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**

Law Offices of Robin Bresky Obtains Reversal of Order That Landlord Return “Advance Rent” Following Proper Termination of Tenant’s Lease

Atlantis Estate Acquisitions, Inc. v. DePierro, 4D11-295

The Law Offices of Robin Bresky recently obtained reversal of a final judgment following trial, which ordered a landlord of residential property to return a large sum of rent to a former tenant. The evidence showed that the tenants had made one large lump-sum rent payment intended to cover the entire year rental period. The trial court found that the landlord had properly terminated the tenants’ occupancy of the premises based on damage to the home. However, the trial court found that the large lump-sum rent payment the tenants had made prior to moving in was “advance rent” under Florida Statute 83.43(9). The trial court ordered the landlord to return the “unused portion” of rent based on the court’s finding that the rent was intended as advance rent for monthly payment periods. The trial court found that the landlord would be unjustly enriched if it kept the rent.

On appeal, we argued that the tenants’ rent payment could not be considered advance rent under the statute because there was only one rental period, rather than the multiple “future rent payment periods” discussed in the advance rent statute. We argued that the only “rent payment period” was the current rent payment period of one year for which the tenants paid. We also argued that the landlord was legally entitled to retain the “unused” portion of the rent money regardless, because the landlord’s termination of the lease was proper. Finally, we argued further that unjust enrichment was inapplicable since a written lease governed the agreement between these parties.

The Fourth DCA agreed with our position. The Fourth DCA held that the rent payment did not constitute advance rent and that, even if it was advance rent, the landlord should still not have been required to repay it where the landlord properly terminated the lease. The Fourth DCA also held that unjust enrichment did not apply. This reversal allows our landlord client to retain the $38,500 in rent that it was ordered to repay the client, and also affirmed that our client is not liable for the tenants’ attorney’s fees.
** At this time, the time for a motion for rehearing has not expired and the court’s mandate has not yet issued. **

Law Offices of Robin Bresky Obtains Affirmance of Final Judgment Based on Verdict for Plaintiff in Personal Injury Automobile Accident Suit

Garcia Rojas v. Aristizabal, 3D12-384

The Law Offices of Robin Bresky recently won an affirmance of a final judgment awarding our client damages for personal injuries he sustained in an automobile accident. Our client went to trial in his personal injury suit and obtained a jury award of $185,277 in the trial court in Miami. No medical expert testified at the trial, but our client testified about his injuries, his treatment, and the resulting medical bills. The trial court admitted the medical bills into evidence over defense counsel’s objection. The trial court later entered a final judgment in our client’s favor based upon the jury verdict.

The defendant appealed the final judgment, arguing that our client had not provided sufficient testimony to admit the medical bills into evidence. We argued that our client’s testimony was sufficient under Florida law to make the reasonableness and necessity of medical bills a question for the jury. We stressed that Florida law does not require expert medical testimony in order to prove the reasonableness of a personal injury plaintiff’s medical bills.

The Third DCA issued a per curiam affirmance of the trial court’s order. This result in the appellate court preserved our client’s hard-won jury verdict.
** The mandate has not yet issued **

Law Offices of Robin Bresky Obtains Affirmance of Order Limiting Successor Mortgagee’s Liability Following a Foreclosure Sale

The Sterling Villages of Palm Beach Lakes v. The Bank of New York, 4D11-3008

The Law Offices of Robin Bresky recently won an affirmance of an order limiting a successor mortgagee’s liability to the homeowner’s association (“HOA”) following a foreclosure sale. Our client held a mortgage on property located within the HOA. The unit owner defaulted. Our client foreclosed on the property, and joined the HOA in the foreclosure suit. Our client purchased the unit at foreclosure sale and obtained a certificate of title.

Following the foreclosure sale, our client sought to determine its liability to the HOA for the outstanding unpaid assessments on the unit. Our client took the position that it was a successor mortgagee whose liability for unpaid assessments was limited by the operation of section 718.116(1)(b), Florida Statutes, to the lesser of the preceding twelve months’ assessments prior to taking title, or one percent of the mortgage debt. The HOA sought discovery on the issue of whether our client was a successor mortgagee. The HOA also argued that our client was required to initiate a separate proceeding in which to determine the amounts due to the HOA. The HOA also sought various amounts for interest and other charges accruing prior to the time our client took title. The trial court rendered an order in our client’s favor denying discovery and limiting our client’s liability pursuant to the statute. The HOA appealed.

