Gaines v. Lehman Brothers Holdings CA2/8 ( 2023 )

Filed 5/2/23 Gaines v. Lehman Brothers Holdings CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
MILTON HOWARD GAINES, B314160
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. BC361768
v.
LEHMAN BROTHERS
HOLDINGS, INC.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County. John P. Doyle, Judge. Judgment modified and,
as modified, affirmed.
Garcia Legal, Steven Ray Garcia and Alexander Levy for
Defendant and Appellant.
Ivie McNeill Wyatt Purcell & Diggs and W. Keith Wyatt for
Plaintiff and Respondent.
__________________________
SUMMARY
This is an appeal from the fourth amended judgment in a
case that began in 2006. In an appeal from the original
judgment, we found the trial court properly quieted title to a
parcel of real property in plaintiff, but abused its discretion in
failing to require plaintiff, as a precondition, to repay to
defendant over half a million dollars in benefits plaintiff’s
parents had received in a previous transaction involving the
property.
We ordered the trial court to exercise its equitable
discretion to set the amount of the repayment between a
minimum of $567,955.96 and $854,647.93, the latter being the
full amount of the benefits plaintiff’s parents received. We left to
the trial court defendant’s entitlement to interest and all other
equitable issues regarding the structure for plaintiff’s repayment.
We further ordered the judgment modified to provide that the
judgment for plaintiff be vacated and judgment be entered for
defendant if plaintiff failed to meet the repayment condition.
The trial court, in a second amended judgment, ordered
repayment of the minimum amount of $567,955.96 within
six months (by March 15, 2021), without interest. At plaintiff’s
request, the time for repayment was extended in a third amended
judgment to May 26, 2021, again without interest. Finally, in the
fourth amended judgment, the trial court extended the deadline
for repayment indefinitely, until two months after the resolution
of another quiet title action that had recently been filed by yet
another claimant to the property.
Defendant argued in the trial court and argues here that it
was inequitable for the trial court to delay payment as it did
without requiring plaintiff to cure the current tax default on the
2
property, which puts the property at risk of a tax sale. Defendant
also argued below, and here, that it was inequitable and an abuse
of discretion for the trial court to order no interest on the
judgment.
We conclude the trial court abused its discretion by
extending the repayment deadline to an indefinite time likely to
be measured in years, not weeks or months, without also
requiring postjudgment interest and other conditions that would
support allowing an otherwise excessive and unjust time for
repayment. Our order on remand from the appeal of the original
judgment necessarily implied a reasonable time for repayment,
and the time that has passed exceeds anything reasonable.
We order the judgment modified to require plaintiff to pay
the delinquent taxes in full within 60 days of the issuance of our
remittitur, and to require plaintiff to remain current in paying
future property taxes when due. If plaintiff does so, his
obligation to pay defendant the minimum amount ordered by the
trial court ($567,955.96), plus postjudgment interest calculated
from an accrual date of September 16, 2020, will become due as
ordered in the fourth amended judgment. If plaintiff does not
pay the delinquent taxes by the deadline ordered here, then
plaintiff is obligated to pay the $567,955.96 plus postjudgment
interest to defendant within a reasonable time to be determined
by the trial court in a manner consistent with the views
expressed in this opinion. If payment of the $567,955.96 plus
postjudgment interest to defendant is not timely made, judgment
for plaintiff is to be vacated and judgment is to be entered for
defendant.
3
FACTS
The underlying facts have been recited in previous opinions
in this case and in related probate proceedings, and we repeat a
brief version here. We refer to the civil department of the court
that has presided over most of the proceedings since 2006
(including the judgment from which this appeal was taken) as
“the trial court” or “the court.” We refer to the probate
department of the court that has presided over probate
proceedings related to the property since 2010 as “the probate
court.”
In 2006, homeowners Fannie Marie and Milton Gaines fell
behind on mortgage payments on their duplex (the Longwood
property) and went into foreclosure. They sought help from
Countrywide Home Loans, their lender. A Countrywide
employee lied to them that Countrywide could not refinance their
loan, and then referred them to her fiancé Joshua Tornberg for
help. Tornberg and others deceived Fannie and Milton into
transferring title to their property to Tornberg in a leaseback
deal Tornberg never intended to honor. Tornberg took out a loan
against the property that was eventually acquired, four years
later in 2010, by Lehman Brothers Holdings, Inc. (Lehman or
defendant).
