Failure to Check DMV Records Rendered Search for Defendant Inadequate

In this Home Owners Association (HOA) lien foreclosure case, the Plaintiff was unable to locate the Defendant for service. HOA’s attorney filed an affidavit for service by publication, alleging:

a) I sent a Demand letter to the last known address of 2119 The Oaks Boulevard, Kissimmee, FL 34746. No response was received from the defendant.

b) I hired a process server at Magic Process to serve summons on Defendants, Sergio Martins and Unknown Spouse of Sergio Martins. Process Server stated that the property was unoccupied at the time of service.

c) I have searched for the Defendant with the Osceola County Property Appraisers office to determine if there are other properties the Defendant may own and/or reside in. I have found no other property owned by Sergio Martins and Unknown Spouse of Sergio Martins

d) I have searched for the Defendant by name and by address in a popular background database search service known as We have not found another address aside from the aforementioned addresses at which the Process Server attempted service on the Defendants.

e) I have searched for the Defendants by name using World Wide Web based telephone listings. I have found no listing.

f) I have sent the U.S. Post Office a change of address/physical address request and they reported that they had no forwarding information for Defendant.

g) I have searched the Florida Department of Corrections on them to see if they had been incarcerated.

h) I have searched the Osceola County Inmate Records on them to see if they have been incarcerated.

i) I have searched Clerks website of Osceola County, Florida. I found the Deed that was recorded for subject property when they purchased the property. The address on the Deed is 2119 The Oaks Blvd., Kissimmee, FL 34746. There is no recorded mortgage on this property.

2. The age of the Defendant is unknown to Affiant.

3. The residence of the Defendant is unknown to Affiant.

4. The Defendant, having residence in Florida, has been absent from there for more than 60 days prior to the making of this affidavit, or conceals him/herself so that process cannot be served personally upon him/her, and that Affiant believes that there is no person in the state upon whom service of process would bind this absent or concealed Defendant.

Service was accomplished by publication, Judgment was entered, the property sold at a foreclosure auction, and the locks changed.  At which point Defendant was notified by neighbors that his furniture was on his front yard.  Defendant filed a Motion to Vacate the Judgment alleging that he resided at a different address in Florida, that his address was available in the public records including the Florida DMV, and that the HOA had sent him a letter at his current address several years prior.

The Court granted the Motion to Vacate finding that the HOA should have requested the Defendant’s records from the Florida DMV and should have attempted service at all addresses in their records.

Martins v. The Oaks Master Property Owners Assoc., 39 Fla. L. Weekly D2385a, Case No. 5D13-3852 (5th DCA Nov. 14, 2014)

Counsel Not Required to Check Online Docket as Alternative to Service

The trial court dismissed Plaintiff’s claims after the Plaintiff (1) failed to serve one of the parties and (2) failed to submit a joint status report. The trial court claimed the authority to dismiss the case based on Florida Rule of Civil Procedure 1.070, stating:

THIS CAUSE came before the court pursuant to Rule 1.070(j), Florida Rules of Civil Procedure. The record of this action does not show service of initial process and initial pleading upon defendant(s) Sunday A. Stefaniw within 120 days after filing of the initial pleading, and the record does not reflect any order extending the time for service. Notice of the absence of timely service was previously given in the action February 12, 2013, and no good cause has been shown why service was not made within the required 120 days. The court also notes the failure to respond to the court’s order requiring submission of status report dated February 12, 2013. The Court must assume Plaintiff has no interest in pursuing this action. Whereupon, IT IS ADJUDGED that this action is dismissed.

Plaintiff argued that it had been actively attempting to serve the Defendant and that it had never received the order requiring submission of a joint status report. On the issue of whether the parties had been served with the order requiring submission of a joint status report, the trial court found that its assistant always efficiently handled the mail and that the attorneys could have monitored the case online.

In overturning the trail court’s order, the Fifth DCA ruled that the action could not be dismissed simply because the Defendant had not been served. The Court further ruled that there was not sufficient evidence to establish that order requiring submission of a joint status report had ever been served and that counsel did not have a duty to monitor the online docket as an alternative effective to service.

Taylor v. Bavaro, Case No. 5D13-1818 (5th DCA April 17, 2014).

Plaintiff estopped from denying liability for attorneys’ fees

The Plaintiff in this Homeowner’s Association case lived and owned a home within a multi-association community.  His neighborhood was governed by a Homeowners Association and the collection of neighborhoods in his community, each consisting of an individual Homeowners Association, were collectively governed by a Master Association. Plaintiff filed suit alleging that the Master Association had failed to comply with certain provisions of Chapter 720, Florida Statutes.

more Chicago suburbs from the air
Scorpions and Centaurs / Travel Photos / CC BY-NC-SA

After a hearing, the trial court entered final summary judgment in favor of the Master Association. The Master Association thereafter moved for and was awarded prevailing-party attorney’s fees pursuant to section 720.305(1), Florida Statutes.

Plaintiff argued on appeal that he was not liable for attorneys’ fees because he was not actually a member of the Master Association, and, therefore, the applicable fee shifting language within section 720.305(1) did not apply.

The 5th DCA found, as a matter of statutory interpretation, that he was a member, but, more interestingly, also found that Plaintiff was “estopped from denying liability” for attorneys’ fees.