We argued on appeal that the trial court had already determined in its Final Judgment of Foreclosure that our client was a successor mortgagee and the HOA had failed to appeal the Final Judgment, so discovery on that issue would not be appropriate. We also argued that our client’s liability was limited by the statute and the statute did not include the various additional amounts sought by the HOA. The Fourth DCA issued a per curiam affirmance of the trial court’s order. This result in the appellate court preserved the beneficial outcome for our client.

Law Offices of Robin Bresky Obtains Reversal of Temporary Attorney’s Fees Award in Modification of Alimony Proceedings

Giorlando v. Giorlando, 4D12-1220

The Law Offices of Robin Bresky recently won reversal of a trial court’s award of temporary attorney’s fees and costs in a petition for modification of alimony. The parties’ marriage was previously dissolved and a marital settlement agreement (“MSA”) was incorporated in the Final Judgment of Dissolution. The MSA imputed $40,000 of yearly income to the former wife for purposes of determining alimony and child support.

The former wife filed a petition for modification of alimony and child support six years after the dissolution of marriage, alleging that substantial changes had occurred in both parties’ financial situations that warranted an increase in the alimony and child support she received. The trial court held a hearing at which both parties testified. The trial court later awarded the former wife $79,333.71 in total professional fees and costs without imputing the $40,000 in yearly income to the former wife pursuant to the MSA.

On appeal, we argued that the trial court should have imputed $40,000 in yearly income to the former wife as provided in the Final Judgment of Dissolution and MSA. The Fourth DCA agreed, and held that the $40,000 must be taken into account in the trial court’s determination of whether to award temporary fees. The Fourth DCA noted that the former husband had testified on the record to the decline in his construction business due to the economy, and that there had been no explanation for why the former wife’s need had increased. The Fourth DCA stated that the former wife should have the burden of explaining why the imputed income should not be considered.

Bovino v. MacMillan, 4D11-3105

The Law Offices of Robin Bresky recently won reversal of a trial court’s erroneous order finding that our client/Appellant, a Colorado attorney, engaged in the unauthorized practice of law. The Appellant had a broad power of attorney (POA) relating to the financial affairs of a man that he represented in Colorado. That man’s mother later initiated a guardianship proceeding over her son in Broward County, alleging that her son was unable to manage his own affairs. Our client filed an objection to the guardianship petition based on the existence of the POA that he held. The trial court struck our client’s filing based on a finding that it constituted the unauthorized practice of law because our client was not licensed as a Florida attorney.

On appeal, we argued that our client/Appellant had intervened in the guardianship proceeding as an interested person pursuant to the guardianship statutes rather than in his capacity as the proposed ward’s attorney. We called the appellate court’s attention to the fact that Appellant had clearly stated in his objection in the guardianship case that he was filing the documents on his own behalf. We argued it was error for the lower tribunal to find this attorney was engaging in the unauthorized practice of law and that our client believed it was his fiduciary duty to bring the existence of the POA to the attention of lower tribunal. We further argued public policy should encourage this disclosure.

The Fourth DCA held in a written opinion that Appellant’s objection in the guardianship proceeding did not constitute the unauthorized practice of law because Appellant did not purport to represent the client as his attorney in the proceeding. The Fourth DCA reversed the order on appeal and remanded for further proceedings. The reversal of the erroneous order finding that our client engaged in the unauthorized practice of law vindicates our client’s professional reputation.

“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.

Miller v. Bohan, 4D11-1169

The Law Offices of Robin Bresky recently won an affirmance of a final judgment in our client’s favor in an appeal involving a trust amendment. Our client’s remaining living sister brought a lawsuit against our client contesting the trust amendment their deceased sister had executed in favor of our client. Our client’s remaining living sister argued that our client, who had helped care for her ill sister at the end of her life, had exercised undue influence over her sister in the execution of the trust amendment prior to her death. The trial court found that our client had successfully rebutted the legal presumption of undue influence arising from her involvement in the execution of the trust amendment. The trial court found after listening to all of the evidence at trial that the deceased sister knew what she was doing when she amended her trust, that she had her own valid reasons for amending the trust, and that she knew what she was doing on the day she executed the amendment.

