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IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT,
IN AND FOR CHARLOTTE COUNTY, FLORIDA
GENERAL JURISDICTION DIVISION
BRANCH BANKING & TRUST
COMPANY, CASE NO.: 09-6571 CA
a Foreign Corporation, as successor-
in- interest to Colonial Bank, NA,
Plaintiff,
Vv.
MEROD LLC., a Florida Limited Liability
Company, DANIEL RODRIGUEZ,
ESTEBAN RODRIGUEZ, ALBERTO
RODRIGUEZ, JUAN CARLOS MERLO a9
aa
individually, and FOUR ROD INVESTMENTS BS
==
Saf
CORP., a Florida Corporation, ROMER BOn
5a%
ak
ENTERPRISES CORP., a Florida Corporation,
so
METRO BANK OF DADE COUNTY, RP
a Florida Corporation, and CHALOTTE
COUNTY, Florida,
Defendants.
VERIFIED (1) MOTION FOR REHEARING REGARDING
MOTION FOR ENTRY OF FINAL JUDGMENT OF
FORECLOSURE AND MOTION FOR SUMMARY FINAL
JUDGMENT AND (Il) MOTION TO STRIKE PLEADINGS
AND DEFENSES AND (III) FOR RELIEF FROM JOINT
STIPULATION AND TO VACATE THE STIPULATION,
AND (IV) FOR STAY RELIEF ON EXCUTION!
Defendants, MEROD LLC, a Florida Limited Liability Company, DANIEL
' Under separate cover, affidavits may be filed if necessary to support this motion, and the verifiers are
prepared to attend any evidentiary hearings on the same. Additional motions may be filed, including a
motion to set aside the final judgment, a motion to withdraw the joint stipulation and motion to stay
proceedings.
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RODRIGUEZ, ESTEBAN RODRIGUEZ, ALBERTO RODRIGUEZ, JUAN
CARLOS MERLO, individually, and FOUR ROD INVESTMENTS CORP., and
ROMER ENTERPRISES CORP., Florida Corporations, (hereinafter collectively
teferred to as “Defendants”), by and through their recently retained undersigned counsel,
hereby files this Verified Motion for Rehearing of the October 14, 2010 hearing on the
Motion for Final Judgment of Foreclosure and Incorporated Memorandum of Law, of the
September 27, 2010 Motion to Strike Pleadings and Defenses, and for Relief from Joint
Stipulation . In support of the motion, Defendants state that:
PREFACE
Defendants move this Court to grant their Verified Motion for Rehearing of the
October 14, 2010 Final Judgment, the September 27, 2010 Motion to Strike Pleadings
and Defenses and associated Motion granting same.
In addition, Defendants move this Court for relief from the Joint Stipulation, to
Vacate same, and to Withdraw same, and for a Stay of Execution.
FACTUAL HISTORY SUPPORTING THE RELIEF REQUESTED
This is a foreclosure action upon a note and mortgage for residential lots 1
through 12 in Charlotte County, Florida, and against the guarantors of the loan
obligations there under. On September 27, 2010, an Order granting Plaintiff's Verified
Motion to Strike Pleadings and Defenses was entered in this case. On or about October
14, 2010, an Order granting Plaintiff's Verified Motion for Entry of Final Judgment of
Foreclosure (the “Motion”) was entered in this case, and such Judgment was recorded on
or about October 15, 2010 in Book 3518, pages 1511 thru 1517. Defendants’ former
counsel’s Motion to Withdraw was granted on or about October 14, 2010. The
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undersigned filed a Notice of Appearance on Monday, November 1, 2010.
The Motion was based upon the Joint Stipulation filed with the Court by
Defendants’ prior counsel that was not signed by any of the Defendants pursuant to
which they purportedly agreed to waive all defenses to this matter as to all claims if they
did not bring the loan at issue current (as well as other loans with the Plaintiff) or
refinance the loan within a 3. month period (or or before May 31, 2010). The penalty
provisions in the Joint Stipulation which they Defendants contend that they consent to let
alone understand were and are draconian and unconscionable.
Under the Joint Stipulation, if the Defendants failed to bring current all
outstanding loans (and related loans to other entities), then the Plaintiff was entitled to a
striking of pleadings, a dismissal of counterclaims with prejudice, dismissal of all
discovery, and entry of Final Judgment establishing liability to all Defendants as to ail
sums owed as well as for foreclosure on all real and personal property, including rents,
securing the loans. Moreover, in the event they failed to do so the Defendants, under the
Joint Stipulation, granted the Plaintiff automatic stay relief if they filed for bankruptcy
protection.
