Order: VINCENZO DEPAU VS MICHAEL STERN ET AL

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                                Filing # 146881873 E-Filed 04/01/2022 12:21:30 PM



                  IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL
                  CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA

                  CASE NO: 2017-018931-CA-01
                  SECTION: CA20
                  JUDGE: Alan Fine

                  VINCENZO DEPAU
                  Plaintiff(s)

                  vs.

                  MICHAEL STERN et al
                  Defendant(s)
                  ____________________________/

                         ORDER DENYING LAYNE HARRIS’ MOTION FOR PARTIAL SUMMARY
                              JUDGMENT ON PLAINTIFF’S CONTRACT AND FRAUD CLAIMS

                     THIS CAUSE having come on to be heard on March 29, 2022, on Defendant Layne Harris’
                  Motion for Partial Summary Judgment on Plaintiff’s Contract and Fraud Claims (“Motion”), and
                  the  Court   having   reviewed     the  Motion    and  Plaintiff’s   Response,     having   heard   arguments     of
                  counsel    and   being    otherwise     advised    in  the  premises,     it is  hereupon     ORDERED         AND
                  ADJUDGED that the Motion is DENIED for the reasons set forth below:

                      1. By   order    dated    July   9,  2018,     the   Court    granted     Plaintiff’s    Cross-Motion        for
                         Summary        Judgment       against     Defendant       Layne     Harris    on   Plaintiff’s    claim    for
                         negligence.
                      2. Defendant Harris contends in her Motion that Plaintiff’s contract and fraud claims
                         should be dismissed as a matter of law under the doctrine of election of remedies
                         because      Plaintiff’s  contract    and    fraud   claims    are  contradictory      and   are   mutually
                         exclusive of Plaintiff’s negligence claims.
                      3. Plaintiff  would     be  required     to elect   his  remedies      prior  to  entry   of  final  judgment
                         where     the   entry    of  final  judgment       on   more     than   one    count    would     result    in
                         duplicative recovery. Here, Plaintiff has obtained an order in his favor finding that
                         Defendant       is liable  to  Plaintiff   for negligence       as  a  matter    of law.   The    summary
                         judgment order is not a final judgment.
                      4. Plaintiff’s negligence, fraud, and contract claims are not contradictory or mutually
                         exclusive and nothing contained in the order granting summary judgment renders
                         them so. The order granting summary judgment in Plaintiff’s favor is grounded on



          Case No: 2017-018931-CA-01                                                                                               Page 1 of 3
                         Layne Harris’s admissions that she failed to maintain exclusive possession of her
                         notary    stamp,    failed   to report   the   lost  stamp    to  the  Florida    Department       of State,
                         and that her notary stamp official seal was affixed to the loan documents. Contrary
                         to  Defendant      Harris’   contention,      however,     the   summary       judgment     order    did  not
                         contain    findings    that  Layne    Harris    was   unaware      of the   loan   documents,       that  her
                         notary public official seal was stolen, or that her signatures on the loan documents
                         were forged.
                      5. It is therefore conceivable that Plaintiff could establish on summary judgment or at
                         trial that   Layne     Harris    breached      the   loan   documents        or  acted    intentionally     in
                         perpetrating a fraud on Plaintiff.
                      6. If Plaintiff obtains a verdict in his favor at trial or final summary judgment on one or
                         more additional counts asserted in his Third Amended Complaint, Plaintiff will be
                         required to elect his remedy before entry of final judgment.




                  DONE and ORDERED in Chambers at Miami-Dade County, Florida on this 1st day of April,
                  2022.




                                                                                  2017-018931-CA-01 04-01-2022 12:05 PM
                                                                                        Hon. Alan Fine

                                                                                         CIRCUIT COURT JUDGE
                                                                                         Electronically Signed



                     No Further Judicial Action Required on THIS MOTION

                     CLERK TO RECLOSE CASE IF POST JUDGMENT



                  Electronically Served:
                  Anthony Accetta, Esq., law@anthonyaccetta.com
                  Anthony Accetta, Esq., yanely@anthonyaccetta.com
                  Anthony Accetta, Esq., paralegal@anthonyaccetta.com
                  Benjamin L. Keime, bkeime@waldmanbarnett.com



          Case No: 2017-018931-CA-01                                                                                               Page 2 of 3
                  Benjamin Lee Keime, bkeime@atllp.com
                  Benjamin Lee Keime, litservice@waldmanbarnett.com
                  Benjamin Lee Keime, miamiefiling@atllp.com
                  Brian Carson Tackenberg, btackenberg@crabtreelaw.com
                  Brian Tackenberg, btackenberg@crabtreelaw.com
                  Brian Tackenberg, floridaservice@crabtreelaw.com
                  Crystal Revilla, crevilla@careyrodriguez.com
                  David P Milian, dmilian@careyrodriguez.com
                  David P Milian, service@careyrodriguez.com
                  David Sherman, foreclosureparalegal2@miamidade.gov
                  Eric P. Stein, docservice@epslaw.com
                  George William Allen Jr, katgainey@aol.com
                  George William Allen Jr, gwallenesq@aol.com
                  George William Allen Jr, gwallenesq@aol.com
                  Glen H. Waldman, miamiefiling@atllp.com
                  Glen H. Waldman, gwaldman@atllp.com
                  Glen H. Waldman, litservice@waldmanbarnett.com
                  J. Luis Quintana, jlq@quintanalawfirm.com
                  J. Luis Quintana, kv@quintanalawfirm.com
                  J. Luis Quintana, melisa@quintanalawfirm.com
                  Jesse Dean-Kluger, jdk@jdkpa.com
                  Jesse Dean-Kluger, llynch@jdkpa.com
                  Layne Harris, iminatlast@aol.com
                  Layne Harris Stern, iminatlast@aol.com
                  Layne Harris Stern, bakerylayne@gmail.com
                  Lazaro Vazquez, lazaro@vazquezpa.com
                  Michael R Carroll Jr, mcarroll@oceanbank.com
                  Michael R Carroll Jr, gcruz@oceanbank.com
                  Michael R Carroll Jr, legalservice@oceanbank.com
                  Ruben Conitzer, rconitzer@careyrodriguez.com
                  Ruben Conitzer, service@careyrodriguez.com
                  Ruben Conitzer, rconitzer@gmail.com
                  Yiliam Perez, yperez@oceanbank.com


                  Physically Served:




          Case No: 2017-018931-CA-01                                                                                               Page 3 of 3