Answer Brief - Fourth District Court of Appeal

E-Copy Received Apr 15, 2014 8:24 PM
IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
CASE NO. 4D13-2733
L.T. NO. 50 2011 CA 002503 XXXX MB AW
REGUEZ INVESTMENTS, LLC
APPELLANT,
vs.
LAZARO HERNANDEZ
APPELLEE.
_____________________________/
APPELLEE’S ANSWER BRIEF
(On appeal from the Circuit Court of the Fifteenth Judicial Circuit
in and for Palm Beach County, Florida)
Marshall E. Rosenbach, Esq.
Florida Bar No. 698032
LAW OFFICES OF MARSHALL E. ROSENBACH
11430 US Highway 1
North Palm Beach, Florida 33408
Phone: (561) 627-8990
Fax: (561) 694-1359
[email protected]
[email protected]
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TABLE OF CONTENTS
CONTENT
PAGE
TABLE OF CONTENTS…………………………………………….…………….2
TABLE OF AUTHORITIES…………………………………………...……..……3
PREFACE………………………………………………………………………….4
SUMMARY OF ARGUMENT…………………………………………………....5
ARGUMENT
I.
THE TRIAL COURT MADE SPECIFIC FINDINGS OF FACT AND
CONCLUSIONS OF LAW IN THE FINAL JUDGMENT…….……9
II.
THE TRIAL COURT DID NOT ERR BY ADMITTING EVIDENCE
OF A PRIOR ORAL AGREEMENT OF A COLLATERAL
PAYMENT SOURCE FOR THE NOTE AND BY DENYING
FORECLOSURE BECAUSE THE EVIDENCE WAS NOT
INCONSISTENT WITH THE NOTE (RESPONDING TO
REGUEZ’S BRIEF, SEC. I, P. 19)…………………………………13
THE TRIAL COURT DID NOT ABUSE ITS DISCRETION BY
DENYING FORECLOSURE AND ORDERING A FORFEITURE
(RESPONDING TO REGUEZ’S BREIF, SEC. II, P. 24).……...….16
III.
IV.
THE TRIAL COURT’S FINDINGS OF FRAUD ARE NOT
UNSUPPORTED BY COMPETENT SUBSTANTIAL EVIDENCE
(RESPONDING TO REGUEZ’S BRIEF, SEC. III, P. 32)………...19
V.
THE TRIAL COURT DID NOT ERR BY REFUSING TO OPEN
THE JUDGMENT TO RECEIVE FURTHER TESTIMONY
CONCERNING THE TALL PINES PROPERTY. (RESPONDING
TO REGUEZ’S BRIEF, SEC. IV, P. 35)…………………….….…..21
MOTION FOR ATTORNEYS’ FEES ON APPEAL…………………..…….…..22
CONCLUSION……………………………………………………….…………..22
CERTIFICATE OF SERVICE…………………………………………...……….24
CERTIFICATE OF COMPLIANCE……...………………………………………24
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TABLE OF AUTHORITIES
CASES AND TREATISES
PAGE
Asphalt Paving, Inc. v. Ulery, 149 So.2d 370 (Fla. 1st DCA 1963)……...…...10, 13
Demorizi v. Demorizi, 851 So. 2d 243, 246 (Fla. 3d DCA 2003)………………..11
Evidence Code Rule 803(18)………………………………………………….….19
Fla. R. Civ. P. 1.530(a)……………………………………………………………21
Halliburton Co. v. McPheron, 1962, 70 N.M. 403, 374 P.2d 286…………….…..13
Jackson v. Parker, 153 Fla. 622, 15 So.2d 451 (Fla. SCT 1943)……………...10, 13
Lou Bachrodt Chevrolet, Inc. v. Savage,
570 So.2d 306, 308 (Fla. 4th DCA 1990)………………………………………….11
Munck v. Manatee River Bank & Trust Co., 165 So. 57, 59 (Fla. 1935)……...….17
Schwartz v. Zaconick, 68 So.2d 173, 175 (Fla. 1953)………………………..…..16
Singleton v. Grevmar Assocs., 882 So. 2d 1004, 1008 (Fla. 2004)…………..…..17
Tinker v. De Maria Porsche Audi, 459 So.2d 478 (Fla. 3rd DCA 1984)……….....11
Wicker v. Board of Public Instruction of Dade County,
106 So.2d 550, 558 (Fla. 1958)……………………………………………...…6, 12
30 Am.Jur.2d, Evidence, § 1032…………………………………………….……13
13 Fla.Jur., Evidence, § 399…………………………………………………..…..13
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PREFACE
In this Answer Brief, the Appellant, Reguez Investments, LLC., will be
referred to as “Reguez” or “Appellant.” The Appellee, Lazaro Hernandez, will be
referred to as “Hernandez” or “Appellee.” References to the Record are
abbreviated as follows:
(R #)
= Record on Appeal followed by page number(s)
(Tr.1 #)
= Trial Transcript of Day 1 (October 15, 2012) followed by the
page number(s)
(Tr.2 #)
= Trial Transcript of Day 2 (October 24, 2012) followed by the
page number(s)
(PE #)
= Plaintiff’s Trial Exhibit followed by the applicable number
(DE #)
= Defendant’s Trial Exhibit followed by the applicable letter
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SUMMARY OF ARGUMENT
On October 15, 2012, and October 25, 2012, this case was tried to the trial
court. Numerous witnesses testified. Documentary evidence was presented. On
November 15, 2012, the trial court issued a Final Judgment and Order Denying
Motion for Directed Verdict, (the “Final Judgment”), in which the trial court made
specific findings of fact and conclusions of law.
