WELLS FARGO BANK, N.A., CASE NO. 3D14-1730 Appellant ...grahamlegalpa.com/.../12/Donaldson-pld03.Ans-Brief.pdf · WELLS FARGO BANK, N.A., CASE NO. 3D14-1730 . Appellant, vs. ... Zimmerman

IN THE DISTRICT COURT OF APPEAL, THIRD DISTRICT, FLORIDA

WELLS FARGO BANK, N.A., CASE NO. 3D14-1730 Appellant, vs. MELISSA M. DONALDSON, Appellee.

__________________________________________________________________

ANSWER BRIEF APPELLEE MELISSA M. DONALDSON

__________________________________________________________________

ON APPEAL FROM A FINAL ORDER OF THE CIRCUIT COURT OF MIAMI-DADE COUNTY, FLORIDA

__________________________________________________________________

H. Dillon Graham, III, Esquire

GRAHAM LEGAL, P.A. Ponce Plaza, Suite 410 814 Ponce de Leon Boulevard Coral Gables, Florida 33134 Telephone (305) 445-9185 Telecopier (305) 444-8015 Counsel for Appellee

Graham Legal, P.A., 814 Ponce de Leon Boulevard • Suite 410 • Coral Gables, Florida 33134 • Telephone 305.445.9185

CASE NO. 3D14-1730

TABLE OF CONTENTS

Page TABLE OF AUTHORITIES...................................................................... 3 INTRODUCTION.................................................................................... 6 STATEMENT OF THE CASE AND FACTS…………………………… 6 SUMMARY OF ARGUMENT................................................................... 13 STANDARD OF REVIEW………………………………………………….. 13 ARGUMENT I . TRIAL COURT PROPERLY ENTERED INVOLUNTARY DISMISSAL BASED ON FINDING OF FACT REGARDING ABSENCE OF RECORD EVIDENCE OF STANDING............ 16 CONCLUSION............................................................................................. 24 CERTIFICATE OF SERVICE……………………………………………… 25 CERTIFICATE OF COMPLIANCE……………………………………… 25

2 Graham Legal, P.A., 814 Ponce de Leon Boulevard • Suite 410 • Coral Gables, Florida 33134 • Telephone 305.445.9185

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TABLE OF AUTHORITIES

CASES PAGE 770 PPR, LLC v. TJCV Land Trust, 30 So. 3d 613 (Fla. 4th DCA 2010)…………………………………… 19 Altchiler v. State of Florida, 442 So. 2d 349 (Fla.1st DCA 1983)…………………………………….. 21 Alvarez v. Florida Ins. Guar. Ass'n, Inc., 661 So. 2d 1230 (Fla. 3d DCA 1995) ………………………………… 19 Am. S. Co. v. Tinter, Inc., 565 So. 2d 891 (Fla. 3d DCA 1990)…………………………………….. 15 Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150 (Fla. 1979)………………………………………………. 13, 14 Archer v. State, 613 So. 2d 446 (Fla.1993)…………………………………………………. 23 Baez v. Padron, 715 So. 2d 1128 (Fla. 3d DCA 1998)……………………………………… 20 Ballinger v. Bay Gulf Credit Union, 51 So. 3d 528 (Fla. 2d DCA 2010)……………………………………… 18 Burgess v. State, 831 So.2d 137 (Fla. 2002)……………………………………………..... 22 Canakaris v. Canakaris, 382 So. 2d 1197, 1203 (Fla. 1980)………………………………………… 14 Colonel v. Meyerson, 921 So. 2d 690, 691 (Fla. 5th DCA 2006)………………………………… 15, 21 Edge v. Edge,


