Gutierrez v. Bermudez, 88-747
Decision Date | 23 March 1989 |
Docket Number | No. 88-747,88-747 |
Citation | 14 Fla. L. Weekly 760,540 So.2d 888 |
Parties | 14 Fla. L. Weekly 760, 9 UCC Rep.Serv.2d 1310 Victor GUTIERREZ, et al., Appellants, v. Yraida Leyva BERMUDEZ, etc., Appellee. |
Court | Florida District Court of Appeals |
Ronald L. Harrop of Gurney & Handley, P.A. and Robert Rodriguez, Orlando, for appellants.
Valerie W. Evans of Rafael de Armas, P.A., Orlando, for appellee.
The trial court summarily dismissed the appellants' action to reestablish a lost promissory note and mortgage and to foreclose that mortgage, after trial had commenced, because the appellants could not produce the original note. Because of both substantive and procedural errors in the proceedings below, we reverse.
Appellants sued Clementina Bermudez seeking to foreclose a mortgage. Count I sought to foreclose the mortgage while Count II sought to establish the lost promissory note and mortgage which were the subject matter of the foreclosure action. Copies of the original note and recorded mortgage were attached to the complaint. After Clementina died, appellants amended their complaint to substitute as defendant appellee Yraida Leyva Bermudez, as personal representative of the estate. Appellee answered, admitting that the deceased executed and delivered a promissory note and second mortgage to appellants but demanded strict proof that the copies were true, and raised payment as an affirmative defense.
At the non-jury trial which commenced on August 11, 1987, Carmen Gutierrez testified with the assistance of an interpreter that in May, 1984, she and her husband sold a parcel of real estate to the decedent, and took back a second mortgage in the amount of $16,500 as part of the purchase price. Copies of the sales contract, promissory note and recorded mortgage were admitted into evidence. Carmen testified that she received the original note and mortgage from the closing agent and placed them with other important papers in a desk drawer in her house.
Under the terms of the note, payments were to commence on June 4, 1984. Payments were received for the months of June, July and August, 1984, but the September 1984 payment was not received and no subsequent payments were made. Carmen testified that she did not immediately seek to foreclose the mortgage when payments ceased because of close family and business ties with the decedent. She also testified that she looked for the original note and mortgage in the desk where she had left them but could not find them; that the desk was in a room accessible to anyone who visited her home, and that over time this included the decedent who had lived with appellants for several months in 1984 and 1985, as well as appellee. At the conclusion of cross-examination, the proceedings were recessed with a request from the court that counsel advise on the time required to complete the trial proceedings.
On September 4, 1987, appellants' counsel filed a notice for continuation of trial indicating that both counsel agreed that an additional six hours would be necessary to
conclude the proceedings. On October 5, 1987, appellee filed a motion for summary judgment asserting that appellants' action was barred due to their failure to produce the original note and mortgage. On March 4, 1988, the court issued an order scheduling continuation of the non-jury trial for March 24, 1988. On the day set for continuation of the trial, the parties appeared and the court, rather than resume taking testimony, considered appellee's motion for summary judgment, over appellants' objection that the court could not consider such motion during trial. Overruling the objection, the court heard argument by the parties as to the merits of the motion and ruled that appellants' foreclosure action was barred because of their failure to produce the original note and mortgage. An order dismissing the action was subsequently entered, from which this appeal was taken.
Appellants question the propriety of the consideration of a motion for summary judgment once trial has commenced. Appellee asserts that Florida Rule of Civil Procedure 1.510(b) permits the filing of such motion "at any time," relying on Coral Ridge Properties, Inc. v. Playa Del Mar Association, 505 So.2d 414 (Fla.1987). Coral Ridge, however, does not address the issue before us here, but involved only the question of whether a defendant could move for summary judgment based on an affirmative defense before filing an answer raising that affirmative defense. Clearly, the procedure in Coral Ridge was pretrial, and nothing in that opinion leads to the conclusion that a motion for summary judgment may be heard once trial begins. The case of Fish Carburetor Corp. v. Great American Insurance Company, 125 So.2d 889 (Fla. 1st DCA 1961) correctly states that:
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In re Perrysburg Marketplace Co.
...note and signed letter of intent), motion cert. overruled, 50 Ohio St.3d 708, 553 N.E.2d 689 (1990); see also Gutierrez v. Bermudez, 540 So.2d 888, 890 (Fla.App.1989) (held that mortgagee, who identified copies of original note and mortgage, proved terms of note); Central Nat'l Bank of New ......
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Lawyers Title Ins. Co., Inc. v. Novastar Mortg., Inc.
...the instrument, without first reestablishing the instrument. See Dunn v. Willis, 599 So.2d 271 (Fla. 5th DCA 1992); Gutierrez v. Bermudez, 540 So.2d 888 (Fla. 5th DCA 1989); Barber v. Ehrich, 394 So.2d 220 (Fla. 5th DCA 1981); see also Deakter, 830 So.2d at 128 (finding that a party seeking......
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Markwood Invs. Ltd. v. Neves (In re Neves), Case No. 09-33043-BKC-LMI
...proved the terms of the lost February Note at trial by introducing a true copy of the February Note. See Gutierrez v. Bermudez, 540 So. 2d 888, 891 (Fla. 5th DCA 1989) (holding that copies of the original note and mortgage helped to establish the terms of the documents). Neves acknowledges ......
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Bank of New York Trust Co., N.A. v. Rodgers
...2007). There is also no question that the legal prerequisites of establishing a lost note were fully met below. See Gutierrez v. Bermudez, 540 So.2d 888 (Fla. 5th DCA 1989); Young v. Charnack, 295 So.2d 665 (Fla. 3d DCA 1974). The judgment under review is therefore reversed for a new trial.......
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Chapter 12-1 Introduction
...Go Bungee, 678 So. 2d 920, 921 (Fla. 5th DCA 1996).[61] Rule. 1.510(a).[62] Rule 1.510(a).[63] Rule 1.510(b).[64] Gutierrez v. Bermudez, 540 So. 2d 888, 890 (Fla. 5th DCA 1989) (citing Fish Carburetor Corp. v. Great American Insurance Company, 125 So. 2d 889, 891 (Fla. 1st DCA 1961)). The r......