The Defendants contend that they did not understand or knowingly agree to
aforementioned terms or Joint Stipulation, and advise that they never would have agreed
to same had the terms actually been clearly worded, explained, and understood the
multiple meanings under the interchangeable terms of the Joint Stipulation surrounding
this case and the other cases filed by the Plaintiff against them.
Notably, the Defendants understanding of what was to be consented and what
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was to be stipulated to is encapsulated in Exhibit “A” hereto, which contains five lines of
text. The Defendants did not understand or consent to their counsel filing the Joint
Stipulation that was provided to this Court.
The consent that was signed is set forth in that one page Stipulation of
Settlement. The Joint Stipulation that the Final Judgment was based upon was never
consented to by the Defendants.
Even if they did consent to something being filed, it was not the Joint Stipulation
that was the basis for the Final Judgment and the striking of pleadings.
It is incredulous to believe that these Defendants understood and consented to
these draconian and unconscionable terms (which Defendants swear they did not
understand or consent to):
@) The cross-default penalty provisions within this Joint Stipulation and the
six (6) “Related Stipulations”, which Plaintiff contends Defendants were
fully aware of, consented to, and understood, were and are draconian and
unconscionable, as the Joint Stipulation strips the Defendants of all legal
and bankruptcy rights.
Gi) if the Defendants “defaulted” then the Plaintiff was entitled to a striking of
the Defendants’ pleadings, a dismissal of counterclaims with prejudice,
dismissal of all discovery, and entry of Final Judgment establishing
liability to all Defendants as to all sums owed, as well as for foreclosure
on all real and personal property, including rents, securing the loans.
(ii) That they consented to granting the Plaintiff immediate entitlement to stay
relief if Defendants filed for bankruptcy protection, or involuntarily had a
bankruptcy proceeding filed against the Defendants.
The Defendants contend they never reviewed six (6) Joint Stipulations that were
filed with the Court, never went over them with Counsel, never read them before they
were filed, did not sign or initial each individual stipulation, and were never informed by
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their counsel of the multiple meanings of the cross-default provisions, and the
significance of the Joint Stipulation and it’s “Related Stipulations”.
Notwithstanding this hindsight of informed consent, the Defendants contend they
never would have agreed to same under the circumstances had they truly understood the
terms of the Joint Stipulation surrounding this case and the other cases filed by the
Plaintiff against them.
The Defendants understanding of what was to be consented to and what was to be
stipulated to is encapsulated in Exhibit “A”. This one page document, without page
numbers and with the title “Stipulation of Settlement”, contains five lines of text and
states that if timely payments were made during the 90 day period there would be a stay
of the litigation involving BB&T. Thus Defendants contend their counsel failed to fully
inform them that not only was the one page Stipulation of Settlement not the actual
legally operative document, but also that counsel thereafter, and without authority and
their signing, would be entering into six (6) legally operative Joint Stipulations with thirty
(30) pages of terms on behalf of Merod.
It was the Defendants’ understanding that their counsel would advise them of
when necessary payments were coming due, so that the Defendants could wire money to
their counsel’s trust account. These payments were made in a lump sum amount on
behalf of their many entities and in conjunction with the Defendants’ understanding of
the payment terms under the one page Stipulation of Settlement, and in reliance upon
their counsel’s advisement and notice of due payments.
Defendants believed that Merod was only going to be foreclosed upon during the
natural process of Court Proceedings, which they understood they could defend.
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To be clear, the terms of the one page document the Defendants agreed to and
signed, attached here to as Exhibit A, was unknowingly preempted by the later Joint
Stipulations signed solely by their attorney. The consent that was provided in Exhibit
“A” is remarkably different than that filed with the Court.
To be clear, Defendants contend that any stipulation entered into was limited to
Exhibit “A”. Exhibit “A” was prepared before and independent of the Joint Stipulation
that ultimately was entered into by the attorneys and on behalf of their respective clients.
The Final Judgment and Orders should be vacated and the Court should permit the
Defendants to have an evidentiary hearing as to whether the Joint Stipulation should be
withdrawn and vacated. In any event a rehearing should be held.
