Filed: Nov. 09, 2016
Latest Update: Mar. 03, 2020
Summary: Third District Court of Appeal State of Florida Opinion filed November 9, 2016. Not final until disposition of timely filed motion for rehearing. _ Nos. 3D13-2607 & 3D13-2379 Lower Tribunal No. 10-39316 _ The Bank of New York Mellon, etc., Appellant/Cross-Appellee, vs. Poker Run Acquisitions, Inc., Appellee/Cross-Appellant. Appeals from the Circuit Court for Miami-Dade County, Jennifer D. Bailey, Judge. Liebler Gonzalez & Portuondo and J. Randolph Liebler, Tricia J. Duthiers, and Adam M. Topel,
Summary: Third District Court of Appeal State of Florida Opinion filed November 9, 2016. Not final until disposition of timely filed motion for rehearing. _ Nos. 3D13-2607 & 3D13-2379 Lower Tribunal No. 10-39316 _ The Bank of New York Mellon, etc., Appellant/Cross-Appellee, vs. Poker Run Acquisitions, Inc., Appellee/Cross-Appellant. Appeals from the Circuit Court for Miami-Dade County, Jennifer D. Bailey, Judge. Liebler Gonzalez & Portuondo and J. Randolph Liebler, Tricia J. Duthiers, and Adam M. Topel, f..
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Third District Court of Appeal
State of Florida
Opinion filed November 9, 2016.
Not final until disposition of timely filed motion for rehearing.
________________
Nos. 3D13-2607 & 3D13-2379
Lower Tribunal No. 10-39316
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The Bank of New York Mellon, etc.,
Appellant/Cross-Appellee,
vs.
Poker Run Acquisitions, Inc.,
Appellee/Cross-Appellant.
Appeals from the Circuit Court for Miami-Dade County, Jennifer D. Bailey,
Judge.
Liebler Gonzalez & Portuondo and J. Randolph Liebler, Tricia J. Duthiers,
and Adam M. Topel, for appellant/cross-appellee.
Cohen│Ruiz P.A. and Mario M. Ruiz, for appellee/cross-appellant.
Before SHEPHERD, LAGOA, and EMAS, JJ.
LAGOA, J.
Appellant/Cross-Appellee, the Bank of New York Mellon, etc. (“the Bank”),
appeals from an Amended Final Judgment Determining Amounts Due and Owing
(“Amended Final Judgment”) and an Order on Plaintiff’s Motion for Rehearing
and to Alter or Amend Judgment. The Bank argues that the trial court did not
possess jurisdiction to enter the Amended Final Judgment after it filed a Notice of
Voluntary Dismissal. Appellee/Cross-Appellant, Poker Run Acquisitions, Inc.
(“Poker Run”), appeals from the Amended Final Judgment and an order denying
its motion for prevailing party attorneys’ fees and costs. Poker Run asserts that the
trial court erred in awarding the Bank additional interest in the Amended Final
Judgment, and that the trial court erred in denying its motion for prevailing party
attorneys’ fees and costs.
Based on Pino v. Bank of New York, 121 So. 3d 23 (Fla. 2013), we are
compelled to reverse and vacate the Amended Final Judgment as the Bank’s
Notice of Voluntary Dismissal divested the trial court of jurisdiction. Because the
trial court lacked jurisdiction to enter the Amended Final Judgment, we also vacate
the trial court’s order denying Poker Run’s motion for prevailing party attorneys’
fees and costs.
I. FACTUAL & PROCEDURAL HISTORY
In June 2008, Poker Run sued the Bank’s borrower, Alvaro Gorrin (the
“Borrower”), for breach of an unlimited personal guaranty (the “Guaranty Case”).
2
The trial court entered final summary judgment in favor of Poker Run and the
Borrower appealed. While the appeal was pending, Poker Run executed on
various assets of the Borrower, including the real property (the “Property”) at issue
in this matter. Poker Run took title to the Property pursuant to a sheriff’s deed
recorded on May 6, 2010.
