Farman v. Deutsche Bank Nat'l Trust Co.

• Decision Date: 12 August 2020
• Docket Number: 2D18-2663 CONSOLIDATED,Case No. 2D18-2022
• Citation: 311 So.3d 191
• Parties: Anastasia FARMAN, Appellant, v. DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR LONG BEACH MORTGAGE LOAN TRUST 2006-05, Appellee.
• Court: Florida District Court of Appeals

311 So.3d 191

Anastasia FARMAN, Appellant,

v.DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR LONG BEACH MORTGAGE LOAN TRUST 2006-05, Appellee.

Case No. 2D18-2022

2D18-2663 CONSOLIDATED

District Court of Appeal of Florida, Second District.

Opinion filed August 12, 2020.

Anastasia Farman, pro se.

Teris A. McGovern of Bitman, O'Brien & Morat, PLLC, Lake Mary, for Appellee.

SILBERMAN, Judge.

Anastasia Farman, pro se, appeals a final judgment that quiets title to real property in favor of Deutsche Bank National Trust Company, as Trustee for Long Beach Mortgage Loan Trust 2006-05 (the Trust), and that awards damages for breach of the parties' settlement agreement. She also appeals a final judgment for attorney's fees and costs (the fee judgment). This court consolidated for all purposes the appeal of the final judgment entered by Judge Holder and the appeal of the fee judgment entered by Judge Barbas. We affirm the final judgment as to counts I, III, and IV without discussion. Because the Trust failed to seek restitution and failed to prove it had incurred any damages in count II for the breach of the settlement agreement, we reverse the final judgment as to that count and remand for the trial court to enter judgment in favor of Farman on count II. We reverse the fee judgment in favor of the Trust that was predicated on the prevailing party provision in the settlement agreement.

JUDGMENT FOR DAMAGES

The Trust obtained a final judgment of foreclosure against Anastasia Farman in 2014. While the final judgment was on appeal, the parties entered into a settlement agreement in June 2015; as a result, Farman voluntarily dismissed her appeal. The Trust purchased the property at a foreclosure sale, the certificate of sale was issued in November 2015, and the certificate of title was issued in December 2015. Farman later sought to vacate the sale, certificate of sale, and certificate of title on the basis of a typographical error in the legal description contained in the mortgage, judgment, certificate of sale, and certificate of title. She subsequently filed an action to quiet title and a lis pendens in January 2016. The Trust then filed its own action to quiet title in February 2016 and filed its first amended complaint (the amended complaint) in April 2016. In September 2016, Farman dismissed her quiet title action.

In count II of its amended complaint, the Trust alleged breach of the parties' settlement agreement. The Trust alleged that under the settlement the Trust was required to tender $15,000 to Farman. Upon payment, "the Trust and SPS [the servicer] would be released and forever discharged from any claims that Farman possessed against them arising from or related to the dispute." The Trust alleged that Farman committed a material breach in seeking to vacate the certificate of title, appealing the order denying her motion to vacate, and filing her quiet title action. The Trust alleged that it "has been damaged, and continues to be damaged, by the breach of this Settlement Agreement in the form of monetary damages, attorney's fees, court costs, and continued property preservation costs." In her answer, Farman denied the allegations that she materially breached the settlement agreement and that the Trust had been damaged.

At trial, the Trust sought to prove damages for breach of contract through the testimony of Andrew Benefiel, an employee of Select Portfolio Servicing (SPS), the servicer of the loan, and through Exhibit 10, a disbursement detail. The Trust also introduced as Exhibit 8 two limited powers of attorney (LPOAs) between JPMorgan Chase Bank, N.A. (JPMorgan), as servicer, and the Trust and two LPOAs between JPMorgan, as master servicer, and SPS, as subservicer. Benefiel testified that since Farman filed her motion to vacate on January 14, 2016, "the Plaintiff" had continued to make advancements for the property. SPS hired the law firm to bring the quiet title and breach of contract action. SPS made payments to the firm to pursue the breach of the settlement agreement.

On cross-examination, Benefiel acknowledged that the Trust is the plaintiff in this case. Benefiel testified that the disbursement detail shows all advances "done for escrow, for taxes, and insurance, any kind of REO preservation fees that were done." Benefiel stated: "To the best of my knowledge, anything after the foreclosure date, those are preservation fees that we and SPS incurred. As far as seeking them, I'm not really sure at this point." Farman asked, "The attorney's fees?" Benefiel answered, "To my understanding, yes." Farman asked if it was his testimony that SPS was incurring the expenses and where in the LPOA did it say that the Trust had to reimburse SPS. The trial court sustained the objection that the question called for a legal conclusion. Upon questioning by the court, Benefiel then testified that the costs and fees in Exhibit 10 "are advances by SPS." SPS had not been reimbursed by the Trust. The trial court asked if the Trust had liability for that, and Benefiel responded, "I don't know that."

