Filed: Nov. 13, 2015
Latest Update: Mar. 02, 2020
Summary: NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT DOLLY M. ZANDER, ) ) Appellant, ) ) v. ) Case No. 2D14-5866 ) JEFFERY CIMA, ) ) Appellee. ) ) Opinion filed November 13, 2015. Appeal from the Circuit Court for Sarasota County; Kimberly C. Bonner, Judge. Henry G. Gyden of Gyden Law Group, P.A., Tampa, for Appellant. No appearance for Appellee. BLACK, Judge. Dolly Zander challenges the final summary judgment
Summary: NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT DOLLY M. ZANDER, ) ) Appellant, ) ) v. ) Case No. 2D14-5866 ) JEFFERY CIMA, ) ) Appellee. ) ) Opinion filed November 13, 2015. Appeal from the Circuit Court for Sarasota County; Kimberly C. Bonner, Judge. Henry G. Gyden of Gyden Law Group, P.A., Tampa, for Appellant. No appearance for Appellee. BLACK, Judge. Dolly Zander challenges the final summary judgment i..
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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
DOLLY M. ZANDER, )
)
Appellant, )
)
v. ) Case No. 2D14-5866
)
JEFFERY CIMA, )
)
Appellee. )
)
Opinion filed November 13, 2015.
Appeal from the Circuit Court for Sarasota
County; Kimberly C. Bonner, Judge.
Henry G. Gyden of Gyden Law Group, P.A.,
Tampa, for Appellant.
No appearance for Appellee.
BLACK, Judge.
Dolly Zander challenges the final summary judgment in favor of Jeffery
Cima as to count II of Ms. Zander's fifth amended complaint.1 We reverse and remand
for further proceedings because Mr. Cima failed to establish that he was entitled to a
1
Mr. Cima did not participate in this appeal.
judgment as a matter of law.
Ms. Zander entered into a contract with Mr. Cima and his then-wife,
Alyssa Cima, who is not a party to this action, for the sale and purchase of a residential
home. Consistent with the sale and purchase contract, the mortgage and note reflected
that Ms. Zander would carry the principal balance for two years, at which time the
Cimas would make a balloon payment of $329,711 for the balance. The closing
occurred on February 9, 2010, and the Cimas made monthly payments in the amount of
$1825.19 as prescribed by the note until December 2010. Thereafter, the Cimas
became involved in divorce proceedings and stopped making payments.
Ms. Zander filed suit, pro se, and following several motions to dismiss and
subsequent amendments, the fourth amended complaint became the operative
complaint. Pertinent to this appeal, in the breach of contract claim, count II, Ms. Zander
alleged that Mr. Cima failed to perform as required by the contract, note, and mortgage.
On June 9, 2014, Mr. Cima filed an amended motion for partial summary judgment as to
count II, asserting that Ms. Zander was improperly seeking to collect on the note where
the mortgage failed to meet the requirements of section 697.05, Florida Statutes (2009),
as a balloon mortgage. Though there is no transcript of the hearing on the motion, the
order entered on July 21, 2014, reflects that the trial court concluded that "[t]he Plaintiff
may not proceed on the note in this matter without moving on the mortgage as well" and
granted the motion with leave to amend.
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Ms. Zander filed a fifth amended complaint.2 Our record does not
demonstrate that Mr. Cima filed a motion for final summary judgment as to count II of
the fifth amended complaint. Nonetheless, without a further hearing, the trial court
entered the final summary judgment in favor of Mr. Cima as to count II on November 14,
2014; the trial court provided no basis for its ruling.3 During a December 1, 2014,
hearing on other pending motions, for which there is a transcript, Ms. Zander sought to
clarify the trial court's final ruling granting summary judgment. Though the trial court
declined to address its ruling, Mr. Cima asserted that the trial court determined that the
mortgage failed to meet the requirements of section 697.05 as a balloon mortgage.
Florida Rule of Civil Procedure 1.510(c) provides, in part, that a motion for
summary judgment "shall state with particularity the grounds upon which it is based and
the substantial matters of law to be argued."
Summary judgment is a limited remedy that is appropriate
only when the state of the evidence is such that the
nonmoving party will not be able to prevail at trial as a matter
of law. The party moving for summary judgment has the
burden to establish irrefutably that the nonmoving party
cannot prevail were a trial to be held.