On July 20, 2010, the Bank filed a Complaint against the Borrower seeking
to foreclose on its $2,360,000.00 mortgage lien recorded against the Property (the
“Foreclosure Case”). Poker Run moved to intervene. On October 8, 2010, the trial
court granted Poker Run’s motion and ordered the Bank to provide Poker Run
payoff figures limited to the amount due when the sheriff’s deed was filed. On
October 20, 2010, the Bank filed an Amended Complaint naming Poker Run as the
sole defendant and owner of the Property. Pursuant to an order entered April 6,
2011, Poker Run ultimately tendered payment to the Bank in the amount of
$2,581,227.15, which the Bank rejected.
On November 23, 2011, while the Foreclosure Case was pending, this Court
reversed the final summary judgment in the Guaranty Case and remanded for a
new trial.1 See Gorrin v. Poker Run Acquisitions, Inc., 77 So. 3d 739 (Fla. 3d
DCA 2011).
1 On remand, the trial court ruled that the Property would remain in Poker Run’s
possession due to the Borrower’s attempt to fraudulently transfer the Property
during Poker Run’s execution. On June 24, 2013, the trial court entered final
judgment in favor of Poker Run. This Court affirmed the final judgment in Gorrin
3
On February 10, 2012, the Bank filed a Second Amended Complaint in the
Foreclosure Case re-naming the Borrower as a defendant.2 Poker Run denied the
Bank’s claimed damages and asserted various affirmative defenses. The trial court
then transferred the Foreclosure Case to the same division as the Guaranty Case.
On February 11, 2013, the trial court held a pretrial hearing in the Guaranty
Case, which the Bank attended. At that hearing, Poker Run raised concerns
regarding the sale of the Property,3 including the pendency of the Foreclosure
Case.4 Two days later, the trial court entered a Closing Order in the Guaranty Case
requiring Poker Run to pay the Bank the full amount of its claimed payoff upon the
sale of the Property. The Closing Order also “reserve[d] jurisdiction to adjudicate
v. Poker Run Acquisitions, Inc., 163 So. 3d 1207 (Fla. 3d DCA 2015) (table).
2 The Bank re-named Gorrin as a defendant in the Foreclosure Case as a result of
this Court’s reversal of the final judgment in the Guaranty Case.
3In August of 2012, the trial court had entered an order appointing a receiver in the
Guaranty Case. That order required Poker Run to immediately turn over possession
of the Property to the Receiver and allowed the Receiver to list the Property for
sale.
4 In its Objections to the Closing Documents regarding the sale of the Property,
Poker Run objected to the closing statement requiring a payoff in full of the
Property’s mortgage. Specifically, Poker Run asserted that “[t]he appropriate
amount of the mortgage payoff is precisely the issue being litigated before this
Court in . . . (the “Foreclosure Action”), where Poker Run has argued (and Judge
Cohen Lando previously ruled) that the amount due to the Bank is hundreds of
thousands of dollars less than what is claimed. However, the closing statement,
received yesterday, requires payment in full of the entire amount claimed by the
Bank, which effectively adjudicates the Foreclosure Action without a trial.”
4
Poker Run’s or [the Borrower’s] claim . . . that the amount due is less.”5 The
Property was then sold and the Bank accepted $3,033,089.65 from the sale as its
payoff. The Bank subsequently filed a motion to vacate the Closing Order,
contending that it was not present when the Closing Order was entered. The trial
court found that the Bank, as a non-party in the Guaranty Case, lacked standing to
file the motion to vacate.
On March 26, 2013, the Bank filed a Notice of Voluntary Dismissal (the
“Notice”) in the Foreclosure Case. Poker Run filed a Motion to Strike the Notice,
arguing that the Bank could not accept the payoff from the Property’s sale in the
Guaranty Case and then deprive the trial court of jurisdiction to adjudicate Poker
Run’s claims. On April 15, 2013, the trial court held a bench trial in the
Foreclosure Case. The Bank contended that the trial court’s reservation of
jurisdiction in the Guaranty Case Closing Order did not survive the Notice filed in
the Foreclosure Case. Poker Run argued that the Bank was not entitled to keep the
5 The Closing Order also contains the following language:
1. Bank of N.Y. Mellon shall be paid the amount it claims is due at
closing, but the court reserves jurisdiction to adjudicate Poker Run’s
or [the Borrower’s] claim . . . that the amount due is less, and if
appropriate to order said Bank to return any overpayment, or disputed
amount.
