Clarke v. Henderson, 3D10–2557.

• Decision Date: 24 August 2011
• Docket Number: No. 3D10–2557.,3D10–2557.
• Parties: Fern P. CLARKE, Appellant, v. Clifford HENDERSON, Mae A. Henderson, Tiffany Taylor, Kandyse Taylor and Rodney C. Taylor, II, Appellees.
• Court: Florida District Court of Appeals

74 So.3d 112

Fern P. CLARKE, Appellant,

v.Clifford HENDERSON, Mae A. Henderson, Tiffany Taylor, Kandyse Taylor and Rodney C. Taylor, II, Appellees.

No. 3D10–2557.

District Court of Appeal of Florida, Third District.

Aug. 24, 2011.

Entin & Della Fera, and Alvin E. Entin, Ft.Lauderdale; Rosen Switkes & Entin, Josua M. Entin and Mendy Halberstam, Miami Beach, for appellant.

Harold Long, Jr., for appellees.

Before WELLS, C.J., and SHEPHERD and EMAS, JJ.

ON MOTION FOR REHEARING

WELLS, Chief Judge.

The appellees seek rehearing following the issuance of our opinion on July 6, 2011. In order to clarify a minor factual point, we grant rehearing, withdraw our prior opinion, and substitute this opinion in its place.

In this action involving the sale and ownership of real property, Fern P. Clarke, the plaintiff below, appeals from an order granting a motion for judgment on the pleadings entered on a determination that Clarke's complaint and the exhibits thereto fail to establish that Clarke has any interest to assert in the property at issue. See Fla. R. Civ. P. 1.140(c) (“After the pleadings are closed, but within such time as not to delay the trial, any party may move for judgment on the pleadings.”). Finding that the trial court applied the incorrect legal standard for reviewing a motion for judgment on the pleadings, we reverse. See Swim Indus. v. Cavalier Mfg. Co., 559 So.2d 301, 301 (Fla. 2d DCA 1990) (stating that a Rule 1.140(c) motion “must be decided wholly on the pleadings and may only be granted if the moving party is clearly entitled to a judgment as a matter of law”).

The complaint and its attachments aver the following: the property at issue here is the former marital home of Rodney C. Taylor, Sr. (now deceased) and his former wife, Ruby Taylor. Ruby acquired the home in the divorce from Taylor, Sr., living in it thereafter with their three children, Tiffany, Kandyse and Rodney, II. When Ruby could not pay the mortgage on the home, it “ended up” in the hands of her relatives, Clifford and Mae Henderson. When the Hendersons also encountered difficulty in paying the mortgage, they allegedly approached the former husband, Taylor, Sr., about buying the home. At that time, Taylor, Sr. was in a relationship with the plaintiff, Fern P. Clarke. According to Clarke, it was the parties' intention that Taylor, Sr. and Clarke would pay off the mortgage on the home, after which Ruby and the three children would continue to live there in return for payment of rent to Taylor, Sr. and Clarke. ¹

On or about February 5, 2005, a personal check was tendered to the Hendersons for the remainder due on the home's mortgage ($57,374.68). That same day, the Hendersons attempted to execute a quit claim deed to Taylor, Sr. and Clarke. For the next year, Ruby and the children paid rent on the property to Taylor, Sr. and Clarke. There apparently was no written contract of purchase and sale for the home, nor was there a written lease agreement.

In March 2005, Clarke and Taylor, Sr. learned that the quit claim deed provided by the Hendersons had been refused by the Miami–Dade County recording office because only Clifford Henderson had executed it. They subsequently learned that the Hendersons had never cashed the personal check Clarke and Taylor, Sr. had given to them to purchase this property. Thus, on or about May 9, 2005, a cashier's check was issued for the amount then due on the mortgage ($56,198.12). According to Clarke, although the funds used to satisfy this mortgage came from an account in Taylor, Sr.'s name alone, the funds in the account belonged (at least in some part) to her. This check, unlike the first check tendered, was used to satisfy the Henderson's mortgage. Thereafter, in December 2005, the Hendersons executed a warranty deed conveying this property to both Clarke and Taylor, Sr. The Miami–Dade County recording office again refused to record the warranty deed, this time allegedly because it was not properly witnessed.

At this juncture, Clarke and Taylor, Sr. hired an attorney who, on July 11, 2006, wrote to the Hendersons advising them of the defect in the warranty deed and enclosing yet another deed (this one drafted by their attorney) conveying the property to Clarke and Taylor, Sr. This deed was never executed. Rather, on August 3, 2006, the Hendersons conveyed the property to Taylor, Sr.'s and Ruby's three children. Sometime after these events, Taylor, Sr. passed away.

On November 30, 2009, Clarke brought the instant action against the Hendersons and Ruby's three children, alleging claims for specific performance (Count I), constructive trust (Count II), unjust enrichment (Count III), breach of oral contract (Count IV), civil theft (Count V), fraud in the inducement (Count VI) and fraudulent transfer (Count VII). The defendants, all represented by the same counsel, answered and raised various affirmative...