IN THE DISTRICT COURT OF APPEAL, THIRD DISTRICT, FLORIDA
WELLS FARGO BANK, N.A., CASE NO. 3D14-1730 Appellant, vs. MELISSA M. DONALDSON, Appellee.
__________________________________________________________________
ANSWER BRIEF APPELLEE MELISSA M. DONALDSON
__________________________________________________________________
ON APPEAL FROM A FINAL ORDER OF THE CIRCUIT COURT OF MIAMI-DADE COUNTY, FLORIDA
__________________________________________________________________
H. Dillon Graham, III, Esquire
GRAHAM LEGAL, P.A. Ponce Plaza, Suite 410 814 Ponce de Leon Boulevard Coral Gables, Florida 33134 Telephone (305) 445-9185 Telecopier (305) 444-8015 Counsel for Appellee
Graham Legal, P.A., 814 Ponce de Leon Boulevard • Suite 410 • Coral Gables, Florida 33134 • Telephone 305.445.9185
CASE NO. 3D14-1730
TABLE OF CONTENTS
Page TABLE OF AUTHORITIES...................................................................... 3 INTRODUCTION.................................................................................... 6 STATEMENT OF THE CASE AND FACTS…………………………… 6 SUMMARY OF ARGUMENT................................................................... 13 STANDARD OF REVIEW………………………………………………….. 13 ARGUMENT I . TRIAL COURT PROPERLY ENTERED INVOLUNTARY DISMISSAL BASED ON FINDING OF FACT REGARDING ABSENCE OF RECORD EVIDENCE OF STANDING............ 16 CONCLUSION............................................................................................. 24 CERTIFICATE OF SERVICE……………………………………………… 25 CERTIFICATE OF COMPLIANCE……………………………………… 25
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CASE NO. 3D14-1730
TABLE OF AUTHORITIES
CASES PAGE 770 PPR, LLC v. TJCV Land Trust, 30 So. 3d 613 (Fla. 4th DCA 2010)…………………………………… 19 Altchiler v. State of Florida, 442 So. 2d 349 (Fla.1st DCA 1983)…………………………………….. 21 Alvarez v. Florida Ins. Guar. Ass'n, Inc., 661 So. 2d 1230 (Fla. 3d DCA 1995) ………………………………… 19 Am. S. Co. v. Tinter, Inc., 565 So. 2d 891 (Fla. 3d DCA 1990)…………………………………….. 15 Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150 (Fla. 1979)………………………………………………. 13, 14 Archer v. State, 613 So. 2d 446 (Fla.1993)…………………………………………………. 23 Baez v. Padron, 715 So. 2d 1128 (Fla. 3d DCA 1998)……………………………………… 20 Ballinger v. Bay Gulf Credit Union, 51 So. 3d 528 (Fla. 2d DCA 2010)……………………………………… 18 Burgess v. State, 831 So.2d 137 (Fla. 2002)……………………………………………..... 22 Canakaris v. Canakaris, 382 So. 2d 1197, 1203 (Fla. 1980)………………………………………… 14 Colonel v. Meyerson, 921 So. 2d 690, 691 (Fla. 5th DCA 2006)………………………………… 15, 21 Edge v. Edge,
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CASE NO. 3D14-1730
69 So. 3d 348 (Fla. 3d DCA 2011)……………………………………… 23 Florida E. Coast Ry. Co. v. Dep't of Revenue, 620 So. 2d 1051(Fla. 1st DCA 1993)………………………………………… 15 Holt v. Calchas, LLC, 2014 WL 5614374 (Fla. 4th DCA 2014)…………………………………… 22 Hughes v. Enterprise Leasing Co., 831 So. 2d 1240 (Fla. 1st DCA 2002)………………………………………. 21 Hunter v. Aurora Loan Services, LLC., 137 So. 3d 570 (Fla. 1st DCA 2014)……………………………………… 17 JPMorgan Chase Bank v. Combee, 883 So. 2d 330 (Fla. 1st DCA 2004)……………………………………… 14 Keech v. Yousef, 815 So. 2d 718 (Fla. 5th DCA 2002)…………………………………….. 23 Keller Industries, Inc. v. Yoder, 25 So. 2d 82 (Fla. 3d DCA 1993)………………………………………… 21 Konoski v. Shekarkhar, 146 So. 3d 89 (Fla. 3d DCA 2014)………………………………………….. 21 Lafaille v. Lafaille, 837 So. 2d 601 (Fla. 1st DCA 2003)……………………………………… 14 Lazuran v. Citimortgage, Inc., 35 So. 3d 189 (Fla. 2d DCA 2010)………………………………………… 19 Neimark v. Abramson, 403 So. 2d 1057 (Fla. 3d DCA 1980)…………………………………….. 15 Parlier v. Eagle-Picher Indus., Inc., 622 So. 2d 479 (Fla. 5th DCA 1993)……………………………………… 23 Pena v. Vectour of Florida, Inc., 30 So. 3d 691 (Fla. 1st DCA 2010)………………………………………… 14
