Kaufman v. FS Tenant Pool III Trust
Case No. 4D10-5122

We represented an elderly plaintiff who brought suit against a nursing home, through her daughter as power of attorney. Our client alleged multiple abuses by the nursing home in violation of its duty of care pursuant to sections 400.022(1), (2)(n) and (2)(o), Florida Statutes. Our client’s trial counsel withdrew from the case sometime after filing the complaint and the case being referred to arbitration. Our client later failed to attend a mandatory case management conference set by the trial court. The trial court dismissed her case as a sanction.

On appeal, we argued that the trial court could not dismiss our client’s case as a sanction for failing to attend the case management conference without making a finding that our client’s failure to attend was willful. We relied upon previous Florida cases from the Fourth DCA and other courts holding that a finding of willful and contumacious conduct was required before a trial court could dismiss a case as a sanction, and that the failure to make such a finding constitutes an abuse of discretion. Dedmon v. Kelly, 60 So. 3d 585, 587 (Fla. 4th DCA 2011); First Fairway Condo. I Ass’n v. Gulfstream Roofing, Inc., 701 So. 2d 652, 653 (Fla. 4th DCA 1997); Zeigler v. Huston, 626 So. 2d 1046, 1047 (Fla. 4th DCA 1993).

The Fourth DCA agreed with our position and reversed the order dismissing the case. The court remanded, and noted that dismissal might still be appropriate if the trial court could make a finding of willful noncompliance. This result provides our client an attempt to avoid dismissal and have the case to proceed on its merits.

** [Note: At the time of this posting, the Fourth DCA mandate has not issued. The decision will not be final until disposition of any timely filed motion for rehearing.] **

Block v. Tosun
Case No. 4D11-1594

The Fourth District Court of Appeal (“DCA”) reviewed a trial court order granting a motion to vacate an eighteen year old default judgment without an evidentiary hearing. The plaintiff trustees had obtained a default judgment against Tosun in 1992. Eighteen years later, with no record activity having occurred, the trustees served Tosun with a subpoena duces tecum in aid of execution. Tosun moved to vacate the default judgment, claiming he never received service of process. Tosun alleged in his motion that the court file that would contain the return of service had since been destroyed. Tosun also attached an affidavit in which he claimed no recollection of having received the complaint and summons, or the default judgment. However, the clerk’s progress docket contained an entry indicating that Tosun had in fact been served with process. The trial court granted Tosun’s motion to vacate following a non-evidentiary hearing.

On appeal, the Fourth DCA agreed with the trustees that the trial court had erred in concluding that their failure to provide a return of service required the court to set aside the final judgment as a matter of law. The trustees had met their burden by providing the clerk’s progress docket as well as the default judgment. The court stated that “[t]ogether these documents constitute evidence which affords a reasonable basis for the conclusion that it is more likely than not service of process on Tosun was properly perfected in 1992.” The Fourth DCA reversed and remanded for the trial court to conduct an evidentiary hearing on the issue.

Duke v. HSBC Mortgage Services, LLC,
Case No. 4D09-5183

The Fourth District Court of Appeal (“DCA”) reviewed a trial court order granting summary judgment of foreclosure against the homeowners, who were husband and wife. At the time HSBC filed its complaint in the trial court, it attached a mortgage showing the Dukes as the borrowers and a company called First NLC Financial as the lender. HSBC alleged in the complaint that it owned the Dukes’ note and mortgage pursuant to an assignment. However, HSBC failed to attach the assignment to its complaint. HSBC later filed a notice of assignment and attached a copy of the assignment that was executed after HSBC filed the complaint. The trial court granted summary judgment for HSBC.

On appeal, the Fourth DCA held that the discrepancy between the attached mortgage showing First NLC Financial as the lender and HSBC’s allegation in the complaint that it owned the note and mortgage created a genuine issue of material fact regarding ownership of the note and mortgage that precluded summary judgment. Citing BAC Funding Consortium, Inc. v. Jean-Jacques, 28 So. 3d 936, 938 (Fla. 2d DCA 2010), the Fourth DCA noted that exhibits control over allegations in a complaint, and therefore the at the time of filing the complaint, the attached mortgage listing First NLC Financial as the lender controlled over HSBC’s allegation in the complaint that it owned the note and mortgage pursuant to an assignment. The court reversed the order granting summary judgment.

Valencia v. Deutsche Bank National Trust Company, 4D09-3297
June 22, 2011

The Fourth District addressed an appeal of an order granting summary final judgment in favor if the lender in a foreclosure proceeding.  The complaint had alleged December 1, 2003 as the date of the borrower’s default. The mortgage required that the lenders provide the borrowers written notification of the default that included the action necessary to cure the default, and gave the borrowers thirty days to comply. The lenders were unable to produce a hard copy of the letter that was actually sent to the borrowers. Instead, the lenders produced two possible letters that could have been sent to the borrower. Both letters contained a cure date of October 8, 2003. The actual letter was found by the borrowers after the summary judgment hearing. It contained a different cure date and a different amount owed than the complaint and the two hard copies produced by the lender.  The Fourth District held that there was a genuine issue of material fact because of these differences, and reversed the order of summary judgment.