Cohen v. Amerifirst Bank

• Decision Date: 31 January 1989
• Docket Number: No. 87-963,87-963
• Parties: 14 Fla. L. Weekly 341 Norman COHEN, as Trustee and Saul Norman Corp., a Florida corporation, Appellants, v. AMERIFIRST BANK, a Federal Savings Bank, Appellee.
• Court: Florida District Court of Appeals

Page 1108

537 So.2d 1108

14 Fla. L. Weekly 341

Norman COHEN, as Trustee and Saul Norman Corp., a Florida corporation, Appellants, v. AMERIFIRST BANK, a Federal Savings Bank, Appellee.

No. 87-963.

District Court of Appeal of Florida Third District.

Jan. 31, 1989.

Rehearing Denied March 7, 1989.

Floyd, Pearson, Richman, Greer, Weil, Zack & Brumbaugh and Gerald Richman and Sally R. Doerner, Miami, for appellants.

Fowler, White, Burnett, Hurley, Banick & Strickroot and Michael J. Cappucio, Blackwell, Walker, Fascell & Hoehl and James E. Tribble, Miami, for appellee.

Before SCHWARTZ, C.J., and BARKDULL and NESBITT, JJ.

PER CURIAM.

Following this court's opinion and decision reported in Amerifirst Federal Savings and Loan Association of Miami v. Century 21 Commodore Plaza, Inc., 416 So.2d 45 (Fla. 3d DCA 1982), the matter proceeded to trial ultimately on a four-count counterclaim by the appellants, which resulted in a jury verdict in favor of the appellants, awarding Norman Cohen, as trustee, damages for breach of alleged oral agreement, and compensatory and punitive damages for malicious prosecution by the continuation of the foreclosure action referred to in the cited opinion. ¹

Upon appropriate post trial motions the trial court granted a reserved directed verdict on count I alleging breach of an oral agreement, and granted a new trial on the malicious prosecution action, count IV, and consequently denied a reserved motion for directed verdict on this count.

The counterplaintiff Cohen, as trustee, appeals urging error in both parts of the trial court's post judgment order granting the directed verdict as to count I and ordering a new trial as to court IV, and Amerifirst, as counterdefendant, cross-appeals urging error in failing to grant its reserved motion for directed verdict on the malicious prosecution count.

We affirm the trial court in the granting of the reserved motion for directed verdict as to the breach of the alleged oral contract. ² The evidence viewed in the light most favorable to the counterplaintiff failed to make out a case that an oral agreement ever existed in the first instance. There were negotiations between the parties, but the documentary evidence clearly discloses that there never was any oral meeting of the minds which only needed to be reduced to writing. There was agreement on some items, but there was no agreement reached on substantial issues, therefore no ultimate meeting of minds. Central Properties, Inc. v. Robbinson, 450 So.2d 277 (Fla. 1st DCA 1984); Goff v. Indian Lake Estates, Inc., 178 So.2d 910 (Fla. 2d DCA 1965); Enid Corporation v. Mills, 101 So.2d 906 (Fla. 3d DCA 1958).

Turning to the cross-appeal, we reverse the order denying the reserved motion for directed verdict as to the malicious prosecution count because the evidence not only wholly failed to establish a lack of probable cause for the continuation of the foreclosure proceedings, but was clear and undisputed that Amerifirst continued the prosecution with probable cause. The counterplaintiff Cohen, as trustee, prevented an acceleration of his note secured by the mortgage because of equitable grounds. Amerifirst Federal Savings and Loan Association of Miami v. Century 21 Commodore Plaza, Inc., supra. He now attempts to use this award of a summary judgment upholding this equitable defense against acceleration as evidence of a lack of probable cause to continue with the foreclosure. We disagree. The authority cited in this court's prior opinion found in Amerifirst Federal Savings and Loan Association of Miami v. Century 21 Commodore Plaza, Inc., supra, clearly demonstrates that Amerifirst had an arguable right to accelerate its note and foreclose the mortgage, notwithstanding the fact that it had accepted payments subsequent to an admitted default and the acceleration of the amount due in accordance with the terms of the note. To have probable cause to commence or continue an action does not mean that the plaintiff will, or must, ultimately prevail, but only that his commencement or continuance is of an arguably valid cause of action. See and compare City of Pensacola v. Owens, 369 So.2d 328 (Fla.1979); Phelan v. City of Coral Gables, 415 So.2d 1292 (Fla. 3d DCA 1982); Duncan v. Germaine, 330 So.2d 479 (Fla. 4th DCA 1976).

The upholding of the equitable defense which prevented acceleration by its very nature admits the initial default, and right to acceleration. The fact that the mortgagor is able to present circumstances which are sufficient grounds for a trial court to not lend its equitable power to foreclose the lien of the mortgage ³ does not establish a lack of probable cause to institute or maintain the foreclosure proceedings after a default, in accordance with the terms of the note and mortgage.

Therefore, the order granting the reserve motion for directed verdict as to count I is affirmed. The order denying the reserve motion for directed verdict as to count IV is reversed with directions to enter a directed verdict in favor of Amerifirst on this count. ⁴

REVERSED AND REMANDED WITH DIRECTIONS.

1 The jury also returned a verdict in favor of Saul Norman Corp. on count III, but awarded zero damages. No error is urged in this regard in these proceedings. As to count II it was settled pending the trial.

2 The order granting the motion for directed verdict reads in part as...