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SR Acquisitions-Florida City, LLC v. San Remo Homes at Florida City, LLC

Florida Court of Appeal, Third District

November 30, 2011


Page 637

Shutts & Bowen LLP and Steven M. Ebner and Stephen T. Maher, Miami and Jacqueline B. Savir, for petitioner.

Concepcion Martinez & Bellido, Carlos Concepcion, Coral Gables, and Scott A Burr, for respondent; Jorge E. Otero, Coral Gables, for non party Dinuro Investments, LLC.



SR Acquisitions— Florida, LLC petitions for mandamus, requesting this Court direct the trial court to enter an order setting a foreclosure sale and deny any further requests for postponements of the date. We grant the petition in part, and direct that the trial court: 1) rule on the pending motion for relief from the order setting a foreclosure sale date; and 2) rule on the motion to vacate default judgment against San Remo Homes at Florida City, LLC.

This is a dispute over sale of property that was owned, and mortgaged, by the respondent, San Remo Homes at Florida City, LLC. San Remo, which is owned by three members, owned real property in Miami-Dade County, upon which it intended to construct and sell homes. The property was not developed, and making payments on the property's mortgage soon became difficult. Two of the members, Merici and Starmac, infused capital on multiple occasions to keep the mortgage current and avoid default. The third member, Dinuro Investments, LLC, did not make additional capital payments.

Merici and Starmac determined to restructure the debt and arrange for another entity, SR Acquisitions, to take over the property. Dinuro was offered, but did not accept, the opportunity to participate in SR Acquisitions. Merici and Starmac, who had established SR Acquisitions, used that entity to buy the loan from the bank. Merici and Starmac, as members of San Remo, also caused San Remo to default on the mortgage. After the default, SR Acquisitions sued for foreclosure of the loan. San Remo did not defend the resulting foreclosure action, because according to the majority members there were no meritorious defenses.

Because San Remo did not defend the lawsuit, a judgment of foreclosure resulted. Dinuro contends SR Acquisitions and its principals violated fiduciary duties and other legal requirements and essentially froze Dinuro out of San Remo and Dinuro's interest in the property. Dinuro contends the establishment of SR Acquisitions, SR Acquisitions' actions, and SR Acquisitions' objective, demonstrate the entire transaction is illegitimate and cannot go forward.

Dinuro filed a separate suit for breaches of legal duties, and in this suit, Dinuro attempted to file a derivative answer on behalf of San Remo, asserted counter-claims against its partners, and alleged claims against the bank and the principals of Merici and Starmac. In addition, Dinuro filed, but later withdrew, a motion to intervene in this suit. Lastly, and most relevant to the pending petition, Dinuro moved the trial court for an order vacating the foreclosure judgment and canceling the foreclosure sale. The trial judge refused to halt the foreclosure sale. This case was subsequently transferred to another trial judge.

After transfer of the case, Dinuro moved for reconsideration of the predecessor judge's entry of final judgment against San Remo. In connection with reconsideration of the judgment, the foreclosure sale was postponed and reset for a specific

Page 638

later date. On the eve of the second rescheduled foreclosure sale, Dinuro again moved to vacate the foreclosure judgment and cancel the foreclosure sale. Dinuro still had not intervened in the case. The new trial judge agreed to postpone the foreclosure sale, pending a ruling on Dinuro's motion for relief from the judgment entered against San Remo. At present, there is no date certain set for the foreclosure sale, which has been postponed twice.

As a result of these procedural maneuvers, although San Remo is the respondent in this case, the party against whom relief will lie, if SR Acquisitions prevails, is Dinuro. Dinuro is not party to this case, and has no pending motion to intervene in this case. Thus, at present the current trial judge has postponed the sale indefinitely pending its ruling on Dinuro's new motion regarding the foreclosure judgment.

" It is well settled that mandamus will lie where the petitioner has a clear legal right to the performance of the particular duty sought and that he has no other legal method for obtaining relief." Caldwell v. Estate of McDowell,507 So.2d 607, 608 (Fla.1987). Thus, " [m]andamus is the proper remedy to compel a court to exercise its discretion and decide a cause, where there is no valid reason to reserve ruling on the matter." Mason v. Cir. Ct., Fifth Judicial Cir.,603 So.2d 94, 95 (Fla. 5th DCA 1992); see also Smith v. Lambdin,971 So.2d 209, 210 (Fla. 4th DCA 2007). This Court's jurisdiction includes issuance of writs of mandamus. Art. V, ยง 4(b)(3), Fla. Const.; Fla. R.App. P. ...

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