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CASE NO. 3D14-1730
Pino v. Lopez, 361 So. 2d 192 (Fla. 3d DCA 1978)……………………………………….. 19 Queen v. Adams Mark Hotel, 728 So. 2d 804 (Fla. 1st DCA 1999)………………………………………… 14 Richardson v. State, 831 So. 2d 799 (Fla. 2d DCA 2002)………………………………………… 16 Riley v. Assoc. Home Equity Servs., Inc., 850 So. 2d 661 (Fla. 1st DCA 2003)…………………………………………. 14 Roth v. Cohen, 941 So. 2d 496 (Fla. 3d DCA 2006)………………………………………. 23 Stander v. Dispoz–O–Products. Inc., 973 So. 2d 603 (Fla. 4th DCA 2008)……………………………………… 24 Seinfeld v. Commercial Bank , 405 So. 2d 1039 (Fla. 3d DCA 1981)…………………………………….. 19 Sugarmill Woods v. S. States Utilities, 687 So. 2d 1346 (Fla. 1st DCA 1997)……………………………………… 15 Vacation Beach, Inc. v. Charles Boyd, 906 So. 2d 374 (Fla. 5th DCA 2005)………………………………………… 23 Vorbeck v. Betencourt, 107 So. 3d 1142 (Fla. 3d DCA 2012)…………………………………….. 24 Zimmerman v. JPMorgan Chase Bank, 134 So. 3d 501 (Fla. 4th DCA 2014)……………………………………….. 17 Zinger v. Gattis, 382 So. 2d 379 (Fla. 5th DCA 1981)………………………………………. 15
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CASE NO. 3D14-1730
RULES OF PROCEDURE F.R.Civ.P. 1.370 ………………………………………………………… 16 F.R.Civ.P. 1.510(e)……………………………………………………… 18 F.R.App.P. 9.200(e)……………………………………………………… 20 F.R.App.P 9.220………………………………………………………… 21
INTRODUCTION
Throughout this brief Plaintiff/Appellant Wells Fargo Bank, N.A., as Trustee
will be referred to as "Wells Fago". Defendants/Appellee Mellissa M. Donaldson
will be referred to as "Ms. Donaldson".
References to the Record on Appeal will be cited as "R", followed by the
appropriate page number. Emphasis is added by counsel unless otherwise indicated.
STATEMENT OF THE CASE AND FACTS
This is an appeal from a final judgment of involuntary dismissal at non-jury
trial held on June 18, 2014. (R. 241.) The finding of the trial court are set forth in
the trial transcript. (R 200-218.)
Wells Fargo filed suit herein on September 12, 2012 alleging an action to
foreclose a mortgage based on a Promissory Note. (R. 7-41.) Attached to the
Complaint was a Note payable to The Mortgage Store Financial, Inc. and not
plaintiff Wells Fargo. (R. 12-17.) On a separate unmarked page following the Note
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CASE NO. 3D14-1730
attached to the Complaint are three stamped endorsements. (R. 18.) There is no
indication that the endorsements are attached to, incorporated in, or are a part of the
Note attached to the Complaint. (R.18.) The endorsements purport to be as follows:
from The Mortgage Store Financial, Inc. to Countrywide Bank, N.A.; from Country
Wide Bank, N.A. to Countrywide Home Loans, Inc.; and from Countrywide Home
Loans, Inc. to Blank. (R. 18.) There exists in the record on appeal no endorsement
of the Note to Wells Fargo. (R. 18.) Furthermore there is no assignment of
mortgage whatsoever attached to the Complaint. (R. 7-42.)
Allegations set forth in the Complaint itself related to the Note merely state at
paragraph number 5 that “Plaintiff is the holder of the Note and Mortgage and is
entitled to enforce them”. (R. 8.) Furthermore on the last page of the Complaint is
an unsworn verification purportedly made by Leanna Johnstun, Document Control
Officer of Select Portfolio Servicing, Inc. (R. 11.) The verification states, “Under
penalty of perjury, I declare that I have read the foregoing, and the facts alleged are
true and correct to the best of my knowledge and belief.” (R. 11.)
