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De Novo Review Writing Samples

Table of Contents

Appellate Briefs ...................................................................................................... 2 1. Initial Brief: Appeal of Case Dismissal (Condo Association) .............................. 2 2. Answer Brief: Appeal of Order Denying Motion to Quash Service (Commercial

Litigation) ............................................................................................34 3. Answer Brief: Appeal of Valuation of Assets (Family Law) .............................62 4. Answer Brief: Appeal of Summary Judgment (Foreclosure) ...........................106 5. Response Brief: Response to Court’s Order to Show Cause Regarding

Jurisdiction (Family Law) .................................................................106 6. Final Answer Brief: Appeal of Court’s Dismissal of Breach of Contract

Counterclaim (Commercial Litigation) .............................................113

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Appellate Briefs

1. Initial Brief: Appeal of Case Dismissal (Condo Association)

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IN THE DISTRICT COURT OF APPEAL OF FLORIDA FOURTH DISTRICT

CASE NO.

APPELLANT CONDOMINIUM ASSOCIATION, INC., Appellant,

v.

SON AND MOTHER Appellees.

APPELLANT’S INITIAL BRIEF

Attorney for Appellant

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TABLE OF CONTENTS TABLE OF CITATION OF AUTHORITIES.........................................................iii STANDARD OF REVIEW.....................................................................................1 STATEMENT OF CASE AND FACTS..................................................................2

A. Nature of the Case……………………………………………………….3

B. Course of Proceedings………………………………………………….3

C. Statement of Facts

SUMMARY OF ARGUMENT…………………………………………………...13

ARGUMENT………………………………………………………….…………..15

A. Appellant Presented Competent and Substantial Evidence of The Debt Owed…………………………………………………….…...15

B. Son’s Assertion That He Paid Assessments To A Former Appellant Officer Does Not Rebut the Debt Owed And Does Not Constitute a Valid Defense in Fact or in Law…………………………………………………….………….21

1. Checks not introduced at trial cannot be considered at

trial or on appeal………………………………………….…………21

2. Appellees did not demonstrate that Appellant’s’ former officer had authority to accept checks for payment on behalf of Appellant …………………………….……………...23

CONCLUSION……………………………………………………………..…….25

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CERTIFICATE OF SERVICE AND COMPLIANCE.......................................26

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TABLE OF CITATIONS AND AUTHORITIES

Case Law Brooksville v. Hernando County, 424 So.2d 846 (Fla. 5th DCA 1982) ........................................................... 22 Diwakar v. Montecito Palm Beach Condominium Assoc., Inc., 143 So. 3d 958 (Fla. 4th DCA 2014) ......................................................... 21 Kelsey v. SunTrust Mortgage, Inc., 131 So. 3d 825 (Fla. 3d DCA 2014) ........................................................... 21 Lensa Corp. v Poinciana Gardens Assoc., Inc., 765 So. 2d 296 (Fla. 4th DCA 2000) .......................................................... 24 Linton v. Pension Services Corp., 389 So. 2d 247 (Fla. 2d DCA 1980) ..................................................... 17, 18 Marco Island Civic Ass’n Inc. v. Mazzini, 805 So. 2d 928 (Fla. 2d DCA 2001) ............................................................. 2 Servpro Industries, Inc. v. Spohn, 638 So. 2d 1001 (Fla. 4th DCA 1994) ........................................................ 17 Siewert v. Casey, 80 So. 3d 1114 (Fla. 4th DCA 2012) ...................................................... 1, 16 Taco Bell of California v. Zappone, 324 So. 2d 121 (Fla. 2d DCA 1975) ........................................................... 24 Thomas v. Thomas, 724 So. 2d 1246 (Fla. 4th DCA 1999) ........................................................ 19 Tylinski v. Klein Automotive, Inc., 90 So. 3d 870 (Fla. 3d DCA 2012) ............................................................. 21 Wolkoff v. American Home Mortgage Servicing, Inc., 153 So. 3d 280 (Fla. 2d DCA 2014) ........................................................... 22

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Yang v. Sebastian Lakes Condominium Association, Inc., 123 So. 3d 617 (Fla. 4th DCA 2013) ......................................................... 22

Statutes and Other Authority

§ 718.115, Fla. Stat.. ................................................................................. 1, 22

ABBREVIATIONS

The record on appeal will be cited as “R. at xx.” Trial exhibits have been provided to the court of appeals separately from the

four bound volumes, with an index entitled “Index to Record on Appeal” with pages 1 to 128. Appellant will refer to those documents by exhibit number as “Trial ex. xx.”

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STANDARD OF REVIEW

The appellate court reviews the trial court’s factual findings for “competent

substantial evidence.” Siewert v. Casey, 80 So. 3d 1114, 1116 (Fla. 4th DCA 2012).

Questions regarding admissibility of evidence are reviewed for an abuse of

discretion, limited by the rules of evidence. Yang v. Sebastian Lakes Condo. Assoc.,

Inc., 123 So. 3d 617 (Fla. 4th DCA 2013).

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STATEMENT OF CASE AND FACTS

A. Nature of the Case

Appellant, Condominium Assoc., Inc. (“Appellant” or “Association”), filed

suit against Appellees, Son and Mother (“Spouses” or “Appellees”), for failing to

pay assessments and fees owed to Appellant in connection with a condominium

owned by the Spouses,1 and for foreclosure of the lien for assessment, pursuant to

Florida Statutes, Section 718.115. The trial court dismissed the case after a bench

trial, because the court could not determine the amount owed.

At issue is whether the trial court erred in dismissing the case, in light of

Appellant’s undisputed evidence that Appellees owed Appellant assessments and

late fees (along with attorneys’ fees and interest). Son conceded that he owed

payments. The only testimony presented attempting to contradict the amount owed

1 Mr. Spouse stated at trial that defendant Mother, is his mother, and that she

is not the owner of the property at issue. Tr. at 12, 14. However, the Claim of Lien for Assessments identifies both Appellees as owners of the property. R. at 15; Trial ex. 4. Mother did not appear at the trial, nor did she have counsel present. Son cannot represent Mother or her interests because a pro se litigant cannot represent the interests of another. Such actions would be akin to practicing law without a license. Fla. Stat. § 454.23; cf. Marco Island Civic Ass’n Inc. v. Mazzini, 805 So. 2d 928 (Fla. 2d DCA 2001) (finding that a member of a class would violate the due process rights of other members of the class if she were allowed to represent the class pro se, without legal representation). Mother was a named defendant who failed to present any evidence at trial and Appellant is entitled to a judgment against her to the extent that she has an interest in the subject property.

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is Son, stating that he submitted several checks to a former officer of the

condominium association. However, his testimony was devoid of any specifics

regarding the total amount allegedly paid and Son presented no documentary

evidence at trial. Essentially, the trial court failed to perform its duty of weighing

the evidence, and dismissal was clearly erroneous.

B. Course of Proceedings

Appellant sued Appellees in 2009 seeking a final judgment for the payment

of past due assessments that they owed to Appellant and for foreclosure of the lien

on Appellees’ condominium, pursuant to its authority under Section 718.116,

Florida Statutes. R. at 2 (¶ 1), 3-6 (¶¶ 8-15).

The trial court initially granted final judgment in favor of Appellant on [Date],

and ordered the property to be sold at a foreclosure sale to satisfy the lien. R. at 81

(R. at 65-79 (based on motion for summary judgment filed [Date]). Appellees,

through counsel, successfully moved to have the sale cancelled or re-scheduled

twice. See R. at 87 (Order dated October 9, 2012, cancelling sale based on lack of

notice to defendant re: motion for summary judgment, which hearing was reset) ; R.

at 103 (Order dated [Date], re-setting sale); R. at 111 (Order of [Date], cancelling

sale and setting hearing on defendants’ emergency motion alleging proof of

payment). On [Date], Appellees moved to vacate the final judgment and separately

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filed exhibits in a “Notice of Filing” with the trial court, which included copies of

checks Son claimed to have paid to Appellant. R. at 112; R. at 117-211. The

documents were not authenticated by affidavit and were never introduced at trial.2

While the motion to vacate the final judgment was pending, the counsel for

the Appellants withdrew as counsel of record,3 and Son proceeded pro se. R. at 213-

214, 215. The court ordered mediation that resulted in an impasse. R. at 235.

Ultimately, the court vacated the final judgment and set the case for trial. R. at 239.

At trial, Appellant presented the sole testimony of Treasurer, the current and

past treasurer of Appellant. Tr. at 11. Through Ms. Treasurer, Appellant introduced

exhibits into trial that demonstrated, among other things, that all payments received

by Appellant from Appellees were properly credited to his account. Tr. at 10-64,

86-87; Trial ex. 1 (Appellant annual corporation reports filed with the State); Trial

ex. 2 (Declaration of Condominium); Trial ex. 3 (accounting ledger); Trial ex. 4

2Son referenced checks provided to the court earlier in the case and approached the witness, Ms. Witness, with a check in his hand. Tr. at 44. Appellant objected it its use at trial, which the trial court sustained. Son did not otherwise attempt to present the checks into evidence during his direct testimony or at any other point in the trial.

3Counsel for the Appellees withdrew from the case on [Date], based upon

irreconcilable differences. R. at 64. Appellees retained a new attorney, but on [Date], new counsel sought and was granted leave to withdraw as their counsel of record as well. R. at 215. From that point on, Son represented himself pro se. Mother did not have counsel and did not appear at trial pro se.

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(demand letter); Trial ex. 5 (final demand letter and lien); Trial ex. 6 (attorney

retainer agreement).

The only witness called on behalf of the Appellants was Son himself. Son

represented himself pro se, and did not introduce any exhibits at trial. Tr. at 2-4; 67-

85. Son did not challenge the authority of Appellant to issue assessments. His only

challenge at trial revolved around the amount of the debt owed.

Mother did not present evidence at the trial, and did not appear either pro se

or through an attorney. Because she did not appear, she did not present any evidence

that contradicted the substantial competent evidence of Appellant.

At the close of the trial, the trial court dismissed the case, ruling from the

bench that the court could not determine the amount of the debt. Tr. at 95-96. Final

judgment was entered on [Date], dismissing the case, as follows:

THIS ACTION was heard before the Court on [Date], after a non-jury trial. On the evidence presented IT IS ORDERED AND ADJUDGED that: The case is hereby dismissed.

R. at 528. The trial court’s final order dismissing the case could not have applied to

Mother, since she made no appearance and presented no evidence at trial. However,

to the extent that the dismissal applied to Mother, Appellant collectively refers to

both Son and Mother as “Appellees” and argues as if the final judgment applied to

both.

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Appellant timely appealed the [Date] Final Judgment dismissing the case. R.

at 529.

C. Statement of Facts

Appellant is a condominium association that is governed by Section 718.115,

Florida Statutes, and its Declaration of Condominium. Trial ex. 2. Son and Mother

are the current owners of the property at issue in this case. R. at 15; Trial ex. 4 (but

see, Tr. at 12, 14 (Son claims he is sole owner)).

Son admits that Appellant’s president for the years 2011, 2012, 2013 and 2014 was

Mr. President. Tr. at 73-74; Trial ex. 1. As a condominium association, Appellant

assesses fees to the homeowners for maintenance. Tr. at 15-16. This monthly fee

has been $280 for the last five years. Tr. at 16.

Ms. Treasurer (“Treasurer”), current and past treasurer for Appellant, was

asked in 2007 by then vice-president Motherto help reconcile the ledger reflecting

payments by condominium owners, from 2004 to 2007, because a former president

left his position and the records he kept were destroyed. Tr. at 17, 19-20, 38, 39.

Ms. Treasurer continued to keep the records, and served as treasurer for over six

years. Tr. at 11. Appellees made sporadic payments to Appellant from 2004

through 2009. Tr. at 22, 24-40; Trial ex. 3.

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Appellant first provided a notice of delinquent assessment payment to

Appellees by certified and regular mail, dated August 7, 2009. R. at 3 (¶ 8(a); Tr.

at 29, 31; Trial ex. 4. In that letter, Appellees were notified that they owed $

2,751.10 through August 31,2009 and that payments should be made to [Firm

Name], LLP. Tr. at 28-29, 32; Trial ex. 4.

A second demand letter itemizing the total due as $ 3,388.04, dated [Date],

and a recorded Notice of Claim of Lien for assessments and intention to foreclose

thereon, were mailed to Appellees by U.S. and certified mail. R. at 4 (¶ 9); Tr. at

32-33; Trial ex. 5Tr. at 32, 33; Trial ex. 5. Ms. Treasurer testified that the last

payment Appellant received was in March of 2010. Tr. at 22, 24-40; Trial ex. 3.

The testimony of Ms. Treasurer and the ledger introduced as trial exhibit 3

demonstrates that the following payments were never received by Appellant and

therefore owed by Appellees:

• [Amount] for maintenance fees (Tr. at 26-27);

• [Amount] simple interest (Tr. at 27);

• [Amount] for attorneys’ fees (Tr. at 28);

• [Amount] for late fees (Tr. at 28).

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The total amount owed as of the date of trial was $41,000.74. Tr. at 36. All

payments made by Appellees were recorded in the ledger and credited, and all

payments credited were verified by Ms. Treasurer. Tr. at 28, 47, 49, 52, 60-62.

On cross examination of Ms. Treasurer, Son stated that he sent Appellant’s

attorneys a list and copies of checks he allegedly sent Appellant reflecting full

payment of the fees and assessments he owed. Tr. at 51. Ms. Treasurer explained

that Appellant’s attorney sent a list of those checks with account numbers and

amounts for Ms. Treasurer to reconcile, which she did. Tr. at 28, 60-62. Ms.

Treasurer reviewed the check numbers recorded in the ledger and provided by

Appellant’s attorneys, and reconciled those checks against deposits in Appellant’s

account. Tr. at 60-62. Ms. Treasurer was not aware of any attempts by the

Appellees to actually rectify the balance owed. Tr. at 57.

Ms. Treasurer testified about the procedure she used to update the ledgers.

Tr. at 49, 52-53. Specifically, Ms. Treasurer stated during the trial:

Q: And every one of those checks you reconciled to determine whether those checks should be credited, correct? A [MS. TREASURER]: Correct. Q: And for those checks that actually needed to get credited, were these checks given credit? A: Some of the checks were already on the account that was given credit for and some was not. Q: So they were previously given credit; correct? A: Correct.

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Tr. at 62. Ms. Treasurer further testified to the existence of additional checks

provided to Appellant’s attorneys, which were allegedly provided to Appellant, but

which never appeared in Appellant’s account.

Q: For those checks that didn’t appear on the ledgers were any of those other checks received by the association [Appellant]?

A. No. Tr. at 63. During cross examination, Son approached Ms. Treasurer with the ledger

and “a cancelled check.” Tr. at 44. Appellant objected to the introduction of the

cancelled check at trial, which the court sustained, by stating, “You can only use

those exhibits that have already been admitted into evidence on cross-examination.

You cannot introduce evidence.” Tr. at 44. It appears, although it is unknown, that

this check was part of a Notice of Filing submitted to the court eight months prior to

trial. R. at 114-117 (filed December 14, 2012).

During his direct examination, Son testified that he had been making

payments of $280 each month to the former officer of the association, Ms. Former

Officer.4 Tr. at 69. While Son asserted that there were checks written to Appellant

4 If this Court were to consider the checks submitted by Son in the Notice of

Filing, a close analysis would show that the checks that he claims are missing from Appellant’s ledger were submitted to Ms. Former Officer and either (1) deposited into a different account than those deposited by Appellant or Appellant’s attorneys, or (2) remain uncashed. The allegedly missing credits for 2010 align with checks deposited by Ms. Former Officer. Check number 1037, which appears as a payment

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that do not show up on the ledger, he admits that such checks were provided to a

former officer, Ms. Former Officer.5 Tr. at 69, 81. The trial court asked Son during

his direct testimony, “[t]he proof of your payments to the association, that is what

you filed in the court file, is that correct?” Tr. at 85. Son agreed to the court’s

statement. Tr. at 85.

The filing referred to by the court is Son’s Notice of Filing, dated [Date],

which did not include an affidavit authenticating the documents filed. R. at 117-

211; Tr. at 69-70. Son did not attempt to present the documents in that filing,

including the checks, into evidence during the trial and the filing was never

authenticated at trial, or made part of the trial record. Appellant was never given

the opportunity to cross exam Son regarding their veracity or relevance at trial.

on Appellant’s ledger, was endorsed with a stamp, giving the Appellant account number as [Account Number I]. R. at 180; Trial ex. 3 at p. 2 (3/01/10 due date). However, the amounts missing from the Appellant ledger, such as check # 1030 (R. at 184), were endorsed by Ms. Former Officer and deposited into account number [Account Number II]. R. at 184; Trial ex. 3 at p. 2 (showing missing payment for 11/01/10). The 2011and 2012 checks alluded to by Son, which do not appear as credits on the Appellant ledger, are not endorsed or cashed, consistent with Son’s statements that he could have Ms. Former Officer release those checks. R. at 188-211; Tr. at 89, 93.

5 Ms. Ojar testified that she was personally aware of a lawsuit that the former

officer of Appellant, Ms. Former Officer, brought against Appellant in Broward County, and that the former officer was removed from the Appellant board. Tr. at 86. Ms. Former Officer is the person to whom Son claims to have provided payments to for payments owed to Appellant. Tr. at 81, 92-93.