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69 So. 3d 348 (Fla. 3d DCA 2011)……………………………………… 23 Florida E. Coast Ry. Co. v. Dep't of Revenue, 620 So. 2d 1051(Fla. 1st DCA 1993)………………………………………… 15 Holt v. Calchas, LLC, 2014 WL 5614374 (Fla. 4th DCA 2014)…………………………………… 22 Hughes v. Enterprise Leasing Co., 831 So. 2d 1240 (Fla. 1st DCA 2002)………………………………………. 21 Hunter v. Aurora Loan Services, LLC., 137 So. 3d 570 (Fla. 1st DCA 2014)……………………………………… 17 JPMorgan Chase Bank v. Combee, 883 So. 2d 330 (Fla. 1st DCA 2004)……………………………………… 14 Keech v. Yousef, 815 So. 2d 718 (Fla. 5th DCA 2002)…………………………………….. 23 Keller Industries, Inc. v. Yoder, 25 So. 2d 82 (Fla. 3d DCA 1993)………………………………………… 21 Konoski v. Shekarkhar, 146 So. 3d 89 (Fla. 3d DCA 2014)………………………………………….. 21 Lafaille v. Lafaille, 837 So. 2d 601 (Fla. 1st DCA 2003)……………………………………… 14 Lazuran v. Citimortgage, Inc., 35 So. 3d 189 (Fla. 2d DCA 2010)………………………………………… 19 Neimark v. Abramson, 403 So. 2d 1057 (Fla. 3d DCA 1980)…………………………………….. 15 Parlier v. Eagle-Picher Indus., Inc., 622 So. 2d 479 (Fla. 5th DCA 1993)……………………………………… 23 Pena v. Vectour of Florida, Inc., 30 So. 3d 691 (Fla. 1st DCA 2010)………………………………………… 14


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Pino v. Lopez, 361 So. 2d 192 (Fla. 3d DCA 1978)……………………………………….. 19 Queen v. Adams Mark Hotel, 728 So. 2d 804 (Fla. 1st DCA 1999)………………………………………… 14 Richardson v. State, 831 So. 2d 799 (Fla. 2d DCA 2002)………………………………………… 16 Riley v. Assoc. Home Equity Servs., Inc., 850 So. 2d 661 (Fla. 1st DCA 2003)…………………………………………. 14 Roth v. Cohen, 941 So. 2d 496 (Fla. 3d DCA 2006)………………………………………. 23 Stander v. Dispoz–O–Products. Inc., 973 So. 2d 603 (Fla. 4th DCA 2008)……………………………………… 24 Seinfeld v. Commercial Bank , 405 So. 2d 1039 (Fla. 3d DCA 1981)…………………………………….. 19 Sugarmill Woods v. S. States Utilities, 687 So. 2d 1346 (Fla. 1st DCA 1997)……………………………………… 15 Vacation Beach, Inc. v. Charles Boyd, 906 So. 2d 374 (Fla. 5th DCA 2005)………………………………………… 23 Vorbeck v. Betencourt, 107 So. 3d 1142 (Fla. 3d DCA 2012)…………………………………….. 24 Zimmerman v. JPMorgan Chase Bank, 134 So. 3d 501 (Fla. 4th DCA 2014)……………………………………….. 17 Zinger v. Gattis, 382 So. 2d 379 (Fla. 5th DCA 1981)………………………………………. 15


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RULES OF PROCEDURE F.R.Civ.P. 1.370 ………………………………………………………… 16 F.R.Civ.P. 1.510(e)……………………………………………………… 18 F.R.App.P. 9.200(e)……………………………………………………… 20 F.R.App.P 9.220………………………………………………………… 21

INTRODUCTION

Throughout this brief Plaintiff/Appellant Wells Fargo Bank, N.A., as Trustee

will be referred to as "Wells Fago". Defendants/Appellee Mellissa M. Donaldson

will be referred to as "Ms. Donaldson".

References to the Record on Appeal will be cited as "R", followed by the

appropriate page number. Emphasis is added by counsel unless otherwise indicated.

STATEMENT OF THE CASE AND FACTS

This is an appeal from a final judgment of involuntary dismissal at non-jury

trial held on June 18, 2014. (R. 241.) The finding of the trial court are set forth in

the trial transcript. (R 200-218.)

Wells Fargo filed suit herein on September 12, 2012 alleging an action to

foreclose a mortgage based on a Promissory Note. (R. 7-41.) Attached to the

Complaint was a Note payable to The Mortgage Store Financial, Inc. and not

plaintiff Wells Fargo. (R. 12-17.) On a separate unmarked page following the Note


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attached to the Complaint are three stamped endorsements. (R. 18.) There is no

indication that the endorsements are attached to, incorporated in, or are a part of the

Note attached to the Complaint. (R.18.) The endorsements purport to be as follows:

from The Mortgage Store Financial, Inc. to Countrywide Bank, N.A.; from Country

Wide Bank, N.A. to Countrywide Home Loans, Inc.; and from Countrywide Home

Loans, Inc. to Blank. (R. 18.) There exists in the record on appeal no endorsement

of the Note to Wells Fargo. (R. 18.) Furthermore there is no assignment of

mortgage whatsoever attached to the Complaint. (R. 7-42.)