Milton died, and in November 2006 Fannie filed a lawsuit
against those involved in the transaction, alleging causes of
action for fraud, cancellation of the deed to Tornberg, quiet title,
and others. Counsel recorded notices of lis pendens as to the
Longwood property in 2006 and 2007. After years of procedural
wrangling, during which Fannie died and her son Milton Howard
Gaines (Gaines or plaintiff) stepped in as plaintiff, in 2012
Tornberg and other defendants were dismissed for Gaines’s
4
failure to bring the case to trial within five years. That ruling
was upheld by the Supreme Court in 2016. (Gaines v. Fidelity
National Title Ins. Co. (2016) 62 Cal.4th 1081.) Because Lehman
was added to the suit after it acquired the Tornberg loan in 2010,
later than the dismissed defendants, Lehman remained the sole
defendant.
After a bench trial in June 2017, the trial court entered
judgment on July 9, 2018, quieting title to the Longwood property
in Gaines’s favor, cancelling the warranty deed from Fannie and
Milton to Tornberg, and cancelling Lehman’s deed of trust
against the property.
Lehman appealed, contending (among other things) the
trial court improperly adjudicated Tornberg’s title to the property
even though he was no longer a defendant. This court found no
error on that ground. We explained that, as a nonparty,
“Tornberg could not be bound by the judgment as to the validity
of his title, but the court could still make findings as to
Tornberg’s title in order to adjudicate the validity of Lehman’s
title.” (Gaines v. Lehman Bros. Holdings, Inc. (Jan. 29, 2020,
B292497) 2020 Cal.App.Unpub.Lexis 660, p. *10 (Gaines I).) We
observed that, as the trial court correctly understood, Gaines
might be exposed to a future quiet title action by Tornberg
because Tornberg was not bound by the judgment quieting title
in Gaines’s favor. (Id. at p. *13.) We also concluded the court
sitting in equity should have required Gaines to pay back benefits
Fannie and Milton received from the Tornberg transaction. (Id.
at p. *27.)
Consequently, in Gaines I we conditionally affirmed the
judgment quieting title for Gaines and canceling the warranty
deed and Lehman’s deed of trust, but modified it to add this
5
condition: Gaines must repay the benefits received by Fannie
and Milton between a minimum of $567,955.96, representing the
amount used to pay off the delinquent Countrywide loan, and
$854,647.93, the full amount of the benefits Fannie and Milton
received in the Tornberg transaction, with the amount to be
determined by the trial court. (The full amount of benefits
Gaines received included $4,221.65 in real estate taxes;
$279,930.32 paid to Gaines’s parents in cash; and $2,500 in funds
advanced to Gaines’s parents during escrow.)1 Our disposition
also stated that “Lehman’s entitlement to interest and all other
equitable issues regarding the structure for Gaines’s repayment
are left to the trial court on remand.” We further modified the
judgment to provide if Gaines failed to satisfy the condition of
paying the amount ordered by the trial court, the trial court must
enter judgment for Lehman. (Gaines I, supra, 2020
Cal.App.Unpub.Lexis 660, p. *31.)
In briefing to the trial court on remand in March 2020,
Lehman sought repayment by Gaines of $1,736,954.79, consisting
of the maximum amount specified in our opinion, plus
prejudgment interest of more than $882,000. Lehman calculated
the prejudgment interest on the payoff of the Countrywide note
at the variable rate on that loan, proffering expert evidence; and
calculated the prejudgment interest on the other benefits Gaines
received at the legal rate. Lehman suggested Gaines be given
60 days to pay after entry of judgment.
Gaines sought repayment of the $567,955.96 within
two years, with no interest during the two-year period.
1 There appears to be a $40 discrepancy in the addition of
these amounts.
6
At the hearing on July 6, 2020, the parties discussed the
prejudgment interest question (among other points). Counsel for
Gaines repeatedly told the court that the Court of Appeal “gave
the court discretion to determine whether interest should be
paid.” Counsel for Lehman said: “The interest, again, I agree
with [counsel for Gaines]. The Court of Appeal said it’s up to the
court to decide whether interest is appropriately awarded . . . .”