The record on appeal contains what purports to be a Bailee Letter dated July
10, 2012 on the letterhead of Richmond Monroe Group. (R. 42.) However the letter
is not referenced in the Complaint and is not otherwise authenticated in any manner
in the record on appeal. (R. 42.)
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CASE NO. 3D14-1730
On May 22, 2013, Ms. Donaldson filed her Request for Admissions to Wells
Fargo. (R. 2.) The record on appeal is devoid of Wells Fargo filing any Response to
Ms. Donaldson’s Request for Admissions or any Motion for Relief from
Admissions. (R. 1-3.) The record on appeal is also devoid of Wells Fargo making
any effort to set a motion for relief from admissions for hearing at any time. (R. 1-
3.)
On July 9, 2013, Wells Fargo filed a Reply to Ms. Donaldson’s Answer and
Affirmative Defenses. (R. 58-80.) Attached to Wells Fargo’s Reply is an
Assignment of Mortgage related to the Mortgage subject to this action. (R. 70.) The
assignment is from Bank of America to Wells Fargo. (R. 70.) However, the
Assignment of Mortgage is dated October 16, 2012 and therefore was executed
after suit herein was filed on September 12, 2012. (R. 3.)
In Wells Fargo’s Reply they assert that the assignment of mortgage is
irrelevant to this action as plaintiff is suing Defendant on the Note and Mortgage
and not the Assignment. (R.60-61.)
On January 6, 2014, Wells Fargo filled a motion for summary judgment. (R.
81-84.) Wells Fargo made no argument whatsoever regarding possession of the
Note in the motion for summary judgment. Wells Fargo simply stated that the
foreclosure action is based on the default of Ms. Donaldson under terms of the Note
and Mortgage and based on the absence of any genuine dispute about the validity of
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CASE NO. 3D14-1730
the debt. (R. 81-82.) No affidavits or documents are attached to the motion for
summary judgment. (R. 81-84.)
On January 6, 2014, Wells Fargo filed a Notice of Filing including an
Affidavit of Indebtedness and Affidavit of Attorney’s Fees. (R. 85-137.) The
affidavit of indebtedness signed by Sherry Benight of Select Portfolio Servicing, Inc.
(hereinafter “SPS”) make no statements whatsoever related to possession of the
Note or performance of conditions precedent notice required by the mortgage.
Documents following the affidavit of indebtedness include computer screen shots, a
power of attorney, letters from SPS, Mortgage, Note, assignment of mortgage, letter
from Morris Hardwick, Schneider. (R. 90-131.) Not one single document identified
herein was referenced or authenticated in the affidavit of indebtedness. (R. 87-89.)
On February 27, 2014, Ms. Donaldson filed her affidavit in opposition to
plaintiff’s motion for summary judgment. (R. 138-141.) In the affidavit, Ms.
Donaldson denied that she received any default or acceleration letter from Wells
Fargo or SPS, denied that she borrowed any money from Wells Fargo and denied
that she is indebted to Wells Fargo for any sums whatsoever. (R. 140-141.)
On March 4, 2014, Wells Fargo’s motion for summary judgment was denied
as plaintiff’s affidavit failed to refute Ms. Donaldson’s affirmative defenses. (R.
142.)
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CASE NO. 3D14-1730
On April 2, 2014 Judge David Miller issued an Order Setting Non-Jury Trial
and Pre-Trial Instructions. (R. 143-145.) The order set trial for the three week
period commencing Monday, June 16, 2014. (R. 143.) The order specified in bold
print that, Failure to otherwise strictly comply with terms of this order may
result in sanctions including, dismissing the action, striking pleadings, limiting
proof or witnesses, or taking any other appropriate action. (R. 143.)
Furthermore, paragraph 3(a) of the trial order specified that all pre-trial motions
shall have been completed 10 days prior to the Monday of the trial period.
On June 18, 2014, this matter came to be heard at trial before Judge David
Miller. At that time counsel for Ms. Donaldson advised the court that plaintiff has
no proof of standing to foreclosure on the subject Note payable to The Mortgage
Store Financial and ultimately to blank (open endorsement). R. 202-203. The court
acknowledged that plaintiff must prove possession of the Note when suit was filed.