Allegations set forth in the Complaint itself related to the Note merely state at

paragraph number 5 that “Plaintiff is the holder of the Note and Mortgage and is

entitled to enforce them”. (R. 8.) Furthermore on the last page of the Complaint is

an unsworn verification purportedly made by Leanna Johnstun, Document Control

Officer of Select Portfolio Servicing, Inc. (R. 11.) The verification states, “Under

penalty of perjury, I declare that I have read the foregoing, and the facts alleged are

true and correct to the best of my knowledge and belief.” (R. 11.)

The record on appeal contains what purports to be a Bailee Letter dated July

10, 2012 on the letterhead of Richmond Monroe Group. (R. 42.) However the letter

is not referenced in the Complaint and is not otherwise authenticated in any manner

in the record on appeal. (R. 42.)


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On May 22, 2013, Ms. Donaldson filed her Request for Admissions to Wells

Fargo. (R. 2.) The record on appeal is devoid of Wells Fargo filing any Response to

Ms. Donaldson’s Request for Admissions or any Motion for Relief from

Admissions. (R. 1-3.) The record on appeal is also devoid of Wells Fargo making

any effort to set a motion for relief from admissions for hearing at any time. (R. 1-

3.)

On July 9, 2013, Wells Fargo filed a Reply to Ms. Donaldson’s Answer and

Affirmative Defenses. (R. 58-80.) Attached to Wells Fargo’s Reply is an

Assignment of Mortgage related to the Mortgage subject to this action. (R. 70.) The

assignment is from Bank of America to Wells Fargo. (R. 70.) However, the

Assignment of Mortgage is dated October 16, 2012 and therefore was executed

after suit herein was filed on September 12, 2012. (R. 3.)

In Wells Fargo’s Reply they assert that the assignment of mortgage is

irrelevant to this action as plaintiff is suing Defendant on the Note and Mortgage

and not the Assignment. (R.60-61.)

On January 6, 2014, Wells Fargo filled a motion for summary judgment. (R.

81-84.) Wells Fargo made no argument whatsoever regarding possession of the

Note in the motion for summary judgment. Wells Fargo simply stated that the

foreclosure action is based on the default of Ms. Donaldson under terms of the Note

and Mortgage and based on the absence of any genuine dispute about the validity of


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the debt. (R. 81-82.) No affidavits or documents are attached to the motion for

summary judgment. (R. 81-84.)

On January 6, 2014, Wells Fargo filed a Notice of Filing including an

Affidavit of Indebtedness and Affidavit of Attorney’s Fees. (R. 85-137.) The

affidavit of indebtedness signed by Sherry Benight of Select Portfolio Servicing, Inc.

(hereinafter “SPS”) make no statements whatsoever related to possession of the

Note or performance of conditions precedent notice required by the mortgage.

Documents following the affidavit of indebtedness include computer screen shots, a

power of attorney, letters from SPS, Mortgage, Note, assignment of mortgage, letter

from Morris Hardwick, Schneider. (R. 90-131.) Not one single document identified

herein was referenced or authenticated in the affidavit of indebtedness. (R. 87-89.)

On February 27, 2014, Ms. Donaldson filed her affidavit in opposition to

plaintiff’s motion for summary judgment. (R. 138-141.) In the affidavit, Ms.

Donaldson denied that she received any default or acceleration letter from Wells

Fargo or SPS, denied that she borrowed any money from Wells Fargo and denied

that she is indebted to Wells Fargo for any sums whatsoever. (R. 140-141.)

On March 4, 2014, Wells Fargo’s motion for summary judgment was denied

as plaintiff’s affidavit failed to refute Ms. Donaldson’s affirmative defenses. (R.

142.)


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On April 2, 2014 Judge David Miller issued an Order Setting Non-Jury Trial

and Pre-Trial Instructions. (R. 143-145.) The order set trial for the three week

period commencing Monday, June 16, 2014. (R. 143.) The order specified in bold

print that, Failure to otherwise strictly comply with terms of this order may

result in sanctions including, dismissing the action, striking pleadings, limiting

proof or witnesses, or taking any other appropriate action. (R. 143.)

Furthermore, paragraph 3(a) of the trial order specified that all pre-trial motions

shall have been completed 10 days prior to the Monday of the trial period.