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Importantly, in his closing argument, Son conceded that he owed [Amount]

to Appellant: “I know how much I owe which is [Amount]. That does not include

your legal fees . . . .” Tr. at 89-90 (emphasis added). He further stated, “I know

what I owe up till September 1st. That, again, does not include late fees, but I know

what I owe.” Tr. at 90. It is unclear why Son conceded to past assessments owed

of [Amount] and not the amount determined by Ms. Treasurer of [Amount II]. (Tr.

at 26-27).

Son conceded in closing, “[e]very month the check is still currently written

to [Ms. Former Officer],” Tr. at 89, and that the checks are “mailed to her.” Tr. at

93. While Son claims that the checks were made payable to “[Appellant],” Tr. at

81, he admits that he did not deliver those checks to Appellant’s attorneys. Tr. at

92-93. He further conceded at closing, “I have no objection to paying, or should I

say, instructing Ms. Former Officer to release those checks because every month it’s

a check mailed to her.” Tr. at 92-93. Son continued, “So all I can say, Your Honor,

is that I know, I know what’s outstanding, I know the payments that I’ve made,

they’re aware of those payments and where they’re going, but because they haven’t

physically received those payments I’m at default.” Tr. at 94. Son was aware that

Mr. President was the official president of the Appellant association during the time

he submitted the payments in dispute to Ms. Former Officer, but he refused to make

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payments to Appellant through its officer or its attorney. Tr. 73-75, 82. Son

testified that “I have no issues paying the association, but the issue is who’s

responsible for actually receiving those payments.” Tr. at 73.

While the trial court had stated at the beginning of trial that information

relating to the removal of Appellant officers was irrelevant to his finding of whether

Son was delinquent in his payments to Appellant, Tr. at 9, at the close of the trial he

spoke differently. The trial court stated at the close of the trial:

THE COURT: Interesting case. It appears that you have two boards acting for one association. The question mark was for who’s the right board, who’s an owner to believe basically. I have slightly more sophisticated owners involved here.

The testimony, however, was unhelpful in many respects. We’ve had testimony that says we received no payments since May of 2010 and testimony that says in point that we have. The question is where has that money been going.

I do note that the checks have been made payable to Appellant Condo Association. Apparently we have two different treasurers, an old former president collecting money and a current one, and the question mark of who should or shouldn’t be there.

So we have some issues here of equities. One equity is why is the current association not suing the other one saying you’re stealing from us, and vice versa the owners who should be making the payments directly to the one claim, so of course the other side might turn around and say, well, we want to foreclose, too. I don’t know who’s really entitled to do that.

Given the conflicting testimony, however, I can’t, I can’t affix an amount. It’s impossible for this court to affix an amount, and, therefore, the court can’t give a judgment. Case dismissed.

SON: Thank you, Your Honor. Is that without prejudice, Your Honor?

COURT: You had your day in court. Case is dismissed.

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Tr. at 95-96 (emphasis added).

SUMMARY OF ARGUMENT

The trial court’s dismissal of Appellant’s claims was clearly erroneous

because the court ignored the substantial competent evidence presented in favor of

Appellant reflecting the debt owed by Appellees through the testimony of

Appellant’s treasurer. Son conceded that Appellees owed past due assessments and

presented no evidence at trial to contradict the ledger and testimony of Appellant’s

treasurer. Appellant’s uncontroverted trial evidence, supported by Son’s

concession, mandates a finding in favor of Appellant.

Appellees’ assertion that they did not owe the debt because they paid certain

assessments to a former officer of Appellant did not create a legal defense or rise to

the level of substantial competent evidence to overcome Appellant’s proof of debt

owed, or to allow the trial court to rule in Appellees’ favor. Payments made to a

person without authority to accept payment on behalf of Appellant cannot satisfy

Appellee’s debt, especially given that Appellees were told where and to whom to

make payments.

To the degree that the checks written by Appellees to “Appellant” but

submitted to a person no longer serving as an officer of Appellant was relevant, the

trial court erred in considering them because they were not introduced at trial or

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otherwise authenticated. Even if the trial court had discretion to consider documents

filed with the court, but not provided at trial, the checks are inadmissible hearsay

and are not admissible evidence. To the extent that this Court considers the

unauthenticated checks, they clearly show that Appellees submitted them to a former

officer, who did not have apparent authority to act on behalf of Appellant and thus

could not satisfy the debt owed.

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ARGUMENT

A. Appellant Presented Competent and Substantial Evidence of the Debt Owed. The trial court clearly stated the purpose of the trial at the end of opening

statements:

To be perfectly clear, this trial for today whether or not there’s been assessments and payments, it’s not as to who’s the board, not the board, who should be the appropriate person. That is not why we’re here today. Okay. It’s simply going to be on whether or not there is a debt owed and whether or not there is property owed.

Tr. at 9. Yet, the trial court ignored his duty to weigh the evidence and make a

decision based on competent substantial evidence. Instead, the trial court stated at

the conclusion of the bench trial, “Given the conflicting testimony, however, I can’t,

I can’t affix an amount. It’s impossible for this court to affix an amount, and,

therefore, the trial court can’t give a judgment. Case dismissed.” Tr. at 94-95. The

trial court’s dismissal of the case was clearly erroneous.

Appellant presented substantial competent evidence of the debt owed to

Appellant through the ledgers kept in the regular course of business by Appellant

and testimony of Appellant’s treasurer, Ms. Treasurer. Ms. Treasurer was

personally responsible for verifying every check received and cashed by Appellant

from Appellees’ accounts against the monthly assessments, and other fees due. She

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detailed how the amounts paid were applied, which the trial court acknowledged

were applied pursuant to statute. Tr. at 47 (referring to Fla. Stat. § 718.116(3).6

Appellees did not rebut the testimony that the debt was owed or otherwise

present substantial competent evidence to support the trial court’s dismissal of the

case. It is the trial court’s duty to weigh the evidence presented to determine the

outcome. Siewert v. Casey, 80 So. 3d 1114, 1116 (Fla. 4th DCA 2012). “It is the

role of the finder of fact, whether a jury or a trial judge, to resolve conflicts in the

evidence and to weigh the credibility of witnesses.” Id. Instead of making a

determination and fulfilling its role as the trial of fact, the court stated that it could

not determine the amounts owed, contrary to the weight of the evidence, and

essentially acted as a hung jury.

Ms. Treasurer demonstrated that the past assessments owed equaled $16,944

for maintenance fees. (Tr. at 26-27). Son conceded at trial an amount very close

that identified by Ms. Treasurer for past due assessments. Son conceded that that

he owed [Amount I], which did not include what he called “late fees” and legal fees.

6 Section § 718.116(3), Florida Statutes, requires that amounts be applied first to interest accrued by the association; second, to administrative late fees; third to costs and reasonable attorneys' fees; and last to delinquent assessments. There is no allegation that the amounts were improperly applied.

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Tr. at 89-90. In addition to the assessments of [Amount] (or the conceded amount

of [Amount]), Appellees owed [Amount] simple interest (Tr. at 27); [Amount] for

attorneys’ fees (Tr. at 28); and [Amount] for late fees (Tr. at 28) for a total of

[Amount].74. Tr. at 36. Son never challenged the interest or fees amounts at trial,

nor did he argue that Appellant lacked the authority to receive such fees and interest.

While Son attempted to confuse the issue of payments in his cross

examination of Appellant’s treasurer and by mentioning checks he submitted to a

former Appellant officer, Ms. Former Officer, his efforts did not provide substantial

competent evidence. “[A] confusing state of financial records does not prevent

recovery if there is sufficient evidence from which a damage calculation can be

made.” Servpro Industries, Inc. v. Spohn, 638 So. 2d 1001, 1003 (Fla. 4th DCA

1994). Instead, the “degree of certainty required is only that the mind of a prudent

impartial person can be satisfied with the damages.” Linton v. Pension Services

Corp., 389 So. 2d 247, 249 (Fla. 2d DCA 1980).

In Linton, both employee and employer testified regarding the amount of

commission and bonuses to which employee claims he was entitled before he was

terminated. Linton, 389 So. 2d at 248. The trial court found “considerable

confusion” regarding the records kept by the employer and that the employee’s

records, although methodical “did not form a coherent whole of the financial records

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of the corporation.” Id. By carefully reading the terms of the contract and analyzing

the testimony, the appellate court was able to determine the amounts earned by

employee. For example, the appellate court found the following regarding the

amount of commission:

Based on a list of accounts receivable which he presented to the court and which were at least in part supported by documents of the corporation, Mr. Linton contended that he was entitled to a commission of $1,870.20. Nowhere in his testimony did Mr. Larrison dispute the list of accounts receivable. Although there was some contention that the method Linton used in arriving at his commission was not accurate, it does not appear to us to have been unfair, and the corporation presented no evidence which actually demonstrated its inaccuracy. Hence, we find for the third category of compensation, Mr. Linton was entitled to a payment of $1,870.20.

Id. at 249 (emphasis added).

Like the facts in Linton, Son “presented no evidence which actually

demonstrated” the alleged inaccuracy in Appellant’s bookkeeping to contradict the

testimony of Ms. Treasurer. Id. at 249. Thus, the trial court’s dismissal based upon

allegedly confusing accounting records was in error. The reality is that while Son

claimed he made additional payments not reflected in Appellant’s ledger, he was

unable to prove that such payments were actually received by Appellant. To the

contrary, Son admitted that many of the checks were being held by Ms. Former

Officer. Tr. at 92-93. Son deliberately submitted these checks to Ms. Former

Officer, despite knowing that the official annual reports with the State of Florida

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demonstrated that Mr. President was the president, and not Ms. Former Officer. Tr.

at 73-74; Trial ex. 1. Moreover, the trial court stated that the methodology Appellant

used for recording payments was correct. Tr. at 47. Thus, there was evidence to

support a finding in favor of Appellant, which the trial court ignored, and it was error

to dismiss the case in lieu of analyzing the evidence.

Even if the precise amount owed by Son was unclear, Son conceded that he

owed assessments in his closing argument. Tr. at 89. Because Son conceded that

fact, it was clearly erroneous to dismiss the case. In Thomas v. Thomas, 724 So. 2d

1246, 1248 (Fla. 4th DCA 1999), the mother’s lawyer agreed to facts relevant to the

convenience of the Florida forum during legal argument on a motion to transfer.

The lawyer “agreed that the father and child have always lived in Ohio and conceded

that all the witnesses were in Ohio.” Thomas, 724 So. 2d at 1247. Thus, the

appellate court found that the issue of venue was a legal one because of the

concession. Id. at 1248. The appellate court held that “the facts relevant to the

convenience of the Florida forum were conceded by the party opposing the

dismissal, and so we need not defer to any fact finding by the trial court.” Thomas,

724 So. 2d at 1251.

Here, because Son conceded that he owed past assessments of [Amount] (Tr.

at 89-90) as of September 1, 2014, this Court need not go any further into the

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evidence regarding past assessments. This Court need only examine the remainder

of the debt regarding attorneys’ fees, interest, and late fees to determine whether

competent substantial evidence exists to support Appellant’s claim.

Appellant sent two notices to Appellees regarding the exact amounts that they

owed and where such payment should be sent. Trial ex. 4. 5. At trial, Son did not

present any evidence that contradicted the debt owed, as proven by Appellant.

Instead, he admitted that he made the missing payments to Ms. Former Officer, a

person who was not an officer of Appellant. Son even agreed that Appellant’s

president of record was Mr. President. Tr. at 73-74; Trial ex. 1. The trial court clearly

erred in dismissing the case, given that competent substantial evidence was

presented demonstrating that Appellees owed Appellant the total of [Amount] at

time of trial, which included assessments of [Amount] for maintenance fees (Tr. at

26-27) (the difference being attorneys’ fees, interest, and late fees). Tr. at 36. Son

agreed that he owed [Amount], which he admits “does not include your legal fees .

. . .,” Tr. at 89-90, or late fees, Tr. at 90 (“I know what I owe up till September 1st.

That, again, does not include late fees, but I know what I owe.”). Thus, the trial

court clearly ignored the competent substantial evidence of the debt owed of at least

the past assessments of [Amount] (to which Son conceded), plus attorneys’ fees,

interest and late fees and erred in dismissing the case.

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B. Son’s Assertion That He Paid Assessments To A Former Appellant Officer Does Not Rebut the Debt Owed And Does Not Constitute a Valid Defense in Fact or in Law. 1. Checks not introduced at trial cannot be considered at trial or on

appeal.

Son claimed below that he paid monthly fees to a former officer of Appellant.

To support this argument, he referred to checks that he had provided to the court in

a notice of filing. The notice of filing was unrelated to a motion for summary

judgment and did not have an affidavit authenticating the checks. Tr. 73, 81.

Although Son referred to checks during the trial, no checks were entered into

evidence at the trial. Son merely referred to payments he allegedly made, without

detailing the amount or whether the checks had been tendered.

Documents that are not authenticated are not admissible at trial. See, e.g.,

Kelsey v. SunTrust Mortgage, Inc., 131 So. 3d 825 (Fla. 3d DCA 2014). A trial court

must follow the rules of evidence when determining which evidence it is to consider.

See, e.g., Tylinski, 90 So. 3d at 872 (document not admitted as an exhibit at trial

could not be used to support counterclaim allegations at bench trial); Diwakar v

Montecito Palm Beach Condo Assoc., Inc., 143 So. 3d 958 (Fla. 4th DCA 2014)

(affidavit was filed in case, but not introduced into evidence at trial; appellate court

ordered a remand because given the incomplete record, appellate court assumed that

there might be some understanding not memorialized that the filed affidavits could

29

be relied upon by the court); Brooksville v. Hernando County, 424 So.2d 846 (Fla.

5th DCA 1982) (party could not use evidence presented at previous trial where there

was no transcript and the parties did not agree to admissibility). “A document that

was identified but never admitted into evidence as an exhibit is not competent

evidence to support a judgment.” Wolkoff v. American Home Mortgage Servicing,

Inc., 153 So. 3d 280 (Fla. 2d DCA 2014).

Assuming that the trial court considered documents filed with the clerk of

court, but not admitted into evidence as an exhibit at trial, the checks did not

constitute admissible evidence. The checks were not authenticated and standing

alone, as presented, constitute hearsay.7 Because the checks were not authenticated

and not admitted into evidence as a trial exhibit, the trial court erred in considering

the checks in its ruling. The extent of the discussion regarding the content of the

checks was as follows:

7 In order to be admissible evidence, Appellees would have had to demonstrate at trial that the checks met the business record exception to the hearsay rule, Fla. Stat. § 90.803(6)(a), or some other exception to the hearsay rule. Yang v. Sebastian Lakes Condominium Association, Inc., 123 So. 3d 617 (Fla. 4th DCA 2013). In Yang, the plaintiff failed to establish proper foundation for admission of account ledgers as business records. To be admissible, Appellees would have to show: 1. the record was made at nor near the time of event; 2. the record was made by or from information transmitted by a person with knowledge; 3. the record was kept in the ordinary course of the regularly conducted business activity; and 4. the regular practice of that business to make such a record. No testimony regarding any of these requirements was ever presented to the trial court.

30

THE COURT: The proof of your payments to the association, that is what you filed in the court file, is that correct? SON: Correct.

Tr. at 85. It would greatly prejudice Appellant for such documents to serve

as competent substantial evidence, when Appellant rightfully assumed the

documents were not in evidence, and on which they never were able to illicit

testimony from Son in cross examination.

2. Appellees did not demonstrate that Appellant’s former officer had authority to accept checks for payment on behalf of Appellant.

The trial court clearly stated during the trial that he did not believe that the

separate legal action regarding the removal of the former officer was at issue, nor

did he believe it was relevant to the issue at hand – that is whether the debt was owed

and whether Appellees satisfied that debt. Tr. at 78. Yet, the trial court’s final ruling

was based upon his confusion as to whether payments made to the former officer

satisfied a portion of the debt. Tr. at 95-96.

Appellees raised many affirmative defenses in its answer to the complaint, but

never directly raised the defense that Ms. Former Officer, the former officer, had

apparent authority to act on behalf of Appellant. Closely related, however, are the

third defense of “payment” and the eighth defense of “setoff.” R. at 21. In both of

these defenses, Appellees claim that they made payments to Appellant. However,

in order for any payments to the former officer to have any bearing on the question

31

of whether Appellees owed the debt to Appellant, Appellees would had to have

demonstrated that the former officer had apparent authority to act on behalf of

Appellant. See, e.g., Lensa Corp. v Poinciana Gardens Assoc., Inc., 765 So. 2d 296

(Fla. 4th DCA 2000) (president of association did not have actual or apparent

authority to bind homeowner’s association to a sale of all or substantially all of its

assets).

The elements to establish apparent authority are: 1. representation by the

purported principal; 2. reliance on that representation by a third party; 3. a change

in position by the third party in reliance upon such representation. Lensa, 765 So.

2d at 298. The reliance of a third party on the apparent authority of a principal’s

agent must be reasonable and rest in the actions of or appearances created by the

principal and “not by agents who often ingeniously create an appearance of authority

by their own acts.” Id. (quoting Taco Bell of California v Zappone, 324 So. 2d 121,

124 (Fla. 2d DCA 1975)).