2
After filing the fifth amended complaint, Ms. Zander filed a "Motion for
Judgment on the Pleadings or Summary Judgment." This motion was denied on
December 18, 2014.
3
Though not argued by Ms. Zander on appeal, we note that it was
improper for the trial court to enter the final summary judgment where there was no
motion pending for such relief. See Muncey v. Star Brite Distribs., 378 So. 3d 1326,
1327 (Fla. 3d DCA 1980) ("The trial court erred in, sua sponte, entering a summary final
judgment against the plaintiff, where there was no motion pending therefor and the
plaintiff had no notice or opportunity to present opposing affidavits."); see also Land
Dev. Servs., Inc. v. Gulf View Townhomes, LLC, 75 So. 3d 865, 871 (Fla. 2d DCA 2011)
(holding that where "the final judgment provid[ed] relief that was not requested . . . , its
entry constituted reversible error").
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Land Dev. Servs., Inc. v. Gulf View Townhomes, LLC, 75 So. 3d 865, 868 (Fla. 2d DCA
2011) (citations omitted). The standard for reviewing an order granting a final summary
judgment is de novo. Brock v. Orozco,
75 So. 3d 766, 768 (Fla. 2d DCA 2011).
The crux of Mr. Cima's amended motion for partial summary judgment
was that the mortgage securing the note failed to meet the requirements of a balloon
mortgage as prescribed by section 697.05. Yet the trial court purportedly granted this
motion on July 21, 2014, due to Ms. Zander's failure to "proceed on the note in this
matter without moving on the mortgage as well." This ground was not properly raised in
the motion. Mr. Cima's motion provided only that "[Ms. Zander] seeks relief in this
action by suing on the note while not seeking to foreclose the concomitant mortgage on
the property." Such a single conclusory statement does not suffice as a separate
ground in a motion for summary judgment. See Williams v. Bank of Am. Corp., 927 So.
2d 1091, 1093 (Fla. 4th DCA 2006). Notwithstanding the foregoing, the trial court is
incorrect as a matter of law. A note and a mortgage are distinct agreements, and as
such a suit may be brought to recover on the note without foreclosing the mortgage.
See Bank of N.Y. Mellon v. Reyes,
126 So. 3d 304, 308 (Fla. 3d DCA 2013) ("The
holder of the note may discard the mortgage entirely, and sue and recover on the note."
(quoting Taylor v. Am. Nat'l Bank of Pensacola, 57 So. 678, 685 (Fla. 1912))).
In support of Mr. Cima's assertion that the mortgage failed to comply with
section 697.05, he cited Slomovic v. Petryk, 341 So. 2d 208 (Fla. 4th DCA 1976).
However, Slomovic involved a second mortgage. Mr. Cima did not contend that the
mortgage at issue was a second mortgage or otherwise file any documents
demonstrating such. With one exception that is inapplicable here, section 697.05 does
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not apply to first mortgages. See ยง 697.05(4)(b) ("This section does not apply to . . .
[a]ny first mortgage, excluding a mortgage in favor of a home improvement contractor
defined in s. 520.61(13) the execution of which is required solely by the terms of a home
improvement contract which is governed by the provisions of ss. 520.60-520.98 . . . .").
Further, section 697.05(4)(g) also exempts "[a]ny mortgage granted by a purchaser to a
seller pursuant to a written agreement to buy and sell real property which provides that
the final payment of said mortgage debt will exceed the periodic payments thereon."
Here, the sale and purchase contract executed by the parties provided, in part:
Seller agrees to enter into a Mortgage Agreement secured
by a Promissory Note with Buyers whereby Seller finances
that sum with a payment schedule amortizing the balance
due over a thirty year period at an interest rate of five
percent, resulting in monthly payments from Buyers to Seller
in the amount of $1,825.19, and specifying a balloon
payment after two years in the amount of $329,711. . . .
Whether the trial court's ruling granting final summary judgment in favor of
Mr. Cima was based on the rationale expressed in the July 21, 2014, order or based on
the rationale expressed in Mr. Cima's motion, the trial court erred. Mr. Cima failed to
meet his burden of establishing his entitlement to summary judgment. Accordingly, we
reverse and remand for further proceedings.
Reversed and remanded.
LaROSE and KHOUZAM, JJ., Concur.
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