Later, the court stated: “Now, prejudgment interest does not
necessarily have to be awarded; right? It’s—that’s—all or none is
one way to go, isn’t it? Right, Mr. Garcia [counsel for Lehman]?”
The record shows counsel for Gaines responded, “That’s correct,
Your Honor,” and shows no response from Mr. Garcia. Still later,
Mr. Garcia brought up the subject of interest again, saying that
“interest is not an either-or. It’s not either you award all the
interest, or you award none of the interest because there are
certain components of the payments that may be more
appropriate in the court’s discretion to consider awarding
interest, such as the payoff of the Countrywide obligation.”
And: “All I’m suggesting to the court is it’s not an absolute. It’s
an either-or with respect to each of the components that make up
those numbers.”
On August 6, 2020, the trial court filed a 12-page statement
of decision, concluding Gaines should pay the minimum amount
($567,955.96) and declining to award prejudgment interest on
that amount or on any other component of the benefits Gaines
received. As to the minimum amount, the court stated:
“[T]he Court respectfully declines to make an award here
greater than the $567,955.96 amount of the subject delinquent
loan pay-off. Again, this determination comprises an exercise of
the Court’s discretion on this particular remand under the
7
circumstances, in the interests of justice, against a backdrop and
in a context in which Lehman acquired a ‘loan package’ that
simply could not have been more riddled with fraud and self-
dealing. As the Court of Appeal expressly found . . . , Lehman
cannot properly be permitted now to somehow deflect the
financial consequences of the underlying misconduct based on an
argument that such wrongdoing was perpetuated by the
employees or agents of its various what might be characterized as
predecessors-in-interest, Lehman having had every opportunity
to investigate the underpinnings of the Gaines’ lawsuit that was
filed in November 2006, more than four years prior to Lehman’s
acquisition of its security interest in the Gaines’ Longwood
property in December 2010.”2
2 The trial court’s reference to the Court of Appeal refers to
our rejection in Gaines I of Lehman’s contention that Gaines
should be estopped from disputing the validity of Lehman’s deed
of trust. Among other things, Gaines I stated: “[W]e cannot
disturb the trial court’s exercise of discretion in declining to apply
[estoppel] against Gaines under these facts. The trial court made
clear it viewed the egregiousness of the fraud committed against
Fannie and Milton by Lehman’s predecessor-in-interest Tornberg
as far outweighing any acts by them that might give rise to
estoppel. Elsewhere the court rejected Lehman’s bona fide
encumbrancer argument, finding Lehman ‘had actual or
constructive notice and/or at least had been placed on inquiry
notice of the deeply troubled Gaines-Tornberg sale transaction on
which the security interest rested.’ Indeed, the court noted
Lehman obtained a security interest in December 2010, over
four years after Fannie filed this lawsuit in November 2006. The
court thus reasonably imputed Tornberg’s fraudulent transaction
to Lehman in refusing to apply estoppel to bar Gaines’s claims.”
(Gaines I, supra, 2020 Cal.App.Unpub.Lexis 660, pp. *24–*25.)
8
As we discuss in more detail, post, the court used a similar
analysis in deciding not to award prejudgment interest.
The court gave Gaines 180 days to pay. The court found
that both Lehman’s 60-day suggestion and Gaines’s two-year
request “are not reasonable under the circumstances, particularly
given the long duration of this now almost fourteen year saga.”
On September 16, 2020, the trial court entered the second
amended judgment, consonant with its statement of decision,
adding the condition that Gaines repay to Lehman $567,955.96
within 180 days from entry of judgment, failing which the court
would enter judgment for Lehman. The judgment also stated
that Lehman “is not entitled to recover interest of any kind
regarding said amount.”
In October 2020, Gaines, as administrator of Fannie Marie
Gaines’s estate, sought approval from the probate court to sell
the Longwood property to EWA Holdings LLC for $1,070,000.
(We granted Gaines’s motion to augment the record in this case
to include the transcripts of several hearings held in the probate
court.) Gaines wanted to sell the Longwood property to generate
the funds to make the $567,955.96 payment to Lehman required
by the second amended judgment.