Appellant repeatedly denied that Ms. Former Officer was an officer of

Appellant authorized to accept payments on behalf of Appellant. The demand letters

provided to Son clearly state where payments are to be submitted. Moreover, Son

was aware of the controversy surrounding Ms. Former Officer’s authority. Son has

not demonstrated any of the elements necessary for even an inference that Ms.

32

Former Officer had apparent authority to accept payments. Thus, the trial court’s

confusion regarding where payments were made are not only contradicted by the

trial evidence, but Son admits that the outstanding payments were made to Ms.

Former Officer and are not proof of payment to Appellant.

CONCLUSION

For the foregoing reasons, this Court should reverse the dismissal and find that

substantial competent evidence supporting a finding in favor of Appellant for the debt

owed to them of [Amount] (at time of trial) by Appellees and request that this Court

remand this case for the scheduling of a foreclosure sale.

Respectfully submitted, By: ________________________

33

CERTIFICATE OF SERVICE AND COMPLIANCE WITH RULE 9.210(a)(2)

I hereby certify that the foregoing brief complies with the font requirements

(Times New Roman 14-point font) set forth in Fla. R. App. P. 9.210(a)(2).

I also hereby certify that on this ____ day of _______________2015, a copy

of the foregoing Appellant’s Initial Brief, was furnished by regular mail to the parties

listed below, and e-filed with the Court.

By:______________________________ Son [Address] Mother [Address]

34

Appellate Briefs

2. Answer Brief: Appeal of Order Denying Motion to Quash Service (Commercial Litigation)

35

IN THE THIRD DISTRICT COURT OF APPEAL STATE OF FLORIDA

CASE NO.:

L.T. NO.:

_______________________________________________________

APPELLANT , INC.,

Appellant,

v.

APPELLEE,

Appellee.

______________________________________________________________

Appeal from the Eleventh Judicial Circuit Court, Miami-Dade County, Florida

APPELLEE’S ANSWER BRIEF

CERTIFICATE OF SERVICE

I hereby certify that a copy hereof has been furnished to __________________________________________________________________ by _________________ this _________ day of ____________________, 2015.

______________________________________ Signature

36

TABLE OF CONTENTS

Page

PREFACE ................................................................................................................ 39

STATEMENT OF THE CASE ................................................................................. 2

STATEMENT OF THE FACTS ............................................................................... 3

SUMMARY OF ARGUMENT ................................................................................. 5

STANDARD OF REVIEW ....................................................................................... 7

ARGUMENT ............................................................................................................. 8

I. APPELLEE'S AFFIDAVIT OF SERVICE WAS VALID “ON ITS FACE.” ................................................................................................. 8

A. Service Was Properly Effected on Appellant's Office Manager Under Section 48.081.

B. This District Does Not Require An Affidavit of Service to State That All Officers Were Outside the Jurisdiction.

II. APPELLANT FAILED TO SUBMIT CLEAR AND CONVINCING EVIDENCE TO REBUT THE FACIAL VALIDITY OF THE AFFIDAVIT OF SERVICE. ............................................................... 18

II. BECAUSE OF THE FACIAL VALIDITY OF THE AFFIDAVIT OF SERVICE AND APPELLANT'S FAILURE TO SUBMIT ANY EVIDENCE TO THE CONTRARY, THE TRIAL COURT PROPERLY DENIED APPELLANT'S MOTION TO QUASH AT THE HEARING ON JANUARY 8, 2015 .......................................... 22

CONCLUSION ........................................................................................................ 59

37

TABLE OF AUTHORITIES

Page(s) CASES

A-One Dahill Moving & Storage Co., Inc. v. American Ins. Co., 436 So. 2d 424 (Fla. 4th DCA 1983). ..................................................... 10, 11, 12 Bank of America, N.A. v. Bornstein,

39 So. 3d 500 (Fla. 4th DCA 2010) .............................................................. 14, 17

Camerota v. Kaufman, 666 So. 2d 1042 (Fla. 4th DCA 1996) ................................................................ 24 Cherry Lake Farms v. Love, 129 Fla. 469, 176 So. 486 (1937) ....................................................................... 14 County Sanitation, Inc. v. Jean, 559 So. 2d 1269 (Fla. 4th DCA 1990)……………………………...................... 8 Emery Wordwide, Inc. v. Indem. Ins. Co. of N. Am., 797 So. 2d 623 (Fla. 3d DCA 2001). .................................................................. 9 Fern, Ltd. v. Road Legends, Inc., 698 So. 2d 364 (Fla. 4th DCA 1997) .................................................................. 24 Intertrans Navigation, Inc. v. Seguros St. Paul de Venezuela, C.A., 576 So. 2d 419 (Fla. 3d DCA 1991) ............................................. 5, 14, 15, 16, 20 Lazo v. Bill Swad Leasing Co., 548 So. 2d 1194 (Fla. 4th DCA 1989). ................................................... 8, 12, 19 Monsour v. Balk, 705 So. 2d 968 (Fla. 2d DCA 1998) ............................................................. 24, 25 Robles-Martinez v. Diaz, Reus & Targ, LLP, 88 So. 3d 177 (Fla. 3d DCA 2011)……………………………………… ........... 8 Se. Mail Transport, Inc. v. Amoco Oil Co.,

38

402 So. 2d 522 (Fla. 1st DCA 1981). ......................................................... 14, 18 Se. Termite & Pest v. Ones, 792 So. 2d 1266 (Fla. 4th DCA 2001) ............................................................ 8, 24 Slomowitz v. Walker, 429 So. 2d 797 (Fla. 4th DCA 1983) .................................................... 5, 6, 19, 20 Top Dollar Pawn Too, Inc. v. King, 861 So. 2d 1264 (Fla. 4th DCA 2003) ............................................................... 13 Washington Capital Corp. v. Milandco, Ltd., Inc., 665 So. 2d 375 (Fla. 4th DCA 1996)………………. ......................................... 13

STATUTES

Fla. Stat. § 48.081 .............................................................................................passim

39

PREFACE

In this Answer Brief, Appellee will use the following shorthand references:

“Appellant” shall refer to the Appellant, Appellant, Inc.

“Appellee” shall refer to the Appellee.

“Appellee” shall refer to the Appellee. .

“I.B. [page number]” shall refer to Appellant’s Initial Brief.

“A. [page number]” shall refer to Appellant’s Appendix and page number in the record on appeal.

Additional materials referenced in this Answer Brief will be included in the attached bookmarked

appendix, and will be cited using the designation “A.A.__”.

40

STATEMENT OF THE CASE

On September 8, 2014, Appellee filed its civil complaint against Appellant. See Miami Dade County

Clerk of Court Docket Information (“Docket”) [A.A.1]. On [Date], Appellee effected service on Appellant by

serving it at its corporate headquarters in Texas. [I.B. 3; A.5]. On [Date], Appellant filed a Motion to Quash

Purported Service of Original Process (hereinafter “Motion to Quash”), without providing any supporting

affidavits or documentation to refute the validity of service.8 [A.1].

On December 18, 2014, Appellee filed the verified Affidavit of Service. See Docket [A.A.1]. On

December 23, 2014, Appellee noticed Appellant’s Motion to Quash for hearing to take place on [Date]. See

Notice of Hearing [A.A.2]. At no time after filing its Motion to Quash, or during the three (3) week period

between the time of filing the Affidavit of Service and the time of the hearing, did Appellant submit any

documentary evidence to support its alleged denial of service. The hearing took place as scheduled on January

8, 2014 and the trial court denied Appellant’s Motion to Quash.9 [A.9]. Appellant has appealed the trial

court’s Order denying its Motion to Quash. [I.B. 1].

8 Appellant readily admitted this fact: “Appellant acknowledges that its Motion was not supported by

an affidavit. . .” [I.B.9].

9 There is no transcript of the January 8, 2014 hearing.

41

STATEMENT OF THE FACTS

Appellee effected service on Appellant on [Date] by serving it at its corporate headquarters. [I.B.3;

A.5]. Mr. Server, Appellee’s process server, prepared a sworn Affidavit of Service, which documented the

service of process on Appellant. [A.5]. The Affidavit of Service confirmed that Mr. Server served the

summons and complaint on “[Ms. Manager] as Office Manager for Appellant , Inc., at the address of: [Address]

. . . in compliance with state statutes.” Id. Mr. Server affirmed the following:

10/21/2014 2:40 pm No one in reception area, a lady named [Ms. Manager] came out. I informed her of the documents I had to deliver. I asked her who was available to accept service. She left and returned a few minutes later stating no officers were available. She stated she was the office manager and could accept service. She gave me her card.

Id.

On November 10, 2014, Appellant filed a Motion to Quash but failed to support its Motion with any

supporting affidavits or documentation refuting the validity of service. [A.1]. Appellant readily admitted this

fact: “Appellant acknowledges that its Motion was not supported by an affidavit. . .” [I.B.9]. In its Motion to

Quash, Appellant claimed that the process server did not inquire whether a corporate officer was present but

provided no evidentiary support for this contention. Id. at ¶5. Additionally, Appellant alleged that at the time

of service, Mr. Vice President, a vice president of Appellant, was present at the corporate office. Id. at ¶6.

Again, Appellant failed to support either claim. See id.

On December 18, 2014, Appellee filed the verified Affidavit of Service. See Docket [A.A.1]. On

December 23, 2014, Appellee noticed Appellant’s Motion to Quash for hearing to take place on January 8,

2015. See Notice of Hearing [A.A.2]. At no time after filing its Motion to Quash, or during the three (3) week

period between the time of filing the Affidavit of Service and the time of the hearing did Appellant submit any

42

documentary evidence to support its denials regarding service. The hearing took place as scheduled on [Date]

and the trial court properly denied Appellant’s Motion to Quash. [A.9].

43

SUMMARY OF ARGUMENT

This Court should affirm the trial court’s Order denying Appellant’s Motion to Quash. First, Appellee’s

Affidavit of Service [A.5] was facially sufficient to the extent that it contains the information required by

section 48.081, Florida Statutes. Specifically, the Affidavit of Service verifies that upon arrival at Appellant’s

corporate headquarters, Mr. Server, the process server, met Ms. Manager, Appellant’s manager, and informed

her of the documents to be delivered. See [A.5]. He inquired whether any officers were available to be served.

Id. Because Ms. Manager stated that no officers were available at the location to accept service and because

she identified herself as a manager, Mr. Server properly served process on Appellant in accordance with section

48.081(1)(b).

Contrary to Appellant’s claims, service on an office manager can (and did, in this case) comply with

section 48.081. See, e.g., Intertrans Navigation, Inc., v. Seguros St. Paul de Venezuela, C.A., 576 So.2d 419,

420 (Fla. 3d DCA 1991) (service on “Station Mgr” constituted prima facie evidence of proper service).

Furthermore, this Court does not require an affidavit of service to state that all superior officials “were absent

from the jurisdiction” in order to comply with section 48.081. Id.

Second, Appellee’s Affidavit of Service is presumed to be valid absent clear and convincing evidence

presented to the contrary. See Slomowitz v. Walker, 429 So. 2d 797, 799 (Fla. 4th DCA 1983). Because

Appellant failed to provide any evidence to refute the validity of the Affidavit of Service, the trial court

properly denied the Motion to Quash.

Third, the trial court had no basis to hold a further evidentiary hearing beyond the hearing on January 8,

2015 because Appellant failed to submit any evidence refuting the validity of the Affidavit of Service. Se.

Termite & Pest v. Ones, 792 So. 2d 1266, 1268 (Fla. 4th DCA 2001) (finding that an evidentiary hearing

44

should be held where an affidavit attesting to insufficiency of service would, if true, invalidate the purported

service). As such, this Court should affirm the trial court’s Order denying Appellant’s Motion to Quash.

45

STANDARD OF REVIEW

The Third District reviews a trial court’s ruling on a motion to quash service of process de novo. Robles-

Martinez v. Diaz, Reus & Targ, LLP, 88 So. 3d 177 (Fla. 3d DCA 2011).

46

ARGUMENT

Appellant’s appeal rests on a flawed point: the Affidavit of Service was allegedly facially defective.

Based upon this erroneous conclusion, Appellant argues that the trial court’s Order denying its Motion to

Quash should be vacated and remanded for an evidentiary hearing on the Motion to Quash.

APPELLEE’S AFFIDAVIT OF SERVICE WAS VALID “ON ITS FACE.”

Florida courts adhere to the view that a certificate of service which is “regular on its face” is

presumptively valid. See Southeastern Termite and Pest v. Ones, 792 So.2d 1266, 1268 (Fla. 4th DCA 2001);

County Sanitation, Inc. v. Jean, 559 So.2d 1269, 1270 (Fla. 4th DCA 1990); Lazo v. Bill Swad Leasing Co.,

548 So.2d 1194, 1195 (Fla. 4th DCA 1989). To be “regular on its face,” a return of service must contain the

information required by statute. See Robles-Martinez v. Diaz, Reus & Targ, LLP, 88 So.3d 177, 180 (Fla. 3d

DCA 2011) (the trial court correctly determined that a presumption of valid service of process was created by

the verified returns of service, which contained all of the information necessary to comply with section

48.031.(1)(a)).

Section 48.081, Florida Statutes (2014), sets forth the manner of service on a corporation's hierarchy

that must be followed in serving process on a corporation. Section 48.081 requires service to be made upon

the president, vice-president, or other head of the corporation, and in their absence, then upon the cashier,

treasurer, secretary, or general manager. § 48.081(1)(a)-(b), Fla. Stat. In the absence of these individuals,

service may be made upon any director, and in the director’s absence, then upon any officer or business agent

residing in the state. Id. at (1)(c)-(d).10 When a verified return of service contains the necessary statutory

information, there is a presumption of valid service of process. Id.

10 “The purpose of the statute’s defined hierarchy is to have the service made upon someone who is held

47

The return of service in this case is “regular on its face,” because it contains the information required by

statute. The Affidavit of Service states that the Office Manager Ms. Manager was served in the absence of

Appellant’s superior officers. See Affidavit of Service [A.5]. It further states that Ms. Manager represented

that she could accept service in their absence. Because the statute allows for service on a manager where other

officers, such as the president, vice president, or other head of the corporation are absent, the return of service

is regular on its face and presumptively valid. Sworn allegations such as these are sufficient to raise the

presumption of validity.

Despite the presumptive validity of the Affidavit of Service, Appellant has argued it was defective for

two reasons. First, that service upon an office manager “does not constitute sufficient compliance” with section

48.081. [I.B.5]. Second, that the Affidavit of Service failed to allege that all officials were absent from the

jurisdiction, which (Appellant argues) is a “requirement under Florida law.” [I.B.5] Both arguments fail.

Service Was Properly Effected on Appellant’s Office Manager Under Section 48.081, Florida Statutes.

Appellant urges this Court to “hold as a matter of law that service upon an ‘office manager,’ as alleged

in the Affidavit, does not constitute sufficient compliance with Florida’s statute governing service upon a

corporate defendant.” [I.B.5]. Such a holding would be an error and contrary to Florida law, which expressly

allows for service upon a manager in the absence of the president or vice president.

responsible by the corporation and it contemplates that service shall be made, whenever possible, upon the

more responsible officers before resorting to service upon one of the inferior officers or agents of the

corporation.” Emery Wordwide, Inc. v. Indem. Ins. Co. of N. Am., 797 So.2d 623, 624 (Fla. 3d DCA 2001).

48

In its Brief, Appellant relied on A-One Dahill Moving & Storage Co., Inc. v. American Ins. Co., 436 So.

2d 424 (Fla. 4th DCA 1983), in an attempt to support its argument that “[a]t least one District Court of Appeal

has held that service upon a corporate office manager was defective in the absence of further proof that the

person named in the affidavit occupied the role of an officer for the purposes of §48.081.” [I.B.11]. While

the Fourth District’s discussion of the law in A-One Dahill is instructive, clear and convincing evidence

submitted in that case makes it highly distinguishable from the present case. There, “proof established that the

general manager was in fact a different person altogether [from the individual served] and he was physically

present on the premises when the summons was served.” A-One Dahill, 436 So. 2d at 425. There is no such

proof in the case at bar that someone other than Ms. Manager was the General Manager.

In its Brief, Appellant incorrectly concluded that an office manager is considered a “business agent”

under section 48.081, and then claimed—without providing any basis for the argument—that Ms. Manager is

“arguably” not a business agent within the law. [I.B.11]. Case law indicates that an office manager fits into

the category of “general manager” outlined in section 48.081(1)(b). For example, in A-One Dahill, the Court

stated: “There is only one of the foregoing categories that an ‘office manager’ might fit into under the facts

presented here and that is ‘a general manager.’” 436 So. 2d at 425

Furthermore, whether Ms. Manager is considered a manager (as she is identified in the Affidavit of

Service and as she identified herself) or an agent does not impact the validity of the Affidavit of Service. In

A-One Dahill, a summons was served upon a corporate employee who may have been an office manager or a

bookkeeper. Id. at 424-425. The Court noted “we do not believe it matters” whether the employee was an

office manager or not. Id. at 425. The employee’s title did not matter because proof established that there

was, indeed, a general manager (a separate individual) physically present at the corporation at the time the

49

lower-level employee was served. Id. In the face of this proof, and by clear and convincing evidence, the

employee served with the summons was not the general manager. See id. Service upon the lower-level

employee was therefore improper. Id.

