Beruflich Dokumente
Kultur Dokumente
Appellants,
vs.
Appellee.
______________________________/
PAGE NO.
TABLE OF CONTENTS............................................................................................i
TABLE OF CITATIONS.......................................................................................... ii
PREFACE ..................................................................................................................1
ARGUMENT
CONCLUSION ..........................................................................................................4
ii
TABLE OF CITATIONS
Bowers v. Medina
418 So.2d 1068, 1069 (Fla. 3d DCA 1982) ..............................................................3
Collazo v. Hupert
693 So.2d 631 (2nd DCA 1997) .................................................................................3
Crowell v. Kaufman
845 So.2d 325, 327 (2nd DCA 2003) .........................................................................3
DeAtley v. McKinley
497 So.2d 962, 963 (Fla. 1st DCA 1986) ..................................................................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. Vasquez
397 So.2d 1171 (Fla. 3d DCA 1981) ........................................................................3
Henderson v. Reyes
702 So.2d 616 (3rd DCA 1997) .................................................................................3
Kuczkir v. Martell
480 So.2d 700 (Fla. 4th DCA 1985) .........................................................................3
Moore v. Freeman
396 So.2d 276 (3rd DCA 1981) .................................................................................3
Singer v. Star
510 So.2d 637 (4th DCA) ..........................................................................................3
Soncoast Community Church of Boca Raton, Inc. v. Travis Boating Center of South
Florida, Inc.
981 So.2d 654,655 (4th DCA 2008) ..........................................................................3
4
U.S. Home Corp. v. Suncoast Util., Inc,
454 So.2d 601 (Fla. 2d DCA 1984) ..........................................................................3
Wilds v. Permenter
228 So.2d 408 (Fla. 4th DCA 1969) .........................................................................3
5
PREFACE
referred to as the Defendants. The Appellees, Gibraltar Private Bank and Trust
STANDARD OF REVIEW
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
Church of Boca Raton, Inc. v. Travis Boating Center of South Florida, Inc., 981
The denial of a motion for continuance is a discretionary act by the court and
6
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)
The instant litigation was commenced through the filing of a complaint for
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
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
7
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
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
8
Plaintiff continued to set multiple matters in the instant case before Judge
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)
frivolous objections, misconduct and speaking objections were made by counsel for
the Plaintiff, which prevented the Defendants from properly conducting discovery.
were involved in the committee overseeing the loan to the Defendants in the limited
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
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
9
without assistance of legal assistants in his office. (R. 278-283)
judgment before Judge Stettin, due in part to counsel’s 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’
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
each morning, advising the Defendants either that they obtain new counsel within a
current counsel, who was ill and medicated. (R. Transcript of hearing? When?)
10
Judge Stettin entered summary judgment despite several genuine issues of
Gomez’s affidavit in opposition to summary judgment, and the additional fact that
Plaintiff was estopped from maintaining the instant action due to its breach of the
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
detriment upon Plaintiff’s 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
11
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
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
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 2nd 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
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
12
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
In the instant case, while material factual genuine issues existed on these matters,
A Notice of Appeal was timely filed on June 23, 2008. (R. 200-207)
within the sound discretion of the trial court and should not be interfered with on
13
continuance where there has not been sufficient time to complete discovery. In the
instant case, special circumstances were present in that, while counsel for
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 Hobson’s choice of securing substitute
counsel within a limited period of time or retaining his counsel who was ill.
parameters set by the court and were forced to retain their counsel who was ill and
obtain substitute co-counsel, while original counsel was on medical leave for 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
14
counsel to be prepared to complete discovery and handle a summary judgment
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
Plaintiff. The record reflects that the court appointed a receiver to protect the
summary judgment hearing would not have interfered with these orders of the court
of the summary judgment hearing in order to allow the court to be fully advised of
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
15
issues alleged in their affirmative defenses and counterclaim filed by the
party seeking summary judgment must not only establish that no genuine issues of
material fact exist as to the party’s claims, but must also either factually refute the
affirmative defenses or establish that the are legally insufficient. This did not occur
judgment is generally inappropriate if the Defendant raises the issue of estoppel and
cooperation is withheld, the recalcitrant party is estopped from benefiting from its
Plaintiff’s good faith in the instant transaction such as underpaying, making late
extensions of the loan and funding, including issues as to whether Plaintiff made
misrepresentations which would estopp them from maintaining the instant action.
bad faith in the instant transaction, which it appears that the court failed to consider.
16
These are issues which must be resolved by a trier of fact and not dealt with
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
In the instant case, the record demonstrates that nearly forty documents,
contained in the court file. Accordingly, the trial court violated essential
17
FOURTH POINT ON APPEAL
request from the Receiver violated the revised administrative order for assignment
and transfer of cases in the General Jurisdiction division of the trial court.
