Gylmar & Galenus v. Gibraltar FL Hearing No. 3D08-1619

8/9/2019 Gylmar & Galenus v. Gibraltar FL Hearing No. 3D08-1619

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IN THE DISTRICT COURT OF APPEALTHIRD DISTRICT OF FLORIDA

CASE NO. 3D08-1619

LEONARDO GOMEZ and GYLMARDEVELOPMENTS, INC., a FloridaCorporation,

Appellants,

vs.

GIBRALTAR PRIVATE BANK &

TRUST COMPANY, a federal savingsbank,

Appellee.______________________________/

APPEAL FROM THE CIRCUIT COURTIN AND FOR MIAMI-DADE COUNTY

STATE OF FLORIDA

INITIAL BRIEF OF APPELLANTS

George M. Evans, EsquireTHE LAW OFFICES OFGEORGE M. EVANS, P.A.The Cathedral RoomSuite 101800 Douglas RoadCoral Gables, Florida 33134Telephone (305) 447-8170Facsimile (305)446-2308Florida Bar Number: 229113

ATTORNEY FOR APPELLANTS


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TABLE OF CONTENTS

PAGE NO.

TABLE OF CONTENTS............................................................................................i

TABLE OF CITATIONS.......................................................................................... ii

PREFACE ..................................................................................................................1

STATEMENT OF THE CASE AND FACTS....................................................... 1-2

SUMMARY OF THE ARGUMENTS ......................................................................2

ARGUMENT

First Point on Appeal:THE TRIAL JUDGE ERRED AND ABUSED HIS DISCRETIONBY FAILING TO GRANT A CONTINUANCE OF A SUMMARYJUDGMENT HEARING WHERE COUNSEL FOR DEFENDANTSDID NOT HAVE SUFFICIENT TIME TO COMPLETEDISCOVERY............................................................................................... 3-4

Second Point on Appeal:THE TRIAL JUDGE ERRED AS A MATTER OF LAWBY ENTEREING SUMMARY JUDGMENT WHERETHERE EXISTED GENUINE ISSUES OF MATERIALFACTS AS REFLECTED IN DEFENDANTSAFFIRMATIVE DEFENSES AND COUNTERCLAIM. .......................... 3-4

Third Point on Appeal:THE TRIAL JUDGE ERRED AS A MATTER OF LAW

BY ENTERING SUMMARY JUDGMENT WHENTHE RECORD BEFORE THE COURT WASINCOMPLETE AND THE RECORD WAS SILENTAS TO WHETHER THE TRIAL JUDGE HAD THEDOCUMENTARY EVIDENCE BEFORE HIM WHENIT MADE ITS RULING...


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Fourth Point on Appeal:THE TRIAL JUDGE ERRED WHEN IT ASSIGNEDTHE INSTANT CAUSE PURSUANT TO AN EX PARTE

COMMUNICATION WITH THE APPOINTEDRECEIVER AND VIOLATED THE REVISEDADMINISTRATIVE ORDER FOR ASSIGNMENT,REASSIGNEMENT AND TRANSFER OF CASESIN THE GENERAL JURISDICTION DIVISION OFTHE CIRCUIT COURT ..................................................................................2

CONCLUSION ..........................................................................................................4

CERTIFICATE OF SERVICE ..................................................................................5

CERTIFICATE OF COMPLIANCE .........................................................................5


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TABLE OF CITATIONS

CASES CITED: PAGE NO:

Accord, Ton-Will Enterprises, Inc. v. T & J Losurdo, Inc.440 So.2d 621 (Fla. 2d DCA 1983) ..........................................................................3

Blatchley v. Boatman's Natl Mortgage, Inc.706 So.2d 317 (Fla. 5th DCA 1997) .........................................................................3

Board of County Commrs of Jackson County v. International Union of Operating

Engrs, Local 653

620 So.2d 1062 (Fla. 1st DCA 1993) ........................................................................3

Bowers v. Medina418 So.2d 1068, 1069 (Fla. 3d DCA 1982) ..............................................................3

Bradley v. Health Coalition, Inc.687 So.2d 329 (Fla. 3d DCA 1997) ..........................................................................3

Brandauer v. Publix Super Markets, Inc.

657 So. 2d 932 (2

nd

DCA 1995) ................................................................................3

Brenowitz v. Central Nat'l Bank597 So.2d 340 (2d DCA 1992) .................................................................................3

Camel Investments, Inc. v. Webber468 So.2d 340 (Fla. 1st DCA 1985) ..........................................................................3

Coastal Habitat, Inc. v. City Natl Bank516 So.2d 105 (Fla. 4th DCA 1987) .........................................................................3

Collazo v. Hupert693 So.2d 631 (2

ndDCA 1997) .................................................................................3

Colon v. Nationwide Life Insurance Company07 1108 FL CA2, 2D-06-4882 (2008) ......................................................................3


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Consortion Trading Intern., Ltd. v. Lowrance682 So.2d 221 (3rd DCA 1996) ................................................................................3

Crowell v. Kaufman

845 So.2d 325, 327 (2nd DCA 2003) .........................................................................3

DeAtley v. McKinley497 So.2d 962, 963 (Fla. 1st DCA 1986) ..................................................................3

Eboni Beauty Academy v. AmSouth Bank of Florida761 So.2d 481 (5th DCA 2000) ................................................................................3

Emerald Coast Lighting & Supply, Inc. v. Crystal Beach Dev. Co.

