FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Charlotte County; Michael T.
J. Chrisner of Alliance Legal Group, PL, Sarasota, for
Matthew L. Schulis of Albertelli Law, Tampa, for Appellee
appearance for remaining Appellees.
Khleif appeals a final judgment of foreclosure in favor of
Bankers Trust Company of California, N.A. Khleif contends
that the trial court should have granted his motion for
involuntary dismissal made at the close of trial. He contends
Bankers Trust failed to state a cause of action and prove an
agreement existed when only the short-form mortgage was
attached to the amended complaint and introduced into
evidence, but the master-form mortgage was not attached or
introduced. Because the short-form mortgage and mortgage note
were sufficient prima facie evidence of an agreement, we
affirm the final judgment.
short-form mortgage and "mortgage note" were
attached to the amended complaint and entered into evidence
as exhibits at trial, along with other documents. The
mortgage note and short-form mortgage were entered into
between David Sanderson, the prior owner of the property, and
the Secretary of Veterans Affairs. The short-form mortgage
references the master-form mortgage that is recorded in the
public records. Khleif raised only one affirmative defense in
his answer and affirmative defenses to the amended complaint,
lack of standing, but he did not argue that affirmative
defense at trial.
contends on appeal that a party may wait to the close of the
evidence to make a motion to dismiss for failure to state a
cause of action. Schopler v. Smilovits, 689 So.2d
1189, 1189 (Fla. 4th DCA 1997), which Khleif relies upon,
supports that proposition. Florida Rule of Civil Procedure
1.140(b)(6) allows a motion to dismiss for failure to state a
cause of action, and rule 1.140(h)(2) allows a party to make
that motion at trial. Schopler, 689 So.2d at 1189.
The rule does not require the motion be made before the
presentation of evidence. Id. In Schopler,
the appellate court determined that the defendant could wait
until all the evidence had been adduced to seek dismissal on
the basis that the plaintiff had failed to plead fraud with
the required specificity. Id. at 1190.
mortgage foreclosure proceeding, one of the elements that
Bankers Trust is required to establish is an agreement.
See Kelsey v. SunTrust Mortg., Inc., 131 So.3d 825,
826 (Fla. 3d DCA 2014) (citing Ernest v. Carter, 368
So.2d 428, 429 (Fla. 2d DCA 1979)). Khleif contends that
Bankers Trust failed to state a cause of action and failed to
establish the element of an agreement because Bankers Trust
did not prove the terms of the mortgage contained in the
master-form mortgage. Bankers Trust contends that the
contents of the short-form mortgage are sufficient to
establish prima facie evidence of an agreement.
Rule of Civil Procedure 1.130(a) (2015) provides that all
contracts "upon which action may be brought or defense
made, or a copy thereof or a copy of the portions thereof
material to the pleadings, shall be incorporated in or
attached to the pleading." (Emphasis added.) Khleif has
cited no case providing for dismissal at the end of trial
when a short-form mortgage was attached and introduced at
trial but the master-form mortgage recorded in the public
records was not attached and introduced. In Hughes v.
Home Savings of America, F.S.B., 675 So.2d 649, 650
(Fla. 2d DCA 1996), this court determined that a trial court
should have granted a motion to dismiss when the exhibits, a
note and mortgage, were not attached to the amended
complaint. This court stated that "[t]he fact that such
exhibits were attached to the original complaint does not
breathe life into the amended complaint which was void of
exhibits." Id. Unlike Hughes, in this
case a mortgage and note were attached and introduced in
evidence, albeit not the entire mortgage.
the better practice is to attach to the pleading and
introduce into evidence both the short and long-form
mortgages, the short-form mortgage combined with the mortgage
note provided prima facie evidence of an agreement. Based on
the provisions of both the mortgage note and short-form
mortgage, which were introduced into evidence without
objection, Bankers Trust presented prima facie evidence of
the terms of the agreement. Therefore, we affirm the final
judgment of foreclosure.