Nunes v. Allstate Inv. Properties Inc.

• Decision Date: 10 October 2011
• Docket Number: No. 4D10–992.,4D10–992.
• Parties: Marilyn Ann NUNES, Personal Representative of the Estate of Kathleen L. Phillips, and Marilyn Ann Nunes, individually, Appellants,v.ALLSTATE INVESTMENT PROPERTIES, INC., Gilman H.C. Nunes, Danielle A. Intili, Jesus M. Alvarez, Julissa Alvarez, husband and wife, and Washington Mutual Bank, N.A., Appellees.
• Court: Florida District Court of Appeals

69 So.3d 988

Marilyn Ann NUNES, Personal Representative of the Estate of Kathleen L. Phillips, and Marilyn Ann Nunes, individually, Appellants,

v.ALLSTATE INVESTMENT PROPERTIES, INC., Gilman H.C. Nunes, Danielle A. Intili, Jesus M. Alvarez, Julissa Alvarez, husband and wife, and Washington Mutual Bank, N.A., Appellees.

No. 4D10–992.

District Court of Appeal of Florida, Fourth District.

Sept. 7, 2011.Rehearing Denied Oct. 10, 2011.

Robert A. Koppen of Koppen, Watkins, Partners & Associates, P.A., Delray Beach, for appellants.David I. Brodt of Leslie Robert Evans & Associates, P.A., Palm Beach, for appellees.

ON MOTION FOR REHEARING, MOTION FOR REHEARING EN BANC, MOTION FOR CLARIFICATION AND SUGGESTION OF GREAT PUBLIC IMPORTANCE

HAZOURI, J.

We deny appellants' motion for rehearing, motion for rehearing en banc, motion for clarification and suggestion of great public importance, withdraw our prior opinion, and substitute the following in its place.

Marilyn Ann Nunes, in her capacity as Personal Representative of the Estate of Kathleen L. Phillips, and Marilyn Ann Nunes, individually, (collectively “Nunes”), appeal the trial court's order granting final summary judgment in favor of Jesus M. Alvarez, Julissa Alvarez, and SunTrust Mortgage, Inc. (collectively “Alvarez”). Nunes filed a declaratory action against among others, Alvarez, to determine Nunes's right to certain property which she contended was wrongfully conveyed to Alvarez through a series of conveyances originating with a forged deed. Two deeds were identified as forgeries: (1) a warranty deed recorded on October 6, 2003, in official records book 15973, page 64, in which the grantee is All State Investment, Inc.; and (2) a corrective warranty deed, amending the former deed, recorded on December 3, 2003, in official records book 16265, page 272, in which the grantee is Allstate Investment Properties, Inc.

The trial court granted final summary judgment in favor of Alvarez, finding that Nunes was equitably estopped from asserting her interest in the property. We agree with the trial court and affirm.

“The standard of review of an order granting summary judgment is de novo.” Bender v. CareGivers of Am., Inc., 42 So.3d 893, 894 (Fla. 4th DCA 2010) (quoting Mobley v. Gilbert E. Hirschberg, P.A., 915 So.2d 217, 218 (Fla. 4th DCA 2005)). “When a defendant moves for summary judgment, the court is not called upon to determine whether the plaintiff can actually prove his cause of action.” Id. (quoting Winston Park, Ltd. v. City of Coconut Creek, 872 So.2d 415, 418 (Fla. 4th DCA 2004)). “Rather, the court's function is solely to determine whether the record conclusively shows that the moving party proved a negative, that is, ‘the nonexistence of a genuine issue of a material fact.’ ” Id. (citations omitted).

The parties agreed in mutual motions for summary judgment that the facts were undisputed and that the case was ripe for summary judgment. As noted, the property was ultimately conveyed to Alvarez through a series of events involving several prior conveyances. The trial court's order granting summary judgment details the facts and law upon which it relied, which we adopt as follows:

Petitioners assert that deeds transferring their interest in real property located in Palm Beach County to ALLSTATE INVESTMENT PROPERTIES, INC. all are forgeries and thus void. Further that since the deeds are void, all subsequent transfers of the real property, including the transfer to ALVAREZ are void and must be set aside.

Among the Affirmative Defenses asserted by ALVAREZ to Petitioners' claim is equitable estoppel. ALVAREZ maintains that because Petitioners and their counsel knew of the forged Deeds but took no action to assert their interest in the real property for a period of almost two (2) years, Petitioners are barred.

The Court finds that the following facts are agreed or not in dispute for purposes of Defendants' Motion for Summary Judgment:

A. The [P]etitioners' former son in law and husband, GILMAN H.C. NUNES, forged a Warranty Deed transferring Petitioners' interest in the real property to ALLSTATE INVESTMENT PROPERTIES, INC. which was recorded in the Public Records of Palm Beach County on October 6, 2003.

B. A forged Corrective Warranty Deed transferring Petitioners' interest in the real property to ALLSTATE INVESTMENT PROPERTIES, INC. was recorded in the Public Records of Palm Beach County on December 3, 2003.

C. ALLSTATE INVESTMENT PROPERTIES, INC., not knowing that the deed was forged, transferred the real property to DANIELLE A. INTILLI [sic] by Warranty Deed dated December 25, 2003.

D. DANIELLE A. INTILLI [sic], not knowing that the deed was forged, transferred the real property to ALVAREZ by Warranty Deed dated December 15, 2004.

E. Petitioners commenced this action to assert their interest in the real property on August 25, 2005.

F. Petitioners and their counsel had constructive notice of the forged Warranty Deeds on October 6, 2003 when the Deeds were recorded in Palm Beach County.

G. Petitioners' counsel, Robert Koppen, who represented Petitioner, MARILYN ANN NUNES, in her divorce case from GILMAN H.C. NUNES, had actual knowledge of the forged Deeds in May of 2004 when he took the deposition of Gilman [H.]C. Nunes, the former husband.

H. Petitioners and their counsel decided to take no action to protect or assert their interest in the real property in the divorce case filed by Petitioner, MARILYN ANN NUNES, in which a claim for partition of the real property was filed.

I. ALVAREZ relied (without any knowledge of the forgery) upon the Public Records in and for Palm Beach County in acquiring the real property from DANIELLE A. INTILLI [sic]. The Public Records did not contain any notice that Petitioners had an interest in the real property that ALVAREZ purchased for value.

J. ALVAREZ, in reliance upon the Public Records as to the title of the real property, has resided in and has maintained it since December 15, 2004.

Both sides agreed that this case is appropriate for Summary Judgment and rely upon the same cases to support their positions. Coram v. Palmer, 63 Fla. 116, 58 So. 721, 722 (1912), established the rule that...