The trial court specifically found that Jose Rodriguez, (“Rodriguez”), who
graduated from the University of Florida with a Bachelor’s Degree (Tr.1 # 82) and
who has acquired 40-45 properties over the past 15-20 years, the principal of
Plaintiff and Appellant, Reguez Investments, LLC, (“Reguez”), was “not credible”
and it rejected his testimony with regard to the circumstances giving rise to the
subject note and mortgage. The trial court specifically found that Defendant and
Appellee, Lazaro Hernandez, (“Hernandez”), whose IQ testing resulted in scores of
77, 78, and 83 (DE #22 – see page 1, lower left hand corner of exhibit), and who
was in special ed class for problems with reading at South Grade Elementary and
who attended Lake Worth High School 2 hours per day in the “work release
program because we were a low income family and it was the only way [he] got to
high school”, (Tr.1 #221-222), had other resources available to him to borrow
money to close on the home he was purchasing in a short sale, (the “Home”), and
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that the parties agreed that the sole source of repayment of the $70,000 loan would
come from the sale of the proceeds of a separate property, the Tall Pines property,
(“Tall Pines”). The trial court specifically found that the Claim of Lien (DE #16)
prepared by Rodriguez in Hernandez's favor in the original amount of $70,000
corroborated this agreement and explained why the “renegotiation” language was
included in the subject note.
The trial court specifically found that the terms of this agreement did not
contradict the terms of the written agreement, but instead, explained it.
Accordingly, the trial court found that admission of the deal between the parties
did not violate the parol evidence rule and, instead, supported Hernandez's claim
that he was induced by fraud to borrow $70,000 from Reguez.
In the Final Judgment, citing to the Florida Supreme Court case of Wicker v.
Board of Public Instruction of Dade County, 106 So.2d 550, 558 (Fla. 1958), the
trial court reiterated that a court of equity is a court of conscience, and it should not
be shackled by rigid rules of procedure and thereby preclude justice being
administered according to good conscience. Given its specific findings of fact and
conclusions of law, the trial court did equity and (1) cancelled the note and
mortgage and (2) assigned to Reguez the Claim of Lien in favor of Hernandez, to
Reguez.
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Reguez's arguments on appeal are without merit. First, as to Reguez's
contention that admitting evidence of a prior oral agreement of a collateral
payment source for the note was error, this argument fails because the written
agreement was not “directly inconsistent” or “expressly inconsistent” with the
parties' agreement concerning repayment of the loan, and this evidence explained
why the “renegotiation” within 12 months language was contained in the note.
The subject note was atypical. The “renegotiation” language in the note
distinguishes this case from the cases cited by Reguez. Because the parol evidence
rule does not bar evidence that is not “directly” or “expressly” inconsistent with the
written instrument, Reguez' first argument on appeal fails.
Second, Reguez argues that the trial court abused its discretion in denying
foreclosure and ordering a forfeiture. This argument fails because Reguez is
estopped from contending the Claim of Lien is worthless because Rodriguez
prepared the Claim of Lien. Reguez cannot now argue that same is worthless. In
addition, there was no forfeiture. The trial court awarded to Reguez the Claim of
Lien that Rodriguez prepared in favor of Hernandez. There has been no
adjudication that the Claim of Lien is worthless, and there is no evidence in the
record that it is worthless. It is still a claim and it is the subject of litigation in a
separate case, the Carmona lawsuit.