(R. 203.) Furthermore counsel for Ms. Donaldson advised the court that on May 22,
2013 she served a request for admissions to Wells Fargo and their response was due
by June 21, 2013, but none was filed. (R. 203, 205.) Admissions included: Wells
Fargo does not own and hold the Note and Mortgage; The original Lender never
transferred possession of the Note and Mortgage to Wells Fargo; Wells Fargo did
not perform conditions precedent to bringing this action; Wells Fargo admitted that
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CASE NO. 3D14-1730
the three endorsement signors were not authorized to sign the endorsements. (R.
204-205.)
The court requested Wells Fargo’s response to the issue of the admissions.
Counsel for Wells Fargo admitted that plaintiff did not timely respond to the request
for admissions and obtained no relief from the admissions. (R. 206.) Counsel for
Wells Fargo claimed that plaintiff would introduce evidence at trial to refute the
admissions. (R. 207.) However, Wells Fargo counsel made no proffer of what that
evidence was to be.
The court asked counsel for Wells Fargo if the court record is replete with
evidence that plaintiff has standing. (R. 208). Counsel responded that, in fact, the
Note does contain a blank endorsement, but that testimony will be presented at trial
to demonstrate that plaintiff has standing. (R. 208.) Again counsel for Wells Fargo
failed to make any proffer of evidence.
The trial judge again asked Wells Fargo if there was anything in the record
demonstrating plaintiff’s standing other than the complaint allegation. Counsel for
Wells Fargo referenced a Power of Attorney indicating signing authority to verify
the complaint. (R. 209.)1
1 The referenced power of attorney is found in the record at R. 92-93. The document follows the affidavit of indebtedness but is not referenced in the affidavit or otherwise authenticated.
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CASE NO. 3D14-1730
The trial judge advised that case law presented by Wells Fargo to the court
where the record was replete with evidence contradicting the admissions, included a
deposition, interrogatory answers, sworn response to request to produce, affidavits
of the party and of other people opposing the admissions. The trial judge
distinguished that case from the present case since none of those items were present
in the case at bar. (R. 209-210.)
The trial court also pointed out that per the trial order all pretrial motions
must be heard 10 days before trial and Wells Fargo failed to seek relief from the
admissions in violation of the trial order. (R. 210.)
Ultimately the trial court made a finding of fact that, we do not have a record
replete with evidence that Wells Fargo had it [referring to the subject Note] in their
hands when suit was filed. (R. 210.) So there is no admissible evidence as far as I
am concerned, but the technical admission. There’s zero evidence. (R. 212.) We are
not going to start a trial to contradict the admissions because that would change the
whole prep for the defense. (R. 212.) They came in with the admissions today and
now you want to say we didn’t admit - - and by the way we think we should be
excused from our violation of the rule without ever having brought the matter before
the court in a timely manner consistent with the pretrial order. (R. 212.)
Based on the foregoing finding of fact the court entered an order of
involuntary dismissal. (R. 241.)
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CASE NO. 3D14-1730
At no time during the trial proceeding on June 18, 2014, did counsel for
Wells Fargo move for relief from admissions or move for leave to late file response
to Ms. Donaldson’s request for admissions. Counsel simply stated, without making
any proffer, that evidence at trial would demonstrate that Wells Fargo had standing.
(R. 200-214.)
SUMMARY OF THE ARGUMENT
The trial court properly entered an involuntary dismissal at trial as Wells
Fargo, a sophisticated plaintiff, made no effort to seek relief from admissions on the
issue of standing for more than one year, and therefore the admissions were valid on
the date of trial.
Despite this fact, the court sought assistance from counsel for Wells Fargo to
review the record before the court. After full consideration of all material in the
court file, the court concluded that the record was not replete with evidence
contradicting the plaintiff’s admissions. Therefore plaintiff having admitted that it
did not have standing to bring the action, an involuntary dismissal was properly
entered.
STANDARD OF REVIEW
In appellate proceedings the decision of the trial court has the presumption of
correctness and the burden is on appellant to demonstrate reversible error.
Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150, 1152 (Fla. 1979) (even
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CASE NO. 3D14-1730
when based on erroneous reasoning, a conclusion or decision of the trial court will
generally be affirmed if the evidence or an alternative theory supports it. Id at 1152.
The standard of review on a trial court's factual determinations is abuse of
discretion. The test for reviewing of a trial judge's discretionary power was set forth
by the Florida Supreme Court in Canakaris v. Canakaris, 382 So. 2d 1197, 1203
(Fla. 1980) as follows:
Discretion, in this sense, is abused when the judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only where no reasonable man would take the view adopted by the trial court. If reasonable men could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. In Pena v. Vectour of Florida, Inc., 30 So. 3d 691, 692 (Fla. 1st DCA 2010)
the court stated that the appropriate standard of review is whether the trial court
abused its discretion. The possibility of reasonable disagreement does not constitute
an abuse of discretion. Id. at 692.