917 So.2d 287 (Fla. 1st DCA 2005) ..........................................................................3

Federal Sav. & Loan Ins. Corp. v. Two Rivers Assocs., Inc.880 F.2d 1267, 1272 (11th Cir.1989) ........................................................................3

Fernandez v. Vasquez397 So.2d 1171 (Fla. 3d DCA 1981) ........................................................................3

Fleet Finance & Mortgage, Inc. v. Carey

707 So.2d 949, 950 (4

th

DCA 1998) .........................................................................3

Griffiths v. Barnett Bank603 So.2d 690 (2d DCA 1992) .................................................................................3

Henderson v. Reyes702 So.2d 616 (3rd DCA 1997) .................................................................................3

Hochman v. Lazarus Homes Corp.324 So.2d 205 (Fla. 3d DCA 1975) ..........................................................................3

Huntington Natl Bank v. Merrill Lynch Credit Corp.779 So.2d 396 (Fla. 2d DCA 2000) ..........................................................................3

Hyde Shipping Corp. v. Concreto Asfaltico Nacional, S.A.507 So.2d 776 (Fla. 3d DCA 1987) ..........................................................................3


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Jones v. State ex rel. City of Winter Haven870 So.2d 52, 55 (Fla. 2d DCA 2003) ......................................................................3

Kimball v. Publix Super Markets, Inc.

901 So.2d 293 (2nd DCA 2005) .................................................................................3

Knight Energy Services, Inc. v. Amoco Oil Co.

660 So.2d 786, 789 (Fla. 4th DCA 1995) .................................................................3

Kuczkir v. Martell480 So.2d 700 (Fla. 4th DCA 1985) .........................................................................3

Larrea v. Kina Inv., Inc.

481 So.2d 1255 (Fla. 3d DCA 1986) ........................................................................3

Leviton v. Philly Steak-Out, Inc.533 So.2d 905 (3rd DCA 1988) .................................................................................3

Lubarsky v. Sweden House Properties of Boca Raton, Inc.673 So.2d 975, 977 (4

thDCA 1996) .........................................................................3

Manassas Invs., Inc. v. O'Hanrahan

817 So.2d 1080, 1080 (Fla. 2d DCA 2002) ..............................................................3

Mancino v. National Industrial Bank of Miami312 So.2d 211 (Fla. 3d DCA 1975) ..........................................................................3

Maynard v. Central National Bank640 So.2d 1212, 1213 (5th DCA 1994) ....................................................................3

Mitrany v. Chase Federal Sav. & Loan Ass'n

590 So.2d 509 (Fla. 4th DCA 1991) .........................................................................3

Moore v. Freeman396 So.2d 276 (3

rdDCA 1981) .................................................................................3

Nagelbush v. United Postal Sav. Assn504 So.2d 782 (Fla. 3d DCA 1987) ..........................................................................3


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Parker v. Dinsmore Co,443 So.2d 356 (Fla. 1st DCA 1983) ..........................................................................3

Payne v. Cudjoe Gardens Property Owners Association, Inc.

875 So.2d 669, 670 (3rd DCA 2004) .........................................................................3

Premier Cruise Lines, Ltd., Inc. v. Picaut746 So.2d 1132 (5

thDCA 1998) ...............................................................................3

Roland v. Gold Coast Sav. & Loan Assn528 So.2d 111 (Fla. 4th DCA 1988) .........................................................................3

Sanchez v. Sears, Roebuck and Co.

807 So.2d 196 (3rd

DCA 2002) .................................................................................3

Savage Hawk v. Premier Outdoor Products, Inc.474 So.2d 1242, 1244 (2nd DCA 1985) .....................................................................3

Sessler v. Arshak Corp.

464 So.2d 612, 613 (Fla. 4th DCA 1985) .................................................................3

Singer v. Star

510 So.2d 637 (4

th

DCA) ..........................................................................................3

Soncoast Community Church of Boca Raton, Inc. v. Travis Boating Center of South

Florida, Inc.981 So.2d 654,655 (4

thDCA 2008) ..........................................................................3

Stevens v. Len-Hal Realty403 So.2d 507 (Fla. 4th DCA 1981) .........................................................................3

Tausinger v. Woodlawn Park Assocs.

681 So.2d 745 (Fla. 2d DCA 1996) ..........................................................................3

Trustees of C.I. Mortgage Group v. City Housing Corp,422 So.2d 323, 324 (Fla. 4th DCA 1982) .................................................................3


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U.S. Home Corp. v. Suncoast Util., Inc,454 So.2d 601 (Fla. 2d DCA 1984) ..........................................................................3

Villages at Mango Key Homeowners Association, Inc. v. Hunter Dev., Inc.

699 So.2d 337 (5th DCA 1997) .................................................................................3

Waters v. Key Colony East, Inc.345 So.2d 367 (Fla. 3d DCA 1977) ..........................................................................3

Wilds v. Permenter228 So.2d 408 (Fla. 4th DCA 1969) .........................................................................3

Wiskeman v. First Bank of Hollywood Beach, Fla.

405 So.2d 1044 (Fla. 3d DCA 1981) ........................................................................3

STATUTES CITED: PAGE NO:

Florida Statutes 687.0304(2) ...................................................................................3


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PREFACE

The Appellants, Leonardo Gomez and Gylmar Developments, Inc., will be

referred to as the Defendants. The Appellees, Gibraltar Private Bank and Trust

Company, will be referred to as Plaintiff. The following symbols will be used:

(R.) Record on Appeal.

STANDARD OF REVIEW

The standard of review of the entry of a summary judgment is de novo. The

law is well settled in Florida that a party moving for summary judgment must show

conclusively the absence of any genuine issue of material fact and the court must

draw every possible inference in favor of the party against whom a summary

judgment is sought. A summary judgment should not be granted unless the facts are

so crystallized that nothing remains but questions of law. Soncoast Community

Church of Boca Raton, Inc. v. Travis Boating Center of South Florida, Inc., 981

So.2d 654,655 (4th

DCA 2008).

The denial of a motion for continuance is a discretionary act by the court and

is reviewed on the basis of an abuse of discretion. Crowell v. Kaufman, 845 So.2d

325, 327 (2nd DCA 2003)

The violation of an administrative order for the assignment of judges through

an ex parte communication is question of law reviewed de novo.


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The standard of review to interpret statutory ? is de novo. Accordingly, the

Appellants argue that to interpret an administrative ruling, the standard should also

be de novo. Lukacs v. Luton, 982 So.2d 1217, 1218 (1st DCA 2008)

STATEMENT OF THE CASE AND FACTS

The instant litigation was commenced through the filing of a complaint for

foreclosure of a condominium warehouse construction loan by the Plaintiff on or

about December 4, 2007. (R. 11-65)

The foreclosure was commenced while Defendant Leonardo Gomez was out

of the country and despite the fact that the construction was still being completed

and assurances from an officer of Gibraltar, Miguel Mesa, that the minimal

balances of monies needed to complete the project would be provided by the bank.

(R. 235-238).

Counsel for the Defendants agreed to file an answer to the complaint prior to

service of the complaint on the Defendants and filed his answer and affirmative

defenses on or about February 19, 2008. (R. 235-238) An Amended Corrected

Answers and Affirmative Defenses was filed on May 6, 2008. (R. 284-287)

The case was initially heard before Judge Mindy Glazer, the assigned judge

who entered an ex parte order appointing a receiver despite false allegations by the


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Plaintiff and no legal authority and thereafter commenced maternity leave. (R. 75-

86) Judge Herbert Stettin, a retired Senior Judge, began handling hearings in her

absence. Judge Jeri B. Cohen was subsequently assigned to this division and case,

but Plaintiff continued to set matters before Judge Stettin, due in part to the fact that

he would set aside substantial time for multiple early morning hearings in order to

allow Plaintiffs to move the case at an extremely rapid pace. Once Judge Cohen was

assigned to the division, Defendants set a hearing before the proper judge and

obtained a short continuance of a summary judgment hearing, which was set prior

to the Defendants having an opportunity to commence and complete discovery. (R.

255-266) The Plaintiff attempted and set further hearings before Senior Judge

Herbert Stettin, until they were advised by Judge Stettin during the middle of a

hearing that a transfer order was necessary for him to continue to hear matters in the

instant cause. (R. Transcript Unknown Date) On that same day, without notice to

the Defendants, it is verily believed the Receiver contacted Judge Cohen ex parte

and obtained two assignment orders from Judge Cohen, one of which transferred

the instant case to Judge Herbert Stettin. (R. 273, 274) It is undisputed that no

notice was provided to the Defendants. It is further undisputed that Judge Stuart

Simons was the Administrative Judge, who handles transfer and reassignment of

cases in this circuit.


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Plaintiff continued to set multiple matters in the instant case before Judge

Stettin to which the Defendants maintained a continuing objection, while counsel

for Defendants was attempting to conduct discovery, which was limited in time due

to a court order from Judge Cohen. (R. Transcript of hearing? Date unknown)

During the deposition of Miguel Mesa and other Gibraltar witnesses,

frivolous objections, misconduct and speaking objections were made by counsel for

the Plaintiff, which prevented the Defendants from properly conducting discovery.

(R. Deposition Xscripts in 2nd Supplement)

Defendants attempted to conduct the depositions of several bank officers who

were involved in the committee overseeing the loan to the Defendants in the limited

time provided by the court. These depositions resulted in limited information

because the Plaintiff had failed to produce the minutes of the meetings of the

officers and each officer basically testified that without the minutes, they had no

independent recollection of the loan process. (R. Deposition Xscripts in 2nd

Supplement) The minutes were required to support Defendants affirmative

defenses relating to the improper handling of this loan.

The Defendants were given leave by the court to file a counterclaim, which

was delayed in filing due to a sudden and eventually prolonged illness, which

prevented counsel for the Defendants, a sole practitioner, from completing his work


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without assistance of legal assistants in his office. (R. 278-283)

Despite a request to continue the hearing on Plaintiffs motion for summary

judgment before Judge Stettin, due in part to counsels illness, lack of discovery

and other issues presented to Judge Stettin, a judge who was appointed during an ex

parte communication, Judge Stettin went forward with the hearing and granted

summary judgment. (R. Order not on record) The court had a copy of Defendants

counterclaim and affidavit in opposition to summary judgment, which was filed

directly with Judge Stettin as well as Defendants answer and affirmative defenses.

(R. Which transcript?) It does not appear that the court had the complete file, since

substantial documents filed with the court were missing from the court file.

Defendants were required to acquire and refile the documents to complete the

record on appeal. Since the court did not make a ruling on the motion for leave to

file the counterclaim during the summary judgment hearing once the counterclaim

was filed, it can be surmised that Judge Stettin did not consider the counterclaim

filed by the Defendants prior to the summary judgment hearing.

Judge Stettin continued to conduct a multitude of motions in one day early

each morning, advising the Defendants either that they obtain new counsel within a

short period of time or they would be forced to continue to be represented by their

current counsel, who was ill and medicated. (R. Transcript of hearing? When?)


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Judge Stettin entered summary judgment despite several genuine issues of

material fact demonstrated by the pleadings, including Defendant Leonardo

Gomezs affidavit in opposition to summary judgment, and the additional fact that

discovery was not completed. (R. 288-291, 292-299)

Issues of fact which remained for determination included whether the

Plaintiff was estopped from maintaining the instant action due to its breach of the

agreement between the parties by wrongfully underpaying, late payments and

withholding payments to the Defendants. (R. 292-299)

In addition, issues of fact remained as to whether Plaintiff frustrated and

hindered the Defendants in the performance of the contract in breach of their

agreement. (R. Answer?)

