Bank of America, National Ass'n v. Asbury , 2015 Fla. App. LEXIS 7959 ( 2015 )

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
BANK OF AMERICA, )
NATIONAL ASSOCIATION, )
)
Appellant, )
)
v. ) Case No. 2D14-1965
)
BROOKE G. ASBURY, )
)
Appellee. )
)
Opinion filed May 27, 2015.
Appeal from the Circuit Court for Sarasota
County; Kimberly Carlton Bonner, Judge.
Elizabeth T. Frau and Robert Schneider
of Ronald R. Wolfe & Associates, P.L.,
Tampa; Jessica Zagier Wallace of Carlton
Fields Jorden Burt, P.A., Miami; Michael
K. Winston and Dean A. Morande,
Carlton Fields Jorden Burt, P.A., West
Palm Beach, Miami, for Appellant.
David A Fernandez of Skyway Law
Group, P.A., Clearwater, for Appellee.
LUCAS, Judge.
In this residential mortgage foreclosure action, Bank of America appeals
the trial court's entry of a final judgment in favor of the defendant homeowner, Brooke
Asbury. The trial court determined that Bank of America failed to prove that it had
complied with the condition precedent of mailing a default notice to Asbury prior to
initiating its foreclosure lawsuit. The court further found that the default letter proffered
by Bank of America at the nonjury trial was admissible to show that it had been
prepared but would not be admitted to establish that it had been mailed. Because
Asbury never identified this condition precedent or its alleged noncompliance within her
pleadings, we conclude the trial court erred in entering judgment against Bank of
America on that basis. Accordingly, we reverse and remand for further proceedings.
Asbury was the owner of residential property in Sarasota County that was
encumbered by a promissory note and mortgage. Following nonpayment on her loan,
Bank of America1 accelerated Asbury's note and filed a single-count complaint against
Asbury on July 29, 2009, seeking to foreclose on the mortgage. In her answer, Asbury
generally denied Bank of America's claims, and in response to the bank's general
allegation that "all conditions precedent to the acceleration of the Mortgage Note and
foreclosure of the Mortgage have been performed or have occurred," Asbury replied,
"without knowledge." The pleadings went through minor iterations, none of which
1
It is unclear on the record before the court how, or at what point, Bank of
America became the party plaintiff in this matter. Although Asbury filed a motion
challenging Bank of America's standing, the trial court never addressed standing or
ruled on Asbury's motion. Accordingly, we do not consider that issue in this appeal.
See Hamilton v. R.L. Best Int'l, 996 So. 2d 233, 235 (Fla. 1st DCA 2008) (holding that
the preservation of error for appellate review is not completed until the aggrieved party
has obtained a ruling on the motion in the lower tribunal).
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altered Bank of America's general allegation concerning the fulfillment of the conditions
precedent to its lawsuit or clarified Asbury's general denial of that allegation.2
A nonjury trial was held on February 24, 2014. From the record, it
appears the circuit court was troubled by what it perceived to be Bank of America's
failure to prove that a required default notice had, in fact, been mailed to Asbury before
the filing of the lawsuit. The court ultimately entered a final judgment on May 8, 2014, in
favor of Asbury. In its judgment, the court found that Bank of America had "failed to
introduce any evidence to satisfy to the Court that conditions precedent were met and
the default letter was mailed." Bank of America timely appealed.
We find Bank of America's first point on appeal, which revolves around the
state of the pleadings at the time of the trial, to be dispositive. Bank of America argues
that the trial court was precluded from considering whether a default notice had been
delivered because Asbury did not properly raise that issue, either within her answer or
as an affirmative defense, prior to trial. Bank of America is correct.
Litigants in civil controversies must state their legal positions within a
particular document, a pleading, so that the parties and the court are absolutely clear
what the issues to be adjudicated are. As the Florida Supreme Court explained in Hart
Properties, Inc. v. Slack, 159 So. 2d 236, 239 (Fla. 1963):
[I]ssues in a cause are made solely by the pleadings . . . .
[The purpose of pleadings] is to present, define and narrow
the issues, and to form the foundation of, and to limit, the
proof to be submitted on the trial. The objective sought in
the present rules is to reach issues of law and fact in one
affirmative and one defensive pleading.