The transfer of the instant case in an ex parte hearing by the trial judge
18
ARGUMENT
Rule 1.510(f) of the Florida Rules of Civil Procedure gives the trial court
order to allow the party to obtain affidavits or take discovery in order to present by
Super Markets, Inc., 657 So. 2d 932 (2nd DCA 1995), Leviton v. Philly Steak-Out,
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
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
19
In the case of Henderson v. Reyes, 702 So.2d 616 (3rd DCA 1997), this
Appellate Court reversed a summary judgment and remanded the matter for
completion of discovery following which the movant could renew her motion for
summary judgment. In Singer v. Star, supra, the appeals court ruled that summary
judgment was premature where discovery was in progress, even though taking of
depositions were not noticed prior to the hearing on the motion for summary
judgment.
In Fleet Finance & Mortgage, Inc. v. Carey, 707 So.2d 949, 950 (4th DCA
1998), the Fourth District found reversible error granting summary judgment where
deposition was still pending, citing Lubarsky v. Sweden House Properties of Boca
The Third District Court of Appeals in Moore v. Freeman, 396 So.2d 276
(3rd DCA 1981), reversed a summary judgment as premature since the Plaintiff,
through no fault of his own, had insufficient time to commence and complete
discovery. Payne v. Cudjoe Gardens Property Owners Association, Inc., 875 So.2d
In Kimball v. Publix Super Markets, Inc., 901 So.2d 293 (2nd DCA 2005), the
Second District ruled that it was reversible error to enter summary judgment when
relevant discovery is pending. In Crowell v. Kaufman, 845 So.2d 325, 327 (2nd
20
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
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
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.
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
21
interfered with Defendants performance or that forfeiture (referring to foreclosure)
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 Ass’n, 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,
& 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
judgment); Stevens v. Len-Hal Realty, 403 So.2d 507 (Fla. 4th DCA 1981)
Nagelbush v. United Postal Sav. Ass’n, 504 So.2d 782 (Fla. 3d DCA 1987)
alleged oral understanding between holder of note and mortgage that holder would
23
look solely to one set of cosigners for payment of promissory note; such issues
Nat’l Bank, 516 So.2d 105 (Fla. 4th DCA 1987) (genuine issues of material fact,
to give releases and process and approve loan applications for sale of condominium
Miami, 312 So.2d 211 (Fla. 3d DCA 1975) (in action by bank against alleged
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
affirmative defenses that he was not liable on his personal guaranty of corporation’s
loan obligation because he had revoked guaranty and bank had abandoned its
fact precluding summary judgment for bank and both were filed with his timely
24
While the affirmative defenses and counterclaim in the instant cause could
have been written more artfully, the court may look beyond the pleadings to
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
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).
25
A material breach of an agreement allows the nonbreaching party to treat the
687 So.2d 329 (Fla. 3d DCA 1997). Put another way, as far as the non-breaching
party’s 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.
This rule “fits” with three different affirmative defenses: waiver, estoppel,
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
Operating Eng’rs, 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
26
So.2d 408 (Fla. 4th DCA 1969).
beyond dispute that mortgage foreclosures are equitable proceedings and are
therefore governed by equitable principles. See, § 702.01, FLA. STAT. (2008) ("All
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 Nat’l 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
27
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
date would render foreclosure inequitable and unjust; “Florida courts have
consistently denied foreclosure where there has been merely a technical breach of
Defendant Gylmar has filed well pleaded affirmative defenses and has not
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
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
28
Nat'l Bank, 597 So.2d 340 (2d DCA 1992). “Final summary judgment was not
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
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
faith. Generally, such defenses arising subsequent to the entry of the agreement are
640 So.2d 1212, 1213 (5th DCA 1994), for example, this court held that while
29
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
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.
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
30
affirmative defenses. Eboni Beauty Academy v. AmSouth Bank of Florida, 761
In the instant case, the Defendants were rushed into completing discovery
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
discovery, at which time the court could reconsider Plaintiff’s motion for summary
judgment.
Courts have held that it is error to enter summary judgment when the record
1108 FL CA2, 2D-06-4882 (2008). Courts have further held that summary
31
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, Plaintiff’s bank officer, and it is unclear whether the trial judge
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
Revised Administrative Order 79-2 was entered by the Chief Judge of the
32
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
Subsequent to the initial assignment of cases by the Clerk by the blind filing
are followed.
Judge Stuart Simons, who is the only judge authorized to transfer or reassign cases
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
In the instant case, the Receiver appointed by the court failed to follow the
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)
33
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
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 Plaintiff’s Motion for
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
34
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
CERTIFICATE OF COMPLIANCE
The undersigned counsel hereby certifies that this brief complies with the font
Respectfully Submitted,
_______________________
GEORGE M. EVANS, ESQUIRE
ATTORNEY FOR APPELLANT
Florida Bar Number: 229113
THE LAW OFFICES OF
GEORGE M. EVANS, P.A.
The Cathedral Room, Suite 101
800 Douglas Road
Coral Gables, Florida 33134
Telephone (305) 447-8170
Facsimile (305)446-2308
35