Unlike A-One Dahill, in the case at bar Appellant failed to provide any evidence that Ms. Manager was

not the general manager for Appellant. Therefore, it cannot be argued as in A-One Dahill, that service was

made upon a lower-level employee and thus improper. Without any clear and convincing evidence to refute

Ms. Manager’s title as she is identified in the verified Return of Service, she presumptively constitutes a

“general manager” under section 48.081.

Notably, even if Appellant had produced clear and convincing evidence that Ms. Manager was not the

general manager, it likely would not matter (under the analysis in A-One Dahill) because of the lack of evidence

that any other superior officer was present to accept service on behalf of Appellant at the time that Ms. Manager

was served. Appellant cannot now attempt to deny service by making unsubstantiated claims. See Lazo, 548

So.2d at 1195 (“a defendant cannot impeach a summons by simply denying service”).

Appellant also relies on Top Dollar Pawn Too, Inc. v. King, 861 So. 2d 1264 (Fla. 4th DCA 2003) and

Washington Capital Corp. v. Milandco, Ltd., Inc., 665 So. 2d 375 (Fla. 4th DCA 1996), however, both cases

are factually distinguishable from the present matter. In Top Dollar Pawn, the verified return of service for

Advance indicated that service was made on an employee of the registered agent. Top Dollar Pawn, 861 So.

2d at 1266. Section 48.081 does not provide for service upon an employee or agent of the registered agent.

Id. Contrary to Top Dollar Pawn, here, service was properly made upon a manager, not “an agent of the

registered agent.”

50

In Washington Capital, the Court found that service upon a corporation’s secretary/receptionist was

improper in light of a motion to quash that was supported by affidavits stating the secretary/receptionist was

neither an officer nor director of the corporation. Washington Capital, 665 So. 2d at 375. In contrast to the

instant matter, Ms. Manager is not a secretary or receptionist and there are no affidavits disputing Ms.

Manager’s manager position. Neither Top Dollar Pawn nor Washington Capital provide any support for

overturning the trial court’s decision in the case at bar.

This District Does Not Require An Affidavit of Service to State That All Officers Were Outside the Jurisdiction.

Appellant argues that this Court should find that the term “in the absence of,” as used in section 48.081,

requires absence from the county. [I.B.14]. In an attempt to support this claim, Appellant cited to several

distinguishable cases involving motions to quash supported by affidavits or other evidence: Bank of America,

N.A. v. Bornstein, 39 So. 3d 500 (Fla. 4th DCA 2010), Cherry Lake Farms v. Love, 129 Fla. 469, 176 So. 486

(1937), and Se. Mail Transport, Inc. v. Amoco Oil Co., 402 So.2d 522 (Fla. 1st DCA 1981). More problematic

than relying on distinguishable, non-binding case law, Appellant failed to advise this Court of its own binding

precedent wherein absence from the county was not required: Intertrans Navigation, Inc. v. Seguros St. Paul

de Venezuela, C.A., 576 So. 2d 419 (Fla. 3d DCA 1991).

In Intertrans Navigation, Inc. v. Seguros St. Paul de Venezuela, C.A., 576 So. 2d 419 (Fla. 3d DCA

1991), the defendant appealed an order denying its motion to set aside a default judgement. Id. at 420.

Intertrans argued, in part, that because the service of process was invalid the trial court lacked in personam

jurisdiction. Id. at 420. According to the return of service, the plaintiff’s complaint was served on “Susan

Shafronsky as Station Mgr. . . of defendant corporation in the absence of any superior as defined by Florida

51

Statute, Section 48.081.”11 Id. The return of service did not specify that Intertrans’ officers were absent from

the county, only that they were “absent.” See id. (emphasis added). This Court found, “this return constituted

prima facie evidence of proper service on the defendant corporation under Section 48.081(1)(b). . .” Id.

Although Intertrans filed two (2) affidavits in an attempt to impeach the validity of service, the affidavits failed

to establish by clear and convincing evidence that service was invalid pursuant to section 48.081. Id.

Specifically, the first affidavit presented by Defendant Intertrans failed to show by clear and convincing

evidence that Intertrans’ president or vice president, or other head of the corporation was otherwise available

for service at Intertrans when service was perfected on Ms. Shafronsky. Intertrans Navigation, Inc. 576 So.

2d at 420. The second affidavit presented by Defendant Intertrans failed to establish by clear and convincing

evidence what Ms. Shafronsky's exact position was with Intertrans and that she was not “a general manager”

of Intertrans. Id. This Court held, in relevant part, that service on Intertrans was valid and affirmed the decision

of the trial court. Id. at 420-421. The evidence thus presented by Defendant Intertrans was insufficient to rebut

the presumptively validity of the Affidavit of Service.

11 In Intertrans, the Court’s analysis was based upon section 48.081, Florida Statues (1989). Nonetheless, the portions outlining the hierarchy of service are identical to the current version. In 1898, section 48.081, Florida Statues, stated (in pertinent part):

(1) Process against any private corporation, domestic or foreign, may be served: (a) On the president or vice president, or other head of the corporation; (b) In the absence of any person described in paragraph (a), on the cashier, treasurer, secretary, or general manager; (c) In the absence of any person described in paragraph (a) or paragraph (b), on any director; or (d) In the absence of any person described in paragraph (a), paragraph (b), or paragraph (c), on any officer or business agent residing in the state. (2) If a foreign corporation has none of the foregoing officers or agents in this state, service may be made on any agent transacting business for it in this state. (3) As an alternative to all of the foregoing, process may be served on the agent designated by the corporation under s. 48.091. . . .

52

The Affidavit of Service in the present case and the return of service in Intertrans are strikingly similar

to the extent that neither specifies that the corporation’s superior officers are absent from the county. Both

service records merely note that the officers are unavailable, as is even more apparent in the following direct

comparison: The return of service in Intertrans stated that Plaintiff’s complaint was served on “Susan

Shafronsky as Station Mgr…. of defendant corporation in the absence of any superior as defined by Florida

Statute, Section 48.081.” The Affidavit of Service in the instant case stated (in relevant part) that Appellee’s

complaint was served on “[Ms. Manager] as Office Manager for Appellant Inc. . . . in compliance with state

statutes. . . .” [A.5]. Upon being informed of the documents being delivered, Ms. Manager “stat[ed] no officers

were available.” Id.

Similar to Intertrans, where the noted absence of Ms. Shafronsky’s superior officers (without a

statement that they were absent “from the county”) was sufficient for this Court to find that it complied with

section 48.081, so too is the Affidavit of Service in this case sufficient because of the absence of Ms. Manager’s

officers. Contrary to Appellant’s argument that section 48.081 requires a showing that a superior officer was

not in the county on the day of service for valid service upon a manager, Intertrans demonstrates there is no

such requirement. The Affidavit of Service constituted prima facie evidence of proper service on Appellant

under section 48.081.

Rather than address this binding precedent, Appellant cites the Court to wholly inapplicable case law

decisions which are distinguishable from the present matter. For example, in Bank of Am., N.A. v. Bornstein,

39 So. 3d 500 (Fla. 4th DCA 2010), “[t]he amended return of service noted that an officer was present in the

bank, but the process server served a bank teller, rather than the officer.” Id. at 504. Significantly, the process

server acknowledged the physical presence of a corporate officer at the time of service, noted that the officer

53

was “busy,” and proceeded to serve the teller. Id. at 502. Because neither the original nor the amended return

of service in Bornstein showed the absence of the statutorily prescribed superior classes of persons who could

have been served (indeed, the amended return acknowledged the physical presence of an officer), service was

improper and the Fourth District concluded the trial court erred in denying the motion to quash. Id. at 504.

Unlike Bornstein, the Affidavit of Service in the present case does not state that an officer was physically

present and “busy” at the time that Ms. Manager was served. The process server did not acknowledge the

physical presence of a corporate officer at the time of service. Rather, the Affidavit of Service specifies that

no officers were available based on Ms. Manager’s representation. [A.5]. The holding in Bornstein does not

support overturning the trial court’s decision in this matter.

The case of Se. Mail Transp., Inc. v. Amoco Oil Co., 402 So. 2d 522 (Fla. 1st DCA 1981) is also

distinguishable. In Amoco Oil, the Fourth District found that service of process was insufficient for two

reasons: (1) the assertion in the return that service was made on the business agent in the absence of the

superior officers was rebutted by an uncontradicted affidavit of the president of the corporation, and (2) the

individual served was affirmatively shown to have been a mere employee and not a “business agent” of the

corporation. Id. at 524. Contrast these facts to the case at bar, where there is no evidence whatsoever rebutting

the absence of Appellant’s officers and no evidence disputing Ms. Manager’s position as office manager.

Finally, Appellant’s reliance upon Cherry Lake Farms v. Love, 129 Fla. 469, 176 So. 486 (1937) is

misplaced. In Cherry Lake, the defendant challenged the validity of service. Id. Although the return of the

sheriff specified that the corporation’s superior officers were absent from Madison County, it failed to specify

that the officers were absent from the State of Florida. Id. Because this return complied sufficiently with the

law pertaining to service on a corporation (as it existed in 1937 when the case was decided), the Court found

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that the return of service was effective under the facts of that case. Id. The Court did not hold that a return of

service must specify absence from the county in order to be valid—it merely found that the return of service

was sufficient. Id. The findings in Cherry Lake cannot and should not be exaggerated to invalidate the return

of service in the present case.

APPELLANT FAILED TO SUBMIT CLEAR AND CONVINCING EVIDENCE TO THE REBUT THE FACIAL VALIDITY OF THE AFFIDAVIT OF SERVICE.

1. A defendant cannot impeach a summons simply by denying service, but must present this “clear and

convincing evidence” to corroborate his denial. Lazo, 548 So.2d at 1195. “To permit a defendant to

impeach a summons by simply denying service would create chaos in the judicial system.” Slomowitz, 429

So. 2d at 799. That is why clear and convincing evidence must be presented to corroborate the defendant's

denial of service and rebut the presumption of validity. Id.

2. “Clear and convincing evidence” has been defined as “evidence making the truth of the facts asserted

‘highly probable’ or ‘highly probably true.’” Slomowitz v. Walker, 429 So. 2d 797, 799 (Fla. 4th DCA

1983) (it “will produce in the mind of the fact finder a firm belief or conviction as to the truth of the facts

sought to be established.”) (internal citations omitted). Clear and convincing evidence also “requires that

the witnesses to a fact be credible; the facts testified to must be distinctly remembered; the details must be

narrated exactly and in order; the testimony must be clear, direct and weighty; and the witnesses must be

lacking in confusion as to the facts in issue.” Lazo, 548 So. 2d at 1195.12

12 Clear and convincing evidence has also been defined as having a “high capability of inducing belief .

. . leaving “no substantial doubt, . . . sufficient to convince ordinarily prudent minded people, . . . and to

instantly tilt the scales in the affirmative when weighed against the evidence in opposition and the fact finder's

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3. Here, the Affidavit of Service was regular on its face and was therefore presumptively valid. Appellee

carried its initial burden to establish validity of service of process. Therefore, in order to deny service, the

burden shifted to Appellant to make a prima facie showing by clear and convincing evidence that the service

was defective. Appellant failed to meet its burden.

4. Not only did Appellant fail to show clear and convincing evidence that service was defective, Appellant

failed to put forth any evidence whatsoever to refute the validity of service. Instead, Appellant attempted

to simply deny service with unsubstantiated claims and with no evidence. See Motion to Quash [A.1].

Appellant’s denials were insufficient to meet the burden for contesting service under Florida law and the

trial court properly denied the Motion to Quash. See Intertrans, 576 So. 2d at 420 (the “return constituted

prima facie evidence of proper service on the defendant corporation under Section 48.081(1)(b). . . [and]

the affidavits filed by the defendant do not, as urged, overcome this presumptive validity”).

5. In relevant part, the Affidavit of Service attested to the fact that Mr. Server inquired “who was available to

accept service.” [A.5]. Furthermore, upon being advised of the materials being served, Appellant’s Office

Manager (Ms. Manager) stated “no officers were available.” Id. Rather than submit to the trial court any

sworn affidavit or documentary evidence to refute this evidence, Appellant filed an unsupported Motion to

Quash [A.1] wherein it merely alleged that a vice president of Appellant was present in the corporate offices

at the time of service and that the process server never inquired whether a corporate officer or director was

present to accept service.

6. At no time prior to or during the hearing on its Motion to Quash did Appellant submit any evidence to

support these contentions. See Miami Dade County Clerk of Court Docket [A.A.1]. Even if Appellant had

mind is left with an abiding conviction that the evidence is true.” Id. at 799-800.

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provided supporting evidence (which it did not), the evidence would have had to meet the exacting standard

of “clear and convincing,” which is not an easy burden to meet.

7. There Affidavit of Service in the present case was regular on its face and therefore presumed valid. It must

be accepted as true and may only be refuted by clear and convincing evidence from Appellant. Because

Appellant submitted none, the presumed validity of the Affidavit of Service still stands. As such, the trial

court properly denied the Motion to Quash and should be affirmed.

8. In its Brief, Appellant argued that at the time it filed its Motion to Quash (November 10, 2014), “there was

no substantive basis for Appellant to even refute the allegedly proper service of process.” [I.B.9].

Appellant claimed that because Appellee did not file the Affidavit of Service until December 18, 2014,

Appellant was somehow relieved of the burden to support its Motion to Quash with evidence. Id. There is

no legal or factual basis for this argument.

9. In its Motion to Quash, Appellant specifically stated that its objections to the validity of service were (1)

the purported presence of a vice president at the corporate office and (2) the purported failure to inquire as

to the presence of superior officers. See Motion to Quash at ¶¶5-6 [A.1]. Given that Appellant was aware

of these purported “deficiencies” at the time it filed its Motion to Quash on November 10, 2014, there was

nothing preventing Appellant from verifying its claims by Affidavit or other evidence at that time. For

example, Appellant could have obtained sworn statements from its Office Manager and/or Vice President,

Mr. Vice President, attesting to the claims made in its Motion to Quash. Appellant failed to submit such

evidence for the trial court’s consideration.

10. Furthermore, to the extent Appellant has raised the timing of the filing of the Affidavit of Service as

somehow relevant [I.B.9], Appellant had more than adequate time to prepare and submit evidence in

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support of its Motion to Quash in advance of the hearing. Appellant filed its Motion to Quash on November

10, 2014. [A.1]. On December 18, 2014, Appellee filed the Affidavit of Service. [A.A.1]. On December

23, 2014, Appellee noticed Appellant’s Motion to Quash for hearing to take place on January 8, 2015.

[A.A.2]. In accordance with the Notice, the hearing took place January 8, 2015. [A.9]. Therefore,

Appellant had three (3) weeks of time from the date the Affidavit of Service was filed to the date of the

hearing to provide the court with evidence in support of its Motion to Quash.

11. Because Appellant failed to meet its burden to provide clear and convincing evidence to refute the facial

validity of the Affidavit of Service, the trial court properly denied Appellant’s Motion to Quash at the

hearing on January 8, 2015.

BECAUSE OF THE FACIAL VALIDITY OF THE AFFIDAVIT OF SERVICE AND APPELLANT’S FAILURE TO SUBMIT ANY EVIDENCE TO THE CONTRARY, THE TRIAL COURT PROPERLY DENIED APPELLANT’S MOTION TO QUASH AT THE HEARING ON JANUARY 8, 2015.

Appellant contends that “a full evidentiary hearing” (beyond the trial court’s hearing of January 8, 2015)

should have been ordered because of “the conflicting allegations of the Affidavit of Service and the Motion to

Quash.” [I.B.7]. However, there were no grounds for the trial court to order a further evidentiary hearing

because of the absence of any evidence rebutting the facial validity of Appellee’s Affidavit of Service. As is

discussed above in Section II, unsupported denials in a motion to quash are insufficient to invalidate a facially

sufficient service of process.

Significantly, in its Brief, Appellant acknowledged that its Motion to Quash was not support by any

affidavit. [I.B.9]. Appellant also admitted:

a review of Florida law reveals several published opinions in which appellate courts have articulated the rule as a conjunctive standard—sometimes stating that an evidentiary hearing is mandatory where the unrebutted allegations contained in appellant’s motion to quash service of process and the supporting affidavit, if proven

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by clear and convincing evidence, would establish appellee’s failure to effect valid service of process as required.

Id. (emphasis in original). Appellee notes that Appellant failed to cite to a single case wherein an evidentiary

hearing was required without the presence of some evidence supporting a motion to quash—in the form of an

affidavit—to rebut the validity of the return of process. Indeed, it appears there is no such case.

In Florida, a trial court need only hold an evidentiary hearing where a motion to quash is supported by

affidavit which would, if true, invalidate service. See Se. Termite & Pest v. Ones, 792 So. 2d 1266, 1268 (Fla.

4th DCA 2001) (finding that where the contents of an affidavit supporting a defendant's contention of

insufficiency of service would, if true, invalidate the purported service and nullify the court's personal

jurisdiction over the defendant, the trial court should hold an evidentiary hearing before deciding the issue);

see also Fern, Ltd. v. Road Legends, Inc., 698 So.2d 364, 365 (Fla. 4th DCA 1997) (finding that an affidavit

supporting defendant's motion to quash service of process, if true, would establish that service was effected on

someone unqualified to receive service and therefore an evidentiary hearing was required); Camerota v.