On appeal, our client’s remaining living sister argued that the trial court had failed to correctly apply the burden-shifting procedure required by section 733.107, Florida Statutes, to evaluate whether our client successfully rebutted the presumption of influence. Our firm argued that the trial court had diligently applied the evidence to the appropriate legal framework established by the statute and had properly concluded that there was no undue influence. We also argued that competent substantial evidence in the record supported the factual findings made by the trial court in the final judgment.

The Fourth DCA issued a per curiam affirmance (“PCA”) affirming the trial court’s final judgment in favor of our client. The Fourth DCA also awarded our client attorney’s fees in connection with the appeal. This result preserved the final judgment in favor of our client and maintained the trust amendment in accordance with the wishes of her deceased sister.

The Law Offices of Robin Bresky recently won a motion for rehearing of an order of contempt that held our client in contempt for failure to pay an award of temporary attorney’s fees. We are in the process of appealing the underlying order requiring our client to pay fees to opposing counsel. The parties were divorced in 2005 and the final judgment of dissolution incorporated a marital settlement agreement that detailed the former husband’s alimony obligation. In 2011, the former wife filed a petition for modification of alimony seeking an increase in her alimony based on her allegations that the parties’ financial circumstances had changed substantially. As part of her petition, the former wife requested an award of temporary attorney’s fees. The trial court conducted a hearing and awarded the former wife $79,333 in attorney’s fees for the modification litigation.

Our client, the former husband, was unable to pay the temporary fee award due to a downturn in his business attributable to poor economic conditions. The former wife later filed a motion for contempt against our client based on his failure to pay. The trial court conducted a contempt hearing and then granted the former wife’s motion to hold our client in contempt.

Our firm filed a motion for rehearing of the order granting the former wife’s motion for contempt. We stressed that civil contempt requires a court finding of both a party’s willful non-compliance and that a party has the present ability to comply with the court’s order. We argued that the trial court had failed to adequately identify the means by which our client could satisfy the purge amount, and also that the order of contempt was improperly based in part upon a prospective ability to pay because it assumed our client would be able to make future regular payments to the former wife’s attorney. We argued that this framework ran contrary to the legal principle that contempt must be based upon a present ability to pay. We also argued that the trial court had failed to make findings that our client had equity in certain assets that the trial court had identified.

The trial court held a hearing and agreed with our position. The trial court rendered an order granting the motion for rehearing of the order granting the former wife’s motion for contempt. This positive outcome undid the order of contempt and prevented our client from being put in jail for not paying an attorney’s fee award that he could not afford to pay.

Law Offices of Robin Bresky Defeats Motion for Relinquishment of Jurisdiction

In an appeal by a Former Husband who took his Former Wife’s jewelry and artwork, the Former Husband moved the Fourth District Court of Appeal to relinquish jurisdiction to the trial court. He argued that the trial judge should have an opportunity to vacate the final judgment because it was allegedly entered without sufficient notice to the Former Husband.

The courts have said that anyone moving for relinquishment of jurisdiction must show some very good cause for the request, or it should be denied. “Where a party seeks relinquishment of jurisdiction . . ., the burden is on the moving party to show entitlement to relief.” Lurie v. Auto-Owners Ins. Co., 605 So. 2d 1023, 1025 (Fla. 1st DCA 1992). “The presumption is . . . that judicial economy would be best served by leaving jurisdiction in the appellate court until issuance of mandate. A party wishing to overcome that presumption and obtain a relinquishment of jurisdiction must show entitlement to that relief. . . .” Id.

The Law Offices of Robin Bresky filed a response for the Former Wife, demonstrating that the Former Husband had failed to show any entitlement to having the case relinquished to the trial court. The Fourth District denied the Former Husband’s motion to relinquish jurisdiction. The appeal will proceed and the appellate court will decide the issues on the merits.

The Law Offices of Robin Bresky takes pride in depth of research to support the positions that we argue for our clients. We welcome referrals for appeals of all kinds in state and federal courts and often provide litigation support for dispositive motions or responses in the trial court.