Thompson v. Bank of New York

• Decision Date: 05 November 2003
• Docket Number: No. 4D01-3281.,4D01-3281.
• Citation: 862 So.2d 768
• Parties: Ronald THOMPSON, Appellant, v. The BANK OF NEW YORK, as Trustee, Appellee.
• Court: Florida District Court of Appeals

862 So.2d 768

Ronald THOMPSON, Appellant, v. The BANK OF NEW YORK, as Trustee, Appellee.

No. 4D01-3281.

District Court of Appeal of Florida, Fourth District.

November 5, 2003.

Alan H. Ramer, Miami, for appellant.

William P. Heller of Akerman Senterfitt, Fort Lauderdale, for appellee.

PER CURIAM.

This is an appeal from a final summary judgment of foreclosure. The trial court granted summary judgment without allowing the defendant to file amended affirmative defenses. Because the proposed amendment failed to state the defense of fraud with particularity, we affirm the final judgment.

The Bank of New York, appellee, filed an amended foreclosure complaint on June 20, 2000. On July 5, 2000, appellant, Ronald Thompson, filed an answer, without affirmative defenses, and a counterclaim alleging a Federal Truth In Lending violation. On August 31, 2000, the Bank moved to dismiss the counterclaim, arguing, inter alia, that it was subject to mandatory arbitration pursuant to an arbitration agreement signed by Thompson.

On February 22, 2001, the Bank moved for summary judgment on its foreclosure claim.

On March 24, 2001, Thompson moved for leave to file an amended answer and counterclaim; the proposed pleading contained the affirmative defense that the "subject matter of this action was procured by fraud." The counterclaim contained counts for fraud and deceptive trade practices under section 501.204, Florida Statutes (1999).

On the eve of the summary judgment hearing, Thompson filed an affidavit that the signature on the arbitration agreement was not his. The court scheduled an evidentiary hearing to determine whether Thompson signed the arbitration agreement.

At the May 24, 2001 evidentiary hearing, Thompson admitted that the signature on the arbitration agreement was his. The court ordered the parties to file memoranda addressing the enforceability of the arbitration agreement.

On July 24, 2001, in a well-reasoned ten-page order, the trial court granted the Bank's motion for summary judgment and denied Thompson's motion to file an amended answer and counterclaim. The court indicated that Thompson could pursue his counterclaim in arbitration. The court determined that sanctions were appropriate because Thompson and his counsel "knew or should have known" that the claim that Thompson did not sign the arbitration agreement was unsupported by the facts.

The trial court did not abuse its discretion in denying the motion to amend to add the affirmative defense of fraud, since the defense was not pled with sufficient particularity. Without the affirmative defense, nothing in the record precluded summary judgment of foreclosure.

Florida Rule of Civil Procedure 1.190(a) provides that leave of court to amend a pleading "shall be given freely when justice so requires." "Courts should be especially liberal when leave to amend `is sought at or before a hearing on a motion for summary judgment.'" Bill Williams Air Conditioning & Heating, Inc. v. Haymarket Coop. Bank, 592 So.2d 302, 305 (Fla. 1st DCA 1991) (quoting Montero v. Compugraphic Corp., 531 So.2d 1034, 1036 (Fla. 3d DCA 1988)). "As a general rule, `[l]eave to amend should not be denied unless the privilege has been abused, there is prejudice to the opposing party, or amendment would be futile.'" N. Am. Speciality Ins. Co. v. Bergeron Land Dev., Inc., 745 So.2d 359, 362 (Fla. 4th DCA 1999) (quoting Life Gen. Sec. Ins. Co. v. Horal, 667 So.2d 967, 969 (Fla. 4th DCA 1996)); see also Kiriakidis v. Kiriakidis, 855 So.2d 208 (Fla. 4th DCA 2003)

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However, a proposed amendment is futile where it is insufficiently pled. The court in this case denied the motion to amend because Thompson's allegations of fraud were "conclusory in their content, and lacking in any real allegations of ultimate fact showing fraud on the part of the Bank of New York." Such defenses were insufficient as a matter of law.

Because of litigants' proclivity to loosely sling the term "fraud" into pleadings, the law requires that fraud be described with precision. Florida Rule of Civil Procedure 1.120(b) mandates that "the circumstances constituting fraud ... shall be stated with such particularity as the circumstances may permit."

This means that an affirmative defense or claim "must clearly and concisely set out the essential facts of the fraud, and not just legal conclusions." Flemenbaum v. Flemenbaum, 636 So.2d 579, 580 (Fla. 4th DCA 1994). Where a defense of fraud exists, "it is not so subtle a concept that it cannot be described with precision." Id.

The only specific allegation of fraud in the affirmative defense is that the seller of the underlying real estate represented to Thompson that Thompson was "financially able to qualify and afford the subject premises."

Such a statement cannot support a cause of action for fraud. See, e.g., Glass v. Craig, 83 Fla. 408, 91 So. 332, 335 (1922) (holding that "a mere statement of opinion, belief, or expectation, although untrue and resting upon no information, is not such a false representation as to constitute fraud"); Reimsnyder v. Southtrust Bank, N.A., 846 So.2d 1264, 1266 (Fla. 4th DCA 2003) (determining that...