Moving for Summary Judgment Prior to an Answer – A Difficult Burden

Another case in point where a summary judgment entered in favor of a mortgagee was reversed on appeal.  In Dominko v. Wells Fargo Bank, N.A., 102 So. 3d 696 (Fla. 4th DCA 2012), a mortgagor appealed from a grant of summary judgment in favor of the mortgagee.  In February 2010, Wells Fargo filed a mortgage foreclosure action against the defendant.  The defendant failed to serve an answer to the complaint.  Wells Fargo, however, did not move for a default.  Instead, in April 2010, Wells Fargo filed a motion for summary judgment, and subsequently filed the original note (endorsed in blank), and an amended affidavit as to amounts due and owing. 

The defendant also filed a motion for summary judgment in November 2010 arguing that the suite should be dismissed because Wells Fargo failed to comply with the pre-suit notice requirement in the acceleration clause of the mortgage.  Defendant did not set his motion for hearing, and in April 2011, he filed an opposition to Plaintiff’s motion, without submitting any supporting affidavits.

The trial court granted Wells Fargo’s motion, and entered a final judgment of mortgage foreclosure.  On appeal, the defendant argues that summary judgment was improper because a genuine issue of material fact existed as to whether Wells Fargo complied with the condition precedent of providing a pre-suit default notice.  In that regard, the mortgage required the lender to give the borrower thirty days’ notice and an opportunity to cure the default prior to filing suit.  The appellate court agreed with the defendant. 

Furthermore, the court noted that when Wells Fargo moved for summary judgment, defendant had not filed an answer and a default had not been entered against him.  A plaintiff who moves for summary judgment before a defendant files an answer has a “difficult burden” in that the plaintiff must not only establish that no genuine issue of material fact exists but that the defendant could not raise any genuine issue of material fact if the defendant were permitted to answer the complaint.  The plaintiff must essentially anticipate the content of the defendant’s answer and establish the record accordingly.  In this case, while Wells Fargo made a general allegation in its complaint that all conditions precedent had occurred, there was no evidence in the record that Wells Fargo complied with the pre-suit notice requirements set forth in the mortgage; Wells Fargo’s affidavit made no mention of the conditions precedent. 

Accordingly, the Fourth District Court of Appeal reversed the final judgment of foreclosure and remanded the case for further proceedings.

The attorneys at Schecter Law bring hard work and insight to your legal dispute, no matter how simple or complex, to avoid or minimize the type of procedural issues highlighted by the above case.  We strategize every case at its inception, and our case strategies are continuously refined and reevaluated at every stage so as to never lose sight of the end goals of our clients. 

In Berkowitz v. Delaire Country Club, Inc., 4D11-3858, 2012 WL 5232251 (Fla. 4th DCA 2012), Stuart Berkowitz (“Berkowitz”), a member of the Delaire Country Club, Inc. (the “Club”), proposed 17 amendments to the Club’s articles of incorporation in a 52-page packet. The Club asked that Berkowitz submit only a single page addressing each proposed amendment because the Club claimed the 52-page packet was too lengthy and difficult to understand. Berkowitz, however, resubmitted much of the same 52-page packet with a color-coded legend separating its materials. The resubmission was rejected because the Club claimed that it was vague, confusing, subject to multiple interpretations and exceeded the single page limit. Berkowitz then filed a complaint seeking declaratory and injunctive relief claiming that the Club failed to follow the required procedure under its articles of incorporation and by-laws. The trial court granted the Club’s motion for summary judgment, which Berkowitz appealed. Florida’s Fourth District Court of Appeal reversed the granting of the motion for summary judgment and remanded the case to the trial court.

The trial court concluded that the failure of the Articles of Incorporation and By-laws to address the scope and format of the materials which a member could submit created a latent ambiguity.  Where a contract is ambiguous, summary judgment is generally improper.  However, if a party moving for summary judgment presents competent evidence, the opposing party must come forward with counterevidence sufficient to reveal a genuine issue, and it is insufficient for the opposing party to merely assert that an issue exists.

In order to resolve the ambiguity, the Club offered purported past submissions by other Club members; no affidavit or other evidence established that the attachments were what they purported to be. The purported past submissions were unauthenticated and were not competent evidence.  Therefore, the purported past submissions could not be used to resolve the latent ambiguity, and it was held that the trial court erred in considering unauthenticated attachments to resolve the contractual ambiguity.

Florida summary judgment procedures are extensive and the skills and expertise of the experienced attorneys at Schecter Law are invaluable regardless of whether you are prosecuting or defending a summary judgment motion.  Call one of our experienced litigators today at (954) 779-7009.