Lehman told the probate court that, because Tornberg had
transferred the property to Longwood 18, LLC (Longwood 18) by
a deed recorded June 20, 2017, Longwood 18, not Gaines, was the
record owner of the property. (Gaines v. Longwood 18, LLC
(Estate of Gaines) (Nov. 30, 2022, B311210) 2022 Cal.App.Unpub.
Lexis 7268, p. *5.) Several probate hearings ensued. Longwood
18 attended a hearing in December 2020, at which both Lehman
and Longwood 18 objected to Gaines’s proposed sale. (Ibid.)
After several hearings, the probate court overruled the objections
9
and confirmed the sale of the Longwood property for $1,070,000.
(Id. at p. *6.) Longwood 18 appealed the probate court’s order,
and in November 2022 this court reversed the probate court’s
order, holding the probate court had no authority to order a sale
of property to which the estate does not hold title. (Id. at p. *10.)
Meanwhile, by the time the probate court finally signed an
order confirming the sale, it was March 2021, and Gaines’s
deadline for repayment under the second amended judgment was
March 15, 2021. In the interim, Gaines asked the trial court to
toll or extend the time for tendering payment to Lehman.
Several hearings occurred in the trial court on this subject, on the
status of the proposed sale, and of the probate court’s approval of
the sale.
In December 2020, the trial court was first apprised of
Longwood 18’s interest in the case. On December 17, 2020,
counsel appeared on behalf of Longwood 18, and the court
observed, “Longwood 18 LLC, this is the first I’ve heard about it.”
The court ordered the six-month period for Gaines’s payment
tolled from December 17, 2020, through January 22, 2021.
On March 19, 2021, counsel informed the trial court that
Longwood 18 had filed a quiet title case.
On April 14, 2021, Gaines filed a motion to extend the time
for repayment until the completion of the quiet title litigation
filed by Longwood 18.
On April 21, 2021, the court entered a third amended
judgment. This judgment extended the time for Gaines to make
the repayment to May 26, 2021, “subject to further determination
by the Court at a hearing now set for May 18, 2021.”
On May 18, 2021, the court extended the payment deadline
until two months after the resolution of the Longwood 18 quiet
10
title action. The trial court entered the fourth amended
judgment, consonant with its order, on May 24, 2021. The
judgment states that “[t]he Court, in equity, finds that the quiet
title action is precluding the completion of the sale of the
property which was approved and ordered on March 19, 2021 by
the Probate Court . . . .” The judgment further states that during
the pendency of the Longwood 18 quiet title action, the court
would retain jurisdiction to make further orders regarding the
deadline for Gaines’s payment “as fairness and equity may
dictate.”
Lehman filed a timely notice of appeal.
DISCUSSION
Lehman contends the judgment should be reversed, “and
the trial court should be required to allow post judgment interest
to be added to the judgment and to require that Gaines pay the
tax delinquency to protect the property from a tax sale while the
judgment remains outstanding.” As we observed at the outset,
and as we discuss in parts 2 and 4, post, we agree with this
disposition. We disagree, however, with Lehman’s further
contentions that it is entitled to prejudgment interest on the
repayment amount, and that the trial court should also have
required Gaines to repay the maximum amount of the benefits
Gaines’s parents received rather than the minimum amount.
1. The Trial Court’s Choice of the Minimum Repayment
Lehman contends it was “inequitable” for the court “not to
require Gaines to disgorge” all the benefits received in the
Tornberg transaction. Lehman says it “was a stranger to the
wrongdoing that the trial court found infected” the Tornberg
transaction, and Lehman’s “only crime was buying the loan four
years after the events that gave rise to the case.” Lehman’s
11
contention ignores both our decision in Gaines I and the facts
found by the trial court at the 2017 trial.
Our opinion in Gaines I expressly stated that “requiring
Gaines to repay the additional cash above the Countrywide loan
payoff may not be equitable,” and we left it to the trial court “to
weigh the equities and set the amount of repayment . . . .”
(Gaines I, supra, 2020 Cal.App.Unpub.Lexis 660, p. *30.)