Kaufman, 666 So.2d 1042, 1045 (Fla. 4th DCA 1996) (finding that affidavits supporting defendant's motion

to vacate default judgment, if true, created an issue of fact as to receipt of notice, therefore, the trial court was

required to hold an evidentiary hearing); Monsour v. Balk, 705 So. 2d 968, 970 (Fla. 2d DCA 1998) (stating

that the affidavit supporting defendant's motion for relief from judgment, if true, would establish that

defendant's son was not qualified to accept service and therefore the trial court was required to hold an

evidentiary hearing). These cases demonstrate that evidence is not “sometimes” required as Appellant would

have this Court believe. Evidence (meeting the “clear and convincing” standard) is always required in order

to justify an evidentiary hearing.

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In the case at bar, the trial court heard Appellant’s Motion to Quash at a hearing on January 8, 2015.

[A.9]. Appellant failed to support its Motion to Quash with an affidavit. [A.1]. There was no evidence

supporting Appellant’s denial of service and therefore no need for the trial court to order a further evidentiary

hearing. In denying the Appellant’s Motion to Quash, the trial court ruled in accordance with Florida law.

This Court should affirm the trial court’s order.

CONCLUSION

Appellant’s entire appeal fails because all of its arguments rely on the faulty premise that the Affidavit

of Service was facially invalid. It was not. Section 48.081 expressly allows for service upon a general manager

in the absence of the president or vice president of a corporation. Ms. Manager, who identified herself as an

officer manager and stated that Appellant’s officers were unavailable, was properly served. Furthermore,

Appellant has never—at any point—submitted evidence to refute these facts. There was never “clear and

convincing” evidence presented to support Appellant’s denials regarding service.

In addition, binding precedent demonstrates that this District does not require an affidavit of service to

specify that superior officers are absent from the county in order to validly reflect service upon a manager in

accordance with section 48.081. The Affidavit of Service in this case complied with section 48.081 to the

extent that it noted the unavailability of Appellant’s superior officers.

Finally, although Appellee acknowledges that an evidentiary hearing may be required in instances when

a motion to quash is supported by evidence which would, if true, challenge the sufficiency of service, such

facts are not present here. There were no grounds for the trial court to order an evidentiary hearing given the

complete lack of evidence for Appellant’s denials regarding service.

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Appellee properly effected service on Appellant under section 48.081. The trial court properly denied

the Motion to Quash and this Court should affirm the trial Court’s Order.

Date:

Respectfully submitted,

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CERTIFICATE AS TO COMPUTER GENERATED FONT

I HEREBY CERTIFY that the font used in this computer-generated document is Times New Roman 14

point font, in compliance with Florida Appellate Rule of Procedure 9.210(a).

CERTIFICATE OF SERVICE

I hereby certify that a copy hereof has been furnished to __________________________________________________________________ by _________________ this _________ day of ____________________, 2015.

______________________________________ Signature

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Appellate Briefs

3. Answer Brief: Appeal of Valuation of Assets (Family Law)

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Appellate Briefs

4. Answer Brief: Appeal of Summary Judgment (Foreclosure)

IN THE THIRD DISTRICT COURT OF APPEAL STATE OF FLORIDA

ii

LOWER TRIBUNAL CASE NO. APPEAL

NO.

APPELLANT I, APPELLANT II, APPELLANT III,

Appellants,

v.

APPELLEE BANK OF FLORIDA,

Appellee.

APPELLEE’S ANSWER BRIEF

Attorney for Appellee

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TABLE OF CONTENTS

I. PRELIMINARY STATEMENT ......................................................................................................................... v

II. STATEMENT OF THE CASE AND

FACTS ......................................................................................................................... 1 A. Statement of the Case ………………………………………………..…...1 B. Statement of the Facts …………………………………………………....2

III. ISSUE ON APPEAL ......................................................................................................................... 8

IV. SUMMARY OF THE ARGUMENT ......................................................................................................................... 9

V. ARGUMENT ......................................................................................................................... 10

A. Standard of

Review ......................................................................................................................... 10

B. Summary Judgment Was Proper As No Issue of Material Fact Remained

Regarding the Bank’s Entitlement to Foreclose

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......................................................................................................................... 12

1. Trial Court Correctly Denied the Defendants’ Motion to

Enforce the Mediated Settlement Agreement ............................................................................................................... 12

a. The MSA Was

Unambiguous ............................................................................................................... 13

b. Trial Court Correctly Construed Any Purported

Ambiguity ............................................................................................................... 15

c. Trial Court Did Not Rescind the

MSA ............................................................................................................... 17

2. Affirmative Defense Did Not Create Questions of

Fact ............................................................................................................... 18

VI.

CONCLUSION 22

VII. CERTIFICATE OF SERVICE 23

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VIII. CERTIFICATE OF COMPLIANCE WITH FONT STANDARDS 24

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TABLE OF AUTHORITIES Cases Andersen Windows, Inc. v. Hochberg, 997 So. 2d 1212 (Fla. 3d DCA 2008) .................................................................... 13 Comm’l Capital Res., LLC v. Giovannetti, 955 So. 2d 1151 (Fla. 3d DCA 2007) .................................................................... 12 Custer Med. Ctr. a/a/o Maximo Masis v. United Auto Ins. Co., 62 So. 3d 1086 (Fla. 2011) ......................................................................... 11, 12, 19 Design Eng’g Corp. of Am. v. Pan Aviation, Inc., 448 So. 2d 1112 (Fla. 3d DCA 1984) .................................................................... 11 Fowler v. First Sav. & Loan Ass’n. of Defuniak Springs, 643 So. 2d 30 (Fla. 1st DCA 1994) ....................................................................... 21 Friedman v. Virginia Metal Prods. Corp., 56 So. 2d 515 (Fla. 1952) ....................................................................................... 13 Hull v. Miami Shores Village, 435 So. 2d 868 (Fla. 3d DCA 1983) ................................................................ 10, 11 Knight Energy Serv., Inc. v. Amoco Oil Co., 660 So. 2d 786 (Fla. 4th DCA 1995) ..................................................................... 19 Johnson & Kirby, Inc. v. Citizens National Bank of Fort Lauderdale, 338 So. 2d 905 (Fla. 3d DCA 1976) ...................................................................... 11 Laufer v. Norma Fashions, Inc., 418 So. 2d 437 (Fla. 3d DCA 1982) ................................................................ 10, 11 Millett v.Perez, 418 So. 2d 1067 (Fla. 3d DCA 1982) .................................................................... 21 Philip Morris Inc. v. French,

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897 So. 2d 480 (Fla. 3d DCA 2004) ...................................................................... 13 Randy Intern., Ltd. v. American Excess Corp., 501 So. 2d 66 (Fla. 3d DCA 1987) ........................................................................ 11 Reflex, N.V. v. Umet Trust, 336 So. 2d 473 (Fla. 3d DCA 1976) ...................................................................... 11 Robertson v. State, 829 So. 2d 901 (Fla. 2002) ..................................................................................... 11 Story v. Culverhouse, 727 So. 2d 1128 (Fla. 2d DCA 1999) .................................................................... 12 United Auto Ins. Co. v. Salgado, 22 So. 3d 594 (Fla. 3d DCA 2009) ........................................................................ 17 Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126 (Fla. 2000) ..................................................................................... 11 Wright & Seaton, Inc. v. Prescott, 420 So. 2d 623 (Fla. 4th DCA 1982) ..................................................................... 13 Other Authorities Fla. R. Civ. P. 1.120(c) .................................................................................... 11, 19 Black’s Law Dictionary (8th ed. 2004) ............................................................. 17, 18 Webster’s Third New International Dictionary (1986) ......................................... 17

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I. PRELIMINARY STATEMENT

The Defendants’ Initial Brief and the transcripts of the hearings on Defendants’

Motion to Enforce the MSA and Plaintiff’s motion for summary judgment conducted

January 6, 2013 and June 13, 2013 are referenced herein respectively as “IB_” and

“R.Vol.2 _” followed by the pertinent page numbers.

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II. STATEMENT OF THE CASE AND FACTS

A. Statement of the Case

This is an appeal from a summary judgment of foreclosure entered in favor

of Appellee Bank of Florida (“the Bank”) on the property located at [Address] (“the

Property”) filed by Appellant I, Appellant II, and Appellant III (“The Defendants”).

The Bank filed an action for foreclosure against the Defendants on

April 10, 2010. (R. 1-51). The Defendants answer to the second amended

complaint (“SAC”) raised sixteen affirmative defenses, all of which were

correctly stricken by the trial court except for affirmative defenses 1, 2, 5,

12, 13, 14, 15, and 16. (R. 304-319, 462, 479).

The case was referred to mediation and, on October 24, 2011, the

parties agreed to a Mediated Settlement Agreement (“MSA”). (R. 330-332).

The Defendants subsequently filed a motion to enforce the MSA alleging

that the Bank had breached the MSA. (R. 353-62, 381-90). The trial court

conducted hearings on the motion to enforce the MSA on January 6, 2013

and June 13, 2013. (R.Vol.2 1-227). On November 6, 2013, the trial court

issued its order denying the Defendants’ motion to enforce and finding that

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the although the MSA contained an ambiguity, neither party had breached

the terms of the MSA. (R. 721-30).

Thereafter, the trial court received evidence and conducted a hearing

on the Bank’s previously filed motion for summary judgment of

foreclosure. .On February 13, 2014, after the January 14, 2014 hearing on

the motion, the trial court entered summary judgment in favor of the Bank.

(R. 1061-87). The Defendants’ subsequent motion for rehearing was denied

and Defendants now appeal the trial court’s entry of summary judgment of

foreclosure. (R. 1092).

B. Statement of the Facts

The Property had been the subject of several loans and modifications

over the years between the Bank and Defendants. (R. 5-51). While the

initial mortgage executed on May 18, 2005 was for $185,000, less than one

year later, on March 24, 2006, that mortgage was modified to increase the

line of credit by $50,000 to a total of $225,000. (R. 16-21). Again, less

than one year later, on September 21, 2006 (recorded on October 6, 2006),

the Defendants sought, and the Bank granted, another increase to the line

of credit by $75,000, resulting in a $310,000 line of credit. (R. 18-22).

Finally, on March 4, 2009, the line of credit was raised to $326,997.18. (R.

22-29). All of the above modifications were duly recorded in the Public

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Records of Monroe County. (R. 5-29). These facts are not in dispute. (IB

2-3; R. 208-211).

Equally undisputed by the Defendants or the Bank is the fact that in

spite of their indebtedness and obvious financial obligations to the Bank, the

Defendants have not made any payments on the mortgage since October of

2009 (R. 736; R.Vol.2 80; IB 1). As a result, the Defendants were in default

of the mortgage on the Property.

The operative loan document, Mortgage and Note Modification

Agreement dated March 4, 2009 (“March Agreement”), serving as the basis

for the foreclosure action, included Defendants’ signature and agreement to

the following:

4. On or about January 7, 2009, the Mortgagee notified the Borrower and Mortgagor that the Borrower is in default in its obligations under the Equity Goldline Credit Agreement and Disclosure due to the Borrower’s failure to timely remit payment to the Lender (the “Default”). As of the date hereof, the amount of such payment required to be paid to the Lender is $326,997.18 (the “Default Amount”), which includes interest plus the amounts attributed solely to the costs of this modification. The Borrowers acknowledge that the afore described amount owed to Mortgagee under the Equity Goldline Credit Agreement and Mortgage represents an absolute and unequivocal obligation owed by Borrower to Mortgagee.

5. Mortgagor. Borrower and Mortgagee agree to modify the terms contained in the existing Equity Goldline Credit Agreement and Disclosure and substitute same for a Change in Terms Agreement of even date herewith in the original principal amount of $326,997.18.

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6. For value received, Mortgagor promises to pay to the order of Mortgagee, the sum of $326,997.18 in the manner and with interest as indicated on the aforementioned Change in Terms Agreement. 7. This agreement evidences additional advance made pursuant to the provisions of that certain mortgage referenced herein and modification of the repayment terms. It is agreed that the total amount of indebtedness secured by the Mortgage, as modified, including the additional advance evidenced by this instrument and all prior additional advances, as of this date is the sum of $326,997.18. The Borrower promises to pay the entire amount of indebtedness with interest at the rate and on the terms set forth on the Change in Terms Agreement. If default occurs under this agreement, the entire principal and accrued interest secured by the mortgage, including this additional advance, and all other sums or indebtedness secured by the above-described mortgage, and accrued interest, shall become due and payable at once without notice at the option of Mortgagee. Failure to exercise this option shall not constitute a waiver of the right to exercise the option in event of a subsequent default.

(R. 141-142). Therefore, at the time that they entered into the March

Agreement, the Defendants acknowledged and agreed that they: 1) were in

default as of January 2009; 2) owed a total of $326,997.18 to the Bank; and

3) that default of the Agreement would result in acceleration of the loan.

(R. 141-142).

Because Defendants defaulted on the March Agreement in October 4,

2009, the Bank filed the subject action for foreclosure on April 10, 2010.

(R. 1-51). The case was referred to mediation and, on October 24, 2011,

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and the parties agreed to a Mediated Settlement Agreement (“MSA”). (R.

330-332).

The twelve-part MSA, which Defendants make their main focus on

appeal, specifically provided that:

1. Borrowers will reinstate the loan by bringing current the delinquent payments of $52,000. 2. Borrower will pay this sum into escrow with Appellee Bank within 72 hours from the date of the execution of this agreement. In the event the bank determines that the borrower does not qualify for refinancing then the bank shall refund the escrow to the borrowers within 72 hours. 3. Bank will obtain and borrowers will provide documents necessary for the bank to ascertain if the borrower qualifies. 4. In the event the Borrower qualifies the closing shall take place 45 days from the date of this agreement. 5. Borrowers shall pay closing costs. 6. The loan shall be in the amount of $382,500. 7. The loan payments shall include principal and interest at the rate of 6% per annum taxes and insurance. 8. The modified loan shall be calculated on a 40 year amortization with a 5 year balloon.

9. Borrowers represent that they have the authority to bind to this agreement Gladys Marcos. 10. As part of the closing document the bank through its attorneys shall file a voluntary dismissal with prejudice of the pending foreclosure action.

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11. Closing shall take place at the bank’s principal place of business in Homestead, Florida.

12. The modification shall be reported to the credit reporting agency by

Appellee Bank after the closing. (R. 330-332) (emphasis added).

Therefore, in entering the MSA, the Defendants explicitly

acknowledged that they owed the Bank $52,000 in delinquent payments and

agreed to pay the Bank the $52,000 in delinquent payments in order to bring

their loan current. (R. 330-332). In exchange for payment of the overdue

and delinquent monies owed the Bank, and in an effort to keep the Appellant

I and Appellant II on the Property, the Bank agreed to stay the foreclosure

and offer the Appellants a modification of their loan to reduce the monthly

payments by adjusting the interest and amortization schedule. (R. 330-332).

In an abundance of generosity, the Bank also agreed to return the $52,000

(which it was owed on the existing mortgage) in the event that it failed to

qualify the Defendants for the modification. (R. 330-332). Lastly, it was

only upon closing of the modification that the Bank would file a dismissal

of the foreclosure action. (R. 330-332).

In compliance with the MSA, the Defendants paid the Bank $52,000,

which was deposited into escrow. (R.Vol.2 16). Similarly in compliance

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with the MSA, the Bank continued its efforts to close on the loan by

requesting financial documentation from the Defendants, obtaining the

requisite flood insurance, and paying 2009 and 2010 taxes, all of which were

required in order to clear title to the Property prior to closing (and which

the Defendants had failed to pay). (R. 890; R.Vol.2 115). Although the

Defendants had not provided all of the requested documentation, the Bank

qualified the Defendants for the modification on January 20, 2012. (R.Vol.2

108-109).

As is customary in such transactions, and in compliance with the

MSA, which mandated that the Defendants pay taxes, insurance, and closing

costs (paragraphs 5 and 7 of the MSA), the Bank provided the Defendants

with a final tally and explanation of the taxes, insurance, and closing costs

due at the closing scheduled for February 23, 2012 (“commitment letter”).

(R. 330-332; R. 887-890; R.Vol.2 119). The Defendants refused to sign this

commitment letter and in an email from their attorney, dated March 12,

2012, Defendants advised the Bank that they had limited funds for the

closing. (R.Vol.2 185-186). The remodification never closed, thus, the

Bank was under no obligation to dismiss the foreclosure action. (R. 332).

Notwithstanding Borrower’s failure to close, Defendants then filed a

motion to enforce the MSA in the pending foreclosure action. (R. 712-720).