On June 18, 2014, this matter came to be heard at trial before Judge David

Miller. At that time counsel for Ms. Donaldson advised the court that plaintiff has

no proof of standing to foreclosure on the subject Note payable to The Mortgage

Store Financial and ultimately to blank (open endorsement). R. 202-203. The court

acknowledged that plaintiff must prove possession of the Note when suit was filed.

(R. 203.) Furthermore counsel for Ms. Donaldson advised the court that on May 22,

2013 she served a request for admissions to Wells Fargo and their response was due

by June 21, 2013, but none was filed. (R. 203, 205.) Admissions included: Wells

Fargo does not own and hold the Note and Mortgage; The original Lender never

transferred possession of the Note and Mortgage to Wells Fargo; Wells Fargo did

not perform conditions precedent to bringing this action; Wells Fargo admitted that


CASE NO. 3D14-1730

the three endorsement signors were not authorized to sign the endorsements. (R.

204-205.)

The court requested Wells Fargo’s response to the issue of the admissions.

Counsel for Wells Fargo admitted that plaintiff did not timely respond to the request

for admissions and obtained no relief from the admissions. (R. 206.) Counsel for

Wells Fargo claimed that plaintiff would introduce evidence at trial to refute the

admissions. (R. 207.) However, Wells Fargo counsel made no proffer of what that

evidence was to be.

The court asked counsel for Wells Fargo if the court record is replete with

evidence that plaintiff has standing. (R. 208). Counsel responded that, in fact, the

Note does contain a blank endorsement, but that testimony will be presented at trial

to demonstrate that plaintiff has standing. (R. 208.) Again counsel for Wells Fargo

failed to make any proffer of evidence.

The trial judge again asked Wells Fargo if there was anything in the record

demonstrating plaintiff’s standing other than the complaint allegation. Counsel for

Wells Fargo referenced a Power of Attorney indicating signing authority to verify

the complaint. (R. 209.)1

1 The referenced power of attorney is found in the record at R. 92-93. The document follows the affidavit of indebtedness but is not referenced in the affidavit or otherwise authenticated.


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The trial judge advised that case law presented by Wells Fargo to the court

where the record was replete with evidence contradicting the admissions, included a

deposition, interrogatory answers, sworn response to request to produce, affidavits

of the party and of other people opposing the admissions. The trial judge

distinguished that case from the present case since none of those items were present

in the case at bar. (R. 209-210.)

The trial court also pointed out that per the trial order all pretrial motions

must be heard 10 days before trial and Wells Fargo failed to seek relief from the

admissions in violation of the trial order. (R. 210.)

Ultimately the trial court made a finding of fact that, we do not have a record

replete with evidence that Wells Fargo had it [referring to the subject Note] in their

hands when suit was filed. (R. 210.) So there is no admissible evidence as far as I

am concerned, but the technical admission. There’s zero evidence. (R. 212.) We are

not going to start a trial to contradict the admissions because that would change the

whole prep for the defense. (R. 212.) They came in with the admissions today and

now you want to say we didn’t admit - - and by the way we think we should be

excused from our violation of the rule without ever having brought the matter before

the court in a timely manner consistent with the pretrial order. (R. 212.)

Based on the foregoing finding of fact the court entered an order of

involuntary dismissal. (R. 241.)


CASE NO. 3D14-1730

At no time during the trial proceeding on June 18, 2014, did counsel for

Wells Fargo move for relief from admissions or move for leave to late file response

to Ms. Donaldson’s request for admissions. Counsel simply stated, without making

any proffer, that evidence at trial would demonstrate that Wells Fargo had standing.

(R. 200-214.)

SUMMARY OF THE ARGUMENT

The trial court properly entered an involuntary dismissal at trial as Wells

Fargo, a sophisticated plaintiff, made no effort to seek relief from admissions on the

issue of standing for more than one year, and therefore the admissions were valid on

the date of trial.

Despite this fact, the court sought assistance from counsel for Wells Fargo to

review the record before the court. After full consideration of all material in the

court file, the court concluded that the record was not replete with evidence

contradicting the plaintiff’s admissions. Therefore plaintiff having admitted that it

did not have standing to bring the action, an involuntary dismissal was properly

entered.

STANDARD OF REVIEW

In appellate proceedings the decision of the trial court has the presumption of

correctness and the burden is on appellant to demonstrate reversible error.

Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150, 1152 (Fla. 1979) (even


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when based on erroneous reasoning, a conclusion or decision of the trial court will

generally be affirmed if the evidence or an alternative theory supports it. Id at 1152.

The standard of review on a trial court's factual determinations is abuse of

discretion. The test for reviewing of a trial judge's discretionary power was set forth

by the Florida Supreme Court in Canakaris v. Canakaris, 382 So. 2d 1197, 1203

(Fla. 1980) as follows:

Discretion, in this sense, is abused when the judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only where no reasonable man would take the view adopted by the trial court. If reasonable men could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. In Pena v. Vectour of Florida, Inc., 30 So. 3d 691, 692 (Fla. 1st DCA 2010)

the court stated that the appropriate standard of review is whether the trial court

abused its discretion. The possibility of reasonable disagreement does not constitute

an abuse of discretion. Id. at 692.

In J P Morgan Chase Bank v. Combee, 883 So. 2d 330, 331-32 (Fla. 1st

DCA 2004) plaintiff’s case was dismissed by the trial court for failure to comply

with terms of a case management conference order. On appeal the Court stated:

A trial court has broad discretion to impose sanctions on litigants for their conduct before the court. See Riley v. Assoc. Home Equity Servs., Inc., 850 So.2d 661, 662 (Fla. 1st DCA 2003). Thus, we review a trial court's imposition of sanctions for an abuse of discretion. Because dismissal with prejudice is a harsh sanction, it should be used only sparingly. See e.g., Queen v. Adams Mark Hotel, 728 So.2d 804, 805 (Fla. 1st DCA 1999).


CASE NO. 3D14-1730

However, a trial court's findings and judgment come to a reviewing court with a presumption of correctness, and cannot be disturbed absent a record demonstrating reversible error. See e.g., Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979); Lafaille v. Lafaille, 837 So.2d 601, 604 (Fla. 1st DCA 2003). The burden is on the appellant to demonstrate reversible error and present an adequate record for review. Without an adequate record of the proceedings below, the appellate court cannot properly resolve factual issues to conclude the trial court's judgment is not supported by evidence or an alternate theory. In Florida E. Coast Ry. Co. v. Dep't of Revenue, 620 So. 2d 1051, 1061-62

(Fla. Dist. Ct. App. 1993) the court stated that on appellate review we are guided by

the rule that the trial court's findings of fact and conclusions of law are

presumptively correct and will not be overturned unless they are clearly erroneous.

Zinger v. Gattis, 382 So.2d 379 (Fla. 5th DCA 1981); and Neimark v. Abramson,

403 So.2d 1057 (Fla. 3d DCA 1980). Where the record on appeal is limited, the

trial court’s ruling must be affirmed. Colonel v. Meyerson, 921 So. 2d 690, 691

(Fla. 5th DCA 2006).

Decisions regarding discovery are true discretionary acts, and the appellate

court must defer to the superior vantage point of the trial judge who has seen the

parties first-hand and is more fully informed regarding the case. Sugarmill Woods

Civic Ass'n, Inc. v. S. States Utilities, 687 So. 2d 1346, 1351 (Fla. 1st DCA 1997)

(appellants failed to demonstrate abuse of discretion justifying reversal, therefore we

affirm the order).


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Under Florida law, a trial court has broad discretion in ruling on discovery

matters. Am. S. Co. v. Tinter, Inc., 565 So. 2d 891, 892 (Fla. 3d DCA 1990) a trial

court possesses broad discretion in granting or refusing discovery motions and in

protecting the parties. Only an abuse of this broad discretion would constitute “fatal

error.” Richardson v. State, 831 So. 2d 799, 802 (Fla. Dist. Ct. App. 2002)

ARGUMENT

I . TRIAL COURT PROPERLY ENTERED INVOLUNTARY DISMISSAL BASED ON FINDING OF FACT REGARDING ABSENCE OF RECORD EVIDENCE OF STANDING a. Trial Court’s Finding of Fact was Not an Abuse of Discretion At trial on June 18, 2014, the trial judge was confronted with plaintiff’s

admissions, deemed admitted by operation of law.

Florida Rule of Civil Procedure 1.370 provides in pertinent part:

(a) Request for Admission. … The matter is admitted unless the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter within 30 days after service of the request

((b) Effect of Admission. Any matter admitted under this rule is conclusively established ….

