264 So. 3d 1152
Fla. Dist. Ct. App.2019Background
- Wells Fargo filed an original foreclosure complaint in 2011 that attached two loan modification agreements and alleged breach of those modifications.
- After an involuntary dismissal Wells Fargo filed an amended complaint (2012) that omitted any mention of the modification agreements; that amended complaint became the operative pleading.
- Four years later at trial Wells Fargo introduced the two previously-attached modification agreements and sought to amend its operative complaint at trial to conform to the evidence; Tracey objected that she had no notice and was prejudiced.
- The trial court allowed the midtrial amendment over objection and entered final judgment of foreclosure based on the note, mortgage, and the two modification agreements.
- On appeal the Second District reversed, holding the trial court abused its discretion in permitting the amendment over Tracey’s objection because she was prejudiced by lack of notice; the court then addressed the proper scope of remand.
- The panel exercised equitable discretion, concluding dismissal was appropriate under the circumstances and remanded with instructions to enter an involuntary dismissal; the court certified a question about appellate scope-of-remand discretion to the Florida Supreme Court.
Issues
| Issue | Plaintiff's Argument (Tracey) | Defendant's Argument (Wells Fargo) | Held |
|---|---|---|---|
| Whether trial court abused discretion in permitting midtrial amendment to conform pleadings to evidence (loan modifications). | Tracey: amendment prejudiced her because the modifications had been abandoned in the operative complaint and she lacked notice to prepare a defense. | Wells Fargo: omission from the amended complaint was inadvertent; modifications were signed by Tracey and previously attached to the original complaint so no prejudice. | Court: abused discretion to allow amendment over objection; Tracey was prejudiced and did not consent to trying the unpled issue. |
| Whether appellate court must remand for new trial, enter judgment, or order involuntary dismissal when reversal follows evidentiary/pleading error. | Tracey: equitable relief (involuntary dismissal) is appropriate given Wells Fargo’s change in theory and unexplained omission. | Wells Fargo: should be permitted remand for further proceedings or another trial to cure the pleading error. | Court: appellate courts have equitable discretion under §59.35 to fashion remand; default is to avoid giving a plaintiff a second bite at the apple, but exceptional equitable circumstances can justify a different remand; here dismissal warranted. |
| Guiding standard for scope of remand in civil appeals after reversal for evidentiary or pleading defects. | Tracey: remand should account for fairness and finality; dismissal fits this record. | Wells Fargo: uniform rule should permit retrial when plaintiff relied on trial court rulings; some precedent favors remand for retrial. | Court: certified question to Florida Supreme Court; affirmed that district courts may exercise equitable discretion, constrained by finality and avoidance of repeat opportunities to cure failures of proof. |
| Whether some-evidence/no-evidence distinction mandates remand type in foreclosure appeals. | Tracey: courts should consider equities; not strictly limited by a categorical rule. | Wells Fargo (and dissent): many precedents distinguish cases where some evidence was presented (remand for further proceedings) vs no evidence (dismissal); rule 1.420(b) and precedent support that distinction. | Court: decline to adopt a rigid rule; treat the distinction as an equitable consideration among others and certify the broader question to the Florida Supreme Court. |
Key Cases Cited
- Turna v. Advanced Med-Servs., Inc., 842 So. 2d 1075 (Fla. 2d DCA 2003) (review standard for amendment to conform evidence and prejudice inquiry)
- Sas v. Federal Nat'l Mortg. Ass'n, 112 So. 3d 778 (Fla. 2d DCA 2013) (distinguishing remand when some inadmissible evidence was presented and directing further proceedings to establish indebtedness)
- Wolkoff v. Am. Home Mortg. Servicing, Inc., 153 So. 3d 280 (Fla. 2d DCA 2014) (reversal for entry of dismissal when plaintiff failed to submit any evidence supporting damages)
- Morton's of Chicago, Inc. v. Lira, 48 So. 3d 76 (Fla. 1st DCA 2010) (discussing general rule against giving a party another opportunity to prove case after failure of proof and exceptions for fairness)
- Pro-Art Dental Lab, Inc. v. V-Strategic Grp., LLC, 986 So. 2d 1244 (Fla. 2008) (pleadings and notice as due-process protections)
- John Hancock Mut. Life Ins. Co. v. Zalay, 522 So. 2d 944 (Fla. 2d DCA 1988) (a party should not be penalized for good-faith reliance on an erroneous trial-court ruling; remand for new trial may be proper)
- Webb Furniture Co. v. Everett, 141 So. 115 (Fla. 1932) (statutory remand provision §59.35 is directory; appellate remand is discretionary)