A key factual issue supported by the deposition of Plaintiffs Gibraltar Bank

Vice President, Miguel Mesa, is whether the bank misrepresented to the Defendants

that it would extend the loan amount and pay for the various change orders required

to complete this project. (R. 292-299)

A material factual issue existed as to whether Defendants relied to their

detriment upon Plaintiffs agreement to extend the loan and pay for change orders

as was their custom in the past history of this loan. (R. 292-299)

A material factual issue also existed as to whether the Plaintiff breached the


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implied duty of good faith under contract law when the Defendants were not

advised that the bank had questions about continuing the loan, which were not

represented to the Defendant to allow them to obtain alternative financing on a

project which had substantial equity, including investment by the Defendants of

land valued in excess of one million dollars. These affirmative defenses plead in the

instant cause demonstrate material factual issues, which if proven, would render the

foreclosure inequitable in the instant case and certainly render a summary judgment

improper and premature. (R. 284-287, 292-299)

It should also be noted the Plaintiffs withheld relevant evidence requested by

the Defendants including, but not limited to, the appraisal they obtained without

informing the Defendants. The deposition of the appraiser was never conducted due

to the limited time provided for discovery. (R. Mesa Xscript 2

nd

Supp)

It is also apparent that the court did not consider Defendants counterclaim

before entering summary judgment since, despite the fact that the record reflects it

was received by the court, said pleading, as well as a multitude of other pleadings in

this cause, were not in the court file and required Defendants to obtain said

pleadings in order to present a complete record to this court. (R. )

It should be abundantly clear that the Defendants were not given a fair

opportunity to conduct discovery in this cause and that the court was pushed into a


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premature summary judgment resulting in the forfeiture of Defendants interest in

the instant project. Florida law and due process dictates that Defendants be given a

fair opportunity to defend and present their case.

A foreclosure is an equitable proceeding which may be denied if the holder

of the note comes to court with unclean hands or if foreclosure is unconscionable.

In the instant case, while material factual genuine issues existed on these matters,

the court erroneously proceeded to enter a summary judgment, thus depriving

Defendants of their constitutional right to a trial.

A Notice of Appeal was timely filed on June 23, 2008. (R. 200-207)

SUMMARY OF THE ARGUMENTS

FIRST POINT ON APPEAL

THE TRIAL JUDGE ERRED AND ABUSED HISDISCRETION BY FAILING TO GRANT ACONTINUANCE OF A SUMMARY JUDGMENTHEARING WHERE COUNSEL FOR DEFENDANTSDID NOT HAVE SUFFICIENT TIME TO COMPLETEDISCOVERY

It is well recognized in Florida law that the granting of a continuance is

within the sound discretion of the trial court and should not be interfered with on

appeal absent an abuse of discretion. Special circumstances may require a


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continuance where there has not been sufficient time to complete discovery. In the

instant case, special circumstances were present in that, while counsel for

Defendants was attempting to conduct discovery on an accelerated basis due to a

court order, counsel for Defendants became ill and was unable to effectively

complete discovery and deal with issues which occurred during the discovery

process. The Defendants were given the Hobsons choice of securing substitute

counsel within a limited period of time or retaining his counsel who was ill.

Defendants were unable to secure substitute counsel under the time

parameters set by the court and were forced to retain their counsel who was ill and

medicated. Subsequent to the entry of summary judgment, Defendants were able to

obtain substitute co-counsel, while original counsel was on medical leave for a

extended period of time.

In considering whether the trial court abused its discretion in denying a

motion for continuance, the factors to be considered include whether the denial of a

continuance creates an injustice for the movant, whether the cause for the request

was unforeseeable by the movant and not the result of dilatory conduct, and

whether the opposing party would suffer any prejudice as a result of the

continuance.

In the instant case, it should be undisputed that forcing a party to obtain new


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counsel to be prepared to complete discovery and handle a summary judgment

hearing in a limited time period is clearly an injustice to the Movant/Defendant. The

sudden illness of counsel for Defendant was clearly unforeseeable and not the result

of dilatory conduct and other than a reasonable time to have substitute counsel

prepare for a summary judgment hearing, there would be no prejudice to the

Plaintiff. The record reflects that the court appointed a receiver to protect the

property and authorized a contractor to finish the project. A continuance of the

summary judgment hearing would not have interfered with these orders of the court

and therefore prevented prejudice to the Plaintiff by the granting of a continuance

of the summary judgment hearing in order to allow the court to be fully advised of

all issues necessary to make a fair and informed decision.

SECOND POINT ON APPEAL

THE TRIAL JUDGE ERRED AS A MATTER OF LAWBY ENTEREING SUMMARY JUDGMENT WHERETHERE EXISTED GENUINE ISSUES OF MATERIALFACTS AS REFLECTED IN DEFENDANTSAFFIRMATIVE DEFENSES AND COUNTERCLAIM

Defendants contend that the entry of a final summary judgment in the instant

cause was improper because genuine issues of material fact exist concerning the


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issues alleged in their affirmative defenses and counterclaim filed by the

Defendants. In order to be entitled to summary judgment as a matter of law, the

party seeking summary judgment must not only establish that no genuine issues of

material fact exist as to the partys claims, but must also either factually refute the

affirmative defenses or establish that the are legally insufficient. This did not occur

in the instant case. Moreover, in the context of a foreclosure action, summary

judgment is generally inappropriate if the Defendant raises the issue of estoppel and

factual disputes exist concerning the sufficiency of that defense.

An established contract principle is that a partys good faith cooperation is an

implied condition precedent to performance of any contract, and where such

cooperation is withheld, the recalcitrant party is estopped from benefiting from its

own wrong doing.

The affirmative defenses plead by the Defendants raise factual issues as to

Plaintiffs good faith in the instant transaction such as underpaying, making late

payments and withholding payments to the Defendants and promises of granting

extensions of the loan and funding, including issues as to whether Plaintiff made

misrepresentations which would estopp them from maintaining the instant action.

The allegations of the counterclaim also raised factual issues as to Plaintiffs

bad faith in the instant transaction, which it appears that the court failed to consider.


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These are issues which must be resolved by a trier of fact and not dealt with

in a summary fashion. Summary judgment should not have been granted as a

substitute for Defendants constitutional right to a trial.

