wachovia-mortgage-v-jose-montes-etc-catalina-solano-etc-courtyard ( 2015 )


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  •         DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
    FOURTH DISTRICT
    WACHOVIA MORTGAGE, FSB f/k/a WORLD SAVINGS BANK, FSB,
    n/k/a WELLS FARGO BANK, N.A.,
    Appellant,
    v.
    JOSE R. MONTES; The Unknown Spouse of Jose R. Montes; CATALINA
    SOLANO; The Unknown Spouse of Catalina Solano; COURTYARD
    HOMES AT THE GROVE HOMEOWNERS ASSOCIATION, INC.; THE
    RIDGES MAINTENANCE ASSOCIATION, INC.; Any and All Unknown
    Parties Claiming by, through, under, and against the herein named
    Individual Defendant(s) who are not known to be dead or alive, whether
    said Unknown Parties may claim an interest as Spouses, Heirs, Devisees,
    Grantees, or Other Claimants; Tenant #1, Tenant #2, Tenant #3, and
    Tenant #4; the names being fictitious to account for parties in
    possession,
    Appellees.
    No. 4D13-3654
    [January 28, 2015]
    Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
    Broward County; Michael L. Gates, Judge; L.T. Case No. 09-67096 CACE
    (11).
    Beverly A. Pohl of Broad and Cassel, Fort Lauderdale, and Francisco
    Armada of Broad and Cassel, Miami, for appellant.
    Robert Flavell of Robert Flavell, P.A., Miami, for appellees Jose R.
    Montes and Catalina Solano.
    CIKLIN, J.
    Wachovia Mortgage, FSB (“Wachovia”) appeals the final judgment
    entered in favor of the defendants below, Jose R. Montes and Catalina
    Solano, after its mortgage foreclosure case was involuntarily dismissed at
    trial. Wachovia argues the trial court erred in involuntarily dismissing
    the case before Wachovia finished presenting its evidence. We agree, and
    we reverse and remand for a new trial.
    Prior to trial—and as the record clearly indicates—Wachovia filed the
    original promissory note with the court. At trial, however, the parties
    discovered that the original note was missing from the court file.
    Wachovia sought to introduce a copy, but the defendants lodged a best
    evidence objection, disputed the authenticity of the original, and moved
    to involuntarily dismiss the case.          Without permitting further
    presentation of evidence, the court summarily granted the motion.
    Approximately one week later, the clerk found the original note and
    returned it via mail to Wachovia.       Wachovia promptly moved for
    rehearing or a new trial, arguing the dismissal was premature and
    explaining that trial could now proceed with the original note. The trial
    court denied the motion and entered final judgment for the defendants.
    Florida Rule of Civil Procedure 1.420(b)           governs   involuntary
    dismissals and provides in pertinent part:
    After a party seeking affirmative relief in an action tried by the
    court without a jury has completed the presentation of evidence,
    any other party may move for a dismissal on the ground that on
    the facts and the law the party seeking affirmative relief has shown
    no right to relief, without waiving the right to offer evidence if the
    motion is not granted. The court as trier of the facts may then
    determine them and render judgment against the party seeking
    affirmative relief or may decline to render judgment until the close
    of all the evidence. . . .
    (Emphasis added).
    In a bench trial, an involuntary dismissal is appropriate where the
    plaintiff fails to establish a prima facie case. Boca Golf View, Ltd. v.
    Hughes Hall, Inc., 
    843 So. 2d 992
    , 993 (Fla. 4th DCA 2003) (citations
    omitted). By definition therefore, Florida courts have held on numerous
    occasions that, pursuant to rule 1.420(b), a trial court may not order an
    involuntary dismissal of a case before a plaintiff rests its case. See
    Deutsche Bank Nat’l Trust Co. v. Santiago, 
    117 So. 3d 1146
    , 1146-47
    (Fla. 3d DCA 2013) (reversing trial court’s sua sponte involuntary
    dismissal of the case entered before bank completed examination of its
    witness); A.N. v. M.F.–A., 
    946 So. 2d 58
    , 60 (Fla. 3d DCA 2006) (“By
    denying appellants the opportunity to complete their case-in-chief, the
    trial court denied appellants their due process.”); Lustig v. Garcia, 
    789 So. 2d 482
    , 483 (Fla. 4th DCA 2001) (“[A]n involuntary dismissal may not
    be entered before the plaintiff has completed the presentation of his
    evidence.”); SJS Enters. v. Cates, 
    547 So. 2d 226
    , 227 (Fla. 4th DCA
    2
    1989) (trial court cannot “jump the gun” by granting involuntary
    dismissal while plaintiff was presenting its first witness).
    In the instant case, Wachovia had scarcely begun presenting its case
    when the court noticed that the original note was not in the court file
    and, as a result, granted the defendants’ motion for involuntary
    dismissal. Wachovia was denied the opportunity to present any evidence
    in support of its claim, let alone finish its case-in-chief. The trial court
    erred in granting the defendants’ motion and further erred by denying
    Wachovia’s motion for a new trial.
    Because of this incontrovertible error, as well as the recovery of the
    original note, the defendants’ arguments pertaining to Wachovia’s ability
    to prove its case without the note are irrelevant.
    Reversed and remanded with instructions.
    GERBER and LEVINE, JJ., concur.
    *         *         *
    Not final until disposition of timely filed motion for rehearing.
    3
    

Document Info

Docket Number: 4D13-3654

Filed Date: 1/28/2015

Precedential Status: Precedential

Modified Date: 2/1/2016