Heartwood 2, LLC v. Dori

• Decision Date: 11 January 2017
• Docket Number: No. 3D15–2576,3D15–2576
• Parties: HEARTWOOD 2, LLC, Appellant, v. Shay DORI, et al., Appellees.
• Court: Florida District Court of Appeals

208 So.3d 817

HEARTWOOD 2, LLC, Appellant,

v.Shay DORI, et al., Appellees.

No. 3D15–2576

District Court of Appeal of Florida, Third District.

Opinion filed January 11, 2017.

Greenberg Traurig, P.A., and Kimberly S. Mello (Tampa), Jonathan S. Tannen (Tampa), and Michele L. Stocker (Ft. Lauderdale), for appellant.

Neustein Law Group, P.A., and Nicole R. Moskowitz, for appellee Shay Dori.

Before SUAREZ, C.J., and ROTHENBERG and SALTER, JJ.

ROTHENBERG, J.

Heartwood 2, LLC ("Heartwood") appeals from a final judgment involuntarily dismissing its claim for foreclosure without prejudice to allow Heartwood to assert its dismissed claim in a new action; dismissing without prejudice Heartwood's claim for reformation of a special warranty deed ("the deed"); and declining to retain jurisdiction over the reformation and foreclosure issues. Heartwood also appeals from an order denying its motion for rehearing or reconsideration. For the reasons that follow, we reverse and remand for entry of a final judgment of foreclosure consistent with this opinion.

FACTS

On July 15, 2005, 1200 West Realty, LLC ("the grantor"), a Delaware limited liability company, executed the deed in favor of Shay Dori ("Mr. Dori"), which contains the following legal description and statement:

Unit 918, Mirador 1200, a Condominium, together with an undivided interest in the common elements, according to the Declaration of Condominium thereof, as recorded in Official Records Book, Page , of the Public Records of Miami–Dade County.

This Commitment will be endorsed at the time of the recordation of the Declaration of Condominium to complete the legal description.

(emphasis added). As is obvious, the specific recording information for the declaration of condominium was not included. In addition to this legal description and statement, the deed included Mr. Dori's address—"1200 West Ave. # 918, Miami Beach, FL 33139."

On the same day that the deed was executed, Mr. Dori executed a purchase money mortgage and a promissory note in favor of Meridian Residential Capital, LLC ("Meridian"). Unlike the deed, the legal description set forth in the mortgage included the recording information for the declaration of condominium—Book 23543, Page 3930.¹ Further, both the promissory note and the mortgage reflect that the property address is "1200 West Avenue # 918, Miami Beach, Florida 33139," the same address that appears on the deed.

In May 2012, Wells Fargo Bank, N.A. ("Wells Fargo") filed a two-count complaint against Mr. Dori. In Count I, Wells Fargo sought to foreclose the mortgage executed by Mr. Dori in favor of Meridian, alleging in part that Wells Fargo was the current owner and holder of the note and mortgage, Mr. Dori owns the mortgaged property, and Mr. Dori defaulted under the terms of the promissory note and mortgage by failing to make the July 2011 payment and all subsequent payments. In Count II, Wells Fargo sought to reform the deed, alleging that the legal description omitted the specific recording information for the declaration of condominium, and that the omission was a "scrivener's error" that "resulted from a mutual mistake."

After the mortgage and note were allegedly assigned from Wells Fargo to Heartwood, Heartwood was substituted as the plaintiff. Thereafter, Mr. Dori filed an answer admitting that he owned the subject property, and he raised several affirmative defenses, such as lack of standing, but did not raise any affirmative defense relating to the alleged legal description in the deed.

On March 11, 2015, Heartwood filed an unopposed motion for leave to amend the complaint, asserting that the complaint failed to include a necessary party—the grantor of the deed. The following week, even though Mr. Dori did not oppose Heartwood's motion for leave to amend , the trial court denied Heartwood's motion because the case had been set for trial for the week of April 6, 2015, and the trial court's own concern that the late amendment would prejudice Mr. Dori.

On April 2, 2015, the trial court granted Mr. Dori's verified unopposed motion to continue the trial. On the following day, April 3, 2015, Heartwood filed a renewed motion for leave to amend its complaint, and in its renewed motion, Heartwood reminded the trial court that its previous motion for leave to amend was denied because the trial had already been scheduled. Mr. Dori did not file an objection to the renewed motion. On May 6, 2015, over one month after Heartwood filed its renewed motion to amend its complaint, with no objection having been filed by Mr. Dori, and while Heartwood's renewed motion to amend the complaint was pending, the trial court reset the non-jury trial for a two-week period commencing on June 15, 2015. And then, only a few days after resetting the trial, and even though Heartwood's renewed motion to amend had been pending for over a month, the trial court denied Heartwood's renewed motion because the case had been set for the trial period commencing on June 15, 2015.