THIRD POINT ON APPEAL

THE TRIAL COURT ERRED AS A MATTER OF LAWBY ENTERING SUMMARY JUDGMENT WHEN THERECORD BEFORE THE COURT WAS INCOMPLETE

AND THE RECORD WAS SILENT AS TO WHETHERTHE TRIAL JUDGE HAD THE DOCUMENTARYEVIDENCE BEFORE HIM WHEN IT MADE ITSRULING

Florida law provides that it is error to enter summary judgment when the

record before the trial court is incomplete. Florida courts have also elaborated and

ruled that where the record is silent as to whether a trial judge actually had

documentary evidence before him when he made his ruling entering a summary

judgment is reversible error.

In the instant case, the record demonstrates that nearly forty documents,

including Defendants counterclaim and transcripts of depositions, were not

contained in the court file. Accordingly, the trial court violated essential

requirements of law by entering a summary judgment under these circumstances.


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FOURTH POINT ON APPEAL

THE TRIAL JUDGE ERRED WHEN IT ASSIGNED THEINSTANT CAUSE PURSUANT TO AN EX PARTECOMMUNICATION WITH THE APPOINTEDRECEIVER AND VIOLATED THE REVISEDADMINISTRATIVE ORDER FOR ASSIGNMENT,REASSIGNEMENT AND TRANSFER OF CASES INTHE GENERAL JURISDICTION DIVISION OF THECIRCUIT COURT

The trial judges assignment of the instant cause pursuant to an ex parte

request from the Receiver violated the revised administrative order for assignment

and transfer of cases in the General Jurisdiction division of the trial court.

Revised Administrative Order 79-2 clearly provides the requirements for

assignment, reassignment and transfer of cases in the General Jurisdiction division

of the circuit court.

The administrative judge is the only judge authorized to transfer or reassign

cases in accordance with the revised administrative order.

The transfer of the instant case in an ex parte hearing by the trial judge

clearly violated the revised administrative order.


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ARGUMENT

FIRST POINT ON APPEAL

THE TRIAL COURT ABUSED ITS DISCRETION BYFAILING TO GRANT A CONTINUANCE OF ASUMMARY JUDGMENT HEARING WHERECOUNSEL FOR DEFENDANTS DID NOT HAVESUFFICIENT TIME TO COMPLETE DISCOVERY

Rule 1.510(f) of the Florida Rules of Civil Procedure gives the trial court

discretion to order a continuance of a hearing on a motion for summary judgment in

order to allow the party to obtain affidavits or take discovery in order to present by

affidavits facts essential to justify opposition to the motion.Brandauer v. Publix

Super Markets, Inc., 657 So. 2d 932 (2nd

DCA 1995),Leviton v. Philly Steak-Out,

Inc., 533 So.2d 905 (3rd DCA 1988).

Florida law clearly provides that summary judgment must not be entered

unless the facts of the case have been developed sufficiently to enable the trial court

to determine that no issues of fact exist. Villages at Mango Key Homeowners

Association, Inc. v. Hunter Dev., Inc., 699 So.2d 337 (5th DCA 1997), Singer v.

Star, 510 So.2d 637 (4th DCA). Thus, the entry of final summary judgment is

improper where discovery has not been concluded. Collazo v. Hupert, 693 So.2d

631 (2nd DCA 1997)


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DCA 2003), the Second District stated generally it is an abuse of discretion to grant

summary judgment where the opposing party has not had an opportunity to

complete discovery, citingBrandauer v. Publix Super Markets, Inc., supra.

In Sanchez v. Sears, Roebuck and Co., 807 So.2d 196 (3rd DCA 2002), the

Third District clearly stated that a court should not enter summary judgment when

opposing party has not yet completed discovery.

The Fifth District Court of Appeals in Premier Cruise Lines, Ltd., Inc. v.

Picaut, 746 So.2d 1132 (5th DCA 1998), reversed a summary judgment where

discovery, although in process, was not completed at the time of the summary

judgment hearing.

SECOND POINT ON APPEAL

THE TRIAL JUDGE ERRED BY ENTEREINGSUMMARY JUDGMENT WHERE THERE EXISTEDGENUINE ISSUES OF MATERIAL FACTS ASREFLECTED IN DEFENDANTS AFFIRMATIVEDEFENSES AND COUNTERCLAIM

The Amended Corrected Answers and Affirmative Defenses and Affidavit of

Leonardo Gomez in Opposition to motion for Summary Judgment, for the most

part, can be grouped into defenses that the Plaintiff breached the loan agreement

between the parties either in its original form or as amended, that the Plaintiff


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interfered with Defendants performance or that forfeiture (referring to foreclosure)

is inequitable. (R. 284-287, 292-299)

As a general rule, it is well established that when affirmative defenses raise

genuine issues of material fact, it is improper to enter summary judgment for a

plaintiff, and many cases have reversed such summary judgments. Emerald Coast

Lighting & Supply, Inc. v. Crystal Beach Dev. Co., 917 So.2d 287 (Fla. 1st DCA

2005); Tausinger v. Woodlawn Park Assocs., 681 So.2d 745 (Fla. 2d DCA 1996);

Roland v. Gold Coast Sav. & Loan Assn, 528 So.2d 111 (Fla. 4th DCA 1988);

Hyde Shipping Corp. v. Concreto Asfaltico Nacional, S.A., 507 So.2d 776 (Fla. 3d

DCA 1987); Kuczkir v. Martell, 480 So.2d 700 (Fla. 4th DCA 1985).

This rule certainly applies more specifically both to cases involving bank

loans and cases involving foreclosures. Jones v. State ex rel. City of Winter Haven,

870 So.2d 52, 55 (Fla. 2d DCA 2003):

In this appeal, Jones contends that entry of the finalsummary judgment was improper because genuine issuesof material fact exist concerning the issues alleged in hisaffirmative defenses. We agree. In order to be entitled tosummary judgment as a matter of law, the party seekingsummary judgment must not only establish that no

genuine issues of material fact exist as to the party'sclaims but must also either factually refute the affirmativedefenses or establish that they are legally insufficient.