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Third, Reguez argues that the trial court's finding of fraud is unsupported by
competent substantial evidence and is therefore erroneous. This argument fails
because the trial court heard testimony from both Rodriguez and Hernandez, and
both testified an offer to purchase Tall Pines was made. Rodriguez's testimony that
there was insufficient equity to pay off the liens on Tall Pines to pay money to
Hernandez was rejected by the trial court. The trial court specifically found that
rather than sell Tall Pines, Rodriguez kept the property and collected rent from a
tenant, thereby waiving its right to foreclosure.
Finally, Reguez argues that the trial court erred by refusing to open the
judgment to receive further testimony concerning Tall Pines. This argument fails
because Reguez made a strategic legal decision with regard to what evidence to
present at trial despite the fact that the trial court was allowing evidence
concerning Tall Pines as it related to Hernandez's fraudulent inducement claim.
In short, the trial court disbelieved Rodriguez’s testimony and believed
Hernandez’s. The trial court did equity as it saw fit. Its decision after a 2 day trial
should not be disturbed on appeal.
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ARGUMENT
I. THE TRIAL COURT MADE SPECIFIC FINDINGS OF FACT AND
CONCLUSIONS OF LAW IN THE FINAL JUDGMENT.
In the Final Judgment (R 000649-000654), the trial court specifically found
as follows:
(1) Plaintiff and Appellant, Reguez Investments, LLC, (“Reguez”), and
Defendant and Respondent, Lazaro Hernandez, (“Hernandez”) agreed that Reguez
would lend Hernandez $70,000 to purchase his home, (the “Home”), and that the
sole source of repayment would come from the proceeds of the sale of the Tall
Pines property.
(2) Reguez's principal, Jose Rodriguez, “was not credible” and specifically
rejected his testimony with regard to the circumstances giving rise to the subject
note and mortgage.
(3) Rodriguez prepared the Claim of Lien in favor of Hernandez in the
amount of $70,000, the Claim of Lien was recorded against the Tall Pines property
in the amount of $87,000, and the Claim of Lien appears to show that Rodriguez
knew that the sale of the Tall Pines property was supposed to be used to repay the
loan.
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(4) Hernandez had access to enough money through borrowing from family
and other resources to pay the balance of what he needed to purchase the Home in
the short sale without having to borrow from Reguez.
(5) Parol evidence is admissible to connect several written instruments and
show they were all part of one transaction. Jackson v. Parker, 153 Fla. 622, 15
So.2d 451 (Fla. SCT 1943); Asphalt Paving, Inc. v. Ulery, 149 So.2d 370 (Fla. 1st
DCA 1963). In addition, evidence of the agreement to repay the loan from the sale
of the Tall Pines property, and Reguez's promise that the Tall Pines property was
being listed and sold, is admissible to explain why the “renegotiation” language in
the note is in the agreement. It explains the complete agreement between the
parties. The renegotiation language is there because it was the parties' agreement
and the intent that the Tall Pines property would be sold and the loan would be
paid back from those proceeds.
(6) Rodriguez, on behalf of Reguez, misrepresented to Hernandez that the
proceeds from the sale of the Tall Pines property would be the sole source of
repayment for the $70,000 loan, and he knew such misrepresentation was false.
(7) Rodriguez, on behalf of Reguez, made the foregoing misrepresentation in
order to induce Hernandez to borrow $70,000 from Reguez. In addition, to induce
Hernandez to forbear using his alternative sources of funding, Rodriguez told
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Hernandez that he would easily have the funds required to pay him back.
Rodriguez knew Hernandez had an interest in the Tall Pines property which would
cover the amount he would owe under the note and mortgage. To induce
Hernandez, Rodriguez told Hernandez that he was in the process of listing and
selling the Tall Pines property and it would be complete within 3 months, and that
the $70,000 would be repaid from that sale.
(8) It is well settled that when an action alleges fraudulent inducement the
parol evidence rule does not preclude admission of extrinsic evidence. Lou
Bachrodt Chevrolet, Inc. v. Savage, 570 So.2d 306, 308 (Fla. 4th DCA 1990).