Lehman offers no basis for us now to conclude that the court
abused its discretion in requiring repayment of the minimum
rather than the maximum. Indeed, Lehman fails throughout to
acknowledge that it bought the loan four years after Fannie
Marie Gaines brought this lawsuit in November 2006, and that
the trial court found Lehman “ ‘had actual or constructive notice
and/or at least had been placed on inquiry notice of the deeply
troubled Gaines-Tornberg sale transaction on which the security
interest rested.’ ” (Id. at pp. *24–*25.) As this court stated in
Gaines I, the trial court “thus reasonably imputed Tornberg's
fraudulent transaction to Lehman in refusing to apply estoppel to
bar Gaines’s claims.” (Id. at p. *25.)
The trial court fully explained its decision to require the
minimum amount, as described in the Facts, ante at pages 7
through 8. The trial court complied with our instruction “to
weigh the equities.” We expressly granted the trial court
discretion to award a minimum of $567,955.96, and Lehman has
not persuaded us we should now disturb its exercise of discretion
on this point.
2. Postjudgment Interest
We agree with Lehman that the trial court erred when it
ordered Lehman was “not entitled to recover interest of any
kind.” Postjudgment interest is required. “[I]nterest commences
12
to accrue on a money judgment on the date of entry of the
judgment.” (Code Civ. Proc., § 685.020, subd. (a).) Accordingly,
interest began to accrue on September 16, 2020, when the trial
court entered the second amended judgment requiring Gaines to
pay Lehman $567,955.96.
Gaines protests, contending the trial court’s order to pay
$567,955.96 operates as an equitable lien instead of a money
judgment. That is not the law.
“A general doctrine of equity permits imposition of an
equitable lien where the claimant’s expenditure has benefited
another’s property under circumstances entitling the claimant to
restitution.” (Jones v. Sacramento Savings & Loan Assn. (1967)
248 Cal.App.2d 522, 530.) “A specific application of the doctrine
occurs when a lender advances money which benefits the land of
another in mistaken reliance upon an imperfect mortgage or lien
upon that land.” (Ibid.; see id. at p. 531 [“The judgment imposing
the lien will not be a money judgment, will simply establish a
charge on property and will not bear interest in favor of the
equitable lienholder.”].) Those are not the circumstances in this
case.
Here, there is no judgment imposing a lien, and there is no
charge on the property. There is a judgment requiring Gaines to
pay a specific amount of money, based on contract and
originating from a specific debt, as a precondition to quieting title
in favor of Gaines. As we said in Gaines I, “[a] ‘customary’
judgment under the circumstances would quiet title in Gaines
conditioned on his repayment of those benefits to Lehman, and if
Gaines fails to satisfy that condition, enter judgment for
Lehman.” (Gaines I, supra, 2020 Cal.App.Unpub.Lexis 660,
13
p. *30.) The repayment condition is a money judgment on which
interest is required by statute.
Lehman argues that postjudgment interest should be
awarded “retroactive to July 9, 2018,” the date of the original
judgment quieting title in Gaines and cancelling Lehman’s deed
of trust. Lehman is mistaken. Postjudgment interest accrues
from September 16, 2020, the date of the second amended
judgment requiring Gaines to pay $567,955.96 as a precondition
of a quiet title judgment.
The applicable principles are stated in Chodos v.
Borman (2015) 239 Cal.App.4th 707. “ ‘ “When a judgment is
modified upon appeal, whether upward or downward, the new
sum draws interest from the date of the entry of the original
order, not from the date of the new judgment. [Citations.] On
the other hand, when a judgment is reversed on appeal the new
award subsequently entered by the trial court can bear interest
only from the date of entry of such new judgment.” ’ ” (Id. at
pp. 712–713.) “Whether an order by an appellate court is a
modification or a reversal depends on the substance and effect of
that order. [Citations.] An appellate court order is ‘a reversal in
the legal sense’ when it reverses the trial court and remands an
issue to the trial court for further hearing and factfinding
necessary to the resolution of the issue forming a basis for
appeal.” (Id. at p. 713.)