In closing argument, the Trust generally requested "a judgment of damages for its necessitated bringing this action [sic]." Farman argued in closing that the Trust is the plaintiff and that SPS was not joined as a plaintiff. She argued that SPS "testified that they incurred all of these expenses and they submitted evidence in support of that." She further argued that the LPOA demonstrated that the Trust "is not responsible for any costs, fees and expenses" incurred by SPS.

In its oral ruling with respect to count II, the trial court found that "the Plaintiff has been damaged and continues to be damaged by the breach of the settlement agreement in the form of monetary damages, attorney fees, court costs, and continued property preservation costs." The court stated it was assessing monetary damages on count II "consistent with the evidence introduced" and granted the damages from January 14, 2016, the date Farman filed her motion to vacate. The trial court stated that "[t]he monetary damages as it relates to the costs have been proven by the evidence introduced upon this trial." The court reserved jurisdiction on attorney's fees. When the court asked if it had addressed all the damages sought, the Trust's counsel responded, "Yes, Your Honor." Counsel did not mention the $15,000 it paid pursuant to the settlement agreement. The trial court directed the Trust's counsel to prepare a draft final judgment that incorporated the trial court's findings.

In the written judgment, the trial court awarded a total amount of $56,912.02 as "fully liquidated and supported by the evidence introduced at trial" as follows: (1) $15,000 for "[d]isgorgement of settlement proceeds paid to Defendant"; (2) $3270 for Live Oak Preserve Association; (3) $16,164 for insurance; (4) $10,371 for taxes; (5) $10,802.25 for property preservation; and (5) $1304.77 for utilities.

Farman argues on appeal that the evidence was insufficient to show that the Trust had paid or was liable for the amounts in the disbursement detail and that the Trust failed to connect those expenses to any breach by Farman. In addition, she argues that the trial court erred in making the $15,000 award when it was not sought as a remedy for the breach in the pleadings or at trial and when the trial court made no oral finding regarding it.

The Trust argues that Farman did not preserve these issues for review. To the extent that she raises the sufficiency of the evidence on damages, in a bench trial the sufficiency of the evidence may be raised on appeal even if a party did not object or move for rehearing. See Fla. R. Civ. P. 1.530(e) ; Winchel v. PennyMac Corp., 222 So. 3d 639, 644 (Fla. 2d DCA 2017). And Farman did expressly argue in the trial court that the Trust failed to prove its entitlement to the amounts shown in the disbursement detail.

Farman argues on appeal that damages are an essential element of a claim for breach of contract that must be proven. See Asset Mgmt. Holdings, LLC v. Assets Recovery Ctr. Invs., LLC, 238 So. 3d 908, 912 (Fla. 2d DCA 2018). To prove breach of contract, the plaintiff must establish "(1) the existence of a contract, (2) a breach of the contract, and (3) damages resulting from the breach." Id. (quoting Rollins, Inc. v. Butland, 951 So. 2d 860, 876 (Fla. 2d DCA 2006) ). "Under Florida law, damages are an essential element of an action for breach of contract." Id. (quoting Siever v. BWGaskets, Inc., 669 F.Supp.2d 1286, 1300 (M.D. Fla. 2009) ). Because the plaintiffs in Asset Management failed to introduce essential evidence to prove damages on their breach of contract claim, this court reversed and remanded for entry of an involuntary dismissal on that claim. Id. at 913.

Remedies available for a breach of contract are damages, restitution, and specific performance. Ocean Commc'ns, Inc. v. Bubeck, 956 So. 2d 1222, 1225 (Fla. 4th DCA 2007). On a claim for breach of contract, the purpose of a damages award "is to restore an injured party to the same position that he would have been in had the other party not breached the contract." Asset Mgmt., 238 So. 3d at 912 (quoting Verandah Dev., LLC v. Gualtieri, 201 So. 3d 654, 659 (Fla. 2d DCA 2016) ). A damages award must be supported by legally sufficient evidence. See Branch Banking & Tr. Co. v. Kraz, LLC, 114 So. 3d 273, 275-76 (Fla. 2d DCA 2013) (determining that a party presented legally insufficient evidence of a credit due when a witness testified that the plaintiff "may have received a payment of as much as $1.8 million from the FDIC but that further evidence would be needed to be sure"); see also Camper Corral, Inc. v. Perantoni, 801 So. 2d 990, 992 (Fla. 2d DCA 2001) (determining that the plaintiffs were not entitled to damages suffered by other entities for the defendants' breaches of fiduciary duties).

Here, the Trust's only witness, Benefiel of SPS, indicated that SPS had not been reimbursed by the Trust for SPS's...