Taylor, Bean & Whitaker Mortgage Company and Goshen Mortgage, LLC, as successor in interest to Taylor, Bean & Whitaker Mortgage Company, Appellants,
Joseph M. Wright and Megan L. Wright, Appellees.
final until disposition of any timely and authorized motion
under Fla. R. App. P. 9.330 or 9.331.
appeal from the Circuit Court for Nassau County. Steven
Cameron H.P. White and Jason R. Hawkins of South Milhausen,
P.A., Orlando, for Appellants.
Drysdale, Jacksonville Area Legal Aid, Inc., Jacksonville,
Taylor, Bean & Whitaker Mortgage Company (Taylor),
appeals the trial court's entry of Final Judgment, which
awarded attorney's fees and costs against Taylor's
successor-in-interest, Goshen Mortgage, LLC (Goshen). Florida
Rule of Civil Procedure 1.260(c) requires that the
substitution of parties occur upon motion to the trial court,
which never occurred here. As a result, the lower court erred
by sua sponte substituting Goshen as the
and Megan Wright entered into a mortgage with Taylor for a
property located in Yulee. The Wrights defaulted and Taylor
filed a complaint against them. Later in the litigation,
Taylor went into bankruptcy and their interest in the
Wrights' mortgage was assigned to Goshen. Goshen's
counsel filed a Notice of Appearance as Taylor's
co-counsel. Goshen, as "successor-in-interest" to
Taylor, moved to dismiss the case and to cancel notice of
lis pendens, and requested the original mortgage
documents back from the court file, which the trial court
granted. In turn, the Wrights then moved for a Judgment
Awarding Costs and Attorney's Fees.
the primary issues at the hearing on the Wrights' motion
was whether Goshen was the proper plaintiff in this action,
subject to attorney's fees. Goshen and Taylor both argued
that Taylor was the proper plaintiff, because Goshen was
never substituted as plaintiff, in spite of the fact that it
filed a motion to dismiss. The trial court found that
Goshen's dismissal of the foreclosure suit as
successor-in-interest made Goshen the "de facto"
plaintiff. Accordingly, the trial court on its own motion
substituted Goshen as the Plaintiff.
the hearing, the trial court entered the Final Judgment
Awarding Attorney's Fees and Costs Against Goshen.
trial court's decision is based, in part, on factual
findings, it presents a mixed question of law and fact.
Gainesville Health Care Ctr., Inc. v. Weston, 857
So.2d 278, 283 (Fla. 1st DCA 2003). The trial court's
factual findings are reviewed under a competent, substantial
evidence standard. Id. However, the trial
court's application of the law to the facts is reviewed
de novo. Id.
Rule of Civil Procedure 1.260(c) governs substitution of
parties to an action:
In case of any transfer of interest, the action may be
continued by or against the original party, unless the court
upon motion directs the person to whom the interest is
transferred to be substituted in ...