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The trial court received memoranda of law and evidence in support of and

in opposition to the Defendants’ motion. Plaintiff and Defendants were

provided the opportunity to present their witnesses, facts and evidence at

two separate hearings on the motion. (R.Vol.2 passim). After review of the

evidence and legal arguments, the trial court found that neither party had

breached the MSA and, by implication, that the $52,000 had been correctly

applied to the overdue payments. (R. 724, 728-729). Moreover, the trial

court found that in the Bank’s effort to “keep the [Appellants] in their

home,” the MSA contained an ambiguity, which created confusion and

“[b]ecause of that confusion, the parties, in good faith, acted as they thought

appropriate.” (R. 724). Finding that the Bank had not breached the MSA,

and in order to avoid causing injustice to the Bank whereby the Defendants

would have been allowed to stay on the Property for months and depriving

the Bank of the ability to “collect long overdue interest payments and taxes

over and above those to which the $52,000.00 was applied,” the trial court

denied Defendants’ motion to enforce the MSA. (R. 724, 729). Having

found that neither party had breached the MSA, and declining to enforce the

MSA as urged by the Defendants to require return of the $52,000 paid on

the delinquent account, the trial court turned to consideration of the Bank’s

motion for summary judgment of foreclosure.

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In ruling on the Bank’s motion for summary judgment, the trial court

considered evidence and affidavits submitted by both parties and conducted

a hearing on January 16, 2014. The Plaintiff filed evidence and affidavits

of its First Vice President, and Vice President of Special Assets, in support

of the motion for summary judgment and to address and refute the

Defendants’ remaining affirmative defenses. (R. 555-620; R. 732-830). The

correspondence between the Bank and Defendants evidences multiple and

repeated defaults, late payments, and failures to pay taxes and insurance by

the Defendants spanning from 2007 through 2009. (R. 555-620). The

history of the relationship and transactions between the Bank and

Defendants, culminating in the MSA, evidenced multiple and repeated

attempts by the Bank to “stretch to reach an agreement by all concerned to

keep the [Appellants] in their home.” (R. 727).

In addition to evidence of the Defendants’ multiple defaults, the Bank

also provided evidence of the Bank’s compliance with the MSA and with

all conditions precedent to foreclosure, including providing the HUD

counseling notice requirements in each letter advising the Defendants of

their default, and refuting all of the remaining affirmative defenses. (R. 556,

R. 561; R. 568-570).

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The Defendants filed a memorandum in opposition and included an

almost 50 page affidavit from [Appellant II], basically regurgitating every

single argument and allegation Defendants had raised in their opposition.

(R. 831-850). After review of all of the evidence and testimony provided

by both parties, the trial court held that the Bank was entitled to judgment

as a matter of law and entered a Final Summary Judgment of Foreclosure,

which the Defendants now appeal. (R. 1056-1060).

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III. ISSUE ON APPEAL

THE TRIAL COURT CORRECTLY GRANTED SUMMARY FINAL JUDGMENT OF FORECLOSURE BECAUSE NO ISSUE OF MATERIAL FACT EXISTED AS TO THE DEFENDANTS’ DEFAULT WHERE THEY HAD NOT MADE ANY PAYMENTS ON THE MORTGAGE SINCE OCTOBER 2009 OR PAID TAXES AND INSURANCE ON THE PROPERTY FOR 2009 AND 2010; AND NO ISSUES OF MATERIAL FACT REMAINED REGARDING THE BANK’S SATISFACTION OF ALL CONDITIONS PRECEDENT TO FORECLOSURE, INCLUDING PARTICIPATION IN COURT ORDERED MEDIATION AND COMPLIANCE WITH THE MEDIATED SETTLEMENT AGREEMENT.

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IV. SUMMARY OF ARGUMENT The facts are undisputed that the Defendants were in default of the mortgage

being foreclosed and that the Bank had met all prerequisites to foreclosure,

including: 1) participation in court ordered mediation; 2) agreeing to a very generous

MSA offering to restructure the original loan defaulted by the Defendants (reducing

the interest rate from the original rate of 7 1/2% to 6% and amortizing the payments

over a forty-year period in order to reduce the monthly payment burden on the

Defendants); 3) complying with the MSA in order to close on the modification

(qualifying the Defendants, calculating and providing the Defendants with a tally of

the money the Defendants owed for taxes, insurance, and closing costs, which would

have to be paid at the closing); and 4) providing all necessary notices to Defendants.

Based on these undisputed facts, summary judgment was properly granted.

While the Defendants appeal the final summary judgment of foreclosure,

because the undisputed facts support summary judgment of foreclosure, the

Defendants attempt to divert this Court’s attention and to confuse the issue by

arguing that the trial court erred in denying Defendants’ motion to enforce the MSA.

(IB 5-15). In actuality, the trial court explicitly found that all parties had complied

with the MSA. (R. 721-729). In any case, the undisputed facts remain that the Bank

was entitled to foreclose on the mortgage as a matter of law because Defendants

were in default. At the time of filing of the foreclosure action, the Defendants had

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lived in the Property for more than three-and-half years without making any

payments on the mortgage and the loan matured after the suit had been filed.

Therefore, even if the MSA provided for reinstatement of the original mortgage by

the mere payment of the $52,000 into escrow, the Defendants defaulted on the

mortgage by failing to making any subsequent payments from December 2011 to

February 14, 2014, the time of entry summary judgment of foreclosure.

Accordingly, the trial court’s decision on the MSA does not change the result of this

appeal.

The issue on appeal, thus, remains whether any disputed material facts existed

to preclude summary judgment of foreclosure in favor of the Bank. The Bank

provided sufficient and competent evidence and testimony to support the court’s

decision. Defendants failed to raise any issues, including in their affirmative

defenses, material to the Bank’s entitlement to foreclose on the Property.

Accordingly, the trial court’s entry of summary judgment in favor of the Bank should

be affirmed.

V. ARGUMENT

A. Standard of Review

A trial judge's findings of fact and conclusions of law come to this court with

a presumption of correctness and will not be disturbed unless totally unsupported

by competent substantial evidence. Hull v. Miami Shores Village, 435 So. 2d 868

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(Fla. 3d DCA 1983); Laufer v. Norma Fashions, Inc., 418 So. 2d 437 (Fla. 3d DCA

1982). Therefore, unless a trial court’s ruling is either unsupported by competent

substantial evidence or is clearly contrary to law, the ruling will not be reversed.

Design Eng’g Corp. of Am. v. Pan Aviation, Inc., 448 So. 2d 1112 (Fla. 3d DCA

1984. Moreover, pursuant to the “tipsy coachman” doctrine, as long as there is any

basis in the record to support the judgment of the trial court, the appellate court may

affirm the ruling even if the trial court reaches the right result for the wrong reasons.

Robertson v. State, 829 So. 2d 901, 906 (Fla. 2002). Therefore, while a trial court’s

entry of final summary judgment is subject to de novo review, the ruling will be

affirmed “unless totally unsupported by competent substantial evidence.” Volusia

Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126 (Fla. 2000); Randy

Intern., Ltd. v. American Excess Corp., 501 So. 2d 667, (Fla. 3d DCA 1987).

Mere unsupported allegations of affirmative defenses do not automatically

create disputed issues of material facts precluding summary judgment. Reflex, N.V.

v. Umet Trust, 336 So. 2d 473 (Fla. 3d DCA 1976); Johnson & Kirby, Inc. v.

Citizens National Bank of Fort Lauderdale, 338 So. 2d 905 (Fla. 3d DCA 1976). In

any case, the initial burden is on the party raising the affirmative defenses to prove

its defenses. Fla. R. Civ. P. 1.120(c) (“In pleading the burden of proving each

element of an affirmative defense rests on the party that asserts the defense”); Custer

Med. Ctr. a/a/o Maximo Masis v. United Auto. Ins. Co., 62 So. 3d 1086, 1097 (Fla.

91

2011). It is only after the defendant has met its burden that the plaintiff must provide

evidence to factually refute the affirmative defense or show its legal insufficiency.

B. Summary Judgment Was Proper Because No Issue of Material Fact Remained Regarding the Bank’s Entitlement to Foreclose.

The trial court correctly entered summary judgment in favor of the Bank

because no material facts regarding the Bank’s entitlement to foreclose remained.

As a matter of fact, the Defendants do not dispute nor provide any evidence to

dispute the facts material to the Bank’s entitlement to summary judgment of

foreclosure. The evidence provided by the Bank, which was not called into question

by the Defendants, was that: 1) Defendants had not made any payment on the loan

since October 2009 and, thus, were in default; and 2) the Bank had complied with

all conditions precedent to foreclose, including entering into and complying with a

mediated settlement agreement. Defendants’ attempt to muddy the waters by

challenging the trial court’s ruling on the MSA is unsubstantiated by law or fact.

1. Trial Court Correctly Denied the Defendants’ Motion to Enforce the Mediated Settlement Agreement.

The court construes a settlement agreement like any other contract. Comm’l

Capital Res., LLC v. Giovannetti, 955 So. 2d 1151, 1153 (Fla. 3d DCA 2007). In

construing the agreement, the court must consider the agreement as a whole and give

effect to every provision of the agreement wherever possible. Story v. Culverhouse,

727 So. 2d 1128, 1130 (Fla. 2d DCA 1999) (“In construing the terms of a settlement

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agreement, a court is required to review the entire instrument and to give effect to

every provision contained in that contract.”). An unambiguous contract provision

must be afforded its plain meaning. Andersen Windows, Inc. v. Hochberg, 997 So.

2d 1212, 1214 (Fla. 3d DCA 2008) (“Courts, without dispute are not authorized to

rewrite clear and unambiguous contracts. And where a contract is clear and

unambiguous, it must be enforced as written.”).

A contract may be ambiguous, however, if it is unclear or susceptible to

different interpretations. Friedman v. Virginia Metal Prods. Corp., 56 So. 2d 515,

517 (Fla. 1952) (“A word or phrase in a contract is ‘ambiguous’ only when it is of

uncertain meaning, and may be fairly understood in more ways than one[,] . . .

‘ambiguous’ means susceptible of more than one meaning.”) In that case, “the court

should follow a construction that best comports with logic, reason, and the purposes

underlying the parties’ agreement.” Philip Morris Inc. v. French, 897 So. 2d 480

(Fla. 3d DCA 2004) (quoting Wright & Seaton, Inc. v. Prescott, 420 So. 2d 623, 629

(Fla. 4th DCA 1982) (“The court should arrive at [a contract] interpretation

consistent with reason, probability, and the practical aspect of the transaction

between the parties.”)). In this case, even if the trial court incorrectly found an

ambiguity in the MSA, it arrived at the correct result because neither party had

breached the agreement. In any case, at the time that the Defendants sought to

enforce the MSA, as Defendants expressly admit, the MSA had lapsed.

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a. The MSA Was Unambiguous.

The MSA plainly states that:

1. Borrowers will reinstate the loan by bringing current the delinquent payments of $52,000. 2. Borrower will pay this sum into escrow with [Appellee] Bank within 72 hours from the date of the execution of this agreement. In the event the bank determines that the borrower does not qualify for refinancing then the bank shall refund the escrow to the borrowers within 72 hours.

R. 330 (emphasis added).

Therefore, by its plain and unambiguous terms, the MSA provided that

the current mortgage loan would be “reinstate[d]” conditioned on the

Appellants bringing “current the delinquent payments of $52,000.” See

Black’s Law Dictionary (9th ed. 2009) (defining “reinstate” as [t]o place again

in a former state or position; to restore . . .” In the context of foreclosure,

reinstatement occurs when the borrower brings the delinquent loan current in

one payment. Thus, by catching up on payments in default, as well as past-due

fees, costs, and penalties, incurred as a result of the default, the borrower is

allowed to reinstate a loan and stop a foreclosure. Wells Fargo Bank, NA v.

Giglio, 123 So. 3d 60, 61 (Fla. 4th DCA 2013). Once reinstated, the borrower

resumes making regular payments on the loan. Bates v. JPMorgan Chase

Bank, NA,768 F.3d 1126 (11th Cir. 2014). In this case, by paying the

94

$52,000 in delinquent payments that they owed on the loan, the Appellants

were entitled only to be restored to the position that they had been before they

had defaulted. It is only after the Appellants had complied with the first

provision of the MSA, by paying the $52,000 which they owed the Bank,

curing their default on the mortgage and inducing the Bank to stay the

foreclosure proceedings, that the second paragraph of the MSA would come

into effect.

The second paragraph of the MSA further evidenced the Bank’s

generosity and willingness to negotiate a resolution to keep the Lentzs on the

Property. In addition to agreeing to allow the Appellants to cure their default

by paying the delinquent amount and reinstating the loan (paragraph 1 of the

MSA), the Bank further offered to assist the Appellants by modifying the

original mortgage terms and reducing both the interest rate and extending the

amortization period (paragraphs 7 and 8), in order to lower the monthly

payments and allow the Appellants to remain on the Property. In a showing

of good will and generosity, the Bank further agreed to return the $52,000 in

delinquent payments to the Appellants should the Bank fail to qualify them for

a remodification. The Defendants’ urged interpretation/construction of the

MSA, whereby they demanded return of the money they undisputedly owed

the Bank on the operative mortgage loan, absent any breach of the MSA by

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the Bank, was contrary to the express terms of the MSA and would have

punished the Bank for its willingness and generosity in extending every

possible favor to the Defendants.

The Bank did not breach the MSA. In fact at all times, the Bank

continued its efforts in compliance with the MSA and qualified the

Defendants. The Bank was entitled to retain the $52,000 because the Bank

applied the sums to amounts owed, qualified the Defendants, and only where

the Bank determined that the Defendants did not qualify, which never occurred

was the Bank required to return the $52,000. As such, there is no basis whether

per the MSA or equitable for the return of the $52,000 to be returned to the

Defendants.13

b. The Trial Court Correctly Construed Any Purported Ambiguity.

Even if an ambiguity existed, however, the trial court’s interpretation and

denial of the motion to enforce the MSA provided the correct result. The court

correctly interpreted the MSA to reflect the intent of the parties, as required by law.

In addressing the Defendants’ motion to enforce the MSA, the trial court

acknowledged that “the issue, hanging over this litigation like a cloud, is the

13 Even if the Bank had breached the MSA, which it had not, the $52,000 represent the amount owed to the

Bank for delinquent payments and etc. The Defendants cannot and do not dispute this fact.

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application of $52,000.00; it is the source of the ambiguity in the mediation

agreement” (R. 726).

The ambiguity presented by paragraphs “I” and “2” can be resolved only if the Court revisits the apparent reason for the ambiguity, a stretch to reach an agreement by all concerned to keep the [Appellants] in their home. The Defendants were to be qualified by the Bank if at all possible, and the $52,000.00 was to be used to pay past interest and taxes. Both happened. It was then up to the parties to comply with the remaining terms.

(R. 727) (emphasis added).

To resolve this purported ambiguity, the trial court applied well-established

principles of contract law to determine and give effect to the intent of the parties to

the MSA. The history of the transactions between the Defendants and the Bank,

whereby the Defendants were given multiple increases in their credit line in order

to cover their repeated defaults, and the correspondence between the parties,

whereby the Bank again and again gave the Defendants the opportunity to cure their

defaults, evidenced the intent of the parties and the generosity of the Bank. The trial

court noted the Bank’s willingness and efforts to lower the Defendants’ monthly

payment by reducing the interest rate and recalculating the monthly payments on

an unusually long amortization period. The trial court considered these actions as

indicia of the Bank’s intent to try to help the Defendants remain on the Property.

(R. 724-725).

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Because the trial court found that neither side breached the agreement, “as

construed by the Court,” the trial court held that to enforce the MSA (as construed

by the Defendants to require return of the $52,000 paid to cure the default on the

loan) would “cause an injustice to the Bank [because, although] it did not breach

the agreement, it would not be able to collect long overdue interest payments and

taxes over and above to which the $52,000.00 was applied.” (R. 729). Due to the

“substantial change of circumstances brought about by the passage of time, and . .

. the resulting injustice to the [Bank] if the agreement were now enforced [to require

return of the $52,000],” the trial court denied the Defendants motion to enforce the

MSA. (R. 729).

c. The Trial Court Did Not Rescind the MSA.

The Defendants incorrectly claim that the trial court “rescinded” the MSA.

(IB 12-13). To rescind a contract, however, is “[t]o abrogate or cancel (a contract)

. . . [, t]o make void: to repeal or annul.” Black’s Law Dictionary 1332 (8th ed.

2004). In effect, the rescission renders the contract abrogated and of no force and

effect from its inception. United Auto. Ins. Co. v. Salgado, 22 So. 3d 594, 603 (Fla.

3d DCA 2009) (explaining the distinction between cancellation and rescission in

the insurance policy context) (citing Webster’s Third New International

Dictionary 1930 (1986) (term defining “rescind” as “to abrogate (a contract) by

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tendering back or restoring to the opposite party what one has received from him

(as in cases of fraud, duress, mistake or minority.”)) Since rescission operates

retroactively to the time that the contract came into existence, had the trial court

“rescinded” the MSA, as Defendants posit, the trial court would not have needed

to interpret the MSA or determine whether it had been breached.

The trial court actually denied the Defendants’ motion to enforce the MSA

to the extent that Defendants thought the MSA should be read or enforced. As the

trial court explained, to enforce the MSA as the Defendants urged—i.e. requiring

the Bank to return the $52,000 in monies the Defendants undisputedly owed (and

had been paid to the Bank in exchange for reinstating the original loan and stopping

litigation of the foreclosure action until remodification) —would have punished

the Bank for its generosity in trying to negotiate with the Defendants and

generously giving them an opportunity to refinance/modify the loan. This would

have resulted in a windfall to the Defendants, whereby they would have been able

to stall the foreclosure action and continue to live rent-free, to the detriment of the

Bank and at no risk to the Defendants.

