Stratton v. 6000 Indian Creek, LLC

• Court: Florida District Court of Appeals
• Writing for the Court: SALTER
• Citation: Stratton v. 6000 Indian Creek, LLC, 95 So.3d 334 (Fla. App. 2012)
• Decision Date: 23 August 2012
• Docket Number: 3D11–2053.,Nos. 3D11–2054,s. 3D11–2054
• Parties: Douglas D. STRATTON, Stratton & Feinstein, P.A., and David Lesman, Appellants/Cross–Appellees, v. 6000 INDIAN CREEK, LLC, and The Wilson–Simons Revocable Trust, Appellees/Cross–Appellants.

95 So.3d 334

Douglas D. STRATTON, Stratton & Feinstein, P.A., and David Lesman, Appellants/Cross–Appellees,

v.6000 INDIAN CREEK, LLC, and The Wilson–Simons Revocable Trust, Appellees/Cross–Appellants.

Nos. 3D11–2054, 3D11–2053.

District Court of Appeal of Florida, Third District.

July 25, 2012.

Rehearing Denied Aug. 23, 2012.

Douglas D. Stratton, in proper person, for appellants/cross-appellees.

Shook, Hardy & Bacon, and Daniel B. Rogers and Jennifer A. McLoone; Ryan D. Gesten (Davie), for appellees/cross-appellants.

Before SALTER and EMAS, JJ., and SCHWARTZ, Senior Judge.

SALTER, J.

Attorney Douglas D. Stratton (representing himself), his former law firm, and his client David Lesman, appeal a final judgment awarding attorney's fees and costs as sanctions against each of them for frivolous and dilatory actions during the last phase of a foreclosure case. In the main appeal, we affirm the legal basis for the sanctions and the total amount awarded. In the cross-appeal, The Wilson–Simons Revocable Trust asks us to reallocate the attorney's fees and costs awards under section 57.105(1), Florida Statutes (2010), so that Lesman and Stratton will each be liable for one-half of the total. The Trust's claim is well taken, and we therefore reverse the trial court's allocation in the final judgment. We remand the case so that an amended final judgment may be entered against Lesman and Stratton severally, each for one-half of the total sanctions awarded.

I. Facts and Procedural History

U.S. Century Bank commenced a mortgage foreclosure action against 6000 Indian Creek, LLC, in 2009. The mortgage secured an indebtedness of $1,500,000, and it encumbered two condominium units. David Lesman was identified and served as a defendant/tenant of one of the units. The final judgment of foreclosure, entered in April 2010, terminated any rights of possession on the part of Lesman “subject to the provisions of the ‘Protecting Tenants at Foreclosure Act of 2009.’ ” ¹ In the final judgment, the court retained jurisdiction “to enter further orders that are proper, including without limitation, writs of possession and deficiency judgments.” The final judgment did not vacate or supersede another order governing the collection and remittance of rent on the unit occupied by Lesman.

U.S. Century was the prevailing bidder at the foreclosure sale. The certificate of title was issued in September 2010. Three weeks later, The Wilson–Simons Revocable Trust bought the condominiums from U.S. Century and was issued a deed conveying title and all rights in the property to the Trust. The Trust then moved to enforce the existing rent order and the rights of possession established via the final judgment, but did not file a formal motion for intervention. Lesman, through the law firm of Stratton & Feinstein, P.A., attended the hearing on the motion and sought and obtained an order denying the Trust's motion for immediate possession. The order protected Lesman's tenancy through the end of December 2010 so long as he deposited the stipulated rent into the registry of the court.² Lesman made the first payment on time, a second payment later, and failed to make the December 2010 payment until much later. Lesman and his lawyers raised no jurisdictional or procedural impediment to the entry of the order protecting Lesman's tenancy.

