Charles G. Nolan v. Mia Real Holdings, LLC

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
CHARLES G. NOLAN,
Appellant,
v.
MIA REAL HOLDINGS, LLC,
Appellee.
No. 4D15-666
[February 24, 2016]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Catherine M. Brunson, Judge; L.T. Case No. 50-2013-
CA013363XXXXMB .
Brian Korte and Scott J. Wortman of Korte & Wortman, P.A., West Palm
Beach, for appellant.
Jerome L. Tepps of Jerome L. Tepps, P.A., Sunrise, for appellee.
GROSS, J.
We reverse the final judgment of foreclosure because the action was
barred by the “two dismissal” rule of Florida Rule of Civil Procedure
1.420(a)(1). In successive actions, two different plaintiff/note holders
sought to foreclose based on the same breach. Each plaintiff filed a
voluntary dismissal of its lawsuit. For the purpose of rule 1.420(a)(1), we
hold that the two noteholders—the original plaintiff and the subsequent
assignee of the note—were the same “plaintiff” under the rule, so that the
second voluntary dismissal triggered an “adjudication on the merits.” Id.
Flagstar Bank filed a foreclosure action against the homeowner, which
it voluntarily dismissed. Flagstar assigned the note and mortgage to DKR
Mortgage, which then filed a second foreclosure action against the
homeowner, on the same note, alleging the same breach. MIA Real
Holdings substituted as the party plaintiff in that action after it purchased
the note from DKR Mortgage. MIA voluntarily dismissed the second action.
Subsequently, MIA filed a third complaint on the same note, alleging the
same breach, which resulted in the final judgment on appeal.
“[A] notice of dismissal operates as an adjudication on the merits when
served by a plaintiff who has once dismissed in any court an action based
on or including the same claim.” Fla. R. Civ. P. 1.420(a)(1). Under this
rule, “a plaintiff may voluntarily dismiss his or her lawsuit at practically
any time . . . without prejudice however to plaintiff’s commencing a wholly
new lawsuit against the same defendant if the right to do so has not
been exercised before.” Randle-Eastern Ambulance Serv., Inc. v. Vasta,
360 So. 2d 68, 68 (Fla. 1978) (emphasis added).
An assignor of a note “conveys to the assignee his or her rights and
interest” in the note assigned. Dove v. McCormick, 698 So. 2d 585, 589
(Fla. 5th DCA 1997). As a matter of substantive law, the “assignee
thereafter stands in the shoes of the assignor and may enforce the contract
against the original obligor in his own name.” Lauren Kyle Holdings, Inc.
v. Heath-Peterson Constr. Corp., 864 So. 2d 55, 58 (Fla. 5th DCA 2003). It
follows that here, MIA stands in the procedural shoes of Flagstar, the first
plaintiff/assignor which took a voluntary dismissal. See Variety Children’s
Hosp. v. Mt. Sinai Hosp. of Greater Miami, Inc., 448 So. 2d 546, 548 (Fla.
3d DCA 1984) (affirming final summary judgment in favor of appellees
because the hospital twice voluntarily dismissed before initiating a third
action, noting that “the dismissal of the first two actions operates as a bar
to the filing of a third complaint by Variety and by those in privity with
Variety, including its insurers.”) (emphasis added). Any other
interpretation of the rule could lead to as many voluntary dismissals as
there are assignments and this is an area where notes are often assigned
and reassigned. See, e.g., Salmon v. Foreclosed Asset Sales & Transfer
P’ship, 162 So. 3d 1142, 1143 (Fla. 4th DCA 2015) (observing that the note
at issue was “bundled, securitized, and indorsed to a series of holders”).
The two voluntary dismissals, taken by two different plaintiffs but
involving the same note and the same breach, required that the second
dismissal operate as an adjudication on the merits; if it wanted to pursue
its claim for non-payment, MIA was required to refile a lawsuit against the
homeowners alleging a new and separate breach by non-payment on the
note. See Singleton v. Greymar Assocs., 882 So. 2d 1004, 1006-07 (Fla.
2004).
Reversed and Remanded.
WARNER and LEVINE, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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