Opinion
Case No. 5D21-135
08-27-2021
Paul COLANTONIO, Eva Christine Kelly, and Christopher Osteen, Appellants, v. Sarah I. MOOG, Appellee.
Tanner Andrews, of Tanner Andrews, P.A., DeLand, for Appellant. Michael P. Kelton, of Kelton Law, P.A., Deltona, for Appellee.
Tanner Andrews, of Tanner Andrews, P.A., DeLand, for Appellant.
Michael P. Kelton, of Kelton Law, P.A., Deltona, for Appellee.
PER CURIAM.
This appeal stems from a final summary judgment order granting Sarah Moog possession of property arising out of an unlawful detainer action. We affirm in part, reverse in part, and remand.
Christopher Osteen owned a residential property, allegedly sold it to Mayk Mitri, who in turn sold it to Moog. The catch is that during the period when Mitri allegedly owned the property, Osteen leased a portion of the property to Paul Colantonio and Eva Kelly.
Once purchased, Moog offered Osteen, Colantonio, and Kelly (collectively, "Appellants") $500 to vacate the property. Appellants rejected the offer, and Moog filed a complaint for unlawful detainer, seeking sole possession of the subject property. In their answer, Kelly and Colantonio alleged that they had a lease on the property for which they paid in full. The year-long lease was not recorded in the public records.
The sheriff apparently had trouble personally serving Osteen and instead effectuated substitute service on Kelly. The return of service indicated that Kelly was served on the subject property. Osteen's answer acknowledged that he resided on a portion of the property but that he, as the lawful owner, had a right to do so. He alleged that Moog did not have any right to possess or control the property and that the trial court did not have personal jurisdiction over him, "because service of process [had] not been accomplished."
Moog moved for summary judgment, asserting that she had purchased the property from Mitri, who had acquired it via quitclaim deed from Osteen. The relevant deeds were attached to her motion. Moog alleged that she was unaware of Appellants’ presence on the property until after she had purchased it and sought to exercise her possession. She claimed that Appellants’ lease was not valid because it was executed after Osteen had sold the property to Mitri. Moog argued that even if the lease was valid, it was not effective against her because the lease was longer than a year and not recorded, nor did she have notice through other means. Moog filed an affidavit in support of her motion, verifying the above allegations.
Appellants filed competing affidavits. Osteen alleged that he lived on the property in a renovated "mother-in-law" house behind the main house that he leased to Kelly and Colantonio. Osteen alleged that the purported deed transferring the property to Mitri was forged; he denied knowing the notary whose attestation appeared on the deed claiming to know him personally. Finally, Osteen asserted that no deputy sheriff or process server brought papers relating to this case to him or to his residence. All three Appellants attested that their possession was open and notorious, and that had Moog inquired, she would have discovered their living arrangement.
Following a hearing, the trial court entered final summary judgment in favor of Moog, awarding her sole possession. It found there was no genuine dispute that Osteen sold the property to Mitri in 2018, that Osteen attempted to lease the property in 2019, and that Mitri sold the property to Moog in 2020. The trial court found that the alleged lease agreement between Appellants was unenforceable due to Osteen's lack of any ownership interest in the property at the time he attempted to lease it to Kelly and Colantonio. Therefore, it determined that neither of the Appellants had a legal right to possession of the property and that Moog was entitled to possession as a matter of law. It also determined that Osteen was properly served.
On appeal, Appellants first argue that the trial court erred in finding that Osteen was properly served with process. Next, they contend that the alleged sale from Osteen to Mitri was disputed, that Moog had notice of the lease, and that unlawful detainer was an improper cause of action because Moog was not ousted from possession.
Summary judgment is appropriate "if the pleadings and summary judgment evidence on file show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fla. R. Civ. P. 1.510(c) (pre-May 2021 amendment). Recently, the Florida Supreme Court amended the summary judgment standard to reflect that of the federal standard, which took effect May 1, 2021. See In re Amends. to Fla. Rule of Civ. Proc. 1.510 , 309 So. 3d 192, 194 (Fla. 2020). However, because the amendment is prospective, we analyze this appeal under the old Florida standard. See Wilsonart, LLC v. Lopez, 308 So. 3d 961, 964 (Fla. 2020) ; see also Tank Tech, Inc. v. Valley Tank Testing, L.L.C., ––– So. 3d ––––, –––– n.1, 46 Fla. L. Weekly D1264, D1265 n.1, 2021 WL 2212092 (Fla. 2d DCA June 2, 2021) (noting that amendment to rule 1.510(c) applies prospectively and applying old standard).