While parol evidence may not be introduced to vary the terms of a written
instrument, it is competent to prove the instrument was procured through
misrepresentation, overreaching, or undue advantage taken. Tinker v. De Maria
Porsche Audi, 459 So.2d 478 (Fla. 3rd DCA 1984).
(10) Although Rodriguez told Hernandez he was listing the Tall Pines
property and it would sell within 3 months, Rodriguez made no attempt to sell the
Tall Pines property. In fact, Rodriguez was renting the property for income. It was
these misrepresentations that induced Hernandez to enter into the subject note and
mortgage, and Rodriguez knew that [Hernandez] would never be able to pay back
the $70,000 without the sale of the Tall Pines property. If not for Rodriguez's
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misrepresentations, Hernandez would have borrowed the funds to close on the
short sale from other sources.
(11) The Claim of Lien that Rodriguez prepared for Hernandez on March
2009, in the original amount of $70,000 demonstrates that the source of repayment
of the loan would be from the sale of the Tall Pines property. The fact the note
states it would be “renegotiated” after one year corroborates the parties' agreement
that the source of the repayment of the loan would be the sale of the Tall Pines
property.
(12) The Court finds that Hernandez's reliance on Rodriguez's
misrepresentation was justified and that but for Reguez's misrepresentation,
Hernandez would not have borrowed money from Reguez, and instead would have
received the balance of the money needed for the purchase of the Home from other
sources. Hernandez had no reason to disbelieve Rodriguez. They had been close
friends since their childhood. The oral misrepresentations of Rodriguez do not
contradict the terms of the note and mortgage, and therefore, are not barred by the
parol evidence rule.
(13) As stated by the Florida Supreme Court in Wicker, 106 So.2d at 558:
“[A] court of equity is a court of conscience; it should not be shackled by rigid
rules of procedure and thereby preclude justice being administered according to
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good conscience.” As this is a court of equity, and insofar as Reguez lent $70,000
to Hernandez, the trial court hereby denies Reguez's claim to foreclose on the
subject property but assigns the Claim of Lien in favor of Hernandez to Reguez in
its entirety.
(14) Because Reguez received an offer to purchase the Tall Pines property,
to which both Rodriguez and Hernandez testified, and because the sole source of
repayment of the loan was from the sale of the Tall Pines property, Reguez waives
its right to obtain a foreclosure in this case.
Accordingly, the trial court found in favor of Hernandez and against Reguez
on all of Reguez’s claims.
II. THE TRIAL COURT DID NOT ERR BY ADMITTING
EVIDENCE OF A PRIOR ORAL AGREEMENT OF A COLLATERAL
PAYMENT SOURCE FOR THE NOTE AND BY DENYING
FORECLOSURE BECAUSE THE EVIDENCE WAS NOT INCONSISTENT
WITH THE NOTE (RESPONDING TO REGUEZ'S BRIEF, SEC. I, P. 19).
Parol evidence is admissible to connect several written instruments and
show that they were all part of one transaction. Jackson, 15 So.2d 451; Asphalt
Paving, Inc., 149 So.2d 370; Halliburton Co. v. McPheron, 1962, 70 N.M. 403,
374 P.2d 286; 30 Am.Jur.2d, Evidence, § 1032; 13 Fla.Jur., Evidence, § 399.
As shown above, the trial court rejected Rodriguez's testimony regarding the
circumstances giving rise to the subject note and mortgage. Accordingly, this Court
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should accept as fact the following: When Hernandez needed funds to close on the
Home, Reguez, through Rodriguez, offered to lend Hernandez $70,000. Hernandez
did not need this much, but accepted it and forwent receiving loans from family
and other sources. Hernandez and Reguez, through Rodriguez, agreed that since
Hernandez had an interest in Vera's business, and since Hernandez was managing
Tall Pines at the time and selling Tall Pines, that Rodriguez's loan would be repaid
from the proceeds of the sale of Tall Pines. But for this agreement, Hernandez
would have received the funds necessary to close from his family or other sources.
Hernandez and Reguez agreed that Reguez would list and sell Tall Pines over the
next 3 months, with Hernandez paying $1,000 per month for no more than 3
months. When Tall Pines did not sell, Hernandez continued to pay $1,000 per
month. After Hernandez learned that Reguez, through Rodriguez, had a tenant in
Tall Pines and was receiving rent, Hernandez stopped paying the $1,000 per
month.
