Law Offices of Robin Bresky Wins Affirmance of Grant of Summary Judgment of Foreclosure and Dismissal of Counterclaims in Suit by Subcontractor Against Lender’s Assignee

Pro-Frame Contracting, Inc. v. Highfields Development, LLC, 4D12-1886

The Law Offices of Robin Bresky successfully defended an appeal by a subcontractor from a summary judgment of foreclosure and dismissal of counterclaims in an action stemming from a construction project. The plaintiff was a subcontractor who had performed work on property that was being developed. A shareholder of the property-owner corporation later formed a separate corporation. The new corporation obtained an assignment of the mortgage from the lender and brought foreclosure proceedings. The subcontractor counterclaimed against the assignee corporation and the shareholder for unjust enrichment, quantum meruit, and foreclosure of equitable lien.

The trial court granted summary judgment of foreclosure in favor of the plaintiff, but initially allowed the subcontractor’s counterclaims to survive. The trial court later dismissed the counterclaims for failure to state a valid legal claim. The subcontractor appealed to the Fourth DCA.

The subcontractor argued on appeal that the assignment of mortgage the appellee obtained was not a valid assignment, but a satisfaction, because the individual appellee was a shareholder of both the owner and the assignee corporation. We argued in opposition that such assignments were valid under Florida law based on the separate nature of the corporate entities and their ability to obtain assignments in their own name from a third party. We also maintained that a subcontractor in the appellant’s position could not bring causes of action for unjust enrichment, quantum meruit, and foreclosure of equitable lien against the appellee because the subcontractor could not be said to have bestowed a direct benefit on appellee as the lender’s assignee.

The Fourth DCA entered a per curiam affirmance (“PCA”) of the trial court’s orders. This result preserves the trial court’s order of foreclosure in favor of our clients and dismissal of the counterclaims against them.

**The mandate in this appeal has not yet issued**

“Possession Determinations Give Power To Bring Non-Final Appeals”: Fourth DCA Clarifies That Order Must Direct Immediate Possession To Qualify As Appealable Non-Final Order

Florida Atlantic Stock Transfer, Inc., v. Smith, 4D11-2955

Florida Atlantic Stock Transfer (“FAST”), a stock transfer agent, appealed from an order in an interpleader action it filed in a dispute over the transfer of stocks. The trial court’s order granted summary judgment against FAST. Specifically, the order determined that Smith was entitled to have certain stock certificated in her individual name with the restrictions on the stock lifted. FAST sought appellate review under Florida Rule of Appellate Procedure 9.130(a)(3)(ii), that allows for review of non-final orders that “determine the right to immediate possession of property.”

On appeal, the Fourth DCA first noted that the order was non-final in nature because although styled as an order granting “Summary Final Judgment,” the substance of the order granted summary judgment in favor of Smith but did not contain any language indicating that it was actually entering final judgment. The court stated that it is the substance of the order, and not the order’s label, that controls for purposes of determining whether it may be appealed. The court pointed out that the order could not be considered final because it did not end all of the litigation between the parties.

The court then began its determination of whether it had jurisdiction of the appeal under rule 9.130(a)(3)(ii) by noting that orders ruling on motions for summary judgment are interlocutory in nature and generally do not determine the right to “immediate possession” even if they resolve legal issues. The court also noted that an interlocutory order determining a party’s ownership of stocks is not an appealable non-final order unless it actually orders disbursement or other immediate possession of property. Higgins v. Ryan, 81 So. 3d 588 (Fla. 3d DCA 2012). The court held that the summary judgment order at issue merely resolved the legal issues in the interpleader action but failed to determine “the right to immediate possession of property.” The court pointed out that FAST obviously had no immediate interest in the property to lose, which was clear from the nature of the case as an interpleader action. The court also found it important that the order did not order FAST to actually issue the restriction-free shares to Smith.

The court dismissed the appeal for lack of jurisdiction based on its determination that the case was not an appealable non-final order.

Michele K. Feinzig, along with Defendant’s trial counsel, Kimberly A. Gilmour of Kimberly A. Gilmour, P.A., represented the employer in an appeal from a summary judgment in the employer’s favor (Third DCA Case No. 3D11-1446). The underlying lawsuit was brought by the employee after she was part of a company layoff necessitated by the economic downturn of 2009. The employee alleged claims of pregnancy discrimination and retaliation, but she had failed to timely file her Charge of Discrimination pre-suit with either the Equal Employment Opportunity Commission or the Florida Commission on Human Relations.  Despite a convoluted set of facts resulting from the employee’s efforts to cover her failure to exhaust administrative remedies, the trial court granted summary judgment in favor of the employer. The Third DCA agreed with the employer and affirmed the decision of the trial court, bringing an end to the litigation.

Canterbury Apartments, Inc. v. Sokol,
Case No. 10-21735 CACE (26); L.T. Case No. 09-7287 COCE (53)

We represented the tenants of a unit of a co-operative apartment building. Prior to our involvement in the case, the apartment building management filed suit against our clients alleging five separate violations of the lease, corporation by-laws, and rules and regulations. The apartment management sought to remove our clients from the apartment and terminate our clients’ certificate of ownership. The trial court granted final summary judgment in favor of our clients based on the court’s finding that the allegations, even accepted as true, did not constitute a persistent violation of the governing documents that would entitle the apartments to remove our clients and terminate their certificate of ownership. The apartment management appealed.

On appeal, we defended the trial court’s finding that the governing documents simply did not allow the apartments to remove our clients and terminate their certificate of ownership for the violations alleged. Specifically, we argued that the requirement in the governing documents that the violations be “persistent” barred the apartment management’s relief here where none of the five different alleged violations was repeated. The Seventeenth Judicial Circuit in and for Broward County, sitting in its appellate capacity, agreed. The court affirmed the final summary judgment for our client and granted our motion for appellate attorney’s fees.

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.