On May 22, 2013 Ms. Donaldson served request for admissions on Wells

Fargo. The response was due by June 21, 2013. Plaintiff undisputedly failed to

timely file a response to the request for admissions and therefore the admissions

were at that time deemed admitted by operation of law. Wells Fargo is a


CASE NO. 3D14-1730

sophisticated plaintiff and cannot claim ignorance of the law or of the legal

significance of failing to timely respond to Ms. Donaldson’s request for admissions.

However, instead of seeking relief from the admissions, Wells Fargo simply did

nothing from June 21, 2013 through the trial date on June 18, 2014.

The admissions included an admission by Wells Fargo that it was not the

holder of the Note and Mortgage. In this case the Note attached to the Complaint

was payable to The Mortgage Store Financial, Inc. and not Wells Fargo. Purported

endorsements were ultimately to Blank (an open endorsement). Under Florida law a

plaintiff must prove standing in a mortgage foreclosure case to prevail at trial. Proof

of standing on a Note endorsed to blank requires proof that plaintiff was in

possession of the Note when suit was filed. See Hunter v. Aurora Loan Services,

LLC., 137 So. 3d 570, 573 (Fla. 1st DCA 2014)(A crucial element in any mortgage

foreclosure proceeding is that the party seeking foreclosure must demonstrate that it

has standing to foreclose. To establish standing plaintiff must show it held the Note

at the time the complaint was filed); Zimmerman v. JPMorgan Chase Bank, 134 So.

3d 501 (Fla. 4th DCA 2014) (failure to prove possession when suit is filed precludes

summary judgment).

At trial Judge Miller was faced with the factual determination of whether the

record before him was replete with evidence contrary to the admissions. Judge

Miller examined the record and solicited assistance from counsel for Wells Fargo


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only to find the record was not replete with evidence contrary to the admission that

Wells Faro was not the holder of the Note when suit was filed. Accordingly, the trial

judge made a factual determination that the record was not replete with evidence

contrary to plaintiff’s admission, and entered an involuntary dismissal. (R. 212,

241.)

The only suggestion on the record that Wells Fargo was the holder of the

Note was an allegation set forth in paragraph 5 of the complaint that simply stated

that “Plaintiff is the holder of the Note and Mortgage and is entitled to enforce

them”. (R. 8.) Furthermore on the last page of the Complaint is an unsworn

verification purportedly made by Leanna Johnstun, Document Control Officer of

Select Portfolio Servicing, Inc. (R. 11.) The verification states, “Under penalty of

perjury, I declare that I have read the foregoing, and the facts alleged are true and

correct to the best of my knowledge and belief.” (R. 11.)

Under Florida law, conclusory allegations do not amount to legally sufficient

or admissible evidence. A verified complaint may be used as summary judgment

evidence only if it meets the requirements of a legally sufficient affidavit.

Florida Rule of Civil Procedure 1.510(e) provides as follows:

Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.


CASE NO. 3D14-1730

In Ballinger v. Bay Gulf Credit Union, 51 So. 3d 528, 529 (Fla. 2d DCA

2010) the trial court granted summary judgment based on allegations set forth in a

verified complaint. The verification provided that the facts are true and correct to

the best of my knowledge and belief. On appeal the summary judgment was

reversed because a verification based on knowledge and belief is qualified in nature

and therefore legally insufficient. Id. at 529-30. See also Lazuran v. Citimortgage,

Inc., 35 So. 3d 189, (Mem)-190 (Fla. 2d DCA 2010) (affidavit stating that each and

every allegation in the complaint is true is also legally insufficient); 770 PPR, LLC

v. TJCV Land Trust, 30 So. 3d 613, 619 (Fla. 4th DCA 2010) (mere conclusions by

the affiant are insufficient, and a party does not create a fact question merely by

placing his assertions in affidavit form.); Alvarez v. Florida Ins. Guar. Ass'n, Inc.,

661 So. 2d 1230, 1232 (Fla. 3d DCA 1995) (statement that affidavit was made on

“best knowledge and belief” is not sufficient. Nor is an affidavit that merely states

conclusions or opinions, even if based on personal knowledge); Seinfeld v.

Commercial Bank & Trust Co., 405 So. 2d 1039, 1041 (Fla. 3d DCA 1981) (Bank

claiming to be holder in due course had affirmative duty to establish this was the

case. General statements and conclusions of law, do not satisfy that burden.) See

also Pino v. Lopez, 361 So. 2d 192, 193 (Fla. 3d DCA 1978) (affidavit insufficient

as a matter of law because it alleged conclusions of law without supporting facts.)