2. Bank of NY Mellon, shall upon receipt of payment of the amount it
claims due, shall issue a voluntary dismissal with prejudice of its
foreclosure action, with the court to reserve jurisdiction as noted
above in part 1, shall discharge its lis pendens and provide a
Satisfaction of Mortgage.
5
full payoff amount it received from the sale of the Property. In its May 15, 2013
Final Judgment, the trial court found that it maintained jurisdiction in the
Foreclosure Case pursuant to its reservation of such in the Guaranty Case’s
Closing Order. The trial court ruled that the Bank was required to remit to Poker
Run $435,934.30 of the payoff amount.
On May 24, 2013, the Bank filed a motion for rehearing, arguing that the
Final Judgment contained mathematical errors pertaining to the payoff amount the
Bank was required to remit to Poker Run. The trial court granted the motion for
rehearing and entered an Amended Final Judgment on August 15, 2013, which
corrected the calculation errors, but did not otherwise modify the Final Judgment.6
The Bank appealed. Poker Run filed a motion for attorneys’ fees and costs,
contending that it was the prevailing party under section 57.105(7), Florida
Statutes (2013). The trial court denied Poker Run’s motion, and Poker Run
appealed.
II. ANALYSIS
A. The Bank’s Appeal
The Bank argues that the trial court erred in proceeding with trial in the
Foreclosure Case and ultimately entering the Amended Final Judgment because it
was divested of jurisdiction when the Bank filed its Notice. Based on Pino v. Bank
6The Amended Final Judgment corrected the payoff amount owed by the Bank to
Poker Run from $435,934.30 to $325,934.20.
6
of New York, 121 So. 3d 23 (Fla. 2013), we agree. In Pino, the Florida Supreme
Court noted that “[t]he voluntary dismissal serves to terminate the litigation, to
instantaneously divest the court of its jurisdiction to enter or entertain further
orders that would otherwise dispose of the case on the merits, and to preclude
revival of the original action.”
Id. at 32.
There are some limited exceptions to the rule articulated in Pino. For
example, a distinction exists between a party filing a simple voluntary dismissal
with prejudice and an order by the trial court dismissing an action but reserving
jurisdiction or incorporating the parties’ settlement agreement. As this Court has
previously explained:
There is a difference between presenting a
settlement agreement to the trial court for approval prior
to dismissal of an action and cases where the parties
voluntarily dismiss the action without an order of the
court pursuant to Florida Rule of Civil Procedure 1.420.
A voluntary dismissal under rule 1.420(a) divests the trial
court of continuing jurisdiction over the case. However,
where the parties, prior to dismissal, present a settlement
agreement to the trial court for approval and the trial
court enters an order of dismissal predicated on the
parties' settlement agreement, the trial court retains
jurisdiction to enforce the terms of the settlement
agreement.
Albert v. Albert, 36 So. 3d 143, 147 (Fla. 3d DCA 2010) (citations omitted).
Contrary to Poker Run’s assertion, however, the Closing Order in the
separate Guaranty Case does not fall within an exception to Pino for purposes of
7
the Foreclosure Case. The Closing Order in the Guaranty Case was not a
settlement agreement entered in the Foreclosure Case. Indeed, the Closing Order
was not entered in the Foreclosure Case, and it did not otherwise purport to reserve
the trial court’s jurisdiction to take any further action in the Foreclosure Case. In
fact, the trial court subsequently concluded that the Bank could not challenge the
Closing Order because the Bank had not been made a party to the Guaranty Case.
The trial court, therefore, could not rely on its inherent powers to enforce, in the
Foreclosure Case, the Closing Order entered in the Guaranty Case, since once the
Bank’s Notice was filed, the trial court was immediately divested of jurisdiction in
the Foreclosure Case and no exception to Pino applied.
We note that it is clear from the record that the trial court intended to enter
the Closing Order in both the Guaranty and Foreclosure Cases. As the trial court
stated at the hearing on Poker Run’s Motion to Strike the Bank’s Notice:
The bottom line is [the Property] closed with the Court
reserving jurisdiction to address the outstanding claims
that Poker Run are [sic] asserting are due and owing.
....
The bottom line is they can’t handle both claims. You
can’t have it where I order that the case—that the
property be closed subject to certain circumstances, take
advantage of that closing, and now say well, because you
closed we’re not making a claim anymore. That’s not
fair.
