Rothman-Browning v. Marshall
Case No. 4D11-2079

The Fourth District Court of Appeal (“DCA”) reviewed a trial court order approving a guardianship plan over objection from a co-trustee. The co-trustee had filed the objection exactly thirty days after the guardianship plan was filed. The trial court approved the guardianship plan despite the co-trustee’s objection. The trial court later denied the objection as untimely without addressing the merits.

On appeal, the Fourth DCA examined section 744.367(4), Florida Statutes (2010), which provides that an interested person may file an objection to a guardianship plan “within thirty days” after filing of the guardianship report. The court also reviewed section 744.369(7), Florida Statutes (2010), which provides that, “[i]f an objection has been filed to a report, the court shall set the matter for hearing and shall conduct the hearing within 30 days after the filing of the objection.” The Fourth DCA held that the plain language of the statutes entitles one who files an objection to a guardianship plan within thirty days of the filing of the guardianship plan to a hearing. The co-trustee had filed the objection timely, so the court remanded and reversed for the trial court to consider the objection.

McLean v. JP Morgan Chase Bank
Case No. 4D10-3429

Chase filed a foreclosure action against McLean alleging that, as the legal and/or equitable owner and holder of the Note and Mortgage, it had the right to enforce the loan because McLean defaulted under the note and mortgage. Chase asserted that it could not obtain the Promissory Note because it was lost, stolen, or destroyed. The copy of the mortgage attached to Chase’s complaint stated that American Brokers Conduit was the lender and MERS was the mortgagee. The trial court denied McLean’s motion to dismiss and ordered Chase to file a copy of the assignment in order to prove it had standing to bring the foreclosure action. Chase filed an assignment dated three days after Chase filed its foreclosure action. McLean filed a second motion to dismiss arguing that Chase did not have standing to file the foreclosure action because it was not the owner of the Note and Mortgage on the date it filed the complaint. The trial court denied McLean’s second motion to dismiss and Chase filed the original note and mortgage. The original note had a special endorsement, stating: “Pay to the Order of JPMorgan Chase Bank, N.A., as Trustee Without Recourse By: American Brokers Conduit.” The endorsement to the note was not dated. Chase filed a motion for summary judgment and attached an affidavit in support of the motion. The affidavit stated that Chase “is the holder and owner” of the mortgage originally given by McLean to MERS. However, the affidavit did not specifically state when Chase became the owner of the note and mortgage, nor did the affidavit indicate that Chase was the owner of the note and mortgage before suit was filed. The trial court entered a final judgment of foreclosure in favor of Chase and McLean appealed.

The Fourth District Court of Appeal reversed the trial court’s order granting summary judgment in favor of Chase. The court found that, in order for Chase to be entitled to summary judgment, it must show, without genuine issue of material fact, that it was the holder of the note on the date the complaint was filed (i.e., that the note was endorsed to Chase on or before the date the lawsuit was filed). The court noted that Chase failed to submit any record evidence proving that it had the right to enforce the note on the date the complaint was filed. Therefore, the trial court must dismiss the instant lawsuit and Chase must file a new foreclosure action.

Heath v. Bear Island Homeowners Association, Inc.
Case No. 4D10-3779

The Fourth District Court of Appeal (“DCA”) reviewed a trial court’s final judgment in favor of the defendant homeowners association (“HOA”) and the HOA’s board member. Heath, the plaintiff, had filed suit against the defendants for injunctive relief to compel them to enforce the terms of the HOA’s Declaration of Covenants and Restrictions. Heath alleged that the HOA did not enforce the terms of the Declaration as to certain homeowners with regards to homeowners making changes, improvements, or modifications without HOA approval.

On appeal, the Fourth DCA examined the language of the Declaration at issue, noting that the language specifically provided that “[t]he Developer, the Association, or any individual may, but shall not be required to, seek enforcement of the Declaration.” The Fourth DCA concluded that the language meant that enforcement of the Declaration by the HOA was purely in the HOA’s discretion, so that Heath did not have a clear legal right to an injunction to compel enforcement. Murtagh v. Hurley, 40 So. 3d 62, 66 (Fla. 2d DCA 2010). The Fourth DCA pointed out that the trial court had found in favor of the defendants for a different reason, but had still reached the correct result.

J.C. Penney Company, Inc. v. Dillard’s, Inc.
Case No. 4D10-1770

JCPenney sued Dillard’s for damage to its store at the Turtle Creek Mall in Mississippi. In 2005, the roof over the Dillard’s store (which was adjacent to the JCP store) collapsed from Hurricane Katrina, severing a sprinkler main and causing uncontrolled water flow into the mall and the JCP store. Dillard’s moved for partial summary judgment, arguing that pursuant to the Turtle Creek Mall Operating Agreement (OA), JCP and Dillard’s agreed to release each other from liability from any loss or damage to property covered by the party’s insurance policy. However, they expressly reserved the right to bring an action for any “deductible” amount contained in their insurance policies. Dillard’s also filed a second motion for partial summary judgment, arguing that JCP could not recover any damages because JCP had already recovered from its insurer the entire damage amount claimed without any deductible being applied. In opposition, JCP argued that the notion that it had been made whole for its Turtle Creek Mall losses was illusory because JCP’s insurer treated Hurricane Katrina-related losses at several covered JCP stores as one “occurrence” for coverage purposes and unilaterally elected to apply the policy’s entire $2.5 million-per-event deductible to one JCP store (the Biloxi, Mississippi store). JCP argued that it had not been made whole for its losses in the Turtle Creek Mall. The trial court granted both partial motions for summary judgment.

The Fourth District Court of Appeal disagreed with JCP’s argument that the trial court erred in limiting its recovery to the deductible because under Mississippi law, Dillard’s cannot contractually exculpate itself against breaches of duties imposed by common law and for torts involving gross negligence. Instead, the court noted the parties were sophisticated national retailers, occupying equal bargaining positions, in negotiations for a commercial operating agreement and that the exculpatory clause was valid and did not contravene public policy. The court also found that Dillard’s conduct did not rise to the level of gross negligence simply because a different Dillard’s roof, in a different store, sustained damage in a prior hurricane, and Dillard’s internal memoranda acknowledged the potential for damage due to hurricanes and the need to perform maintenance prior to such storms. The Fourth District Court of Appeal reversed the trial court’s summary judgment order and held that a genuine issue of material fact existed as to how the deductible was apportioned and whether the application of the deductible was beyond JCP’s control.