Rodriguez prepared the subject note, which includes “renegotiation within
12 months language. This language corroborates the deal that Hernandez would
repay the loan from the proceeds of the sale of Tall Pines. After consummation of
the subject loan, Rodriguez prepared a Claim of Lien in favor of Hernandez in the
original amount of $70,000 – not coincidentally, the same amount of the loan.
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The parol evidence rule only bars evidence that directly or expressly
contradicts the terms of a written agreement. Here, as stated in the Final Judgment,
the trial court found that the terms of the note were not inconsistent with the verbal
agreement, and that the verbal agreement explained why the renegotiation
language was included in the note. This finding should not be disturbed. It was a
finding made by the trier of fact after hearing all of the evidence in this case. The
trial court found Rodriguez not credible with regard to the subject transaction.
If this Court accepts the trial court's findings of fact, which it should, the
verbal agreement was not in fact inconsistent with the terms of the note. Even a de
novo review should end with the same result – the verbal agreement explained the
“renegotiation” within 12 months language contained in the note. Accordingly, the
trial court correctly did not bar the verbal agreement under the parol evidence rule.
The cases cited by Reguez are misplaced because they do not involve a note
that included re-negotiation language that was prepared in connection with an
underlying business transaction related to Tall Pines, which would serve as a
source of repayment of the loan. Instead, those cases stand for the proposition that
verbal agreements that “directly contradict” the terms of the written instrument are
barred by the parol evidence rule.
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Schwartz v. Zaconick, 68 So.2d 173, 175 (Fla. 1953), is misplaced because
the note did not contain “renegotiation” language as is the case here. In that case,
the repayment term, without negotiation language, was clear. This renegotiation
language was significant to the trial court and was explicitly discussed in the Final
Judgment.
In addition, insofar as Reguez, through Rodriguez, prepared the note, it is
axiomatic that the language of the note must be construed against Reguez as the
drafter.
Reguez's footnote 2 at page 24 of the Initial Brief should be disregarded as
Reguez did not allege a default on the basis of an alleged failure to pay taxes or
secure hazard insurance; the default was based on alleged failure to repay the loan.
III. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION BY
DENYING FORECLOSURE AND ALLEGEDLY ORDERING A
FORFEITURE (RESPONDING TO REGUEZ'S BRIEF, SEC. II, P. 24).
An equity court will never be thwarted from fashioning a decree that will do
right and justice between the parties." Demorizi v. Demorizi, 851 So. 2d 243, 246
(Fla. 3d DCA 2003). Equity sometimes "requires us to order that something be
done which is just and equitable. Put differently, it is the maxim `equity will do
what ought to be done."' Id.
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A mortgage foreclosure is an equitable remedy that seeks equitable relief
from the court to foreclose the interest of the mortgagor. Singleton v. Grevmar
Assocs., 882 So. 2d 1004, 1008 (Fla. 2004); Munck v. Manatee River Bank &
Trust Co., 165 So. 57, 59 (Fla. 1935).
The essence of Reguez's contention is that the Claim of Lien it received is
worthless and, therefore, constitutes a forfeiture. And that because a rescission
requires a return of the $70,000, the trial court erred. This argument fails for three
reasons.
First, Reguez's argument that the Claim of Lien is worthless should be
rejected based on the doctrine of estoppel. Reguez, through Rodriguez, prepared
the Claim of Lien. Reguez should not be allowed to now argue that the Claim of
Lien is actually worthless. Reguez should be equitably and judicially estopped
from claiming that the Claim of Lien is worthless.
Second, there has been no forfeiture. Reguez received something in the
Final Judgment – the Claim of Lien that was originally in favor of Hernandez. As a
matter of law, then, it cannot be said there was a forfeiture. There has been no
adjudication that the Claim of Lien is worthless. Certainly, this Court cannot make
that decision without there being a trial on the merits of the Claim of Lien, which is
the subject of the Carmona lawsuit. Reguez's argument that the time to foreclose
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on the said Claim of Lien has expired is irrelevant because that issue has not yet
been adjudicated. At the time of the trial court's Final Judgment, the Claim of Lien
was just that – a claim – in the amount of $87,000. There is no record evidence that
the Claim of Lien has no value or will certainly result in no value in the Carmona
suit. Reguez cannot inject into the record at this stage that the Claim of Lien is
worthless. Litigation is uncertain. Sometimes claims that appear to be
unenforceable due to the statute of limitations are in fact enforceable due to tolling,
equitable principles, and late discovery rules. These issues are not for this Court to
adjudicate on appeal. This Court cannot find as a matter of law the Claim of Lien
was worthless.
