Hagood v. Wells Fargo N.A.
Hagood v. Wells Fargo N.A.
Opinion of the Court
In this mortgage foreclosure case, the trial court entered summary final judgment in favor of Appellee after Appellant’s counsel failed to appear at the hearing. The failure to appear was due to an error on the part of Appellant’s counsel’s law firm to properly calendar the hearing. The law firm attempted to rectify the error by seeking relief from the judgment based on excusable neglect with supporting affidavits. The trial court denied the request. Because we determine that Appellant’s counsel waived any viable issue on appeal by failing to assert the issue in the initial brief, we affirm.
Inexplicably, instead of challenging the summary judgment on the basis that the lower court erred in granting the judgment in the face of the answer and defenses on file, or that it abused its discretion in denying the request for relief from judgment based on excusable neglect, Appellant’s initial brief, prepared by three KEL lawyers, asserts that Appellant was not given notice of the hearing, an assertion that the record conclusively refutes.
Hagood asserts that the Final Summary Judgment should be vacated because Hagood was not provided notice of hearing on Wells Fargo’s Motion for Summary Judgment and was thus denied due process. It was error to enter Summary Judgment at a hearing in which Wells Fargo failed to coordinate with Hagood and which notice was never received by Hagood or his counsel. Due process requires that defendant be provided fair notice in order to appear and defend their rights.
The brief repeatedly asserts the total lack of notice — a fact that Appellant represented was “uncontroverted.”
In response, Appellee refuted Appellant’s lack of notice contention by directing our attention to the affidavits in the record on appeal. Again inexplicably, rather than attempt to correct the initial brief, Appellant’s counsel filed a reply brief, ignoring the discrepancy in the initial brief and attempting to raise for the first time the issue of whether the denial of the motion to vacate was an abuse of discretion. The summary of argument section in the reply brief states:
Appellant’s argument, most simply stated, is that the trial court abused its discretion in denying Appellant’s motion for relief under the Rules 1.530 and 1.540, Florida Rules of Civil Procedure. The abuse of discretion arose when the trial court declined to set aside a summary judgment of foreclosure entered by a different circuit judge. The summary judgment was entered without the appearance or participation of Appellant’s counsel at the summary judgment hearing. The failure of counsel to appear was due to clerical error committed by a paralegal in Appellant’s counsel’s office. The issues were brought to the*772 trial court’s attention in the motion for relief.
Like Appellant’s initial brief, the reply brief fails to properly cite to the record on appeal to support any factual assertions.
At oral argument, Appellant’s counsel acknowledged that the issue contained in the reply brief was abandoned because it was not raised in the initial brief. See, e.g., Hoskins v. State, 75 So.3d 250, 257 (Fla. 2011) (stating argument not raised in initial brief barred); J.A.B. Enters. v. Gibbons, 596 So.2d 1247, 1250 (Fla. 4th DCA 1992) (“[A]n issue not raised in an initial brief is deemed abandoned and may not be raised for the first time in a reply brief.”). Accordingly, we are constrained to affirm without addressing the merits of Appellant’s alternative argument.
The quality of the legal work performed by KEL’s attorneys in this case is disturbing. It resulted in a waste of judicial resources and, perhaps, an injustice to the litigants. At a minimum, it increased the cost of the litigation and the time necessary to conclude it. The three lawyers who represented Appellant on appeal are not novices. In the aggregate they have over sixty years of experience as members of The Florida Bar.
Jurisdiction is reserved for the purpose of imposing sanctions, if warranted.
AFFIRMED; SHOW CAUSE ORDER ISSUED.
. Appellant had timely answered the complaint and raised numerous defenses, including his assertion that Appellee had failed to comply with various conditions precedent under the mortgage and applicable law. These defenses were pled specifically. The burden below was then on Appellee to overcome these defenses in its application for summary judgment. The fact that counsel failed to appear at the hearing did not defeat this burden. Because this issue was not addressed on appeal in any of the briefs, however, we cannot address the merits of whether summary judgment was appropriate.
. The reply brief addresses the meritorious defense issue in a conclusory manner. We do not address whether Appellant adequately established a meritorious defense below.
. Mr. Withers has been a member of The Florida Bar since 1972. Mr. Lynd was admitted in 1997, and Ms. Domenech was admitted in 2008.
Reference
- Full Case Name
- Emmett B. HAGOOD, III v. WELLS FARGO N.A., etc.
- Cited By
- 4 cases
- Status
- Published