Westport Recovery Corp. v. Midas

• Decision Date: 02 May 2007
• Docket Number: No. 4D06-2506.,4D06-2506.
• Citation: 954 So.2d 750
• Parties: WESTPORT RECOVERY CORPORATION, Appellant, v. Nancy MIDAS, Patrick Midas, Jr., Vincent P. Gentile, and Madeline A. Gentile, Appellees.
• Court: Florida District Court of Appeals

954 So.2d 750

WESTPORT RECOVERY CORPORATION, Appellant, v. Nancy MIDAS, Patrick Midas, Jr., Vincent P. Gentile, and Madeline A. Gentile, Appellees.

No. 4D06-2506.

District Court of Appeal of Florida, Fourth District.

May 2, 2007.

Robert D. Friedman of Friedman & Greenberg, P.A., Plantation, for appellant.

Assad S. Mirza of Mirza & Mirza, LLP, Pembroke Pines, for appellees.

STONE, J.

We affirm an order dismissing Westport's action for declaratory relief.

Westport, the holder of a final judgment against Nancy Midas in the sum of $80,000.00, levied upon the right, title and interest of Nancy Midas in the real property at issue. The property was titled in Midas' name subject to a life estate in Vincent and Madeline Gentile, who had placed title in her name, reserving the life estate.

Following the levy, in August 2004, the Gentiles filed a notice of homestead on the property. The notice contended that the sheriff's notice of levy did not constitute a valid execution on the property or on the Gentiles; the Gentiles claimed they had no obligation under the judgment and that Midas held title only as trustee and had no ownership interest or title in the property.

In August 2004, Nancy Midas executed a declaration claiming that she held title solely as trustee and was not the owner of, nor did she have any interest in, the property.

It is undisputed that the "right, title and interest of Nancy Midas" in the property was sold at a sheriff's sale, in September 2004, to a third party and that Westport collected $120,512.68. There is no indication in the record that Westport will not retain this sum, and there is no claim that the third party purchaser was related to either side.

The Gentiles filed a motion to quash the writ of execution and to vacate the levy and sheriff's sale. A hearing was held, and in September 2004, the court entered an order denying the Gentiles' motions. The court found the Gentiles' life estate interest was not affected by the sheriff's sale, as only Nancy Midas' interest was levied upon. The court rejected the Gentiles' assertion that the quit-claim deed did not grant an interest in the property to Midas and found adversely to the Gentiles' assertion that they had more than a life estate interest in the property.

In this action against Midas, her son, and the Gentiles, Westport sought a declaratory judgment that the notice of homestead filed by the Gentiles did not affect any interest Westport may have had in the property. Westport filed a motion for summary judgment, claiming there was no genuine issue of material fact and that Westport was entitled to judgment as a matter of law, declaring that the notice of homestead filed by the Gentiles did not affect any interest Westport may have had in the property by virtue of the lien against Midas' interest. The Gentiles filed a cross-motion for summary judgment.

The trial court concluded that because the property was sold at the sheriff's sale, with the buyer taking subject to any rights the Gentiles may have, Westport's interest in the property had been sold, and only the new owner had any real interest in the Gentiles' status vis-a-vis the property.

Over Westport's objection that it was merely asking for a denial of the defendant's motion for summary judgment and its request "to basically dismiss the case as it is without any sort of prejudice," the court orally pronounced it was dismissing the case because it was "moot" due to Westport's having no further interest in the Gentiles' homestead claims as to the property. The court also denied Westport's motion for summary judgment. We note that at no time has Westport asserted any claim as to the Gentiles.

Section 222.01, Florida Statutes, Designation of Homestead by Owner Before Levy, provides, in relevant part:

A lien pursuant to chapter 55 of any lienor upon whom such notice is served, who fails to institute an action for a declaratory judgment to determine the constitutional...