Artiles v. Pino , 2016 Fla. App. LEXIS 1005 ( 2016 )

Third District Court of Appeal
State of Florida
Opinion filed January 27, 2016.
Not final until disposition of timely filed motion for rehearing.
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No. 3D15-1061
Lower Tribunal No. 11-23164
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Jorge Artiles,
Appellant,
vs.
Yurisbel Pino, et al.,
Appellees.
An Appeal from the Circuit Court for Miami-Dade County, Gill S. Freeman
and Darrin P. Gayles, Judges.
Martyn W.D. Verster, for appellant.
Walton Lantaff Schroeder & Carson LLP, and Michele E. Ready and Ian
Ronderos, for appellee Yurisbel Pino.
Before WELLS, ROTHENBERG, and EMAS, JJ.
ROTHENBERG, J.
Jorge Artiles (“Artiles”) appeals a final summary judgment entered in favor
of Yurisbel Pino (“Pino”) and Balboa Insurance Company (“Balboa”) insofar as it
prohibits Artiles from pursuing damages against his residential tenant, Pino, in
connection with a fire that damaged Artiles’s real property (“subject property”).
Because Artiles assigned away his rights in his mortgage with Aurora Loan
Services, LLC (“Aurora”) to recover damages from third parties for damaging the
subject property up to the unpaid balance on his mortgage debt, we affirm the trial
court’s entry of final summary judgment, which was based on its determination
that Artiles cannot maintain any further action against Pino for his alleged
negligence in causing the fire.
BACKGROUND
Artiles received a loan from Aurora for $180,044, which was secured by a
mortgage on the subject property. Artiles defaulted on the loan, and Aurora
initiated a foreclosure suit. In June 2010, after the foreclosure action was filed, the
subject property was damaged in a fire. At the time of the fire, the subject property
was covered by a lender-placed insurance policy that the lender, Aurora, had
purchased from Balboa.
In September 2010, pursuant to the lender-placed insurance policy, Balboa,
the insurer, paid the lender, Aurora, $58,941.56 for the fire damage on the subject
property. In July 2011, while the foreclosure action was still pending, Artiles filed
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suit against his tenant, Pino, alleging that Pino had negligently started the fire, and
Balboa sought subrogation rights in Artiles’s claim against Pino and Pino’s
insurance provider.
In May 2012, Aurora and Artiles settled the pending foreclosure action. In
their mediated settlement agreement, Aurora agreed to waive any deficiency
judgment against Artiles in the foreclosure case, Artiles agreed not to contest the
foreclosure, both parties agreed to a mutual release of any actions related to the
foreclosure, and the parties agreed that Aurora was entitled to the insurance
proceeds already obtained from Balboa.
In October 2013, the trial court held a hearing on Artiles’s, Pino’s, and
Balboa’s motions for summary judgment regarding Artiles’s claims against Pino.
After the hearing, the trial court entered an order finding, relevant to this appeal, as
follows: (1) Artiles used his right to receive a benefit from Balboa to negotiate an
agreement with Aurora in the foreclosure action; (2) Balboa is equitably
subrogated to Artiles’s claim against Pino due to Balboa’s payment to Aurora on
behalf of Artiles; (3) Pino is willing to pay the amount of $58,941.56 to Balboa;
and (4) Artiles cannot maintain any action against any party for additional damages
caused by Pino’s alleged negligence because Artiles assigned his rights to any
insurance proceeds up to the unpaid balance on the mortgage to Aurora. The trial
court subsequently entered a final judgment reflecting those findings. Artiles
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appeals the final summary judgment only insofar as it prohibits him from
recovering additional damages from Pino.
ANALYSIS
The limited issue raised in this appeal turns on whether Artiles assigned to
Aurora his interest in pursuing any cause of action related to the fire that damaged
the subject property. Because in his mortgage Artiles clearly assigned his rights to
Aurora to recover for property damage up to the amount due on the mortgage loan,
we affirm the final summary judgment finding Artiles has no right to pursue any
action against Pino in connection with the damage the fire caused to the subject
property.
We review a trial court’s entry of final summary judgment de novo. Volusia
Cty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000).
“Summary judgment is proper if there is no genuine issue of material fact and if
the moving party is entitled to a judgment as a matter of law.” Id.
As a matter of law, a party cannot prevail on a cause of action where that
party has assigned away its interest in the cause of action. See Cont’l Cas. Co. v.
Ryan Inc. E., 974 So. 2d 368, 376 (Fla. 2008) (stating that “once transferred, the
assignor no longer has a right to enforce the interest because the assignee has
obtained all rights to the thing assigned”) (internal quotation omitted). While it is
typically true that personal causes of action are not assignable, see Ginsberg v.
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Lennar Florida Holdings Inc., 645 So. 2d 490, 496 (Fla. 3d DCA 1994), causes of
action relating to property damage may be assigned—especially where the
assignee has acquired title to the property. See Florida Power Corp. v. McNeely,
125 So. 2d 311, 318 (Fla. 2d DCA 1960); 3A Fla. Jur. 2d Assignments § 12
(2015).
In the instant case, section 11 of the mortgage unambiguously states that
“[a]ll Miscellaneous Proceeds are hereby assigned to and shall be paid to
[Aurora].” The same section includes that such proceeds, in the event of property
damage, would either be used to restore or repair the property, or, in the event that
such repairs are not economically feasible, to pay off the balance on the
mortgage—with the excess (if any) going to Artiles. The section of the mortgage
labeled Definitions describes Miscellaneous Proceeds as “any compensation,
settlement, award of damages, or proceeds paid by any third party . . . for: (i)
damage to, or destruction of, the Property . . . .” Because all of the damages Artiles
seeks qualify as miscellaneous proceeds, we find that under the mortgage, Artiles
assigned his rights to such damages to Aurora, and thus Artiles cannot recover
damages against Pino for negligently starting the fire.
In addition to section 11, section 5 of the mortgage specifically provides that
if Aurora acquires the property by foreclosure or otherwise, Artiles assigns his
rights to the proceeds from any insurance policies covering the subject property to
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Aurora. Because Artiles agreed in the mediated settlement agreement not to contest
the foreclosure action against him, the assignment clause in the mortgage as to
Artiles’s right to seek insurance proceeds from Pino’s insurer was also triggered.
Based on the unambiguous assignment of Artiles’s interest contained in
sections 5 and 11 of the mortgage, Artiles is precluded, as a matter of law, from
seeking damages from Pino and Pino’s insurer due to Pino’s negligence which
allegedly caused the fire on the subject property.
Although Artiles does not dispute that, pursuant to the mortgage, he
assigned his interest in the present litigation to Aurora, he contends that his
mediated settlement agreement with Aurora modified the mortgage. We disagree
as the mediated settlement agreement does not address or modify the original
mortgage’s assignment of miscellaneous proceeds to Aurora. We also find that the
remaining arguments raised by Artiles are without merit, and thus we decline to
discuss them here.
Because the damages Artiles seeks to recover against Pino are
“Miscellaneous Proceeds” and Artiles assigned his rights to such proceeds under
the mortgage, which was foreclosed by Aurora, we affirm the final summary
judgment issued by the trial court.
Affirmed.
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