In J P Morgan Chase Bank v. Combee, 883 So. 2d 330, 331-32 (Fla. 1st
DCA 2004) plaintiff’s case was dismissed by the trial court for failure to comply
with terms of a case management conference order. On appeal the Court stated:
A trial court has broad discretion to impose sanctions on litigants for their conduct before the court. See Riley v. Assoc. Home Equity Servs., Inc., 850 So.2d 661, 662 (Fla. 1st DCA 2003). Thus, we review a trial court's imposition of sanctions for an abuse of discretion. Because dismissal with prejudice is a harsh sanction, it should be used only sparingly. See e.g., Queen v. Adams Mark Hotel, 728 So.2d 804, 805 (Fla. 1st DCA 1999).
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CASE NO. 3D14-1730
However, a trial court's findings and judgment come to a reviewing court with a presumption of correctness, and cannot be disturbed absent a record demonstrating reversible error. See e.g., Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979); Lafaille v. Lafaille, 837 So.2d 601, 604 (Fla. 1st DCA 2003). The burden is on the appellant to demonstrate reversible error and present an adequate record for review. Without an adequate record of the proceedings below, the appellate court cannot properly resolve factual issues to conclude the trial court's judgment is not supported by evidence or an alternate theory. In Florida E. Coast Ry. Co. v. Dep't of Revenue, 620 So. 2d 1051, 1061-62
(Fla. Dist. Ct. App. 1993) the court stated that on appellate review we are guided by
the rule that the trial court's findings of fact and conclusions of law are
presumptively correct and will not be overturned unless they are clearly erroneous.
Zinger v. Gattis, 382 So.2d 379 (Fla. 5th DCA 1981); and Neimark v. Abramson,
403 So.2d 1057 (Fla. 3d DCA 1980). Where the record on appeal is limited, the
trial court’s ruling must be affirmed. Colonel v. Meyerson, 921 So. 2d 690, 691
(Fla. 5th DCA 2006).
Decisions regarding discovery are true discretionary acts, and the appellate
court must defer to the superior vantage point of the trial judge who has seen the
parties first-hand and is more fully informed regarding the case. Sugarmill Woods
Civic Ass'n, Inc. v. S. States Utilities, 687 So. 2d 1346, 1351 (Fla. 1st DCA 1997)
(appellants failed to demonstrate abuse of discretion justifying reversal, therefore we
affirm the order).
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CASE NO. 3D14-1730
Under Florida law, a trial court has broad discretion in ruling on discovery
matters. Am. S. Co. v. Tinter, Inc., 565 So. 2d 891, 892 (Fla. 3d DCA 1990) a trial
court possesses broad discretion in granting or refusing discovery motions and in
protecting the parties. Only an abuse of this broad discretion would constitute “fatal
error.” Richardson v. State, 831 So. 2d 799, 802 (Fla. Dist. Ct. App. 2002)
ARGUMENT
I . TRIAL COURT PROPERLY ENTERED INVOLUNTARY DISMISSAL BASED ON FINDING OF FACT REGARDING ABSENCE OF RECORD EVIDENCE OF STANDING a. Trial Court’s Finding of Fact was Not an Abuse of Discretion At trial on June 18, 2014, the trial judge was confronted with plaintiff’s
admissions, deemed admitted by operation of law.
Florida Rule of Civil Procedure 1.370 provides in pertinent part:
(a) Request for Admission. … The matter is admitted unless the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter within 30 days after service of the request
((b) Effect of Admission. Any matter admitted under this rule is conclusively established ….
On May 22, 2013 Ms. Donaldson served request for admissions on Wells
Fargo. The response was due by June 21, 2013. Plaintiff undisputedly failed to
timely file a response to the request for admissions and therefore the admissions
were at that time deemed admitted by operation of law. Wells Fargo is a
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CASE NO. 3D14-1730
sophisticated plaintiff and cannot claim ignorance of the law or of the legal
significance of failing to timely respond to Ms. Donaldson’s request for admissions.
However, instead of seeking relief from the admissions, Wells Fargo simply did
nothing from June 21, 2013 through the trial date on June 18, 2014.