2
Asbury's response in her answer of "without knowledge" is treated as a
denial of Bank of America's allegation. See Fla. R. Civ. P. 1.110(c).
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Florida Rule of Civil Procedure 1.120(c) establishes a special pleading
rule in regard to conditions precedent: "In pleading the performance or occurrence of
conditions precedent, it is sufficient to aver generally that all conditions precedent have
been performed or have occurred. A denial of performance or occurrence shall be
made specifically and with particularity." Under this rule a plaintiff is allowed to allege in
a generalized fashion that all the conditions precedent to a cause of action, whatever
they may be, have either occurred or been performed. A defendant, as the responding
party, shoulders the responsibility of identifying a specific, unfulfilled condition precedent
should it wish to deny that general averment. The case at bar presents the issue of
what effect a defendant's failure to comply with rule 1.120(c) should have at trial. It is
an issue we have addressed before.
In Cooke v. Insurance Co. of North America, 652 So. 2d 1154, 1155 (Fla.
2d DCA 1995), INA, an insurance company, declined its insured customer's claim for
losses resulting from a fire. The insured filed a lawsuit against INA, which included an
allegation of compliance with all conditions precedent. Id. at 1156. INA's answer
offered only a general denial of that allegation, but when the case proceeded to trial,
INA for the first time argued that its customer had failed to prove he had provided notice
of the fire to INA, submitted an adequate proof of loss, or that INA had declined to pay
that loss prior to filing his lawsuit, all of which, INA maintained, were conditions
precedent to the insured's claim. Id.Reversing the trial court's directed verdict for INA, we explained the
importance of proper pleading practice for conditions precedent:
Florida Rule of Civil Procedure 1.120(c) permits the plaintiff
to plead performance of conditions precedent in general
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terms. If a defendant wishes to deny such performance, the
denial must be alleged "specifically and with particularity." In
this case, Mr. Cooke alleged compliance with all conditions
precedent in general terms. INA denied these allegations in
general terms. It never pleaded any of the issues raised in
its motion for a directed verdict. Thus, it had no right to
demand proof from the plaintiff of conditions precedent that
were not preserved in the pleadings.
Id. at 1156 (emphasis added) (citations omitted).
Similarly, in VonDrasek v. City of St. Petersburg, 777 So. 2d 989, 990
(Fla. 2d DCA 2000), the City of St. Petersburg answered a personal injury complaint,
claiming it was without knowledge whether a plaintiff had fulfilled all of the conditions
precedent to filing a personal injury lawsuit. The city later attempted to argue that the
complaint should have been dismissed because the plaintiffs failed to provide adequate
notice to the city prior to initiating their lawsuit under section 768.28(6), Florida Statutes
(1993). Id. We reversed the trial court's dismissal and held that the city's failure to
plead a timely, specific denial of whether a condition precedent had occurred or been
fulfilled amounted to a waiver of that defense. Id. at 991; see also Griffin v. Am. Gen.
Life & Acc. Ins. Co., 752 So. 2d 621, 623 n.1 (Fla. 2d DCA 1999) ("If satisfaction of the
condition precedent is not denied with specificity, it is waived.").
The legal rule we applied in Cooke, VonDrasek, and Griffin, that a
defendant's failure to identify a specific condition precedent within its pleading results in
a waiver of the defense, emanates from the mandatory language found in rule 1.120(c),
"[a] denial . . . shall be made specifically and with particularity" (emphasis added), as
well as the underlying purpose of this special pleading rule: that is, to ensure that the
parties in civil litigation are fully apprised, prior to trial, whether the compliance or
occurrence of a condition precedent is an issue to be proven at trial and that the party
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that is presumably in a better position to identify a noncompliance or nonoccurrence
does so within its pleading. Cf. VonDrasek, 777 So. 2d at 991 n.1 (quoting commentary
to Fla. R. Civ. P. 1.110: "The contents of a pleading . . . should clearly and adequately
inform the judge and the opposing party . . . of the position of the pleader.").
