Wilmington Trust, N.A. v. Serpa

• Decision Date: 18 May 2022
• Docket Number: 3D21-1835
• Citation: 346 So.3d 1218
• Parties: WILMINGTON TRUST, N.A., etc., Appellant, v. Alberto SERPA, et al., Appellees.
• Court: Florida District Court of Appeals

346 So.3d 1218

WILMINGTON TRUST, N.A., etc., Appellant,

v.Alberto SERPA, et al., Appellees.

No. 3D21-1835

District Court of Appeal of Florida, Third District.

Opinion filed May 18, 2022

Rehearing Denied August 02, 2022

Atlas | Solomon, PLLC, and Eric S. Matthew, Adam G. Schwartz and Dorothy Ann A. Dlugolecki (Stuart), for appellant.

Corona Law Firm, P.A., and Ricardo Corona, Ricardo M. Corona and Yung Truong, for appellees.

Before LOGUE, HENDON and BOKOR, JJ.

BOKOR, J.

Wilmington Trust, N.A., sought to foreclose on property owned by Alberto and Maria Serpa based on nonpayment and default of the terms of a promissory note, original mortgage, and loan modification agreements. At the trial, after Wilmington rested, the Serpas moved for involuntary dismissal based on section 201.08(1)(b), Florida Statutes, which precludes the enforcement of a mortgage, trust deed, or other instrument where documentary stamp taxes have not been paid. After denying Wilmington's request for continuance or abatement, the trial court granted the Serpas’ motion for involuntary dismissal and subsequently entered final judgment in favor of the Serpas. Wilmington appeals. We have jurisdiction. Fla. R. App. P. 9.030(b)(1)(A).

Wilmington claims that the trial court erred by: (1) granting the Serpas’ motion for involuntary dismissal rather than granting their motion for continuance to provide proof of payment of the documentary stamp taxes; (2) failing to allow Wilmington to proceed on the portion of the mortgage in which the documentary stamp taxes had been paid; and (3) on rehearing, failing to reopen the evidence to allow Wilmington the opportunity to introduce evidence of payment of the documentary stamp taxes and instead granting final judgment. As explained below, we affirm in part and reverse in part.

We find no abuse of discretion in the trial court's granting of the Serpas’ motion for involuntary dismissal. Solis v. Lacayo, 86 So. 3d 1147, 1148, n.1 (Fla. 3d DCA 2012) ("In an action to enforce a promissory note, when the trial court discovers that the documentary taxes have not been paid, the trial court must either dismiss the action without prejudice, or, upon motion, may abate the action to enable the party to purchase and affix the documentary stamps .") (emphasis added) (citing Somma v. Metra Elecs. Corp., 727 So. 2d 302 (Fla. 5th DCA 1999) ). Accordingly, we leave such determinations to the sound discretion of the trial court.¹

But what began as a discretionary act of dismissal turned to error based on the trial court's subsequent entry of final judgment without regard to Wilmington's payment of the outstanding taxes and timely motion to reopen the evidence to consider such payment. After the involuntary dismissal, Wilmington timely filed both a "motion for rehearing and alternatively to reopen the evidence" and a "notice of filing proof of tax payment, recorded loan modification agreement." In deciding whether to reopen a case, a court must consider: the timeliness of the request, the character of the evidence sought to be introduced, the effect of allowing the evidence to be admitted, and the reasonableness of the excuse justifying the request to reopen. Lovelass v. Hutchinson, 250 So. 3d 701, 705 (Fla. 4th DCA 2018). Here, Wilmington presented a timely request to introduce relevant evidence (the subsequent payment of documentary stamp taxes on the loan modification) to allow the case to be tried on its merits.² Accordingly, on rehearing, the trial court should have allowed Wilmington to reopen the case to admit evidence of proof of payment of the documentary stamp taxes.

Proof of payment of the documentary stamp tax would have allowed the matter to be tried on the merits rather than being involuntarily dismissed due to this procedural technicality. See U.S. Bank Nat'l Ass'n v. Amaya, 254 So. 3d 579, 583 (Fla. 3d DCA) ("Generally, an involuntary dismissal without prejudice does not operate as an adjudication on the merits."); see also E.I. DuPont De Nemours & Co., Inc. v. Sidran, 140 So. 3d 620, 623 (Fla. 3d DCA 2014) ("[T]he courts...