Similarly, a judgment may be couched in terms of a
reversal, but really be only a modification, as in Snapp v. State
Farm Fire & Casualty Co. (1964) 60 Cal.2d 816, 818–820. In
Snapp, the Supreme Court held an appellate order reversing a
judgment for $8,168.25 with directions to enter judgment for
$25,000 was, in legal and practical effect, a modification, because
14
“the appellate court on the first appeal decided that not $8,168.25
but $25,000 was due as a matter of law, and no further
proceedings were required . . . .” (Id. at p. 821.)
Lehman contends we modified the original judgment, and
therefore interest runs from the date of that judgment. We
disagree. The substance and effect of our order was a reversal in
the legal sense because the original judgment was not a money
judgment, and further hearing was necessary to determine what
the money judgment should be. The point is stated clearly in
Lucky United Properties Investment, Inc. v. Lee (2013)
213 Cal.App.4th 635, 654 (“These cases may be understood to
hold that interest accrues from the date that the trial court fixes
the amount due or errs in fixing the amount due but that error is
corrected on appeal without the need for further factfinding in
the trial court. When, on the other hand, the amount due is not
and cannot be fixed until after further factfinding on remand
from appellate review, interest does not accrue until the final
determination is made.”).
3. Prejudgment Interest
Lehman asked the trial court to award prejudgment
interest running from the time of the Countrywide payoff by its
predecessor in August 2006, and based on the variable interest
rate charged in the Countrywide loan. Lehman contends the trial
court abused its discretion in denying prejudgment interest
because Lehman “is equitably subrogated to the position of
Countrywide.” Lehman claims it was “not involved in defrauding
the Gaineses and so is not chargeable with culpable and
inexcusable neglect.”
Lehman does not explain how the principles of equitable
subrogation apply to these circumstances, instead citing inapt
15
cases, none of which involves a transaction induced by fraud and
a purported subrogee on actual, constructive or inquiry notice of
the claims of fraud. Once again, Lehman simply ignores the trial
court’s rejection of Lehman’s bona fide encumbrancer argument
and its finding Lehman had actual, constructive or inquiry
notice of the Gaines-Tornberg transaction on which Lehman’s
security interest rested.
In Gaines I, we left the question of interest to the trial
court’s discretion on remand. (Gaines I, supra, 2020
Cal.App.Unpub.Lexis 660, p. *31.) At the hearing on remand,
both parties told the trial court that “it’s up to the court to decide
whether interest is appropriately awarded.” And the trial court
fully explained its decision not to award prejudgment interest.
The court stated: “[T]he Court finds that to award
prejudgment interest under the circumstances here—apparently
in the amount of several hundred thousand dollars—would work
at cross-purposes with the remedial purposes that lie at the heart
of the Court’s determination of this fraudulent loan controversy.
Again, the subject benefits were certainly provided to the Gaines,
of course, but were provided at least in some measure as the
product of the desperate situation in which the Gaines found
themselves during the relevant period, which in turn was in some
substantial measure the product of the flagrant transgressions of
Tornberg and others, misconduct which was essentially part and
parcel of the subject security interest that Lehman acquired
improvidently. In this regard, the Court of Appeal opined that
the trial court ‘reasonably imputed Tornberg’s fraudulent
transaction to Lehman in refusing to apply estoppel to bar the
Gaines’s claims.’ . . . Thus, the Court respectfully declines to
make an award of prejudgment interest on the amount awarded
16
to Lehman pursuant to the Court of Appeal’s remand with
directions.”
Lehman has failed to demonstrate an abuse of discretion by
the court’s decision not to award prejudgment interest.
4. Time for Repayment and Delinquent Taxes
As we have observed, our disposition in Gaines I implicitly
required the trial court to set a reasonable time for Gaines’s
repayment. Indeed, at an April 15, 2021 status conference
discussion on extending the deadline, the trial court observed
that it could in theory order the deadline continued through the
conclusion of the quiet title case, but “[f]rankly, that . . . doesn’t
sound right.” We agree with that assessment, and we agree with
Lehman it was an abuse of discretion to provide an indefinite
time for Gaines’s repayment without also requiring Gaines to “do
equity by solving the tax delinquency that threatens the
property.”