Is a denial of a summary judgment appealable after verdict and judgment? The Fourth District Court of Appeal answered this question affirmatively in a recent decision and clarified the operative rules in Dr. Tim Ioannides, et al. v. Dr. Richard A. Romagosa, No. 4D10-4670 (Fla. 4th DCA, July 11, 2012). 
Ioannides involved a breach of contract and fraudulent inducement claim between two doctors, Dr. Tim Ioannides and Dr. Richard Romagosa. The two met during Dr. Romagosa’s first year of medical school. Dr. Ioannides, who was further along in his studies, opened a dermatology practice and recruited Dr. Romagosa to open a satellite office. According to the allegations in the fraudulent inducement claim, Dr. Ioannides told Dr. Romagosa that “if he worked for Defendants his total annual compensation from salary and bonuses would easily exceed $500,000 per year for the years prior to making partner.” Thereafter, the parties entered into a contract which contained specific provisions regarding how Dr. Romagosa’s salary and bonuses would be calculated. After twenty three months, Dr. Romagosa left the practice because the relationship with Dr. Ioannides soured, and he subsequently filed suit against Dr. Ioannides claiming a breach of the employment contract and further claiming that Dr. Ioannides had fraudulently induced him into it by orally representing that he would earn $500,000 per year. 
Dr. Ioannides filed a motion for summary judgment on the fraudulent inducement claim arguing that such a claim failed as a matter of law because a party may not recover for fraudulent inducement when the allegedly false statements were adequately addressed by a subsequent written agreement entered into between the parties. The trial court denied the motion, and the case proceeded to trial. The jury awarded Dr. Romagosa $481,000 for bonuses he was due under the contract and $760,000 in damages for the fraudulent inducement claim. Dr. Ioannides appealed on the fraud damages award. 
Dr. Romagosa argued that the rule set forth in Sunrise Lakes Condominium Apts. Phase III, Inc. 5 v. Frank, 73 So. 3d 901 (Fla. 4th DCA 2011) barred Dr. Ioannides from challenging the trial court’s denial of the summary judgment on appeal because the judgment was entered against him after a full trial on the merits. The rule set forth in Sunrise Lakes was that “any error in failing to enter summary judgment on behalf of [the appellant] is moot in light of the trial court’s judgment against [the appellant] at trial.” The Fourth District Court of Appeal however acknowledged and noted a distinction that was also recently addressed by a Supreme Court opinion (Ortiz v. Jordan, 131 S.Ct. 884 (2011) – the distinction between a motion for summary judgment that is denied for evidentiary reasons and a motion for summary judgment that is denied based upon the trial court’s interpretation of the law. In Ortiz, the Court held that a party may not challenge the denial of its motion for a summary judgment after a full trial on the merits. However, the Court limited its holding by clarifying that it was not addressing cases dealing with purely legal issues such as cases dealing with “disputes about the substance and clarity of existing law”.  Accordingly, the Fourth District Court of Appeal held that where, as in the case before it, the material facts are not in dispute and the denial of summary judgment is based on the resolution of a purely legal question, such a decision is appealable after final judgment.  
The court further determined that given the specific provisions in the contract detailing Dr. Romagosa’s salary and formula for computing bonuses, that Dr. Romagosa could not recover in fraud for alleged oral statements about potential earnings prior to entering into the contract. In so ruling the court relied on Hillcrest Pacific Corp. v. Yamamura, 727 So. 2d 1053 (Fla. 4th DCA 1999) and Mac-Gray Services, Inc. v. DeGeorge, 913 So. 2d 630 (Fla. 4th DCA 2005). In Hillcrest, it was held that a “party cannot recover in fraud for alleged oral misrepresentations that are adequately covered or expressly contradicted in a later written contract.” And, in Mac-Gray, it was held that a sales representative’s statements that a new Laundromat could expect near six-figure profits were negated by a subsequent contractual provision disclaiming any guarantee of profits. 
Based on the foregoing, the Fourth District Court of Appeal determined that the trial court erroneously denied Dr. Ioannides’ motion for summary judgment on the fraud claim, and remanded the case with directions to vacate the $760,000 damages award and to enter judgment in favor of Dr. Ioannides on said claim.  
The interaction between fraud and breach of contract claims, combined with the complexities of procedural issues in complex civil litigation cases requires astute legal analysis and attention to detail. The attorneys at Schecter Law have the experience and expertise necessary to prosecute and defend such intricate claims.