CASE NO. 3D14-1730

Under circumstances set forth above, Wells Fargo’s Complaint falls far short

of being legally sufficient evidence that it held possession of the note when suit was

filed, and yet this was the only bit of information on the record at trial before Judge

Miller. Furthermore, as set forth above in the Statement of the Case and Facts

above, Wells Fargo filed a motion for summary judgment on January 6, 2014.

However, there is no reference in the Motion as to whether Wells Fargo was the

holder of the Note. The supporting affidavit of indebtedness similarly is devoid of

any claim or information indicating that Wells Fargo was the holder of the subject

Note.

Therefore, Judge Miller’s finding of fact that the record was not replete with

evidence demonstrating that Wells Fargo was the holder of the Note is not an abuse

of discretion and therefore is not reversible error.

b. Wells Fargo’s Appendix to Initial Brief Dehors the Record Wells Fargo filed an Appendix to their Initial Brief. The Appendix includes

plaintiff’s motion for leave to file response to defendant’s first request for

admissions dated July 18, 2013, Plaintiff’s response to defendant’s first request for

admissions dated July 9, 2013, Plaintiff’s interrogatory answers dated August 1,

2013. None of these documents were included in the record on appeal and none

of these documents are reflected as being filed in the trial court at any time

whatsoever. (R. 1-3)


CASE NO. 3D14-1730

The burden to assure that the record on appeal is properly prepared and

transmitted shall be on the Appellant. F.R.App.P. 9.200(e). See also Baez v.

Padron, 715 So. 2d 1128 (Fla. 3d DCA 1998) (appellant has affirmative duty to

present appellate court with adequate record for review, this is a rudimentary

principle inseparably connected to and well grounded in appellate review)

Florida Rule of Appellate Procedure 9.220 provides:

The purpose of an appendix is to permit the parties to prepare and transmit copies of such portions of the record deemed necessary to an understanding of the issues presented. This rule makes clear that an appendix is not a means to introduce non-record

material to the appellate court.

When the record provided on appeal is limited, the appellate court cannot

properly determine if the trial court abused its discretion and therefore the trial

court’s decision must be affirmed. Colonel v. Meyerson, 921 So. 2d 690, 691 (Fla.

5th DCA 2006). When appellant’s Appendix includes material that was never

submitted to the trial court and is not part of the record on appeal, it should be

stricken. Keller Industries, Inc. v. Yoder, 625 So. 2d 82, FN 1 (Fla. 3d DCA 1993);

See also Konoski v. Shekarkhar, 146 So. 3d 89 (Fla. 3d DCA 2014); Hughes v.

Enterprise Leasing Co., 831 So. 2d 1240, 1241 (Fla. 1st DCA 2002); Altchiler v.

State of Florida, 442 So. 2d 349, 350 (Fla.1st DCA 1983)(Appellate courts may not


CASE NO. 3D14-1730

consider matters outside the record. Appendix material outside the record on appeal

should be stricken.)

Here Wells Fargo’s effort to submit new information to this court that was not

part of the trial court record is improper. As such Wells Fargo’s Appendix material

should not be considered by this court in reviewing the factual determination made

by the trial judge.

c. Record For Trial Court Determination of Factual Issues Does Not Include Hearsay and Unauthenticated Documents When the trial judge considers the record in making a factual determination

the rules of evidence, including hearsay rules, still applied to the information

contained within the court file. Holt v. Calchas, LLC, 2014 WL 5614374 (Fla. 4th

DCA 2014). The Holt court relied upon the opinion of the Florida Supreme Court in

Burgess v. State, 831 So.2d 137 (Fla. 2002) for deciding what portions of the court

file may be considered in making factual determinations.

