contradicts this claim and provides a copy of the letter Fifth Third claims was sent in compliance with the Mortgage requirements. It is well-established under Florida law that an issue of material fact or even the possibility of such an issue precludes summary judgment. Hervey v. Alfonso, 650 So. 2d 644, 646 (Fla. 2d DCA 1995); Rule 1.510(c), FLA. R. CIV. P. The issue of whether Hernandez received the Notice of Intent to Accelerate letter 2 Hernandez Amended Motion to Dismiss and for Summary Judgment, as well as his Affidavit Regarding Summary Judgment, were both filed on or about October 24, 2013, only fifteen days before the hearing held by the trial court on November 8, 2013. This failure to provide the required notice is in direct contravention of the Florida Rules of Civil Procedure, and may also constitute reversible error. Wizikowski v. Hillsborough County, 651 So. 2d 1223 (Fla. 2d DCA 1995). 8
required under the Mortgage is clearly a disputed issue of material fact. This disputed issue precludes summary judgment. On de novo review, if this Court chooses to treat the Order of Dismissal as an Order granting summary judgment, the Order must still be reversed. Further, while it is possible the trial court granted summary judgment in favor of Hernandez on the grounds that the Notice of Intent to Accelerate letter allegedly did not meet the contractual requirements of the Mortgage, that argument was not raised in Hernandez Motion filed prior to the hearing. Rule 1.510(c), Florida Rules of Civil Procedure, requires a movant for summary judgment to state with particularity the grounds upon which the motion is based and the substantial matters of law to be argued, in order to put the non-moving party on notice of the issues to be argued so the defending party can to be prepared for the summary judgment hearing. Granting summary judgment on grounds different than those specifically raised in the motion deprives the non-moving party of the notice required under the rule, and constitutes reversible error by the trial court. Gee v. U.S. Bank National Association, 72 So. 3d 211 (Fla. 5th DCA 2011). Hernandez failure to provide the required notice is in direct contravention of the Florida Rules of Civil Procedure, and constitutes reversible error. Even if this Court reviews the Order of Dismissal as an Order granting summary judgment, the summary judgment is improper and must be reversed. 9
CONCLUSION For all the foregoing reasons, Appellant, Fifth Third Mortgage Company, respectfully requests that this court reverse the Order of Dismissal, and remand this matter with directions to allow Fifth Third leave to file an Amended Complaint. Respectfully Submitted, SHUMAKER, LOOP & KENDRICK, LLP By: /s/thomas M. Wood THOMAS M. WOOD Fla. Bar No. 10080 Shumaker, Loop & Kendrick, LLP 101 East Kennedy Boulevard, Suite 2800 Tampa, Florida 33602 (813) 229-7600 (813) 229-1660 (Fax) twood@slk-law.com Attorneys for Appellant CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 19 th day of March, 2014, a true and correct copy of the foregoing Appellant s Initial Brief has been furnished by electronic service to Mark P. Stopa, Esq., Stopa Law Firm, 2202 N. Westshore Blvd., Suite 200, Tampa, Florida 33607, foreclosurepleadings@stopalawfirm.com, counsel for Appellee, Alcides Hernandez. /s/thomas M. Wood Attorney 10
CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that the preceding brief was prepared utilizing a Times New Roman 14-point font and complies with the font requirements of Rule 9.210(2), Florida Rules of Appellate Procedure. /s/thomas M. Wood Attorney 11