Bank of Am., Nat'l Ass'n v. Asbury

Citation165 So.3d 808
Decision Date27 May 2015
Docket NumberNo. 2D14–1965.,2D14–1965.
PartiesBANK OF AMERICA, NATIONAL ASSOCIATION, Appellant, v. Brooke G. ASBURY, Appellee.
CourtCourt of Appeal of Florida (US)

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.

Opinion

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 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.

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 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 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...

To continue reading

Request your trial
20 cases
  • Mace v. M&T Bank
    • United States
    • Court of Appeal of Florida (US)
    • March 25, 2020
    ...from the witness supporting [the Bank's] contention that the default notice was properly sent." See Bank of Am., Nat'l Ass'n v. Asbury, 165 So. 3d 808, 811 (Fla. 2d DCA 2015) (Silberman, J., concurring specially). "In 292 So.3d 1239 fact, based on [the Maces'] prodding, the witness testifie......
  • Bank of N.Y. Mellon v. Bloedel
    • United States
    • Court of Appeal of Florida (US)
    • January 31, 2018
    ...1992) ("It was improper to introduce at trial issues not previously raised in the pleadings."); cf. Bank of Am., Nat'l Ass'n v. Asbury, 165 So.3d 808, 809 (Fla. 2d DCA 2015) ("Litigants in civil controversies must state their legal positions within a particular document, a pleading, so that......
  • Derouin v. Universal Am. Mortg. Co.
    • United States
    • Court of Appeal of Florida (US)
    • August 22, 2018
    ...a pleading, so that the parties and the court are absolutely clear what the issues to be adjudicated are." Bank of Am., N.A. v. Asbury, 165 So.3d 808, 809 (Fla. 2d DCA 2015). "An issue that has not been framed by the pleadings, noticed for hearing, or litigated by the parties is not a prope......
  • Daskalopoulos v. Citizens Prop. Ins. Corp.
    • United States
    • Court of Appeal of Florida (US)
    • March 9, 2018
    ...determined in a civil trial should be limited to those set forth in the parties' pleadings. See Bank of Am., Nat'l Ass'n v. Asbury, 165 So.3d 808, 809 (Fla. 2d DCA 2015) ("Litigants in civil controversies must state their legal positions within a particular document, a pleading, so that the......
  • Request a trial to view additional results
3 books & journal articles
  • Chapter 12-1 Introduction
    • United States
    • Full Court Press Florida Foreclosure Law 2020 Title Chapter 12 Motions for Summary Judgment in Foreclosure Cases
    • Invalid date
    ...to first frame that issue [of noncompliance], specifically and with particularity, in their answer."); Bank of Am., N.A. v. Asbury, 165 So. 3d 808, 809 (Fla. 2d DCA 2015) (failure to raise non-compliance with condition precedent until trial barred it as a defense). But see Palma v. JPMorgan......
  • Chapter 2-2 Notice of Default and Opportunity to Cure
    • United States
    • Full Court Press Florida Foreclosure Law 2022 Chapter 2 Default and Acceleration
    • Invalid date
    ...v. Deutsche Bank Nat'l Tr. Co. Ams., 316 So. 3d 382 (Fla. 2d DCA 2021).[32] Fla. R. Civ. P. 1.120(c); Bank of Am., Nat. Ass'n v. Asbury, 165 So. 3d 808 (Fla. 2d DCA 2015).[33] Deutsche Bank Nat. Trust Co. v. Quinion, 198 So. 3d 701, 703-04 (Fla. 2d DCA 2016); Saavedra v. Universal Prop. & C......
  • Chapter 2-2 Notice of Default and Opportunity to Cure
    • United States
    • Full Court Press Florida Foreclosure Law 2020 Title Chapter 2 Default and Acceleration
    • Invalid date
    ...a full discussion of third parties' standing to raise other defenses.[31] Fla. R. Civ. P. 1.120(c); Bank of Am., Nat. Ass'n v. Asbury, 165 So. 3d 808 (Fla. 2d DCA 2015).[32] Deutsche Bank Nat. Trust Co. v. Quinion, 198 So. 3d 701, 703-04 (Fla. 2d DCA 2016).[33] Fed. Nat. Mortg. Ass'n v. Lin......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT