Broward County v. Recupero

• Decision Date: 07 February 2007
• Docket Number: No. 4D05-4482.,4D05-4482.
• Citation: 949 So.2d 274
• Court: Florida District Court of Appeals
• Parties: BROWARD COUNTY, Appellant, v. Andrew RECUPERO, as Personal Representative of the Estate of Theresa Colangelo, Andrew Recupero, individually, et al., Appellees.

949 So.2d 274

BROWARD COUNTY, Appellant, v. Andrew RECUPERO, as Personal Representative of the Estate of Theresa Colangelo, Andrew Recupero, individually, et al., Appellees.

No. 4D05-4482.

District Court of Appeal of Florida, Fourth District.

February 7, 2007.

Jeffrey J. Newton, Broward County Attorney, James D. Rowlee, Assistant County Attorney, and Andrew J. Meyers, Chief Appellate Counsel, Fort Lauderdale, for appellant.

Stuart J. Mac Iver of Doumar, Allsworth, Cross, Laystrom, Voigt, Wachs, Mac Iver & Adair, LLP, Fort Lauderdale, for appellees.

STEVENSON, C.J.

Broward County appeals a final order in a lien foreclosure proceeding wherein it sought to foreclose code enforcement liens against commercial property located in Broward County and owned by the estate of Theresa Colangelo. The trial court ordered Broward County to execute an agreement which would subordinate its liens to that of a newly-acquired mortgage on the property or the court would hold that the liens were satisfied. Since Broward County did not timely execute the agreement, the trial court held that the liens were satisfied. We reverse both orders.

The Broward County Enforcement Board informed Andrew Recupero, the estate's personal representative, that a daily fine of $250 would be assessed if the estate's property was not brought into compliance with the Broward County Zoning Code. Subsequently, Broward County brought suit to foreclose $423,750 in liens it had recorded against the property for the code enforcement violations. Initially, the trial court granted summary judgment in favor of the estate, but the case was reversed. See Broward County v. Recupero, 908 So.2d 520 (Fla. 4th DCA 2005). During the continued proceedings upon remand, the estate sought to obtain a new mortgage loan on the property and filed a "Motion to Satisfy Liens of Record and Allow Refinancing of Property." The estate asserted in its motion that, due to financial constraints, there was a critical need for refinancing the property, but the code enforcement liens were making it difficult to obtain such refinancing. The estate therefore requested that the trial court discharge the liens to facilitate the refinancing of the property. The estate filed an appraisal of the property and maintained that the property had sufficient equity to adequately secure a mortgage of $285,000 as well as Broward County's lien amounts. Broward County opposed the motion, arguing that if the trial court "negate[d] valid liens on the subject property before a final determination, [it] would be tantamount to a ruling on the merits without due process." Furthermore, Broward County contended that canceling the liens before they were satisfied would cause Broward County to lose its priority over secured creditors and generally weaken Broward County's leverage to compel compliance with its zoning laws.

After a hearing on the estate's motion, the trial court entered an order on September 29, 2005, finding that "there is adequate equity in the property which is the subject of this action and that even after the [estate] encumbers two of the four lots in question in the amount of $285,000 there will still remain more than adequate equity to secure [Broward county's] lien amounts." The order required Broward County to execute within five days an agreement that would subordinate its liens to the estate's soon-to-be-executed new mortgage on the property. The trial court stated that if Broward County failed to execute the subordination agreement, the court would issue an order satisfying the liens of record upon submission of an affidavit by counsel for the estate. After more than five days passed, the estate's attorney filed an affidavit stating that the subordination agreement had not been signed by Broward County. Shortly after the estate's attorney filed his affidavit, Broward County executed the agreement on October 12, 2005. On October 14, 2005, the trial court entered an order, stating that the liens "are hereby satisfied of record and are of no further force or effect." Thereafter, Broward County moved to quash the order because Stan Morris, the assistant to the director of Broward County's building services, had been away from work because of a family emergency. Morris explained that he did not realize that he needed to execute the subordination agreement because he was away from his office from October 10, 2005 until October 16, 2005. The trial court denied the motion to quash, and this appeal followed.

The liens on the estate's property were imposed pursuant to the Local Government Code Enforcement Boards Act, ...