Manassas Invs., Inc. v. O'Hanrahan, 817 So.2d 1080,1080 (Fla. 2d DCA 2002); Knight Energy Servs., Inc. v.

Amoco Oil Co., 660 So.2d 786 (Fla. 4th DCA 1995).


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Moreover, in the context of aforeclosure action,summary judgment is generally inappropriate if thedefendant raises the issue ofestoppeland factual disputesexist concerning the sufficiency of the defense. Parker v.

Dinsmore Co., 443 So.2d 356 (Fla. 1st DCA 1983).Summary judgment is particularly unsuitable in thosecases where the facts and circumstances indicate a

possibility of an estoppel or a waiver. Id. at 358(quoting 22 Fla. Jur.2dEstoppel and Waiver 9 (1980)).

(Bold emphasis added, italics in original). Accord, Ton-Will Enterprises, Inc. v. T

& J Losurdo, Inc., 440 So.2d 621 (Fla. 2d DCA 1983) (in action to foreclose

contract for deed, conditional bill of sale, and second mortgage in connection with

sale of business, substantial fact issues existed concerning affirmative defenses of

fraudulent misrepresentation and lack of consideration, precluding summary

judgment); Stevens v. Len-Hal Realty, 403 So.2d 507 (Fla. 4th DCA 1981)

(substantial fact issues existed as to whether vendor interfered with purchasers

business, thereby hindering purchasers ability to make mortgage payments,

precluding summary judgment in mortgage foreclosure action in favor of vendor);

Nagelbush v. United Postal Sav. Assn, 504 So.2d 782 (Fla. 3d DCA 1987)

(genuine issues of material fact existed concerning affirmative defenses of

fraudulent inducement pled by cosigners of promissory note and mortgage based on

alleged oral understanding between holder of note and mortgage that holder would


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look solely to one set of cosigners for payment of promissory note; such issues

preclude summary judgment for note and mortgage holder).

Similarly, as to cases involving bank loans, Coastal Habitat, Inc. v. City

Natl Bank, 516 So.2d 105 (Fla. 4th DCA 1987) (genuine issues of material fact,

concerning affirmative defenses and counterclaims based on banks alleged failure

to give releases and process and approve loan applications for sale of condominium

apartments, precluded summary judgment);Mancino v. National Industrial Bank of

Miami, 312 So.2d 211 (Fla. 3d DCA 1975) (in action by bank against alleged

guarantor of loan, genuine issues of material fact were raised by affirmative

defenses involving alleged fraud in inducement of guaranty instrument, fraud in

execution thereof, and lack of consideration for guaranty, thereby precluding

summary judgment for bank); Wiskeman v. First Bank of Hollywood Beach, Fla.,

405 So.2d 1044 (Fla. 3d DCA 1981) (trial court improperly refused to consider

appellants affidavit and deposition testimony, which supported his appropriate

affirmative defenses that he was not liable on his personal guaranty of corporations

loan obligation because he had revoked guaranty and bank had abandoned its

reliance on guaranty; affidavit and deposition testimony raised issues of material

fact precluding summary judgment for bank and both were filed with his timely

motion for rehearing of summary final judgment).


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While the affirmative defenses and counterclaim in the instant cause could

have been written more artfully, the court may look beyond the pleadings to

determine if genuine material facts are in dispute.

We find that genuine issues of material fact exist in this caseconcerning payment of the promissory notes becauseappellant adequately,although not artfully, raised the issueof payment in response to appellee's motion for summary

judgment. See DeAtley v. McKinley, 497 So.2d 962, 963(Fla. 1st DCA 1986) ([I]n a summary judgmentproceeding, the trial court should look beyond thepleadings

to determine whether genuine material facts are in dispute.The affirmative defenses raised in the appellants' affidavitsin opposition to summary judgment, although not properlypled, disclose the existence of genuine issues of materialfact. (case citations omitted)).

Accordingly, we REVERSE the order grantingsummary judgment and REMAND for further proceedings.

Emerald Coast Lighting & Supply, Inc. v. Crystal Beach Dev. Co. of

Northwest Fla., 917 So.2d 287, 287-88 (Fla. 1st DCA 2005) (bold emphasis

supplied, regular italics in original).

An established contract principle is that a partys good-faith cooperation is an

implied condition precedent to performance of any contract, and where such

cooperation is withheld, the recalcitrant party is estopped from benefiting by his

own wrongdoing. Fernandez v. Vasquez, 397 So.2d 1171 (Fla. 3d DCA 1981);

Waters v. Key Colony East, Inc., 345 So.2d 367 (Fla. 3d DCA 1977).


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A material breach of an agreement allows the nonbreaching party to treat the

breach as a discharge of its contractual liability. Bradley v. Health Coalition, Inc.,

687 So.2d 329 (Fla. 3d DCA 1997). Put another way, as far as the non-breaching

partys duties go, a breach of contract puts the contract at an end. See, e.g., Camel

Investments, Inc. v. Webber, 468 So.2d 340 (Fla. 1st DCA 1985); U.S. Home Corp.

v. Suncoast Util., Inc., 454 So.2d 601 (Fla. 2d DCA 1984).

This rule fits with three different affirmative defenses: waiver, estoppel,

and failure of condition precedent, as follows. For failure of condition precedent

and estoppel, a partys good-faith cooperation is an implied condition precedent to

performance of the contract, and where that cooperation is withheld, the recalcitrant

party is estopped from availing himself of his own wrongdoing. Bowers v. Medina,

418 So.2d 1068, 1069 (Fla. 3d DCA 1982);Larrea v. Kina Inv., Inc., 481 So.2d

1255 (Fla. 3d DCA 1986). Looked at another way, when a party chooses to breach,

he or she has knowingly put the contract, under which the party had rights, at an

end. Waiver, of course, is the voluntary or intentional relinquishment of a known

right, or conduct that warrants an inference of the relinquishment of a known right.

