Cleveland v. Crown Fin., LLC

• Decision Date: 01 March 2017
• Docket Number: CASE NO. 1D16–3981
• Citation: 212 So.3d 1065
• Parties: Scott CLEVELAND and Stephanie Cleveland, Appellants, v. CROWN FINANCIAL, LLC, Appellee.
• Court: Florida District Court of Appeals

212 So.3d 1065

Scott CLEVELAND and Stephanie Cleveland, Appellants,

v.CROWN FINANCIAL, LLC, Appellee.

CASE NO. 1D16–3981

District Court of Appeal of Florida, First District.

Opinion filed March 1, 2017.

Jeffrey U. Beaverstock and Daniel L. Burkard of Burr & Forman, LLP, Mobile, AL, for Appellants.

Robert J. Powell of Clark Partington, Pensacola, for Appellee.

LEWIS, J.

Appellants, Scott and Stephanie Cleveland, appeal the trial court's Order Granting New Trial and Relief from Judgment, arguing that the court erred by granting a new trial based on newly discovered evidence upon finding that the evidence could not have been discovered by the exercise of due diligence.For the following reasons, we agree with Appellants and, therefore, reverse the trial court's order.

Background

In June 2013, Appellee, Crown Financial, LLC, filed against Appellants a Mortgage Foreclosure Complaint, alleging that the parties executed in March 2010 a Mortgage and a Profit Sharing Agreement that conveyed to Appellee the subject property, Appellants were in default, and Appellee was entitled to foreclosure on the property and to $418,972.22 in principal pursuant to those documents.At the non-jury trial, Chad Tribe, a member and manager of Appellee, testified in part that his responsibilities included reviewing the records relating to the Profit Sharing Agreement and Mortgage to determine the amounts owed and that he had reviewed the records the day before trial.Tribe testified that while the Profit Sharing Agreement limited the outstanding advances to $300,000, Appellee increased the loan advance to $500,000.When asked if the Profit Sharing Agreement was amended to reflect the increased advance, Tribe responded, "I do not recall.I did not see a document in file, though, that stated that," and he testified that there was no document before the trial court that memorialized the increase in advances.

The parties disputed the amount of the loans that was secured.Appellee contended that the future advances clause of the Mortgage secured anything over $300,000 up to $600,000, while Appellants argued that the Profit Sharing Agreement secured advances only up to $300,000 and "if anything, the language in the mortgage itself is conflicting," with the former controlling.In its Final Judgment, the trial court determined that Appellee was entitled to $419,069.64 in principal, thereby implicitly agreeing with Appellee on the issue.On appeal, we reversed and remanded for the recalculation of Appellants' indebtedness upon concluding that the Profit Sharing Agreement was controlling and limited the secured advances to $300,000, and we noted that "the Agreement, which provided that the Mortgage at issue would secure Appellants' obligations, was not amended to reflect a $500,000 maximum advance amount."SeeCleveland v. Crown Fin., LLC , 183 So.3d 1206, 1210(Fla. 1st DCA2016).

On remand, the trial court entered an Amended Final Judgment pursuant to this Court's mandate.Appellee then filed an "Amended and Restated Motion for Relief/Motion for New Trial""from the amended final judgment pursuant to F.R.C.P. 1.540," wherein it asserted in part as follows:

5.Subsequent to the trial, due to excusable neglect and newly discovered evidence, it was revealed that the parties did indeed enter into a written agreement for an additional advance for an amount not to exceed $500,000.00 for this transaction. ...

6.This evidence was something that was lost/misplaced and forgotten due to simple human error.In and of itself, it is critical evidence in this matter and simply because of human error, it was not discovered or remembered until after the trial. ...

7.The document was apparently in another file or a sea of documents and merely overlooked and forgotten.

[8].As a result, Plaintiff request[s] relief in the manner of a New Trial in light of the new evidence.

The alleged newly discovered evidence was an Agreement for Additional Advance, which was dated September 2010, was signed by Chad Tribe and AppellantScott Cleveland, and stated in part, "Pursuant to the Profit Sharing Agreement between the parties ..., ‘the aggregate amount outstanding at any one time shall never exceed the sum of $300,000.00.’Crown agrees to increase this amount to $500,000.00 for this one-time transaction that is currently booked."In support of Appellee's motion, Tribe submitted an affidavit, attesting in part that "[t]he agreement for additional advance was not located in the file maintained by [Appellee], but a copy was subsequently located in the possession of the broker"¹ and "[i]n its most simple terms, I made a simple human error mistake regarding an important document."