The admissions included an admission by Wells Fargo that it was not the
holder of the Note and Mortgage. In this case the Note attached to the Complaint
was payable to The Mortgage Store Financial, Inc. and not Wells Fargo. Purported
endorsements were ultimately to Blank (an open endorsement). Under Florida law a
plaintiff must prove standing in a mortgage foreclosure case to prevail at trial. Proof
of standing on a Note endorsed to blank requires proof that plaintiff was in
possession of the Note when suit was filed. See Hunter v. Aurora Loan Services,
LLC., 137 So. 3d 570, 573 (Fla. 1st DCA 2014)(A crucial element in any mortgage
foreclosure proceeding is that the party seeking foreclosure must demonstrate that it
has standing to foreclose. To establish standing plaintiff must show it held the Note
at the time the complaint was filed); Zimmerman v. JPMorgan Chase Bank, 134 So.
3d 501 (Fla. 4th DCA 2014) (failure to prove possession when suit is filed precludes
summary judgment).
At trial Judge Miller was faced with the factual determination of whether the
record before him was replete with evidence contrary to the admissions. Judge
Miller examined the record and solicited assistance from counsel for Wells Fargo
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CASE NO. 3D14-1730
only to find the record was not replete with evidence contrary to the admission that
Wells Faro was not the holder of the Note when suit was filed. Accordingly, the trial
judge made a factual determination that the record was not replete with evidence
contrary to plaintiff’s admission, and entered an involuntary dismissal. (R. 212,
241.)
The only suggestion on the record that Wells Fargo was the holder of the
Note was an allegation set forth in paragraph 5 of the complaint that simply stated
that “Plaintiff is the holder of the Note and Mortgage and is entitled to enforce
them”. (R. 8.) Furthermore on the last page of the Complaint is an unsworn
verification purportedly made by Leanna Johnstun, Document Control Officer of
Select Portfolio Servicing, Inc. (R. 11.) The verification states, “Under penalty of
perjury, I declare that I have read the foregoing, and the facts alleged are true and
correct to the best of my knowledge and belief.” (R. 11.)
Under Florida law, conclusory allegations do not amount to legally sufficient
or admissible evidence. A verified complaint may be used as summary judgment
evidence only if it meets the requirements of a legally sufficient affidavit.
Florida Rule of Civil Procedure 1.510(e) provides as follows:
Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.
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CASE NO. 3D14-1730
In Ballinger v. Bay Gulf Credit Union, 51 So. 3d 528, 529 (Fla. 2d DCA
2010) the trial court granted summary judgment based on allegations set forth in a
verified complaint. The verification provided that the facts are true and correct to
the best of my knowledge and belief. On appeal the summary judgment was
reversed because a verification based on knowledge and belief is qualified in nature
and therefore legally insufficient. Id. at 529-30. See also Lazuran v. Citimortgage,
Inc., 35 So. 3d 189, (Mem)-190 (Fla. 2d DCA 2010) (affidavit stating that each and
every allegation in the complaint is true is also legally insufficient); 770 PPR, LLC
v. TJCV Land Trust, 30 So. 3d 613, 619 (Fla. 4th DCA 2010) (mere conclusions by
the affiant are insufficient, and a party does not create a fact question merely by
placing his assertions in affidavit form.); Alvarez v. Florida Ins. Guar. Ass'n, Inc.,
661 So. 2d 1230, 1232 (Fla. 3d DCA 1995) (statement that affidavit was made on
“best knowledge and belief” is not sufficient. Nor is an affidavit that merely states
conclusions or opinions, even if based on personal knowledge); Seinfeld v.
Commercial Bank & Trust Co., 405 So. 2d 1039, 1041 (Fla. 3d DCA 1981) (Bank
claiming to be holder in due course had affirmative duty to establish this was the
case. General statements and conclusions of law, do not satisfy that burden.) See
also Pino v. Lopez, 361 So. 2d 192, 193 (Fla. 3d DCA 1978) (affidavit insufficient
as a matter of law because it alleged conclusions of law without supporting facts.)
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CASE NO. 3D14-1730
Under circumstances set forth above, Wells Fargo’s Complaint falls far short
of being legally sufficient evidence that it held possession of the note when suit was
filed, and yet this was the only bit of information on the record at trial before Judge
Miller. Furthermore, as set forth above in the Statement of the Case and Facts
above, Wells Fargo filed a motion for summary judgment on January 6, 2014.
However, there is no reference in the Motion as to whether Wells Fargo was the
holder of the Note. The supporting affidavit of indebtedness similarly is devoid of
any claim or information indicating that Wells Fargo was the holder of the subject
Note.
