final until disposition of timely filed motion for rehearing.
Appeal from the Circuit Court for Miami-Dade County, Jennifer
D. Bailey and Beatrice Butchko, Judges. Lower Tribunal No.
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.
SUAREZ, C.J., and ROTHENBERG and SALTER, JJ.
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.
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
This Commitment will be endorsed at the time of the
recordation of the Declaration of Condominium to complete the
(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
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. 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.
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."
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.
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.
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 ...