After that order was entered, the Trust discovered that Lesman had allowed four persons to occupy the unit without a written lease or condominium association approval, contrary to the requirements of the condominium rules and Lesman's own lease, and that Lesman had not complied with the circuit court's rent order. Lesman and the occupants refused to turn over the condominium unit to the Trust. The Trust then commenced a county court eviction action against the occupants. The occupants, though essentially squatters at that point, were also represented by Douglas Stratton and Stratton & Feinstein, P.A., which obtained a dismissal of the county court complaint because of the Trust's difficulties in serving the occupants.

The Trust then moved the circuit court to enforce the earlier orders and to impose sanctions under section 57.105, Florida Statutes (2010), against Lesman, attorney Douglas Stratton, and Stratton & Feinstein, P.A. (by this time, Stratton & Roman, P.A.). The circuit court conducted one hearing regarding the rent in the registry and the amounts unpaid by Lesman, and a second, separate, evidentiary hearing relating to the sanctions. Following the second hearing, the trial court entered a final judgment awarding attorney's fees and costs to the Trust. This appeal and cross-appeal followed.

II. Analysis

A. Subject Matter Jurisdiction

The Trust became an intervenor ³ when it sought to enforce the rents order and the provision terminating Lesman's rights of possession. Lesman, through Stratton & Feinstein, P.A., assented to the intervention by requesting and obtaining affirmative relief—an order extending occupancy through the end of the year conditioned upon Lesman's payment of rent. Rule 1.230 permits intervention “at any time” the action is pending, and the case below had not been closed. No appeal had been taken, the circuit court had expressly retained jurisdiction over the case, and the order pertaining to the payment of rent had not been vacated.

Although the right to intervene attenuates toward the end of a case, even post-judgment intervention has been allowed in appropriate cases. Technical Chems. & Prods., Inc. v. Porchester Holdings, Inc., 748 So.2d 1090 (Fla. 4th DCA 2000). This is such a case. The circuit court had retained personal jurisdiction over Lesman, a defendant, and had subject matter jurisdiction to interpret and enforce its order on rent ⁴—an order granting partial relief to Lesman, as affirmatively requested by him after the Trust acquired title and sought possession. Neither the circuit court nor this Court should countenance legal tactics gaming the system, violating court orders, and frivolously protracting the judicial proceedings involving foreclosed property.

Stratton and his law firm do not argue that they had any meritorious basis upon which to extend the possession of the unit by Lesman and the four persons he put in possession in violation of his lease, the circuit court order, and the condominium requirements. Instead, the appellants argue that the circuit court lost jurisdiction upon issuance of the certificate of title and U.S. Century's sale of the property to the Trust. But such an argument is actually an objection to the Trust's standing, not to the court's subject matter jurisdiction. The issue of standing is an affirmative defense that can be waived, as the appellants did when they sought and obtained relief from the circuit court after judgment.They did not appeal the order granting Lesman continued occupancy subject to compliance with conditions; instead, they appealed after violating the order and thus incurring monetary sanctions.

Even if the defense had not been waived by the appellants, at least one authority has concluded that an assignee of the purchaser ⁵ at a foreclosure sale also has standing to seek a writ of possession. “The purchaser of the property at a judicial sale is entitled to move for a writ of possession even though not a party to the action. An assignee of the purchaser is entitled to move for a writ.” Henry P. Trawick, Jr., Florida Practice and Procedure § 27:5 (2011 ed.) (citing Fla. R. Civ. P. 1.590 and McLane v. Piaggio, 24 Fla. 71, 3 So. 823 (1888)). The “Author's Comment—1967” to Rule 1.590 states: “A court may make an order in favor of one not a party. An example of this arises where a foreclosure or other judicial sale is made and the court then orders the property delivered to the purchaser or his assignee.”

For these reasons, we reject the appellants' argument that the circuit court lacked jurisdiction.

B. Fees and Costs Under Section 57.105

The appellants next argue that, even if jurisdiction existed, the trial court lacked a sufficient factual basis for the imposition of sanctions under section 57.105, Florida Statutes (2010). The circuit court found, however, that Lesman and his attorneys failed to comply with court orders and that Stratton protracted the proceedings in February 2011 by refusing to take actions that would have resolved the issues (actions offered in a letter a few weeks before by Stratton's...