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.

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.

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.

Darian v. Weymouth
Case No. 4D10-550

Andrew Darian, personal representative of the estate of his father, James E. Hughes, and trustee of the James E. Hughes Living Trust, appeals a final summary judgment entered in favor of Elizabeth Ann Weymouth, personal representative of the estate of her mother, Martha Mayfield Hughes where the probate court awarded Mrs. Hughes’ interest in the Trust to her estate. James E. Hughes and Martha Mayfield were married in 1999. In August of the following year, James executed the James E. Hughes Living Trust Agreement in compliance with the parties’ prenuptial agreement. The Trust made provisions for disposition of Hughes’ estate upon his death. His will was a pour-over will that expressly incorporated the terms of the James E. Hughes Living Trust. The Trust did not specifically indicate what was to be done with the property bequeathed to Martha in the event that James survived Martha. On September 3, 2004, James and Martha Hughes were shot and killed by Martha’s adopted son from a prior marriage. Both died as a result of gunshot wounds to the head. Because the coroner was unable to determine which spouse predeceased the other, the probate court deemed their deaths to be simultaneous and entered an order to that effect in the probate of Mr. Hughes’ estate. Accordingly, Mr. Hughes’ property was to be disposed of as if he survived Mrs. Hughes. The probate court ruled that Mrs. Hughes’ interest, under the Hughes Trust, vested upon the creation of the Trust and did not lapse upon her death. Andrew Darian appealed.

The Fourth District Court of Appeal reversed the probate court’s ruling and found that no sufficient event existed to vest Mrs. Hughes’ interest in the Trust prior to her husband’s death. The Fourth noted that Mr. Hughes was the sole trustee and beneficiary under the Trust during his life. Mrs. Hughes was among the contingent residual beneficiaries whose interest came into creation only upon the death of Mr. Hughes and who were entitled to distribution of the then remaining corpus of the trust. Because it was judicially determined that Mrs. Hughes predeceased her husband, her interest in the Trust lapsed upon her death.

VOIS, Inc. v. Michael Spindel and Edward Spindel,
Case No. 10-15668-D

We represented a corporation that had gone through multiple changes of ownership since issuing promissory notes to two of its investors and former directors, the Spindels. The corporation sued the Spindels for corporate wrongdoing, and the Spindels countersued claiming they were never paid under the promissory notes relating to their investments. The Spindels removed the case to federal court. During the litigation, the corporation discovered that it possessed the original promissory notes, giving rise to the legal presumption that the debts had been satisfied. However, the trial court granted summary judgment in favor of the Spindels, despite evidence showing that the corporation properly mailed the original promissory notes to the Spindels, supporting the corporation’s position that its debt under the notes had been satisfied.

On appeal, we argued that the trial court erred in granting summary judgment in favor of the Spindels where evidence existed from which a finder of fact could conclude the corporation mailed the spindles the original promissory notes. Summary judgment is inappropriate where there exists conflicting evidence as to an issue of material fact. The U.S. Court of Appeals for the Eleventh Circuit agreed. The court reasoned that the trial court’s finding the evidence was undisputed was erroneous because the corporation had produced evidence indicating that it sent the Spindels the original notes. The Eleventh Circuit reversed and remanded to the trial court.

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.

Florida Dep’t of Revenue v. Seminole Tribe of Florida, 4D10-456
June 22, 2011

The issue of the taxability of gasoline sales to the Seminole Tribe made off the reservation was presented to the Fourth District Court of Appeal.  The trial court granted the Seminole Tribe’s motion for summary judgment while denying the Department of Revenue’s (“DOR”) motion for summary judgment.  The trial court held that the Indian Commerce Clause of the United States Constitution prohibited the State of Florida from taxing any fuel consumed by the tribe on the reservation.
The Fourth DCA performed a de novo review of the matter and held that the Seminole Tribe was not entitled to a refund for taxes on gasoline purchased off the reservation, regardless of where or how it was used. The Court relied on Wagnon v. Prairie Band Potawatomi Nation, 546 U.S. 95 (2005), where the Supreme Court upheld a motor-fuel tax imposed on non-Indian distributers who purchased the fuel off the reservation but ultimately delivered it to gas stations owned by the tribe and located on tribal lands.  In contrast, this case dealt with the purchase of gasoline outside of tribal lands by members of the Seminole Tribe. The Fourth DCA noted that it would be impossible to track the usage of the fuel.  Also, the Court acknowledged that because the tribe reaps the benefit of untaxed gasoline purchased on the reservation regardless of where it is used, common sense would suggest that fuel purchased off the reservation should be subject to the fuel tax, regardless of where it is used.  As a result, the Court reversed the trial court’s grant of summary judgment in favor of the Seminole Tribe and held that “off-reservation transactions, even by tribal members, are susceptible of taxation without running afoul of the Indian Commerce Clause.”

