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LLC v. Dori

Florida Court of Appeals, Third District

January 11, 2017

Heartwood 2, LLC, Appellant,
Shay Dori, et al., Appellees.

         Not final until disposition of timely filed motion for rehearing.

         An Appeal from the Circuit Court for Miami-Dade County, Jennifer D. Bailey and Beatrice Butchko, Judges. Lower Tribunal No. 12-19409

          Greenberg Traurig, P.A., and Kimberly S. Mello (Tampa), Jonathan S. Tannen (Tampa), and Michele L. Stocker (Ft. Lauderdale), for appellant.

          Neustein Law Group, P.A., and Nicole R. Moskowitz, for appellee Shay Dori.

          Before SUAREZ, C.J., and ROTHENBERG and SALTER, JJ.

          ROTHENBERG, J.

         Heartwood 2, LLC ("Heartwood") appeals from a final judgment involuntarily dismissing its claim for foreclosure without prejudice to allow Heartwood to assert its dismissed claim in a new action; dismissing without prejudice Heartwood's claim for reformation of a special warranty deed ("the deed"); and declining to retain jurisdiction over the reformation and foreclosure issues. Heartwood also appeals from an order denying its motion for rehearing or reconsideration. For the reasons that follow, we reverse and remand for entry of a final judgment of foreclosure consistent with this opinion.


         On July 15, 2005, 1200 West Realty, LLC ("the grantor"), a Delaware limited liability company, executed the deed in favor of Shay Dori ("Mr. Dori"), which contains the following legal description and statement:

Unit 918, Mirador 1200, a Condominium, together with an undivided interest in the common elements, according to the Declaration of Condominium thereof, as recorded in Official Records Book, Page, of the Public Records of Miami-Dade County.
This Commitment will be endorsed at the time of the recordation of the Declaration of Condominium to complete the legal description.

(emphasis added). As is obvious, the specific recording information for the declaration of condominium was not included. In addition to this legal description and statement, the deed included Mr. Dori's address-"1200 West Ave. #918, Miami Beach, FL 33139."

         On the same day that the deed was executed, Mr. Dori executed a purchase money mortgage and a promissory note in favor of Meridian Residential Capital, LLC ("Meridian"). Unlike the deed, the legal description set forth in the mortgage included the recording information for the declaration of condominium-Book 23543, Page 3930.[1] Further, both the promissory note and the mortgage reflect that the property address is "1200 West Avenue #918, Miami Beach, Florida 33139, " the same address that appears on the deed.

         In May 2012, Wells Fargo Bank, N.A. ("Wells Fargo") filed a two-count complaint against Mr. Dori. In Count I, Wells Fargo sought to foreclose the mortgage executed by Mr. Dori in favor of Meridian, alleging in part that Wells Fargo was the current owner and holder of the note and mortgage, Mr. Dori owns the mortgaged property, and Mr. Dori defaulted under the terms of the promissory note and mortgage by failing to make the July 2011 payment and all subsequent payments. In Count II, Wells Fargo sought to reform the deed, alleging that the legal description omitted the specific recording information for the declaration of condominium, and that the omission was a "scrivener's error" that "resulted from a mutual mistake."

         After the mortgage and note were allegedly assigned from Wells Fargo to Heartwood, Heartwood was substituted as the plaintiff. Thereafter, Mr. Dori filed an answer admitting that he owned the subject property, and he raised several affirmative defenses, such as lack of standing, but did not raise any affirmative defense relating to the alleged legal description in the deed.

         On March 11, 2015, Heartwood filed an unopposed motion for leave to amend the complaint, asserting that the complaint failed to include a necessary party-the grantor of the deed. The following week, even though Mr. Dori did not oppose Heartwood's motion for leave to amend, the trial court denied Heartwood's motion because the case had been set for trial for the week of April 6, 2015, and the trial court's own concern that the late amendment would prejudice Mr. Dori.

         On April 2, 2015, the trial court granted Mr. Dori's verified unopposed motion to continue the trial. On the following day, April 3, 2015, Heartwood filed a renewed motion for leave to amend its complaint, and in its renewed motion, Heartwood reminded the trial court that its previous motion for leave to amend was denied because the trial had already been scheduled. Mr. Dori did not file an objection to the renewed motion. On May 6, 2015, over one month after Heartwood filed its renewed motion to amend its complaint, with no objection having been filed by Mr. Dori, and while Heartwood's renewed motion to amend the complaint was pending, the trial court reset the non-jury trial for a two-week period commencing on June 15, 2015. And then, only a few days after resetting the trial, and even ...

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