Hughes v. Home Sav. of America, F.S.B.
| Decision Date | 12 June 1996 |
| Docket Number | No. 95-02725,95-02725 |
| Parties | 21 Fla. L. Weekly D1393 Robert E. HUGHES, Sr., Appellant, v. HOME SAVINGS OF AMERICA, F.S.B., Appellee. |
| Court | Florida District Court of Appeals |
Robert E. Hughes, Sr., Clearwater, pro se.
Alan C. Parrish of Shapiro & Fishman, Tampa, for Appellee.
Robert E. Hughes, Sr. appeals the entry of a summary judgment foreclosing a parcel of real property in Pinellas County. Numerous errors occurred in what should otherwise have been a seemingly simple mortgage foreclosure.
Initially, Home Savings filed a motion to amend the original complaint, citing the failure to correctly identify the interest of a particular defendant and acknowledging that the first page of the complaint was omitted through what was deemed "excusable neglect." Matters which followed the filing of this motion to amend the complaint constituted neglect but were not excusable. We will address some but not all of those matters.
Hughes answered the original complaint and raised affirmative defenses, including payment. At no time did Hughes answer the amended complaint nor was a default ever entered against him. Subsequently, Hughes hired counsel who filed a motion to dismiss the amended complaint, citing failure to attach copies of exhibits to the amended complaint in violation of Florida Rule of Civil Procedure 1.130. Hughes subsequently cited the case of Eigen v. Federal Deposit Insurance Corp., 492 So.2d 826 (Fla. 2d DCA 1986), in support of his motion to dismiss. Indeed, the amended complaint, while referencing exhibits, had none attached.
The aforementioned motion to dismiss was filed on March 9, 1995. On March 13, 1995, without apparent notice, the trial court denied Home Savings' motion for summary judgment without prejudice and directed Hughes to file his responsive pleading within seven days. The trial court was apparently unaware of the pending motion to dismiss. Thereafter, on April 24, 1995, once again apparently without notice, the trial court entered an order denying Hughes' motion to dismiss. This order was prepared by counsel for Home Savings. It contained two flaws. First, a copy of the order was mailed directly to Hughes as opposed to being mailed to his counsel of record. Second, there was no language in the order directing Hughes to file an answer to the amended complaint. Home Savings then moved for summary judgment a second time.
Hughes raises two issues on appeal. The first is that his motion to dismiss was meritorious and should have been granted on the authority of Eigen. The Eigen case is supportive of Hughes' position. Home Savings concedes that no exhibits were attached to the amended complaint, nor were sufficient allegations raised therein so as to incorporate the exhibits from the original complaint into the amended complaint. The trial court in denying Hughes' motion for rehearing on summary judgment addressed this issue by stating that:
The sole basis of the motion to dismiss was that the plaintiff had failed to attach copies of exhibits referenced in the amended complaint in violation of rule 1.130, Florida Rules of Civil Procedure. The only exhibits that were referenced in the amended complaint were the note and mortgage, and copies were attached to the complaint in the file. The motion to dismiss, therefore, had no merit.
The fact that such exhibits were attached to the original complaint does not breathe life into the amended complaint which was void of exhibits. The Eigen court stated the following: "We also reject the bank's contention that the amended complaint was sufficient because copies of the instruments had been attached to the original complaint." 492 So.2d at 827.
What is most perplexing is that the failure to attach exhibits to the amended complaint could have been cured by Home Savings pursuant to a "Notice of Filing: ORIGINAL DOCUMENTS" on March 2, 1995, by Home Savings. The original documents that were filed were the mortgage and note. The filing of these documents would have had the same curative effect as did the filing of similar documents in the Eigen case. The difference between the instant case and Eigen is that the filing in Eigen was communicated to opposing counsel and the court. Home Savings' "Notice of Filing: ORIGINAL DOCUMENTS" contained no certificate of service. We are convinced that neither Hughes, his counsel, nor the trial court were aware of the filing of these original documents. Equally perplexing is the fact that such filing of original documents was not mentioned in Home Savings' answer brief. This court discovered...
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...398 So. 2d 974, 976 (Fla. 1st DCA 1981).[45] The same is true for an amended complaint. In Hughes v. Home Savings of America, F.S.B., 675 So. 2d 649, 650 (Fla. 2d DCA 1996), the court found that the fact that the agreements on which the action was based were attached to the initial complain......
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Chapter 6-2 The Form of the Complaint
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