Curtis v. City of West Palm Beach, 4D10-876
June 22, 2011

The Fourth District Court of Appeal addressed the issue of whether a firefighter could claim monetary damages under the Firefighter’s Bill of Rights (“FBR”). The firefighter sought monetary relief for alleged violations of the FBR by the City of West Palm Beach in imposing disciplinary action against him. The City obtained summary judgment because the trial court concluded monetary damages were unavailable under the FBR.
On appeal, the Fourth DCA affirmed, holding that the FBR permitted only injunctive relief. The Court noted that the remedies available for a statutory violation are to be determined by the clear and unambiguous language of that statute.  The Fourth DCA held that the FBR’s language clearly permits injunctive relief as the sole remedy for a violation of its terms.  The Court rejected the appellant’s argument that section 112.84, Florida Statutes (2007) permitted monetary relief for a violation of the FBR as a “right and privilege guaranteed to all citizens.”  While section 112.84 states that “[t]hese rights include the right to bring suit against any…organization… for damages, either monetary or otherwise, suffered during the performance of the firefighter’s official duties or for abridgment of the firefighter’s rights…,” the Court held that the language of section 112.84 refers only to other rights or remedies available under the statute in question.  The Court looked to the legislative intent behind the statute and found that the legislature intended injunctive relief to be the sole remedy for a violation of the FBR.

McLeod v. Elk, Bankier, Christu, P.A., 4D10 – 37
June 8, 2011

The Fourth District addressed the issue of whether the statute of limitations had expired before a claim for legal practice was filed.  In 1998, Robert McLeod hired Thomas Tew as his attorney in order to sue Fidelity Investments (“Fidelity”) for an alleged error that resulted in the wrongful liquidation of McLeod’s account. The parties to that action reached a settlement that contained a general release for Fidelity. McLeod believed that his account would be restored to the status quo ante.  It was not.

Tew withdrew from his representation of McLeod.  McLeod then hired Elk Bankier in 2002 to file an arbitration claim against Fidelity.  The arbitration panel found in favor of Fidelity in 2003. Bankier then suggested filing a malpractice suit against Tew and recommended an attorney who specialized in legal practice claims. That attorney advised McLeod that he had no valid claim against Tew.  In 2004, McLeod then sought the advice of another attorney, William Isenberg.  Isenberg recommended pursuing a legal practice claim against Tew.  McLeod filed a malpractice action against Bankier in 2008, arguing that Bankier negligently allowed the statute of limitations against Tew to expire. Bankier obtained summary judgment based on the two-year statute of limitations, which it contended began when Tew terminated his relationship with McLeod in 2000 or, at the latest, when the arbitration panel reached its decision in 2003.
On appeal, the Fourth District noted that section 95.031(1), Fla. Stat. states that “[a] cause of action accrues when the last element constituting the cause of action occurs.”  The Court reasoned that: (1) as Tew advised McLeod in March 2000 that he would not longer represent him, any possible action against Tew expired in March 2002 and Bankier could not be liable for failure to sue Tew for malpractice since they were not retained until December 2002; (2) even if the limitations to sue Tew began at the arbitration decision in 2003 and expired in 2005, McLeod was advised of his possible cause of action against Tew and did not file against Bankier until 2008, after the statute of limitations against it had expired in 2007; and (3) the latest date at which McLeod’s cause of action against Bankier accrued was 2004 based on when Bankier advised him of his cause of action against Tew, so that the two-year statute of limitations still barred McLeod’s claim against Bankier. The Fourth District affirmed.

The issue as to whether or not an insurance company can deny coverage to an innocent co-insured based on the failure of a spouse to attend an examination under oath (EUO) was resolved in favor of our client, the innocent co-insured.

Our client’s home was burglarized by an unknown assailant. The client preformed all conditions precedent to coverage. The insurance company required that the husband, who lived at home at the time of the burglary and was the person who discovered the home burglarized, sit for an EUO. The problem was that by the time the EUO was scheduled, the husband was no longer living at home; and in fact a restraining order for domestic violence had been issued against him. Counsel for the client argued the innocent co-insured exception at the trial level, and we reasserted it at the appellate level.

The Circuit Court sitting in its appellate capacity overturned the trial courts summary judgment. Further, the reviewing court held that where an insurance policy does not expressly state whether the obligation to attend an EUO is joint or several, the ambiguity should be resolved as requiring the obligations and coverage to apply severally. The summary judgment finding that the failure of the husband to submit to an EUO was a material breach which barred the insured from recovering under the policy was reversed and remanded.  Our client was awarded appellate attorney fees pursuant to Florida Statute 627.428(1).