See,Board of County Commrs of Jackson County v. International Union of

Operating Engrs, Local 653, 620 So.2d 1062 (Fla. 1st DCA 1993);Hochman v.

Lazarus Homes Corp., 324 So.2d 205 (Fla. 3d DCA 1975); Wilds v. Permenter, 228


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So.2d 408 (Fla. 4th DCA 1969).

As to defenses to the mortgage-foreclosure count in the instant suit, it is

beyond dispute that mortgage foreclosures are equitable proceedings and are

therefore governed by equitable principles. See, 702.01, FLA.STAT. (2008) ("All

mortgages shall be foreclosed in equity.");Huntington Natl Bank v. Merrill Lynch

Credit Corp., 779 So.2d 396 (Fla. 2d DCA 2000) (holding that courts should be

permitted if not encouraged to try to reform instruments to reflect their true intent),

citing Trustees of C.I. Mortgage Group v. City Housing Corp., 422 So.2d 323, 324

(Fla. 4th DCA 1982);Blatchley v. Boatman's Natl Mortgage, Inc., 706 So.2d 317

(Fla. 5th DCA 1997) (holding that trial court "did equity" by allowing extended

term in which mortgagor could cure his indebtedness); Knight Energy Services, Inc.

v. Amoco Oil Co., 660 So.2d 786, 789 (Fla. 4th DCA 1995) (A foreclosure action

is an equitable proceeding which may be denied if the holder of the note comes to

the court with unclean hands or the foreclosure would be unconscionable, citing

Federal Sav. & Loan Ins. Corp. v. Two Rivers Assocs., Inc., 880 F.2d 1267, 1272

(11th Cir.1989);Mitrany v. Chase Federal Sav. & Loan Ass'n, 590 So.2d 509 (Fla.

4th DCA 1991) (where junior lienholder had not named mortgagee as party to

foreclosure action and purchaser obtained relief that would make him whole and

therefore received equity, trial court properly used its equitable powers to


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reforeclose its mortgage and to order that purchaser at junior lienholder's

subsequent foreclosure sale be awarded all of his purchase price and expenses

incurred in obtaining subject condominium unit, for which purchaser had paid only

$1,500); Sessler v. Arshak Corp., 464 So.2d 612, 613 (Fla. 4th DCA 1985) (courts

of equity have discretion to refuse to foreclose mortgage when acceleration of due

date would render foreclosure inequitable and unjust; Florida courts have

consistently denied foreclosure where there has been merely a technical breach of

the mortgage which did not impair the security.).

Defendant Gylmar has filed well pleaded affirmative defenses and has not

filed a claim upon an unwritten credit agreement of the Florida Statutes. In

Consortion Trading Intern., Ltd. v. Lowrance, 682 So.2d 221 (3rd DCA 1996) the

court stated were a reversal of the trial court's order granting a final summary

judgment of foreclosure against the defendants, Consortion Trading International,

Ltd. and Ronald Hubner. In the instant case, final summary judgment was not

appropriate where the defendants had properly pled affirmative defenses to the

foreclosure action that sounded in waiver, estoppel, and bad faith. These defenses

raised genuine issues of material fact and were not barred by the statute of frauds.

Griffiths v. Barnett Bank, 603 So.2d 690 (2d DCA 1992);Brenowitz v. Central


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Nat'l Bank, 597 So.2d 340 (2d DCA 1992). Final summary judgment was not

appropriate where defendants had properly pled affirmative defenses to foreclosure

action that sounded in waiver, estoppel, and bad faith; such defenses raised genuine

issues of material fact and were not barred by statute of frauds. that a debtor may

not maintain an action on a credit agreement unless the agreement is in writing,

expresses consideration, sets forth the relevant terms and conditions, and is signed

by the creditor and the debtor, It is clear that this statute does not apply to

affirmative defenses.

That Florida Law is clear affirmative defenses are precluded from Florida

Statues 687.034(2) commonly termed as the Bank Fraud Statues. Eboni Beauty

Academy v. AmSouth Bank of Florida , 761 So.2d 481 (5th DCA 2000). In

Maynard v. Central National Bank, 640 So.2d 1212, 1213 (5th DCA 1994), for

example, this court held that while section 687.0304 would preclude a debtor from

bringing a claim based on an oral credit agreement, it would not prevent a debtor

from asserting affirmative defenses based on post-execution waiver, estoppel or bad

faith. Generally, such defenses arising subsequent to the entry of the agreement are

outside the operation of section 687.0304. InMaynard v. Central National Bank,

640 So.2d 1212, 1213 (5th DCA 1994), for example, this court held that while


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section 687.0304 would preclude a debtor from bringing a claim based on an oral

credit agreement, it would not prevent a debtor from asserting affirmative defenses

based on post-execution waiver, estoppel or bad faith. Generally, such defenses

arising subsequent to the entry of the agreement are outside the operation of section

687.0304. Similarly, in Griffiths v. Barnett Bank of Naples, 603 So.2d 690, 692 (2d

DCA 1992), the Second District Court of Appeal recognized that estoppel, fraud

and other available affirmative defenses may be asserted pursuant to Fla. R. Civ. P.

1.110(d), and are not barred by section 687.0304. The fact laden affirmative

defenses pled by the Borrowers in the present case should not, therefore, have been

stricken.

Similarly, in Griffiths v. Barnett Bank of Naples, 603 So.2d 690, 692 (2d

DCA 1992), the Second District Court of Appeal recognized that estoppel, fraud

and other available affirmative defenses may be asserted pursuant to Fla. R. Civ. P.

1.110(d), and are not barred by section 687.0304.