Therefore, Judge Miller’s finding of fact that the record was not replete with
evidence demonstrating that Wells Fargo was the holder of the Note is not an abuse
of discretion and therefore is not reversible error.
b. Wells Fargo’s Appendix to Initial Brief Dehors the Record Wells Fargo filed an Appendix to their Initial Brief. The Appendix includes
plaintiff’s motion for leave to file response to defendant’s first request for
admissions dated July 18, 2013, Plaintiff’s response to defendant’s first request for
admissions dated July 9, 2013, Plaintiff’s interrogatory answers dated August 1,
2013. None of these documents were included in the record on appeal and none
of these documents are reflected as being filed in the trial court at any time
whatsoever. (R. 1-3)
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CASE NO. 3D14-1730
The burden to assure that the record on appeal is properly prepared and
transmitted shall be on the Appellant. F.R.App.P. 9.200(e). See also Baez v.
Padron, 715 So. 2d 1128 (Fla. 3d DCA 1998) (appellant has affirmative duty to
present appellate court with adequate record for review, this is a rudimentary
principle inseparably connected to and well grounded in appellate review)
Florida Rule of Appellate Procedure 9.220 provides:
The purpose of an appendix is to permit the parties to prepare and transmit copies of such portions of the record deemed necessary to an understanding of the issues presented. This rule makes clear that an appendix is not a means to introduce non-record
material to the appellate court.
When the record provided on appeal is limited, the appellate court cannot
properly determine if the trial court abused its discretion and therefore the trial
court’s decision must be affirmed. Colonel v. Meyerson, 921 So. 2d 690, 691 (Fla.
5th DCA 2006). When appellant’s Appendix includes material that was never
submitted to the trial court and is not part of the record on appeal, it should be
stricken. Keller Industries, Inc. v. Yoder, 625 So. 2d 82, FN 1 (Fla. 3d DCA 1993);
See also Konoski v. Shekarkhar, 146 So. 3d 89 (Fla. 3d DCA 2014); Hughes v.
Enterprise Leasing Co., 831 So. 2d 1240, 1241 (Fla. 1st DCA 2002); Altchiler v.
State of Florida, 442 So. 2d 349, 350 (Fla.1st DCA 1983)(Appellate courts may not
21 Graham Legal, P.A., 814 Ponce de Leon Boulevard • Suite 410 • Coral Gables, Florida 33134 • Telephone 305.445.9185
CASE NO. 3D14-1730
consider matters outside the record. Appendix material outside the record on appeal
should be stricken.)
Here Wells Fargo’s effort to submit new information to this court that was not
part of the trial court record is improper. As such Wells Fargo’s Appendix material
should not be considered by this court in reviewing the factual determination made
by the trial judge.
c. Record For Trial Court Determination of Factual Issues Does Not Include Hearsay and Unauthenticated Documents When the trial judge considers the record in making a factual determination
the rules of evidence, including hearsay rules, still applied to the information
contained within the court file. Holt v. Calchas, LLC, 2014 WL 5614374 (Fla. 4th
DCA 2014). The Holt court relied upon the opinion of the Florida Supreme Court in
Burgess v. State, 831 So.2d 137 (Fla. 2002) for deciding what portions of the court
file may be considered in making factual determinations.
Although a trial court may take judicial notice of court records ... it does not follow that this provision permits the wholesale admission of hearsay statements contained within those court records. We have never held that such otherwise inadmissible documents are automatically admissible just because they were included in a judicially noticed court file. To the contrary, we find that documents contained in a court file, even if that entire court file is judicially noticed, are still subject to the same rules of evidence to which all evidence must adhere. Burgess v. State, 831 So.2d 137, 141 (Fla.2002)
22 Graham Legal, P.A., 814 Ponce de Leon Boulevard • Suite 410 • Coral Gables, Florida 33134 • Telephone 305.445.9185
CASE NO. 3D14-1730
Accordingly documents that Wells Fargo filed in the record that are not
referenced in any motion or affidavit and which are otherwise unauthenticated are
not proper for the court’s consideration of factual issued determined. (R. 42, 90-
137.)
d. Wells Fargo Failure to Move for Relief From Admissions at Trial Waived Right to Reversal On Appeal A legal argument must be raised initially in the trial court by the
presentation of a specific motion or objection at an appropriate stage of the
proceedings. See Phillip J. Padovano, Florida Appellate Practice, § 8.1, at 113
(2001-2002). The failure to preserve an issue for appellate review constitutes a
waiver of the right to seek reversal based on that error. Keech v. Yousef, 815 So. 2d
718, 719-20 (Fla. 5th DCA 2002); See also Edge v. Edge, 69 So. 3d 348, 349 (Fla.