By way of background, Lehman argued to the trial court
that as of August 15, 2021, the property would be at risk of a tax
sale, and the court should require that Gaines “either pay the
judgment or save the property from the tax sale,” “one or the
other.” An April 27, 2021 declaration from counsel for Lehman
attached a copy of the “Defaulted Tax Roll” page from the County
of Los Angeles Treasurer and Tax Collector’s website, showing a
“[r]edemption [a]mount” of more than $117,000. At the final
hearing, Lehman’s counsel said that “at least I would request
that there be some requirement on the part of Mr. Gaines to do
something about this tax sale to—you know, protect the
property.”
On appeal, Lehman confirms it repeatedly argued in the
trial court that “the delinquent tax circumstance militated in
17
favor of a short period of time to pay the judgment or that some
other accommodation be made such as having Gaines cure the
tax delinquency.” (Italics added.) And the heading of Lehman’s
argument in its opening brief is that it was inequitable to delay
payment “without requiring Gaines to cure the tax default.”
We conclude from these statements by Lehman that
Lehman accepts the proposition that under the circumstances, it
would not have been unreasonable for the trial court to extend
the repayment date until Longwood 18’s quiet title action is
resolved, so long as Gaines is required to cure the tax default and
the repayment amount includes postjudgment interest. In any
case, it does not appear to us that Lehman argued in its opening
brief that such a disposition would have been an abuse of
discretion.
Gaines, for his part, contends there was no abuse of
discretion in the trial court’s indefinite extension of the time to
make repayment. Gaines says Lehman “has not presented
anything other than speculation regarding a ‘looming’ tax sale,”
and these speculative contentions “do not outweigh the equities
in favor of Gaines.” He attributes his inability to complete the
sale of the property and make the repayment to Lehman to “the
collaborative efforts of Lehman and Longwood to delay and
obstruct the sale from being completed.” We disagree.
We see no reason to ignore the very real risk of a tax sale
simply because one has not yet been scheduled. Nor should the
trial court have done so. And we are not persuaded the claimed
collaboration between Lehman and Longwood 18 has any bearing
on the resolution of this case.
Gaines is correct that in 2017, before the end of the trial,
Lehman’s counsel recorded Tornberg’s deed to Longwood 18. So
18
Lehman has long known of Longwood 18’s interest in the
property, and both Lehman and Longwood 18 filed objections
when Gaines sought probate court approval to sell the property.
Indeed, Lehman explains in its opening brief its interest in
Longwood 18’s success in its case against Gaines: if Gaines does
not pay the judgment amount or if Longwood 18 prevails in its
quiet title action, Lehman expects to enforce its lien against
Longwood 18’s interest in the property. But Gaines has not
shown that such “collaboration” was improper. And it would be
speculation to conclude that Gaines would otherwise have been
able to sell the property, given his title would in any event be
clouded by Longwood 18’s unadjudicated claim of title.
DISPOSITION
The fourth amended judgment is modified to include
postjudgment interest running from September 16, 2020, on the
$567,955.96 repayment to Lehman. The judgment is further
modified to require Gaines to pay the delinquent taxes on the
property in full within 60 days of the issuance of this court’s
remittitur, and to require Gaines to remain current in paying
future property taxes when due, in which case the deadline for
Gaines’s repayment to Lehman shall remain as ordered in the
fourth amended judgment. The judgment is further modified to
provide that, if Gaines does not pay the delinquent taxes in full
within 60 days of the issuance of this court’s remittitur, then
Gaines is obligated to pay the $567,955.96 plus postjudgment
interest to Lehman, calculated from an accrual date of
September 16, 2020, within a reasonable period of time of the
issuance of this court’s remittitur. If Gaines fails to pay the
property taxes as ordered herein, the trial court shall decide what
is a reasonable time by which Gaines must pay the $567,955.96
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plus postjudgment interest to Lehman, consistent with the views
expressed in this opinion. If payment of the $567,955.96 plus
postjudgment interest to Lehman is not timely made, judgment
for Gaines is to be vacated and judgment is to be entered for
Lehman. As so modified, the judgment is affirmed.
The parties shall bear their own costs on appeal.
GRIMES, J.
WE CONCUR:
STRATTON, P. J.
WILEY, J.
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