....
8
But there was a lot going on and we did it on Monday
and we brought you back on Wednesday. Everybody
was trying to get it closed because it was in everybody’s
economic interest to get it closed.
....
So it seems to me that in 10-39316 [the Foreclosure
Case], notwithstanding that fact that the order [Closing
Order] was entered in the ’08 case [Guaranty Case], it
should have been—if I’d been on top of things—this
should have been an order entered in 10-39316 [the
Foreclosure Case] in an abundance of caution
....
Pursuant to the Court’s order, I reserve jurisdiction to
adjudicate the affirmative defenses, the amount due and
owing that I ordered. I think it’s clear from the order that
I ordered that the Bank be paid the most amount it could
be paid, so that it would feel comfortable releasing the
lien. The reservation by the Court survives the voluntary
dismissal, I believe, because of the specific
circumstances that motivate the voluntary dismissal.
We are sympathetic to the trial court—this was clearly an oversight and not
an intention to insulate the Foreclosure Case from the effect of the Closing Order.
Nonetheless, because the Guaranty and Foreclosure Cases maintained their
separate existences, cf. Santiago v. Mauna Loa Invs., LLC, 189 So. 3d 752 (Fla.
2016), the Closing Order in the Guaranty Case cannot be imported into the
Foreclosure Case such that an exception to Pino would apply in the Foreclosure
Case.
9
While we are therefore compelled to reverse, we note that Poker Run is not
without a remedy. The sole reason the Bank received $3,033,089.65 from the sale
of the Property was that the Closing Order directed the payment to be made,7 and it
is
undisputed that the trial court anticipated a subsequent adjudication of the Bank’s
and Poker Run’s dispute over how much the Bank was ultimately entitled to
receive. Nothing in the record before us precludes Poker Run from filing a
separate suit against the Bank seeking repayment for the sums Poker Run alleges
the Bank is not entitled to keep.8 Presumably, that action would be transferred to
7 To note, counsel for the Bank at the hearing on Poker Run’s Motion to Strike the
Notice did ultimately acknowledge that the reason for filing its Notice was because
it had received the $3,033,089.65 payoff pursuant to the Closing Order:
[THE BANK]: We voluntarily dismissed the
action.
THE COURT: Because you were paid.
[THE BANK]: Correct.
THE COURT: Not because you lost interest.
[THE BANK]: That happens too sometimes. But
no, not in this case.
THE COURT: So the question is that the bank
was paid. And how much the bank was paid, I think it’s
part of the reserved jurisdiction of the Court. And that
part survives the voluntary dismissal, and the case should
not be closed on the adjudication on the amount
outstanding pursuant to the Court’s reservation.
8 We express no opinion regarding the merits of such a suit.
10
the same division of the trial court that handled both the Foreclosure and Guaranty
Cases in an effort to conserve judicial resources.
B. Poker Run’s Cross-Appeal and Consolidated Appeal
In its cross-appeal, Poker Run argues that it was error for the trial court in
the Amended Final Judgment to award the Bank $2,707,155.45, which included
$141,516.67 in interest and $56,000.00 in insurance charges incurred during the
period from December 1, 2009 to June 30, 2011. Poker Run argues this was error,
and that the Bank was only entitled to the amount Poker Run tendered,
$2,581,227.15. Because as we noted in Section A supra, the Notice divested the
trial court of jurisdiction, the trial court’s Amended Final Judgment must be
vacated.
The same rationale dictates our resolution of the issue raised in Poker Run’s
consolidated appeal. Poker Run’s motion for attorneys’ fees and costs asserted that
Poker Run was the prevailing party at trial. Because the Notice divested the trial
court of jurisdiction, the trial court’s order denying Poker Run’s motion for
attorneys’ fees and costs must be vacated.
III. CONCLUSION
Because the Foreclosure Case terminated when the Bank filed its notice of
voluntary dismissal, the trial court was without jurisdiction to take any further
action in that matter. We therefore reverse and vacate the Amended Final
11
Judgment. We further vacate the trial court’s order denying Poker Run’s motion
for attorneys’ fees and costs as that order was entered after the filing of the Bank’s
notice of voluntary dismissal.
Reversed and Remanded.
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