At the non-jury trial, Mr. Dori's counsel sought for the first time dismissal of the reformation count based on Heartwood's failure to join an indispensable party, the grantor, and because Heartwood had been precluded from amending its complaint to reform the deed, Mr. Dori's counsel argued that the foreclosure count should be dismissed because the deed failed to sufficiently identify the property due to the omission of the specific recording information regarding the declaration of condominium. In response, Heartwood's counsel argued that the omission of the recording information for the declaration of condominium in the deed was a scrivener's error, and that the grantor was not an indispensable party because the correction of the deed would affect neither the grantor's nor the grantee's (Mr. Dori) rights. He also argued that the omission in the deed did not render the title transferred to Mr. Dori void because, based on the information provided in the deed, the property that was conveyed was ascertainable.

At trial, the trial court specifically found that the omission in the deed was "clearly a scrivener's error," and thereafter, when the trial court entered its final judgment, it found that Heartwood established standing, the pleadings sufficiently stated a claim and prayer for monetary relief, and Heartwood was entitled to the enforcement of the promissory note. As to the foreclosure claim and the reformation claim, the trial court ruled as follows:

3. [Heartwood's] claim for foreclosure of the mortgage is involuntarily dismissed without prejudice to filing a new action. The Court finds the Mortgage contains an insufficient legal description, as the deed by which Defendant Shay Dori took title, and to which legal interest to the mortgage purports to attach, fails to include a sufficient legal description. It simply [sic] includes the unit number, the name of the condominium, no book and page, and a street address. There is no legal description of the condominium property included in the deed. [Heartwood] sought to reform the deed but failed to join the grantor, 1200 West Realty, LLC, which is an indispensable party. As the grantor was not served in this case, the deed cannot be reformed and thereby preventing [Heartwood] from seeking enforcement of the Mortgage at his time.

4. As to Count II of [Heartwood's] Complaint for Reformation of Deed, the Count is dismissed without prejudice, due to [Heartwood's] failure to join the indispensable party 1200 West Realty LLC, the grantor of the deed by which the Borrower Shay Dori purportedly gained title.

The trial court declined to retain jurisdiction over the deed and foreclosure issues, and although Heartwood's pleadings did not seek monetary damages, the trial court entered a monetary judgment in favor of Heartwood and against Mr. Dori.

Following the entry of the final judgment, Heartwood filed a motion for rehearing or reconsideration, which was later denied by the trial court. Heartwood's appeal followed.

Heartwood contends that the trial court erred by dismissing its foreclosure claim. We agree.

ANALYSIS

The dispositive issue on appeal is whether the mortgage in this case, which contained no defects whatsoever, created a valid enforceable lien that entitled Heartwood to a foreclosure judgment based on the evidence presented at trial. Mr. Dori's position at trial was that Heartwood could not foreclose on the property because the deed conveying the property to Mr. Dori failed to sufficiently identify the property because the deed omitted the recording information regarding the declaration of condominium.

A. The trial court erred by dismissing the foreclosure claim based on an unpled affirmative defense

We begin our analysis by specifically noting that Mr. Dori never pled the deed's purported deficiency as an affirmative defense. It is well-settled law in Florida that affirmative defenses not raised are waived. See Fla. R. Civ. P. 1.140(b) (providing that "[e]very defense in law or fact to a claim for relief in a pleading shall be asserted in the responsive pleading ... [and] [a]ny ground not stated shall be deemed to be waived ...."); S. Mgmt. & Dev., L.P. v. Gardner , 992 So.2d 919, 920 (Fla. 4th DCA 2008) (holding that affirmative defenses are waived if not pled); Boca Golf View, Ltd. v. Hughes Hall, Inc. , 843 So.2d 992, 993 (Fla. 4th DCA 2003) (reversing the trial court's involuntary dismissal that was based on an unpled affirmative defense); Sonnenblick–Goldman of Miami Corp. v. Feldman , 266 So.2d 48, 50 (Fla. 3d DCA 1972) ("When an affirmative defense ... is not raised by answer, it is waived."). It also bears noting that Mr. Dori did not even attempt to respond to the arguments raised by Heartwood in its initial brief on this ground for reversal or defend the trial court's dismissal of Heartwood's mortgage foreclosure claim based on its reliance on Mr. Dori's unpled ground for dismissal of the foreclosure claim.

Because dismissal of Heartwood's foreclosure claim was based...