By filing suit, Plaintiff “held himself out to be a member of the Master Association with standing to sue under section 720.305(1).”  The Plaintiff could not claim he was a member with standing to file suit, then deny that he was a member in an attempt to avoid fee liability.

ROSENBERG v.  METROWEST MASTER ASS’N, INC., et al., 38 Fla. L. Weekly D1476a, (Case No. 5D12-4062 July 5, 2013).

Record Evidence Did Not Support Finding of Fraud on the Court – Ford v. Stimpson

In this products liability case, final judgment  was entered in favor of the defendant following a four-week jury trial.  The plaintiff alleged that the defendant had committed fraud on the court and sought to set aside the final judgment pursuant to Fla. R. Civ. P. 1.540(b)(3).

The trial court granted plaintiff’s motion finding that the defendant (1) had destroyed evidence, (2) made false representations to the National Highway Traffic Safety Administration (NHTSA), (3) improperly inquired on cross-examination about matters excluded from evidence by a motion in limine, and (4) presented false and misleading testimony through its experts.

After determining that the defendant had committed fraud on the court, the trial court struck the defendant’s answer and affirmative defenses, entered judgment on liability in favor of the plaintiff, and ordered a trial on the issue of damages.  The defendant appealed the trial court’s order.

The Fifth DCA determined that:

Fraud on the court occurs where “it can be demonstrated, clearly and convincingly, that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate a matter by improperly influencing the trier of fact or unfairly hampering the presentation of the opposing party’s claim or defense.” citing Cox v. Burke, 706 So. 2d 43, 46 (Fla. 5th DCA 1998).

Reviewing the evidence submitted to the trial court on each of the four instances of purported fraud, the Fifth DCA determined that their was insufficient record evidence to support the trial court’s findings.  The Fifth DCA overturned the trial court’s decision to grant the Rule 1.540(b)(3) motion, thereby effectively reinstating the final judgment in favor of the defendant.

Ford v. Stimpson, 5th District. Case No. 5D11-2787 (April 19, 2013).

Trial Court Should Have Released Disputed Property in Storage – Wells v. Redmont

This appeal arises out of a dispute over the construction and manufacture of a custom skylight.  The purchaser refused to pay the full amount due and the manufacturer refused to turn over possession of the completed skylight.  Suit was filed over the dispute and the manufacturer prevailed in the lawsuit.  The purchaser appealed and posted a supersedeas bond by depositing funds with the clerk of court.  Having posted the bond, the purchaser sought to have the skylight released.

The Fifth DCA reiterated that:

A party seeking to stay execution of a final or non-final order on appeal must file a motion in the lower court, which may require the posting of a good and sufficient bond, i.e., a supersedeas or appeal bond. Fla. R. App. P. 9.310(a). If the party is seeking a stay from execution of solely a money judgment, no motion is necessary; the posting of a good and sufficient bond equal to the principal amount of the judgment plus twice the annual statutory interest rate will stay execution. Fla. R. App. P. 9.310(b)(1). A “good and sufficient bond” is either a bond with a principal and a surety or “cash deposited in the circuit court clerk’s office.” Fla. R. App. P. 9.310(c)(1) (emphasis added). The trial court has continuing jurisdiction to determine the sufficiency of a bond under the rule. Fla. R. App. P. 9.310(c)(1).

Once a good and sufficient bond was posted, there was no justification for the manufacturer to continue to hold the skylight.  The trial court should have required that the skylight be transferred to the purchaser upon posting of the bond.

Wells v. Redmont, 37 Fla. L. Weekly D1191b (Fla. 5th DCA May 18, 2012)

STEPHANIE J. CROWN AND JOHN J. CROWN v. CHASE HOME FINANCE, 35 Fla. L. Weekly D1703d (Fla. 5th DCA July 30, 2010)

In this case, the defendants were sued and initially filed a “bare bones” pro se answer.  Months later, the plaintiff served a motion for summary judgment.  A week later, and before the hearing, the defendants served an amended answer with affirmative defenses, which the motion for summary judgment did not address.  The trial court denied leave to amend and granted summary judgment for the plaintiff.  The appellate court reversed, holding that the trial court abused its discretion because “all doubts should be resolved in favor of allowing the amendment and refusal to do so generally constitutes an abuse of discretion unless it clearly appears that allowing the amendment would prejudice the opposing party, the privilege to amend has been abused, or amendment would be futile.”

STEPHANIE J. CROWN AND JOHN J. CROWN v. CHASE HOME FINANCE, 35 Fla. L. Weekly D1703d (Fla. 5th DCA July 30, 2010)

Wells Fargo Bank v. Lupica, 34 Fla.L. Weekly D1866 (Fla. 5th DCA Sept. 8, 2009)

In this duo of cases, the 5th DCA stated that an Order is not final until it is (1) written, (2) signed, and (3) filed with the clerk of the trial court.  Here the written order was stamped by the Judge, but not sent to the Clerk for entry.  As such, the DCA lacked jurisdiction pursuant to Rule 9.110(b).

The Court takes the further opportunity to gently chastise the trial courts in both cases, stating: “Some basis for the ruling would be instructive both to the parties and this Court.” Ouch.  The 5th DCA is obviously getting frustrated with the foreclosure cases it is seeing.