Third, the trial court already ruled that the parties agreed that repayment of
the subject loan would come from the sale of Tall Pines. The trial court decided
that the Claim of Lien evidenced this deal. Thus, Reguez accepted the Claim of
Lien to secure his repayment of the $70,000 loan and accepted same without
regard to its enforceability.
The trial court fashioned the relief it deemed most appropriate under the
circumstances. Prior to the Final Judgment, Hernandez possessed a Claim of Lien.
After the Final Judgment, he no longer possesses it and it now belongs to Reguez.
There has not been a forfeiture and this argument must be rejected.
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IV. THE TRIAL COURT'S FINDINGS OF FRAUD ARE NOT
UNSUPPORTED BY COMPETENT SUBSTANTIAL EVIDENCE
(RESPONDING TO REGUEZ'S BRIEF, SEC. III, P. 32).
Reguez argues that the trial court's finding that Reguez received an offer to
purchase Tall Pines and chose not to sell same was based on incompetent evidence.
Reguez argues the only “competent” evidence of an offer was one from November
2011, nine months after the foreclosure case began. Reguez continues that
Rodriguez testified the offer was for $240,000, “far less than the over half million
dollars of liens still being litigated in the Carmona lawsuit.”
Reguez's argument fails because if Rodriguez's testimony on the offer for
Tall Pines is “competent,” then so is Hernandez's.
In addition, Reguez concedes that the “liens [are] still being litigated in the
Carmona lawsuit.” Thus, it is possible that those liens will be extinguished and,
therefore, even with the $240,000 offer, Tall Pines could have been sold and the
proceeds could have been paid to Reguez.
Next, Reguez argues that Hernandez' testimony that Rodriguez told him
there was a gentleman who made an offer of $750,000 and the property should be
closing soon” constitutes impermissible double hearsay. However, this statement is
admissible under the statement against interest/party admission exception to the
hearsay rule. Evidence Code Rule 803(18). Accordingly, the statement is
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admissible and constitutes evidence upon which the Court could conclude there
was an offer of $750,000.
Even if that statement were not admissible, which it was, the Final Judgment
clearly indicates that both Rodriguez and Hernandez testified about an offer. Thus,
if the only evidence before the trial court was Rodriguez's testimony about a
$240,000 offer, that alone constitutes evidence upon which the trial court could
conclude that an offer was made, and Reguez did not sell in violation of its deal
with Hernandez. As shown above, the trial court rejected Rodriguez's testimony
and found him not credible.
Reguez argues that Hernandez could have subpoenaed the neighboring
landowner to testify to the offer and he did not. But Reguez could have subpoenaed
the same landowner to testify that there was no such offer.
Reguez next argues that there was no evidence that Reguez never intended
to sell Tall Pines. This argument is belied by the evidence that Reguez was renting
Tall Pines and collecting rent. The argument that Reguez did not own the property
at the time of the transaction is irrelevant because the evidence showed that
Reguez, through Rodriguez, was managing Tall Pines. And ultimately, the day
after Rodriguez prepared the Claim of Lien for Hernandez, Rodriguez recorded a
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quitclaim deed of the Tall Pines property that predated the Claim of Lien,
conveying the property from Roger Vera to Reguez. (DE #25-26)
Reguez argues that it was Hernandez's burden to prove that Reguez, at the
outset, intended not to sell Tall Pines and failed to do so. However, the Final
Judgment specifically found that Reguez knew the misrepresentations he made
were false.
V. THE TRIAL COURT DID NOT ERR BY REFUSING TO OPEN
THE JUDGMENT TO RECEIVE FURTHER TESTIMONY CONCERNING
THE TALL PINES PROPERTY (RESPONDING TO REGUEZ'S BRIEF,
SEC. IV, P. 35).
Reguez finally argues that the trial court erred by refusing to open the
judgment to receive further testimony concerning Tall Pines.
Fla. R. Civ. P. 1.530(a), which governs motions for rehearing, is permissive
in nature. “On a motion for rehearing . . . the court may open the judgment if one
has been entered, take additional testimony . . .”
Here, the trial court was within its right not to reopen the evidence. Reguez
made a strategic decision not to present evidence concerning Tall Pines, despite the
fact that the trial court permitted testify concerning Tall Pines in connection with
Hernandez's fraudulent inducement claim. If Reguez wanted to introduce evidence
concerning Tall Pines, it should have done so during the two day trial.