Appellants opposed the motion, arguing that the Agreement for Additional Advance did not constitute newly discovered evidence because Appellee failed to establish that it could not have timely discovered it by due diligence and it was merely forgotten evidence newly remembered.The trial court entered an Order Granting New Trial and Relief from Judgment, wherein it granted "[Appellee's]motion for new trial and alternatively, its motion for relief from judgment" upon finding that "[the Agreement for Additional Advance], located after the trial in the hands of the plaintiff's broker, constitutes new evidence discovered after the trial that could not have been discovered before the trial by exercise of due diligence ...."This appeal followed.

Analysis

" ‘The importance of finality in any justice system ... cannot be understated.It has long been recognized that, for several reasons, litigation must, at some point, come to an end.’ "Balmoral Condo. Ass'n v. Grimaldi , 107 So.3d 1149, 1151(Fla. 3d DCA2013)(quotingWitt v. State , 387 So.2d 922(Fla.1980) )."Reflecting a balance between the need for finality and the interest of allowing appropriate corrections to final orders, rules 1.530and1.540[of the Florida Rules of Civil Procedure] provide two very different approaches for judges to revisit final judgments."Id.A trial court's ruling on a rule 1.540 motion is reviewed for an abuse of discretion.Travelers Commercial Ins. Co. v. Harrington , 187 So.3d 879, 884(Fla. 1st DCA2016);see alsoLeach v. Salehpour , 19 So.3d 342, 344(Fla. 2d DCA2009)(explaining the same and that a ruling on a rule 1.530 motion is likewise reviewed for an abuse of direction, unless it involves a pure question of law).

Florida Rule of Civil Procedure 1.540(b) provides in relevant part that pursuant to a timely filed motion, a trial court may relieve a party from a final judgment based on "newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial or rehearing.""[R]ule 1.540(b), however, ‘does not have as its purpose or intent the reopening of lawsuits to allow parties to state new claims or offer new evidence omitted by oversight or inadvertence.’ "Hooks v. Quaintance , 71 So.3d 908, 911(Fla. 1st DCA2011)(citation omitted)."The necessary finality of litigation prohibits courts from giving parties a second chance at proof they had available in the first instance but overlooked or chose not to use."Id."Relief from judgment based on newly discovered evidence claim should be seldom granted and only when the party seeking relief has exercised due diligence."Id."It is the movant's burden under rule 1.540(b) to establish the exercise of due diligence.It is not sufficient to merely show that the evidence was not known or discovered by counsel prior to trial.Rather, the movant must make his or her vigilance apparent."Brown v. McMillian , 737 So.2d 570, 571(Fla. 1st DCA1999);see alsoJunda v. Diez , 848 So.2d 457, 458(Fla. 4th DCA2003)(explaining that relief from judgment based on newly discovered evidence should be granted seldom and only when the party seeking relief exercised due diligence, and concluding that the trial court abused its discretion by granting the appellee's 1.540(b) motion based on newly discovered evidence "[g]iven the length of time the case was pending, the fact that [appellee] knew of the existence of the necessary documentation before the initial trial, the lack of the exercise of due diligence by [appellee]").

Florida Rule of Civil Procedure 1.530(a) states in pertinent part that "[o]n a motion for a rehearing of matters heard without a jury ..., the court may open the judgment if one has been entered, take additional testimony, and enter a new judgment."A newly discovered evidence claim may also be the basis for relief pursuant to rule 1.530, but a rehearing or new trial based on newly discovered evidence is warranted only where the evidence was discovered after the trial and could not have been discovered before the trial by the exercise of due diligence.Mistretta v. Mistretta , 31 So.3d 206, 208(Fla. 1st DCA2010).Forgotten evidence does not constitute newly discovered evidence.SeeResort of Indian Spring, Inc. v. Indian Spring Country Club, Inc. , 747 So.2d 974, 978(Fla. 4th DCA1999)(involving a rule 1.530 motion);Holmes v. Holmes , 578 So.2d 323, 325(Fla. 4th DCA1991)(entailing a rule 1.540 motion).

Further, courts generally do not provide parties with an opportunity to retry their case upon a failure of proof.Correa v. U.S. Bank N.A. , 118 So.3d 952, 956(Fla. 2d DCA2013)(citing cases refusing to give a party a second bite at the apple and concluding, "Counsel for U.S. Bank should have been fully aware of its burden to reestablish the lost note and fully prepared to meet that burden, yet it made minimal...