While recognizing the pleading requisites of rule 1.120(c), Asbury argues
that the rule does not apply here because the only condition precedent to the
acceleration of her promissory note was the lender's compliance with Paragraph 22 of
her mortgage. That paragraph includes the requirement that the lender furnish a default
notice to the borrower prior to instituting a foreclosure action. According to Asbury,
Bank of America could not have been surprised or caught unaware at trial that it would
have to furnish evidence of mailing a default notice because that was the only condition
precedent to its lawsuit, and she generally denied that the bank had satisfied that
requirement.
Regardless of whether or not the only condition precedent for the filing of
the bank's lawsuit was the delivery of a default notice, Asbury's argument for affirmance
must be rejected. There is no exception in rule 1.120(c) for claims that have a single
condition precedent to their maintenance. Nor will we construe one as Asbury
suggests. See Barco v. Sch. Bd. of Pinellas Cnty., 975 So. 2d 1116, 1121-22 (Fla.
2008) ("[I]t is well settled that the Florida Rules of Civil Procedure are construed in
accordance with the principles of statutory construction. When the language of the
statute is clear and unambiguous and conveys a clear and definite meaning, there is no
occasion for resorting to the rules of statutory interpretation and construction; the statute
must be given its plane and obvious meaning.") (citations omitted). Asbury's
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construction would turn the special pleading requirements of rule 1.120(c) completely
around. It was Asbury, not Bank of America, who was obliged to frame the specific
issue within her pleadings of whether or not a default letter's mailing had occurred. She
failed to do so. Nowhere within Asbury's answer or affirmative defenses was there any
mention of a purported failure to deliver a default notice. She should not have been
heard to challenge that condition precedent at the trial. See VonDrasek, 777 So. 2d at
991; Cooke, 652 So. 2d at 1155.
Accordingly, we reverse the final judgment and remand for a new trial
consistent with this opinion.
VILLANTI, C.J., Concurs.
SILBERMAN , J., Concurs with opinion.
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SILBERMAN, Judge, Concurring specially.
I concur in the decision to reverse but make the following observations.
First, Bank of America presented evidence through its sole witness
attempting to establish it had properly sent a notice of default, thereby performing that
condition precedent to foreclosure. Asbury challenged the evidence, including the
witness's competence to testify as to the sending of the notice. But she then elicited
specific testimony from the witness supporting Bank of America's contention that the
default notice was properly sent. In fact, based on Asbury's prodding, the witness
testified that Bank of America's business records would establish the mailing.
Bank of America then resumed questioning the witness. Oddly, rather
than introducing the business records into evidence or obtaining additional testimony
regarding mailing of the default notice, Bank of America instead got its witness to agree
that it was possible a default letter would not be mailed but would instead be "sent to the
trash can."
The majority correctly observes that Asbury failed to properly raise Bank
of America's noncompliance with a condition precedent as an affirmative defense.
However, based on the evidence summarized above and the rest of the trial transcript,
Asbury might have been able to make a colorable argument both in the trial court and
on appeal that the issue was tried by consent. See C.J. v. Dep't of Children & Family
Servs., 9 So. 3d 750, 755 (Fla. 2d DCA 2009); Scariti v. Sabillon, 16 So. 3d 144, 145-
46 (Fla. 4th DCA 2009). But Asbury never made that argument.
Second, in announcing judgment for Asbury, the trial court ruled that
"there's no -- nothing in the evidence to satisfy the Court's need to know that the default
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letter was mailed." The court noted the testimony of the sole witness regarding a postal
bar code that was contained in Bank of America's records. The witness had testified
that the bar code proved the default letter was sent and went through the mail. The trial
court rejected the testimony as hearsay even though no objection was made and, in
fact, Asbury had elicited that testimony. Although on appeal Bank of America points to
the testimony as establishing its compliance with the condition precedent, it failed to
argue to the trial court that the testimony should have been accepted as proof of
compliance. See Aills v. Boemi, 29 So. 3d 1105, 1108-09 (Fla. 2010) (recognizing that
for an argument to be preserved for appeal, the specific legal ground on which the claim
is based must be asserted in the trial court).
Based on the foregoing and Asbury's failure to plead the affirmative
defense of noncompliance with a condition precedent, I concur in the majority decision.
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