The Defendants themselves take conflicting positions on the issue of the

MSA because while they argue for “enforcement” of the MSA, the Defendants

simultaneously allege that the MSA had lapsed by the time that they sought its

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enforcement. (IB 9). If, as they claim, the MSA had lapsed, the Defendants would

have had no right to seek its enforcement. Black’s Law Dictionary 896 (8th ed.

2004) (defining “lapse” as “[t]he termination of a right or privilege because of a

failure to exercise it within some time limit”). The trial court correctly denied the

Defendants’ motion to enforce, but it did not rescind, the MSA.

2. Affirmative Defenses Did Not Create Questions of Fact.

Because the material facts were undisputed, the Defendants rely on their

affirmative defenses to claim the existence of factual issues precluding summary

judgment. (IB passim). “An affirmative defense is an assertion of facts or law by

the defendant that, if true, would avoid the action and the plaintiff is not bound to

prove that the affirmative defense does not exist.” Custer Med. Ctr. 62 So. 3d at

1097. Merely raising affirmative defenses, however, does not automatically defeat

summary judgment. On the contrary, summary judgment is still proper if the moving

party “factually refutes the alleged affirmative defenses or establishes that they are

legally insufficient.” Knight Energy Servs., Inc. v. Amoco Oil Co., 660 So. 2d 786,

788 (Fla. 4th DCA 1995). In any case, the initial burden is on the party raising the

affirmative defenses to prove each and every element of its defenses. Fla. R. Civ. P.

1.120(c). The Defendants failed to meet their burden and the Bank addressed and

refuted each and every affirmative defense. Accordingly, no issues of fact remained

and summary judgment was correctly entered in favor of the Bank.

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Regarding their first and second affirmative defenses, Defendants confess

that the allegations are based on federal statutes, which are inapplicable to the Bank.

(IB 17). Additionally, the Bank’s Notice of Filing and Disclosure of Evidence to

be Relied Upon in Support of Plaintiff’s Motion for Summary Judgment (“Notice

of Filing”), paragraph 20, addressed Section 501.212(c), which exempts banks such

as the Bank who are regulated by the State of Florida, Office of Financial Regulation

of the Financial Services Commission, and the FDIC, an agency of the federal

government. See also affidavit of Ms. B.

The Defendants’ allegations of “unfair, lending practices and abusive and

predatory lending,” (IB 17), are equally refuted by the facts, including the Bank’s

willingness to reduce the interest rate and increase the amortization period in order

to lower their monthly payments and “stretch[ing] to reach an agreement by all

concerned to keep the [Appellants] in their home.” (R. 727). As to the

claims of deceptive and unfair trade practices, etc., including allegations

that the Bank failed to provide the requisite HUD notice of counseling, the

Bank provided evidence to refute those allegations. (R. 556, R. 561; R.

568-570).

Similarly, the fifth affirmative defense, non-compliance with HUD notice,

and twelfth affirmative defense, failure to provide notice of acceleration, to Mrs. M

were refuted by the Bank. First, the express language of 12 USC 1701x(c)(5)

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establishes that pre-foreclosure notice of counseling is only required to be provided

to persons obligated under the loan. Mrs. M. had not signed the promissory note,

had no personal liability on the debt, and was not a Borrower entitled to 12 USC

1701(c) notice. In any case, the statute specifically provides that adequacy of notice

and legal consequences thereof are to be determined by the court. The trial court

obviously found legal notice to be adequate in granting summary judgment.

Second, the express provisions of the mortgage provided that: 1) the

mortgagors waived all rights to defenses to any foreclosure action or to the Bank’s

right to accelerate without notice; and 2) agreed that any notice given to any

borrower is deemed to be notice to all borrowers. Additionally, the March

Agreement, which was signed by all the borrowers, including Mrs. M., expressly

waived all demand notices of non-payment.

The Defendants’ thirteenth affirmative defense was similarly addressed and

refuted by the Bank. See Notice of Filling, paragraph 18 (citing Millett v.

Perez, 418 So. 2d 1067 (Fla. 3d DCA 1982) (prior notice is not required unless it is

a contractual term); see also Fowler v. First Sav. & Loan Ass’n. of Defuniak Springs,

643 So. 2d 30, 34 (Fla. 1st DCA 1994) (filing of complaint is notice of acceleration).

In any case, the multiple letters, with different dates evidenced that the Defendants

defaulted multiple times on their loans and that they were provided with the notice

at each occurrence. (R. 556, R. 561; R. 568-570).

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As to their fourteenth affirmative defense, the Defendants concede

that this defense was rendered moot by the time of summary judgment. (IB

26). The fifteenth affirmative defense, regarding the legal description of the

Property, is equally unsupported. While the Second Amended Complaint

(“SAC”) does not contain a legal description of the Property, the legal

description in the Lis Pendens is consistent with that in the mortgage and

with the Exhibits attached to the SAC; and with the legal descriptions in the

deeds. (R. 742). Lastly, as to the Defendants’ sixteenth affirmative defense

that the Bank’s claims were barred because the promissory note was not

enforceable for failure to pay documentary stamps, the Bank provided the

trial court with certified copies of the recorded mortgage, which included

a printed receipt acknowledging receipt of payment of documentary stamps

as well as intangible tax. The remaining affirmative defenses were

correctly stricken by the court.

103

VI. CONCLUSION

Based on the foregoing facts and authorities, the Bank respectfully submits

that the trial court did not err and that the summary judgment should be affirmed.

Respectfully Submitted,

Attorney for Appellee

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CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing was emailed

through the court’s eDCA system and email on this___ day of April, 2015 to the

following [Attorney name and address].

Attorney for Appellee

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CERTIFICATE OF COMPLIANCE WITH FONT STANDARD

Undersigned counsel hereby respectfully certifies that the foregoing Answer

Brief complies with Fla. R. App. P. 9.210 and has been typed in Times New

Roman, 14 Point.

Respectfully Submitted,

Attorney for Appellee

106

Appellate Briefs

5. Response Brief: Response to Court’s Order to Show Cause Regarding Jurisdiction (Family Law)

107

IN THE DISTRICT COURT OF APPEAL OF FLORIDA FIFTH DISTRICT

MR. SPOUSE, Appellant, v. Case No. MRS. SPOUSE, Appellee. _________________________________/

APPELLANT’S RESPONSE TO COURT’S ORDER TO SHOW CAUSE REGARDING JURISDICTION

Appellant, Mr. Spouse, hereby responds to the Court’s Order of [Date],

requesting whether this appeal is taken from an appealable, non-final order that

should not be dismissed for lack of jurisdiction. This Court has jurisdiction to hear

this appeal pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iii)

regarding the “the right to immediate monetary relief.” In support, Appellant states

as follows:

The Court issued its “Amended Order Ruling on Former Wife’s Amended

Motion for Enforcement and Contempt of Final Judgment of Dissolution of

Marriage And Marital Settlement Agreement; and Former Husband’s Motion for

Clarification” on [Date] (the “Order”), increasing the amount of alimony owed by

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Appellant and applying the increase retroactively. A-1. Specifically, the Order

found:

1. The Former Husband is in arrears in his alimony obligation, owing the Former Wife …. [chart omitted] $328,100.00. 2. To secure the arrearage balance, the Former Wife is entitled to an interest of [Amount]in the Life Insurance policy, together with the interest granted to her pursuant to the terms of the Marital Settlement Agreement and Final Judgment. The Court will reserve jurisdiction to specifically address the most appropriate method to satisfy this arrearage balance, which has the least tax consequences to the parties. Former Husband shall not take any action to borrow against that policy or liquidate the same, except on a written agreement of the parties.

Order at 10-11 (attached as Appendix A). In the Order to Show Cause, this Court

questioned jurisdiction because the order being appealed “does not order immediate

payment and indeed retains jurisdiction to the trial court to determine how the

arrearage will be satisfied.”

The trial court clearly found that Former Husband owed a specific amount of

money to Former Wife - $328,100.00 – that was he was now obligated to pay by

court order. The order provided a means by which Former Husband could pay that

amount, which was through liquidation or borrowing against the Guardian Life

Insurance policy. If the Former Husband were to choose to satisfy the obligation

through that method, the trial court retained jurisdiction to ensure that neither party

was disadvantaged through tax consequences. Order at 11.

109

In Austin v. Austin, 120 So. 3d 699 (Fla. 1st DCA 2013), the court similarly

reserved jurisdiction governing the method by which husband and wife were “to

apply the funds ordered liquidated herein to or against either party in an equitable

distribution of the parties’ assets and liabilities,” with no time frame for compliance.

Id. at 674. Specifically, the court’s ruling was as follows:

So the Court’s order is that the 18,504 will be used. The Wife is going to give the 6,000. The wine collection will be liquidated. Accounting will be done and provided to the Husband, and all those monies will be used to catch up the mortgage and to catch up the outstanding bills. Anything leftover [sic] will be held in trust, and the Wife is authorized to sell the dining room set to catch up the bills. I will grant the request to have the Husband sign authority for her to talk to the mortgage companies. . . .

Id. at 673. Despite the fact that the Austin order clearly gave no time frame for

compliance, and retained jurisdiction governing the methodology for securing the

obligation, the First District recognized it had jurisdiction regarding the Wife’s

Order for Emergency Relief from enforcement of this judgment pursuant to “Art. V,

§ 4(b)(1), Fla. Const. . . . . Fla. R. App. P. 9.130(a)(3)(C)(ii) & (iii) (providing for

appeal to the district courts of appeal of non-final orders that determine “the right to

immediate possession of property” and “the right to immediate monetary relief . . .

in family law matters.” Id. at fn*.

110

In Stalnaker v. Stalnaker, the court heard a non-final order that reserved

jurisdiction “to determine any arrearage in support payments accumulated before the

judgment of dissolution and the need for retroactive support.” Stalnaker v.

Stalnaker, 892 So. 2d 561 (Fla. 1st DCA 2005). The court stated it had jurisdiction

over the following issues because they concerned “a determination of right to

immediate monetary relief:” (1) whether husband’s retirement was a marital asset

or source for alimony; and (2) whether the trial court erred in requiring husband to

secure his alimony obligation with a life insurance policy. Id. at n.1.

Similarly, here, the court declared that Former Wife was entitled to an interest

in the life insurance policy for the amount determined by the Order to secure the

arrearage balance. The amount owed was definitive, and that Appellant was

required to pay the amount was clear in the Order. It is only the methodology for

payment for which the court retained jurisdiction in order to protect both parties.

The broad interpretation of jurisdiction for “immediate monetary relief” shown by

Stalnakerand Austin, demonstrates that the Order meets the necessary jurisdictional

requirements under Rule 9.130(a)(3)(C)(iii).

In the alternative to accepting this appeal under Rule 9.130(a)(3)(C)(iii),

Appellant requests that this case be converted either (1) to a petition for writ of

certiorari pursuant to Rule 9.030(b)(2)(A) and that Appellant be allowed to file a

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petition under Rule 9.100; or (2) to an appeal from a final order under Rule

9.030(b)(1)(A) and the case be allowed to proceed on the record.

Should this Court find that jurisdiction is not ripe at this time, Appellant asks

that it stay the appeal and temporarily relinquish jurisdiction to the trial court to enter

an order clarifying the payment schedule and method.

Respectfully submitted,

112

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing Response to Order

to Show Cause was sent this 4th day of May, 2015, via electronic mail to the

following counsel of record, and was e-filed with the Court:

Attorney for Respondent

113

Appellate Briefs

6. Final Answer Brief: Appeal of Court’s Dismissal of Breach of Contract Counterclaim (Commercial Litigation)

114

IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT

CASE NO.

APPELLANT, Appellant,

v.

APPELLEE, INC., Appellee.

APPELLEE’S ANSWER BRIEF

Attorney for Appellee

115

TABLE OF CONTENTS TABLE OF CITATION OF AUTHORITIES ............................................................ i

ABBREVIATIONS ................................................................................... ………. iv

STANDARD OF REVIEW ....................................................................................... 1

STATEMENT OF CASE AND FACTS ................................................................... 3

A. Nature of the Case....................................................................................... 4

B. Course of Proceedings ................................................................................ 5

C. Statement of Facts ....................................................................................... 5

SUMMARY OF ARGUMENT ............................................................................... 10

ARGUMENT ........................................................................................................... 11

A. The Appellate Court Must be Provided an Adequate Record ………….11

B. Appellant’s Repeated and Meritless Appeals Warrant Sanctions..................................................................................................14

CONCLUSION ........................................................................................................ 17

CERTIFICATE OF SERVICE AND COMPLIANCE ........................................... 18

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TABLE OF CITATIONS AND AUTHORITIES

Case Law Aguirre v. Estate of Efrain Aguirre, 112 So. 3d 650, 651 (Fla. 3d DCA 2013) ................................................... 14 Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150, 1152 (Fla. 1979). .......................................................... 13 Bell v. Indian River Mem. Hosp., 778 So.2d 1030, 1032 (Fla. 4th DCA 2001) ................................................. 1 J.P. Morgan Chase Bank v. Combee, 883 So. 2d 330, 332 (Fla. 1st DCA 2004) .............................................. 12, 13 2013 Case .................................................................................................... ..10 2012 Case ............................................................................................ 3, 10, 16 Lussy v. Fourth District Court of Appeal, 828 So. 2d 1026, 1027 (Fla. 2002) ......................................................... 14, 15 Pondella Hall For Hire, Inc. v. Lamar, 866 So. 2d 719, 721 (Fla. 5th DCA 2004) .................................................... 1 Philpot v. State, No. 3D14-1675 (Fla. 3d DCA September 3, 2014) ................................ 14, 15 Robertson v. State, 829 So. 2d 901, 906 (Fla. 2002) …………………………………………2, 13 Sibley v. Sibley, 885 So. 2d 980, 986 (Fla. 3d DCA 2004) …………………………………15 State v. Stang, 41 So. 3d 206, 206 (Fla. 2010)...................................................................... 11 Susan Fixel, Inc. v. Rosenthal & Rosenthal, Inc.,

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842 So. 2d 204, 206 (Fla. 3d DCA 2003) ....................................................... 1 Walle v. State, 99 So. 3d 967, 971 (Fla. 2d DCA 2012) .................................................... 12

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ABBREVIATIONS

The record on appeal will be cited as “R. at xx.” Please note that although

some court documents refer to the Appellant as “[X],” the correct spelling of “[Y]”

will be used in this brief.

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STANDARD OF REVIEW

The appellate court reviews a trial court’s order granting a motion to dismiss

de novo. Pondella Hall For Hire, Inc. v. Lamar, 866 So. 2d 719, 721 (Fla. 5th DCA

2004). Similarly, a trial court’s dismissal for failure to state a cause of action is

subject to de novo review. Susan Fixel, Inc. v. Rosenthal & Rosenthal, Inc., 842 So.

2d 204, 206 (Fla. 3d DCA 2003). Dismissal is limited to the allegations contained

within the four corners of the complaint as read in the light most favorable to the

pleader. Bell v. Indian River Mem. Hosp., 778 So. 2d 1030, 1032 (Fla. 4th DCA

2001).

A motion to dismiss tests whether the plaintiff has stated a cause of action. Because a ruling on a motion to dismiss for failure to state a cause of action is an issue of law, it is reviewable on appeal by the de novo standard of review. When determining the merits of a motion to dismiss, the trial court's consideration is limited to the four corners of the complaint, the allegations of which must be accepted as true and considered in the light most favorable to the nonmoving party.

Bell v. Indian River Mem. Hosp., 778 So. 2d at1032 (citations omitted). However, a trial court’s judgment comes to the appellate court clothed in a

presumption of correctness. Even if the trial court’s decision is based on faulty

reasoning, the decision will be affirmed if it is supported by the evidence or by an

alternative theory. Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150, 1152

(Fla. 1979). Therefore, the trial court’s decision will not be disturbed in the absence

of a record demonstrating reversible error. Id. The burden is on the appellant to

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demonstrate error. Id. Absent any record to show reversible error, the appellate

court will affirm the trial court’s ruling. Id. (holding that without a record of the trial

court proceedings, the appellate court cannot resolve any underlying factual issues

or “reasonably conclude that the trial judge so misconceived the law as to require

reversal.”). Moreover, pursuant to the “tipsy

coachman” doctrine, as long as there is any basis in the record to support the

judgment of the trial court, the appellate court may affirm the ruling even if the trial

court reaches the right result for the wrong reasons. Robertson v. State, 829 So. 2d

901, 906 (Fla. 2002). Therefore, while a trial court’s entry of dismissal is subject to

de novo review, the ruling will be affirmed unless totally unsupported by the record.

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STATEMENT OF CASE AND FACTS

D. Nature of the Case

Appellant appeals the trial court’s dismissal of his counterclaim alleging

breach of contract against Appellee. The underlying case is the culmination of

multiple attempts, over the course of many years, by Appellee to enforce the terms

of the Association Documents and to hold Appellant accountable for the

maintenance of his condominium, Unit 206.