Dist. Ct. App. 2011) (citing to Keech supra with approval); Roth v. Cohen, 941 So.
2d 496, 500 (Fla. 3d DCA 2006) (for issue to be preserved for appeal, it must be
presented to the lower court and the specific legal argument or ground to be argued
on appeal must be part of that presentation if it is to be considered preserved);
Archer v. State, 613 So.2d 446, 448 (Fla.1993); Vacation Beach, Inc. v. Charles
Boyd Const., Inc., 906 So.2d 374 (Fla. 5th DCA 2005); Parlier v. Eagle-Picher
Indus., Inc., 622 So.2d 479 (Fla. 5th DCA 1993).
23 Graham Legal, P.A., 814 Ponce de Leon Boulevard • Suite 410 • Coral Gables, Florida 33134 • Telephone 305.445.9185
CASE NO. 3D14-1730
In Stander v. Dispoz–O–Products. Inc., 973 So. 2d 603, 605 (Fla. 4th DCA
2008) the court held that plaintiff waived the right to challenge the dismissal with
prejudice on appeal because when the trial court orally “announced that it was
dismissing with prejudice,” the plaintiff merely responded “Thank you, your
Honor,” and did not request leave to amend the complaint, nor did plaintiff
move for rehearing to amend after the order of dismissal was entered. See
Vorbeck v. Betencourt, 107 So. 3d 1142, 1148 (Fla. 3d DCA 2012) (citing to
Stander, supra with approval.)
In the case at bar, when faced with the trial court enforcing admissions
deemed admitted, counsel for Wells Fargo made no motion for relief from
admissions and made no motion for leave to file a response to Ms. Donaldson’s
request for admissions. Counsel’s only argument was that the court should let the
trial proceed so that plaintiff could develop facts to refute the admissions. (R. 207-
209.) Under these circumstances, Wells Fargo waived the right the challenge the
involuntary dismissal of their case on appeal.
CONCLUSION
For reasons foregoing, it is respectfully submitted that the decision of the trial
court should be affirmed and that this court enter judgment in favor of Appellee, and
to assess costs and attorney's fees in her favor.
24 Graham Legal, P.A., 814 Ponce de Leon Boulevard • Suite 410 • Coral Gables, Florida 33134 • Telephone 305.445.9185
CASE NO. 3D14-1730
CERTIFICATE OF COMPLIANCE
WE HEREBY CERTIFIY that the foregoing initial brief complies with font
requirements set for in Rule 9.210(a)(2) of the Florida Rules of Appellate
Procedure.
By: s/ Dillon Graham
H. Dillon Graham, III, Esquire Florida Bar Number 0371955
CERTIFICATE OF SERVICE
WE HEREBY CERTIFY that a true and correct copy of the foregoing was
served by eservice upon email to Jonathan R. Rosenn, Esquire, jrosenn@ll-
lawfirm.com; [email protected], Lapin & Leichtling, LLP, Attorneys for
Appellant, 255 Alhambra Circle, Suite 1250, Coral Gables, Florida 33134; Brandi
Wilson, Esquire, [email protected], Morris|Hardwick|Schneider, Co-
Counsel for Plaintiff, 5110 Eisenhower Boulevard, Suite 302A, Tampa, Florida
25 Graham Legal, P.A., 814 Ponce de Leon Boulevard • Suite 410 • Coral Gables, Florida 33134 • Telephone 305.445.9185
CASE NO. 3D14-1730
33634 and Kyle W. Knopsnyder, Esquire, [email protected];
[email protected], McGlinchey Stafford, Co-Counsel for Plaintiff, 10407
Centurion Parkway North, Suite 200, Jacksonville, Florida 32256 on December 12,
2014.
Respectfully submitted,
GRAHAM LEGAL, P.A. Counsel for Appellee
Ponce Plaza, Suite 410 814 Ponce de Leon Boulevard Coral Gables, Florida 33134 Telephone (305) 445-9185 Telecopier (305) 444-8015 [email protected]
By: s/ Dillon Graham
H. Dillon Graham, III, Esquire Florida Bar Number 0371955
26 Graham Legal, P.A., 814 Ponce de Leon Boulevard • Suite 410 • Coral Gables, Florida 33134 • Telephone 305.445.9185