Although a trial court may take judicial notice of court records ... it does not follow that this provision permits the wholesale admission of hearsay statements contained within those court records. We have never held that such otherwise inadmissible documents are automatically admissible just because they were included in a judicially noticed court file. To the contrary, we find that documents contained in a court file, even if that entire court file is judicially noticed, are still subject to the same rules of evidence to which all evidence must adhere. Burgess v. State, 831 So.2d 137, 141 (Fla.2002)


CASE NO. 3D14-1730

Accordingly documents that Wells Fargo filed in the record that are not

referenced in any motion or affidavit and which are otherwise unauthenticated are

not proper for the court’s consideration of factual issued determined. (R. 42, 90-

137.)

d. Wells Fargo Failure to Move for Relief From Admissions at Trial Waived Right to Reversal On Appeal A legal argument must be raised initially in the trial court by the

presentation of a specific motion or objection at an appropriate stage of the

proceedings. See Phillip J. Padovano, Florida Appellate Practice, § 8.1, at 113

(2001-2002). The failure to preserve an issue for appellate review constitutes a

waiver of the right to seek reversal based on that error. Keech v. Yousef, 815 So. 2d

718, 719-20 (Fla. 5th DCA 2002); See also Edge v. Edge, 69 So. 3d 348, 349 (Fla.

Dist. Ct. App. 2011) (citing to Keech supra with approval); Roth v. Cohen, 941 So.

2d 496, 500 (Fla. 3d DCA 2006) (for issue to be preserved for appeal, it must be

presented to the lower court and the specific legal argument or ground to be argued

on appeal must be part of that presentation if it is to be considered preserved);

Archer v. State, 613 So.2d 446, 448 (Fla.1993); Vacation Beach, Inc. v. Charles

Boyd Const., Inc., 906 So.2d 374 (Fla. 5th DCA 2005); Parlier v. Eagle-Picher

Indus., Inc., 622 So.2d 479 (Fla. 5th DCA 1993).


CASE NO. 3D14-1730

In Stander v. Dispoz–O–Products. Inc., 973 So. 2d 603, 605 (Fla. 4th DCA

2008) the court held that plaintiff waived the right to challenge the dismissal with

prejudice on appeal because when the trial court orally “announced that it was

dismissing with prejudice,” the plaintiff merely responded “Thank you, your

Honor,” and did not request leave to amend the complaint, nor did plaintiff

move for rehearing to amend after the order of dismissal was entered. See

Vorbeck v. Betencourt, 107 So. 3d 1142, 1148 (Fla. 3d DCA 2012) (citing to

Stander, supra with approval.)

In the case at bar, when faced with the trial court enforcing admissions

deemed admitted, counsel for Wells Fargo made no motion for relief from

admissions and made no motion for leave to file a response to Ms. Donaldson’s

request for admissions. Counsel’s only argument was that the court should let the

trial proceed so that plaintiff could develop facts to refute the admissions. (R. 207-

209.) Under these circumstances, Wells Fargo waived the right the challenge the

involuntary dismissal of their case on appeal.

CONCLUSION

For reasons foregoing, it is respectfully submitted that the decision of the trial

court should be affirmed and that this court enter judgment in favor of Appellee, and

to assess costs and attorney's fees in her favor.


CASE NO. 3D14-1730

CERTIFICATE OF COMPLIANCE

WE HEREBY CERTIFIY that the foregoing initial brief complies with font

requirements set for in Rule 9.210(a)(2) of the Florida Rules of Appellate

Procedure.

By: s/ Dillon Graham

H. Dillon Graham, III, Esquire Florida Bar Number 0371955

CERTIFICATE OF SERVICE

WE HEREBY CERTIFY that a true and correct copy of the foregoing was

served by eservice upon email to Jonathan R. Rosenn, Esquire, jrosenn@ll-

lawfirm.com; [email protected], Lapin & Leichtling, LLP, Attorneys for

Appellant, 255 Alhambra Circle, Suite 1250, Coral Gables, Florida 33134; Brandi

Wilson, Esquire, [email protected], Morris|Hardwick|Schneider, Co-

Counsel for Plaintiff, 5110 Eisenhower Boulevard, Suite 302A, Tampa, Florida


mailto:[email protected]




CASE NO. 3D14-1730

33634 and Kyle W. Knopsnyder, Esquire, [email protected];

[email protected], McGlinchey Stafford, Co-Counsel for Plaintiff, 10407

Centurion Parkway North, Suite 200, Jacksonville, Florida 32256 on December 12,

2014.

Respectfully submitted,

GRAHAM LEGAL, P.A. Counsel for Appellee

Ponce Plaza, Suite 410 814 Ponce de Leon Boulevard Coral Gables, Florida 33134 Telephone (305) 445-9185 Telecopier (305) 444-8015 [email protected]

By: s/ Dillon Graham

H. Dillon Graham, III, Esquire Florida Bar Number 0371955