The nature of the history of this case is best expressed by Circuit Court Judge’s

Order of Contempt against Appellant in another case involving the same parties and

the same issues: “Despite all of the findings previously made by the Court, the

Defendant [Appellant] refuses to accept responsibility for the upkeep of his

Condominium unit, and has failed to comply with the Court’s September 14, 2010,

Final Judgment.” (R. 192). This Court has expressed similar frustration and concern

over Appellant’s previous filings in other cases involving Appellee. See, e.g., [2012

Case](Per Curiam; and ordering Appellant to show cause why the court should not

sanction him by prohibiting him from filing further appeals and assessing fees and

costs against him).

E. Course of Proceedings Below

Appellee filed a Complaint for Foreclosure of Claim of Lien and Damages

against Appellant on September 23, 2013. (R. 5-22). Appellant’s Answer included

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a Motion to Dismiss and “Omnibus Counterclaims.” (R. 49-57). Appellee filed a

motion to dismiss the counterclaims on procedural and substantive grounds, which

the trial court granted on July 9, 2014. (R. 75-78; 100). In dismissing Appellant’s

first motion for his failure to pay the filing fees, the trial court gave Appellant20

days to amend and file another motion to dismiss. (R. 100).

On July 29, 2014, Appellant filed an Amended Counterclaim for breach of

contract against Appellee. (R. 101-106). Appellee moved to dismiss the amended

counterclaim on several grounds, including, for failure to comply with the Florida

Rules of Civil Procedure and failure to state the elements for a cause of action and

requested a hearing on its motion to dismiss the counterclaim. (R. 183-188). On

September 24, 2014, the trial court conducted a hearing on the motions and: 1)

dismissed Appellant’s counterclaim (R. 218), and 2) denied Appellant’s motion to

dismiss Appellee’s complaint (R. 199).

Thereupon, Appellant filed a motion for reconsideration of the trial court’s

dismissal of his counterclaim. (R. 189-191). Appellant’s argument for

reconsideration was that he had been “surprised” at the hearing when Appellee

submitted an Order from the prior case No. XYZ, where Appellant had been found

to have violated multiple court orders to clean up his condominium unit, ordered to

obtain quotes for the repairs, to place funds in a trust to cover the cost of these

repairs, and found in contempt of court for failure to comply with multiple show

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cause orders. (R. 189, 193).14 The trial court denied Appellant’s motion for

reconsideration. (R. 219). This appeal ensued.

F. Statement of Facts

Since dismissal is based on the allegations in the complaint, we limit our

statement of facts to those facts that pertain to the sufficiency of the pleadings. It

bears noting, however, that Appellant and his refusal to take responsibility for the

maintenance of his condominium and to comply with the Association Documents

are not new to this Court.

1. Appellant’s Answer, Motion to Dismiss, and Counterclaim a. Answer

In his Answer, Appellant globally denied all general allegations in

Appellee’s complaint, (R. 5-6), including those allegation pertaining to: 1)

Appellee’s status as a not-for-profit community association organized and

established pursuant to Sections 718, 719, and 720 of the Florida Statutes; 2) the

legal description of the condominium unit 206 as set forth in the official and public

records of the Miami-Dade County; 3) his ownership of the condominium unit; and

4) the applicable association documents. (R. 50).

14 Appellant’s claim of “surprise” at the mention of case No. 01-24406CA01 is disingenuous, however, since he challenged the trial court’s jurisdiction in his motion to dismiss Appellee’s complaint because: “[c]ase #01-24406 . . . has retained jurisdiction over the subject matter property.” (R. 56-57).

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He similarly denied, en mass and without any specificity or separation,

all allegations in Count I (to foreclosure on a claim of lien, R. 7-8); Count II (for

damages, R. 8-9); and Count III (to enforce the association’s statutory right to rents,

R. 9). (R. 50-51).

Additionally, in what he simply states “As to all allegations,” Appellant

claims that Appellee is estopped from seeking to foreclose because it “made

conflicting statements (premises) that cooperation with Plaintiff per sewage damage

cleanup would forgive any new alleged issues cited here in the instant case” (R. 51).

Moreover, he seems to complain that Appellee did not “provide disclosures to

defendant at closing of the sewer/water. . . [indecipherable] Defendant has post

traumatic stress disorder . . .” (R. 51).

b. Omnibus Counterclaim(s)

As to the “Omnibus Counterclaims,” Appellant alleges breach of

contract-Bylaw, implies, written and/or oral (including breach of fiduciary

relationship). (R. 52). This part of the pleading includes allegations that Appellee

did not maintain the sewer and water pipes and caused damage to his unit; that he

has suffered loss of health and property and public humiliation (“in the building and

on TV with Help Me Howard”). (R. 52). In addition, Appellant accuses Appellee

of “deceptive and unfair trade practice . . . [and] civil RICO.” (R. 53).

c. Motion to Dismiss

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His Motion to Dismiss the Complaint appears to be based on challenges

to the service of process and the trial court’s jurisdiction. (R. 55-56). Regarding

service, Appellant alleges that the cover page of the complaint “was deliberately

made unreadable by the process server to cause a default in foreclosure to benefit

Plaintiff—such action is fraud of service;” that the process server “deliberately

manipulated” the service date; and that Appellant is not competent by law to receive

service because he has traumatic stress disorder. Lastly, Appellant alleges that the

trial court does not have jurisdiction over the case because “(the court in) case #01-

2446-CA-01 . . . has retained jurisdiction over the subject matter property.” (R. 56-

57).

2. Amended Pleadings and Motions

a. Amended Counterclaim

While difficult to decipher, Appellee nonetheless attempts to provide this

Court with what it considers its best understanding of the

statements/accusations/rants/ramblings in Appellant’s amended counterclaim for

breach of contract. (R. 101-106). Notably, the paragraphs, though numbered, do

not seem to follow any specific order and/or logic. While some paragraphs identify

exhibits submitted, without providing any explanation as to why they were submitted

or what allegations they are meant to support, others meld multiple claims/issues.

For example, paragraph 1 merely provides that Exhibit A-1 constitutes the

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“Condominium documents recorded in Miami-Dade County. The Association by

violating F.S. 718-the condominium Act maliciously it (sic) fiduciary relationship

to [Appellant].” (R. 102). In paragraph 2, Appellant alleges damages include the

destruction of his unit and exposure to asbestos from the exposed inner walls and

from the flooding of common areas. (R. 102). He also claims that he has been

publicly ridiculed by Appellee’s “malicious” refusal “to pay (they have insurance).”

(R. 103). In addition to claiming that he has no toilet, sink, or kitchen, Appellant

takes this opportunity to allege conversion because he was overcharged by $25 for

his condominium application fees in 1999 when he moved into Appellee. (R. 103).

Appellee’s Second Motion to Dismiss Counterclaim identified and illustrated

the deficiencies in the amended counterclaim, including its failure to comply with

the Florida Rules of Civil Procedure and its failure to state the elements of a cause

of action. (R. 195-198). Appellee sought dismissal of Appellant’s amended

counterclaim because its disconnected and incoherent jumble of statements failed to

inform Appellee of the claims against it. (R. 197).

b. Appellant’s Motion for Reconsideration of Dismissal of his

Counterclaim

Appellant’s motion for reconsideration of the dismissal of his

counterclaim, although not exactly a model of clarity, does try to limit itself to two

issues: 1) he claims that the order was entered by “mistake, inadvertence, surprise,

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etc.” because at the hearing on its motion to dismiss the counterclaim, Appellee “by

surprise” submitted an order from case No. 01-24406-CA-01. (R. 189).

Additionally, Appellant claims that because that case had no counterclaim, it is

inapplicable to the instant case (res judicata argument). (R. 190). Lastly, Appellant

alleges that he is a “pro se senior citizen 63 years-old, disabled” and was not allowed

to see the order (which he claims was signed “by mistake and misadventure”) in

violation of the Americans with Disabilities Act. (R. 190). The trial court denied

the motion for reconsideration. (R. 219).

4. Appellant’s Previous Meritless Filings in This Court

This Court has been presented with no less than eight appeals filed by

Appellant contesting trial court rulings in favor of Appellee since 2002. See Cases

Nos. 3D02-1273 (Dismissed by the Court); 3D02-2689 (Per Curiam); 3D05-2236

(Per Curiam); 3D07-685 (2013 Case) (Per Curiam without discussion or opinion));

3D10-2737 (2012 Case) (Per Curiam; and ordering Appellant to show cause why the

court should not sanction him by prohibiting him from filing further appeals and

assessing fees and costs against him)); 3D11-2123 (Per Curiam); 3D11-

2151(dismissed by the Court as duplicative of 3D11-2123); and the instant case

3D14-2511(transferred to 3D15-764)).

SUMMARY OF ARGUMENT

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As the Appellant, Appellant has the duty to provide record support for his

argument. In the present care, there is absolutely nothing in the Record to even

confirm Appellant’s claim that the trial court’s order was based on any consideration

of a prior order in another case or on res judicata. Notably, there is no mention of

res judicata in Appellee’s motion to dismiss Appellant’s counterclaim, no transcript

of the hearing on that motion, and nothing in the trial court’s Order mentioning any

consideration of res judicata. Therefore, based on the Record, there is no support for

Appellant’s claim that the trial court incorrectly dismissed his counterclaim on res

judicata.

Even if the trial court did find that Appellant’s counterclaim was barred by

the doctrine of res judicata, this Court has nothing at all in the Record, other than

Appellant’s bald statements, to allow it to conduct any meaningful consideration of

that issue. Appellee, therefore, respectfully requests that this Court affirm the trial

court’s dismissal of Appellant’s counterclaim.

Moreover, this Court, and those of other districts have underscored that they

will not stand for repeated and meritless assaults on the courts’ resources by pro se

litigants with nothing to lose by their continued use and abuse of the judicial system.

Appellant has persistently and repeatedly attempted to evade his legal, contractual,

and moral obligations to his community and to his condominium association by

resorting to the courts. In doing so, he has consistently abused the resources of the

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judiciary. Therefore, Appellee asks the Court, as it has done before, to order

Appellant to show cause why he should not be assessed fees and costs and barred

from filing further appeals.

ARGUMENT

C. In the Absence of Record to the Contrary, the Appellate Court Will Affirm the Trial Court’s Decision It is a well-established principle of law that an appellate court’s review is

limited to the record on appeal. State v. Stang, 41 So. 3d 206, 206 (Fla. 2010).

Therefore, the Court’s review is limited to the information contained within the

record. Walle v. State, 99 So. 3d 967, 971 (Fla. 2d DCA 2012). The limited record

before this Court does not contain any information about the trial court’s reasoning

in dismissing Appellant’s counterclaim, nor does it address the issue of res judicata.

Moreover, it is clear that the trial court had much more information and

opportunity to evaluate Appellant’s counterclaim than is available to this Court.

Notably, while the trial court conducted a hearing on the Motion to Dismiss the

counterclaim, Appellant has failed to provide this Court with any transcript or

meaningful equivalent from the hearing. His failure to do so strips this Court of

any meaningful means of reviewing the trial court’s decision below. Absent a

transcript, the appellate court has no information as to what the trial court may or

may not have considered in ordering the dismissal of Appellant’s counterclaim. J.P.

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Morgan Chase Bank v. Combee, 883 So. 2d 330, 332 (Fla. 1st DCA 2004)

(underscoring that without a transcript of an evidentiary hearing, the appellate court

was without any information as to what findings the trial court may have made or

what arguments the parties presented).

Because the trial court’s order dismissing Appellant’s counterclaim comes to

this Court clothed with a presumption of correctness, the Court may presume that

the order of dismissal may have been based on evidence and arguments adduced

during the hearing. Without an adequate record, the appellate court cannot properly

resolve factual issues and without knowing the factual context, the appellate court

cannot reasonably conclude that the trial court misapplied the law: “the trial court’s

decision ‘could well be supported by evidence adduced at trial [or hearing] but not

stated in the judge’s order or otherwise apparent in the incomplete record on appeal.”

J.P. Morgan Chase Bank v. Combee, 883 So. 2d at 331-332 (quoting Applegate v.

Barnett Bank of Tallahassee, 377 So. 2d at 1152). Moreover, applying the “tipsy

coachman” doctrine, the appellate court may affirm the ruling even if the trial court

reaches the right result for the wrong reasons as long as there is any basis in the

record to support the judgment of the trial court. Robertson v. State 829 So. 2d 901,

906 (Fla. 2002).

In any case, this Record provides the Court with sufficient support to affirm

the dismissal of Appellant’s counterclaim. Based solely on the record, which

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includes Appellant’s Amended Motion for Counterclaim and Appellee’s Motion to

Dismiss the Counterclaim, the deficiencies in Appellant’s claims are evident.

Having given Appellant ample opportunity after his first failed attempt to the file his

counterclaim, and after conducting a hearing on the second Motion to Dismiss the

counterclaim, the trial court decided to dismiss the counterclaim with prejudice. Its

judgment should not be disturbed.

Based on the absence of a transcript of the hearing on Appellee’s Motion to

Dismiss Appellant’s counterclaim, the lack of any indication in the order of

dismissal as to the trial court’s reasoning in dismissing the counterclaim, and well-

established principles of law, Appellee respectfully requests that the Court affirm

the trial court’s order of dismissal.

D. Appellant’s Repeated and Meritless Appeals Warrant Sanctions This court has the responsibility of ensuring access to the courts. Aguirre v.

Estate of Efrain Aguirre, 112 So. 3d 650, 651 (Fla. 3d DCA 2013). The filing of

meritless, frivolous, and successive claims causes the expansion of “precious and

finite judicial resources, which would otherwise be devoted to cases raising

legitimate claims.” Philpot v. State, No. 3D14-1675 (Fla. 3d DCA September 3,

2014) (citing Hedrick v. State, 6 So. 3d 688, 691 (Fla. 4th DCA 2010).

The Court’s responsibility to protect judicial resources and the integrity of the

legal system is accompanied with an inherent authority to do so. Lussy v. Fourth

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District Court of Appeal, 828 So. 2d 1026, 1027 (Fla. 2002). Restricting a litigant’s

future access to the courts and the imposition of fines and fees are but two examples

of the types of sanctions available to protect judicial resources and ensure access to

the courts. Aguirre v. Estate of Efrain Aguirre, 112 So. 3d at 651 (barring the litigant

from filing further pro se proceedings and instructing the clerk to reject any filings

unless signed by a Florida licensed attorney); Sibley v. Sibley, 885 So. 2d 980, 986

(Fla. 3d DCA 2004) (same).

In determining whether to restrict a litigant’s future access to the courts, the

following factors may be considered:

(1) the litigant’s history of litigation and in particular whether it entailed vexatious, harassing or duplicative lawsuits; (2) the litigant’s motive in pursuing litigation, e.g. does the litigant have an objective good faith expectation of prevailing?; (3) whether the litigant is represented by counsel; (4) whether the litigant has caused needless expense to other parties or has posed an unnecessary burden on the courts and their personnel; and (5) whether other sanctions would be adequate to protect the courts and other parties.

Safir v. United States Lines, Inc., 792 F.2d 19, 24 (2d. Cir. 1986). While pro se litigants are afforded every opportunity to exercise their rights

to access the courts, they are subject to sanctions to prevent abuse of the judicial

process. Philpot v. State, No. 3D14-1675 (citing State v. Spence, 751 So. 2d 47 (Fla.

1999). Accordingly, this Court has the authority to impose sanctions against

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Appellant for his abuse of the judicial system. Lussy v. Fourth District Court of

Appeal, 828 So. 2d at 1027.

Appellant is no stranger to this Court. He has filed no less than eight appeals

challenging lower court decisions favoring Appellee. While those cases may address

different factual issues, they all stem from his repeated and continuing violation of

his obligations under the condominium documents controlling his relationship with

the condominium association and community.

This Court has already found it necessary and justified to issue an order asking

Appellant to show cause why sanctions should not be imposed against him for his

repeated abuse of the judicial system. 2012 Case. As in that case, Appellee submits

that Appellant’s reckless disregard for the time and resources of the courts and

Appellee in the instant case, including the filing of undecipherable pleadings and

motions, warrants the imposition of sanctions. If Appellant is allowed to continue

his baseless and legally unsupported actions against Appellee, he will continue to

deplete the resources of the condominium association, to the detriment of the other

owners in the complex. Since Appellant has filed evidence of bankruptcy, however,

monetary sanctions will be of no import to him. It appears that the only way to keep

Appellant from continuing to destroy and dissipate the assets of his innocent

neighbors and fellow condominium owners is to bar him from further filings against

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Appellee unless he retains the assistance and representation of counsel. Therefore,

Appellee requests the Court to consider issuing such sanctions against Appellant.

CONCLUSION

Based on the foregoing facts and authorities, Appellee respectfully requests that

the Court affirm the trial court’s dismissal of Appellant’s counterclaim. Additionally,

Appellee asks that the Court consider issuing sanctions against Appellant to deter his

abuse of this Court’s resources.

Respectfully submitted,

By: ________________________

CERTIFICATE OF SERVICE AND

COMPLIANCE WITH RULE 9.210(a)(2)

I hereby certify that the foregoing brief complies with the font requirements

(Times New Roman 14-point font) set forth in Fla. R. App. P. 9.210(a)(2).

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I also hereby certify that on this ____ day of May 2015, a copy of the

foregoing Appellee’s Answer Brief, was furnished by regular mail to Appellant at

[Address] and e-filed with the Court.

By:______________________________ ..........