In so doing, the court noted that the old Florida standard utilized an expansive understanding of what constituted a genuine issue, such that any competent evidence creating an issue of fact, no matter how credible, precluded summary judgment. In re Amends. to Fla. Rule of Civ. Proc. 1.510 , 309 So. 3d at 193 (citing Bruce J. Berman & Peter D. Webster, Berman's Florida Civil Procedure § 1.150:5 (2020 ed.)). The federal standard differs by asking "whether ‘the evidence is such that a reasonable jury could return a verdict for the nonmoving party.’ " Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ).
We affirm the trial court's finding of proper substitute service on Osteen. First, Osteen arguably waived his defense of lack of personal jurisdiction by failing to plead it with particularity in his answer. See Fla. R. Civ. P. 1.140(b) ; see also Roach v. Totalbank, 85 So. 3d 574, 578 (Fla. 4th DCA 2012).
Even if the defense was not waived, there was no genuine dispute as to the propriety of Osteen's service. Substitute service may be effectuated by leaving copies at his or her "usual place of abode with any person residing therein who is 15 years or older and informing the person of their contents." § 48.031(1)(a), Fla. Stat. (2020). Osteen's affidavit merely alleged that "[n]o deputy or other process server brought papers relating to this case to me or to the quarters in which I live." While Osteen made clear that he lived in the mother-in-law suite behind the main house, he never alleged that the unit was separate and distinct. Indeed, the return of service indicated that Kelly was served at 206 Dickson Avenue—the same address as Osteen's "quarters." See Koster v. Sullivan, 160 So. 3d 385, 389 (Fla. 2015) (holding that return of service was sufficient when it listed name of person who accepted substitute service and relationship to individual who was to be served).
Despite the trial court's correct finding as to service, we find that it erred in granting summary judgment because there were disputed material facts relating to Osteen's purported sale of the property.
Unlawful detention is a statutory action created under chapter 82. See § 82.03(1), Fla. Stat. (2020). The statute provides that "[t]he court shall determine only the right of possession and any damages. Unless it is necessary to determine the right of possession or the record titleholder, the court may not determine the question of title." § 82.04, Fla. Stat. (2020). While the trial court stated that it was only determining possession, its finding of Moog's right of possession depended upon Osteen's sale of the property to Mitri. Osteen's affidavit alleged that his signature was forged, that the forgery bore no resemblance to his actual signature, and that he had neither met nor heard of the notary, despite the notary indicating personal knowledge. Moog's affidavit did not broach the issue, as she had purchased the property from Mitri, not Osteen.
Because of this finding, we reject Moog's argument that the trial court (a county court) lacked jurisdiction to consider the disputed sale. That factual determination was part and parcel of its decisional path to granting possession in her favor.
"The burden of proof that a purported signature on a deed has been forged is by a preponderance or greater weight of the evidence." George Anderson Training & Consulting, Inc. v. Miller Bey Paralegal & Fin., LLC, 313 So. 3d 214, 219 (Fla. 2d DCA 2021) (citation omitted). "The testimony of a purported grantor that his or her alleged signature on a deed is a forgery and was placed there without his or her knowledge or consent is sufficient to meet this burden and to place the issue before the finder of fact." Id. (citation omitted). In that case, the purported grantor testified at trial, among other things, that he did not execute the deed, that his signature was forged, and that he would not have signed his middle initial in the same way it appeared in the document. Id. Based on his uncontradicted testimony, the Second District found that the purported grantor presented a prima facie case for forgery. Id. The purported grantor's testimony closely mirrors Osteen's allegations in his affidavit.
Forged deeds are void and unenforceable even to a subsequent innocent purchaser. See Knowles v. Edwards, 967 So. 2d 255, 256 (Fla. 3d DCA 2007) ("[A]ny conveyances occurring after the forgery are void." (citing Moore v. Smith-Snagg, 793 So. 2d 1000, 1002 (Fla. 5th DCA 2001) )); see also Zurstrassen v. Stonier, 786 So. 2d 65, 68 (Fla. 4th DCA 2001). Thus, there is a genuine dispute as to Moog's right of possession. If Osteen's sale of the property to Mitri was void, then Moog has no claim to possession because she obtained the property from Mitri, the alleged forger. Conversely, if the sale was valid, Osteen could not have conveyed the right of possession to Colantonio and Kelly because the property was owned by Mitri at the time of the lease. See Morris v. Osteen, 948 So. 2d 821, 824 n.1 (Fla. 5th DCA 2007) (stating that quitclaim deed conveys such title or interest possessed by grantor at time of transaction).
We reject Appellants’ other arguments without further discussion. Accordingly, we affirm the trial court's ruling as to Osteen's service but reverse its grant of summary judgment. We do so without prejudice for Moog to file a subsequent motion for summary judgment, to be determined under the new standard. See Wilsonart, LLC, 308 So. 3d at 964 (approving reversal of summary judgment but without prejudice for party to seek summary judgment under new standard once amendment took effect).
AFFIRMED in part, REVERSED in part, and REMANDED.
COHEN, WALLIS and TRAVER, JJ., concur.