Finally, while Section 687.0304(2), Florida Statutes (2005), provides that a

debtor may not maintain an action on a credit agreement unless the agreement is in

writing, expresses consideration, sets forth the relevant terms and conditions, and is

signed by the creditor and the debtor, It is clear that this statute does not apply to


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affirmative defenses.Eboni Beauty Academy v. AmSouth Bank of Florida, 761

So.2d 481 (5th DCA 2000).

In the instant case, the Defendants were rushed into completing discovery

and then stonewalled during discovery by frivolous objections, speaking objections

and the failure to produce the loan committee notes so that bank witnesses could

testify regarding that process, which was the crux of Defendants counterclaim and

affirmative defenses. (R. 275-283, 284-287, 288-291)

Justice dictates that Defendants be given a fair opportunity to complete

discovery, at which time the court could reconsider Plaintiffs motion for summary

judgment.

THIRD POINT ON APPEAL

THE TRIAL JUDGE ERRED BY ENTERINGSUMMARY JUDGMENT WHEN THE RECORDBEFORE THE COURT WAS INCOMPLETE AND THERECORD WAS SILENT AS TO WHETHER THE TRIALJUDGE HAD THE DOCUMENTARY EVIDENCEBEFORE HIM WHEN IT MADE ITS RULING

Courts have held that it is error to enter summary judgment when the record

before the court is incomplete. Colon v. Nationwide Life Insurance Company, 07

1108 FL CA2, 2D-06-4882 (2008). Courts have further held that summary


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judgments are improper where the record is silent as to whether the trial judge

actually had the documentary evidence before him when he made his ruling

Savage Hawk v. Premier Outdoor Products, Inc., 474 So.2d 1242, 1244 (2nd DCA

1985)

In the instant case, it is undisputed that the court did not have the deposition

of Miguel Mesa, Plaintiffs bank officer, and it is unclear whether the trial judge

considered the counterclaim and a substantial amount of pleadings, which, while

docketed, were missing from the court file. (R. )

Under these circumstances, this Appellate Court should remand the instant

case for the court to make a reasoned decision based upon a complete record and

subsequent to allowing the Defendants to complete record.

FOURTH POINT ON APPEAL

THE TRIAL JUDGE ASSIGNED TO THE INSTANTCAUSE PURSUANT TO AN EX PARTECOMMUNICATION WITH THE APPOINTEDRECEIVER VIOLATED THE REVISEDADMINISTRATIVE ORDER FOR ASSIGNMENT,REASSIGNEMENT AND TRANSFER OF CASES IN

THE GENERAL JURISDICTION DIVISION OF THECIRCUIT COURT

Revised Administrative Order 79-2 was entered by the Chief Judge of the


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Eleventh Circuit of Florida pursuant to the authority provided by the Florida

Supreme Court. The order provides that all cases must initially be assigned by the

Clerk of the Court.

Subsequent to the initial assignment of cases by the Clerk by the blind filing

system, there shall be no reassignment or transfer of cases unless certain procedures

are followed.

In the Eleventh Judicial Circuit, the Administrative Judge is the Honorable

Judge Stuart Simons, who is the only judge authorized to transfer or reassign cases

pursuant to the aforementioned revised administrative order.

The administrative order provides a procedure for transfer of cases under

Section 4(b), which provides that any party desiring to transfer a case from the

assigned section to another section shall file a written motion stating the reasons of

said motion, serve notice on all parties and set the matter for hearing before the

Administrative Judge of the division.

In the instant case, the Receiver appointed by the court failed to follow the

requirements of the administrative rule as suggested by Judge Stettin and

unilaterally and in an ex parte manner obtained orders from Judge Jeri B. Cohen

transferring the instant cause to Judge Herbert Stettin. (R. 273, 274)

This procedure is not only contrary to law, it is a form of forum shopping in


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an effort to have a judge assigned to a case who had made favorable rulings for the

Plaintiff.

Said conduct and violation of the Administrative Rules of the Court should

not be condoned, at a minimum, to prevent parties from violating the law in order to

gain a favorable judge to rule on this case. In addition, such conduct would lead a

lay person to question the integrity of the process for selection of judges under a

blind filing system.

CONCLUSION

For the reasons stated in the preceding arguments, the trial court abused its

discretion by the entry of summary judgment under the facts of this case and the

denial of the motion for continuance should be reversed and the case remanded so

that Defendants may complete discovery prior to a hearing on Plaintiffs Motion for

Summary Judgment. Justice dictates no less.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been

served via United States Mail to: Paul D. Friedman, Esquire, Friedman & Frost, P.L.,

1111 Brickell Ave Ste 2050, Miami, Florida 33131-3125, Jeffrey C. Schneider, Tew


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Cardenas LLP, Four Seasons Tower, 15th Floor, 1441 Brickell Ave., Miami, FL

33131, Patricia Arias, Esq., Law Offices of Sherar & Arias, P.A., Coconut Grove Bank

Building, 2701 S Bayshore Drive Suite 303, Miami, FL 33133 and Jorge J. Perez, Tew

Cardenas LLP, Four Seasons Tower, 15th Floor, 1441 Brickell Ave., Miami, FL 33131

on this ____ of January, 2009.

CERTIFICATE OF COMPLIANCE

The undersigned counsel hereby certifies that this brief complies with the font

requirements of rule 9.210(a)(2) Fla. R. App.P.

Respectfully Submitted,

_______________________GEORGE M. EVANS, ESQUIREATTORNEY FOR APPELLANTFlorida Bar Number: 229113THE LAW OFFICES OFGEORGE M. EVANS, P.A.The Cathedral Room, Suite 101800 Douglas RoadCoral Gables, Florida 33134Telephone (305) 447-8170

Facsimile (305)446-2308

Gylmar & Galenus v. Gibraltar FL Hearing No. 3D08-1619

Documents

Transcript of Gylmar & Galenus v. Gibraltar FL Hearing No. 3D08-1619