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At the hearing on the motion for rehearing, the trial court clearly explained
to Reguez's counsel that the only reason rehearing was granted was to tell counsel
that the trial court already ruled and was standing by its ruling. (R 000783000784). The Court was within its discretion not to allow additional evidence.
MOTION FOR ATTORNEYS’ FEES ON APPEAL
Hernandez hereby respectfully requests the Court award attorneys’ fees and
costs in favor of Hernandez in connection with this appeal, and for such further
relief the Court deems just and proper.
CONCLUSION
The trial court is a court of equity. In the case at bar, given the circumstances
giving rise to the subject transactions, the trial court fashioned equitable relief that
it deemed most appropriate – denying foreclosure but granting Reguez an
assignment of the Claim of Lien that Rodriguez, Reguez's principal, prepared.
The Final Judgment specified the facts and law supporting its decision. It
clearly stated that the verbal agreement was not “inconsistent” with the written
instrument; rather, it explained the “renegotiation” language in the note. Had the
note been a typical, unequivocal note without renegotiation language, the result
might be different. But Rodriguez, on Reguez's behalf, prepared the note in the
form it is. It must be construed against Reguez. And the trial court found
22 LAW OFFICES OF MARSHALL E. ROSENBACH
11430 US HIGHWAY 1 · NORTH PALM BEACH, FLORIDA · 33408
Rodriguez wholly unbelievable with regard to the circumstances giving rise to the
subject note and mortgage.
Additionally, the trial court concluded that both Hernandez and Rodriguez
testified that an offer was made on Tall Pines, and Reguez did not attempt to sell.
Accordingly, given the deal between the parties, Reguez waived the right to
foreclose.
Finally, there was no forfeiture in this case. The trial court did justice.
Reguez received the Claim of Lien that its principal prepared. Reguez must now be
estopped from contending that the Claim of Lien is valueless such that a forfeiture
occurred. There was no adjudication that the Claim of Lien is worthless, and thus,
this argument must fail.
The cases cited by Reguez are inapposite because they do not involve a note
that includes “renegotiation” language. The trial court has ruled – the parties'
verbal agreement explains the note. The trial court's specific findings of fact and
conclusions of law contained in the Final Judgment are neither unsupported by
competent substantial evidence or an abuse of discretion. The trial court's decision
was made after consideration of all of the documentary and testimonial evidence
over a two day period. The trial court did equity, as it should. Justice was served.
23 LAW OFFICES OF MARSHALL E. ROSENBACH
11430 US HIGHWAY 1 · NORTH PALM BEACH, FLORIDA · 33408
Accordingly, Hernandez respectfully submits this Court affirm the trial
court’s Final Judgment, award him attorneys’ fees, costs, and for such further relief
as the Court deems just and proper.
CERTIFICATE OF SERVICE
WE HEREBY CERTIFY that a true and correct copy of the foregoing was
this 15th day of April, 2014, served by email on Ricardo A. Reyes, Tobin and
Reyes, P.A., Attorneys for Reguez Investments, LLC, 225 N.E. Mizner Blvd.,
Suite
510,
Boca
Raton,
Florida
33432,
[email protected]
and
[email protected].
/s/Marshall E. Rosenbach
Marshall E. Rosenbach
Florida Bar No. 698032
LAW OFFICES OF
MARSHALL E. ROSENBACH
Attorney for Appellee
11430 US Highway 1
North Palm Beach, Florida 33408
Phone: (561) 627-8990
Fax: (561) 694-1359
[email protected]
[email protected]
CERTIFICATE OF COMPLIANCE
I HEREBY CERFITY that this Answer Brief complies with the font
requirement of Florida Rule of Appellate Procedure 9.210(a)(2).
/s/Marshall E. Rosenbach
24 LAW OFFICES OF MARSHALL E. ROSENBACH
11430 US HIGHWAY 1 · NORTH PALM BEACH, FLORIDA · 33408
Marshall E. Rosenbach
Florida Bar No. 698032
LAW OFFICES OF
MARSHALL E. ROSENBACH
Attorney for Appellee
11430 US Highway 1
North Palm Beach, Florida 33408
Phone: (561) 627-8990
Fax: (561) 694-1359
[email protected]
[email protected]
25 LAW OFFICES OF MARSHALL E. ROSENBACH
11430 US HIGHWAY 1 · NORTH PALM BEACH, FLORIDA · 33408