MEMORANDUM OF LAW
The Florida Rules of Civil Procedure provide for a motion for rehearing of
matters heard without a jury, and permit the court on such a motion to open the judgment,
take additional testimony, and enter a new judgment. Fla. R. Civ. P. 1.530(a).?_ Indeed,
when a motion for rehearing is filed by one against whom a judgment has been entered,
the discretion not to grant the rehearing is narrowed and every disposition should be
indulged in favor of granting the motion. Anderson v. Aamco Transmissions of Brevard,
Inc., 265 So. 2d 5 (Fla. 1972); Holl v. Talcott, 191 So. 2d 40 (Fla. 1966).
This is particularly true where it is shown, as in this case, that the party against
whom the judgment was granted had inefficient counsel, and in such cases the denial of a
motion for rehearing is an abuse of discretion. Coastal States Mortg. Corp. v.
One of the purposes of a motion for rehearing is to give the trial court an opportunity to consider matters
which it failed to consider or overlook. Pingree v. Quaintance, 394 So, 2d 161 (Fla. 1* DCA 1981).
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Commonwealth Sav. & Loan Ass'n of Florida, 497 So. 2d 917 (Fla. 3d DCA 1986);
Fatherly v. California Federal Bank, FSB, 703 So. 2d 1101 (Fla. 2d DCA 1997).
THE DEFENDANTS SEEK TO WITHDRAW THE STIPULATION
The Defendants seek to withdraw the Joint Stipulation. They did not sign
the Joint Stipulation, and assert that their prior counsel could not stipulate to, or bind
them to, any matter that affects the merits of the case, their remedy, the cause(s) of
action, or entry of a final judgment or settlement on the merits. See, e.g., State ex rel.
Personal Finance Co. v. Lewis, 140 Fla. 86, 191 So. 295, 296 (1939); Mungin v. Florida
East Coast Railway Co., 318 F.Supp. 720 (M.D. Fla. 1970); Kramer v. City of
Lakeland, 38 So. 2d 126 (Fla. 1949); Ponce v. U-Haul of Florida, 979 So. 2d 380 (Fla.
4th DCA 2008); Cross-Aero Corp, v. Cross-Aero Service Corp., 326 So. 2d 249 (Fla. 3d
DCA 1976) (the only time an attorney may stipulate to compromise or settle a client’s
cause of action is when the attorney is confronted with an emergency and immediate
action is required, and only then the action must be to protect the client’s interest).
The dismissal of an action, a settlement, or an entry of a final judgment is a
substantive matter and therefore an attorney cannot effectively bind a client without the
informed consent or informed express authorization from the client. Jd. Such is the case
here. Pursuant to the evidence before this Court, it is established that Defendants’ prior
counsel did not have the informed consent or informed express authorization of the
Defendants to enter into the Joint Stipulation?
Bor example, the Florida Rules of Civil Procedure state that a stipulation is not binding on those who are
not parties to the stipulation. For instance, Rule 1.420 (a)(1) provides for the voluntary dismissal of actions
upon a stipulation if and only if all the parties sign the stipulation. Such is not the case here, where only the
Detendant’s former counsel signed the Stipulation, thereby invalidly and ineffectively dismissing with
prejudice all defenses and rights.
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To be clear, under Florida law a stipulation {in this case the Joint Stipulation)
entered into by an attorney on behalf of their client(s) is only enforceable when the
attorney was given clear and unequivocal authority by the client to compromise the
client’s claim and only then a compromise to clearly defined set terms. Dixie Operating
Co. v. Exxon Co., U.S.A, 493 So. 2d 61, 63 (Fla. 1st DCA 1986). Thus, the implied or
apparent authority to compromise a client’s claim against the client’s interest is deemed
no authorization and any such compromise is void. Cibula v. Ross, 597 So. 2d 915 (Fla.
4th DCA 1992). Notably, the party seeking to enforce such an agreement or stipulation
bears the burden of showing that an attorney for the opposing party had the clear and
unequivocal authority to settle on the client's behalf." Architectural Network, Inc. v. Gulf
Bay Land Holdings I, Ltd., 989 So. 2d 662, 663 (Fla. 2d DCA 2008); Weitzman v.
Bergman, 555 So. 2d 448 (Fla. 4th DCA 1990).
To be clear, although a client may give his attorney special or express authority to
compromise or settle a cause of action, such authority must be clear and unequivocal and
on clearly defined terms. Vantage Broadcasting Co. v. WINT Radio, Inc., 476 So. 24
796, 797 (Fla. Ist DCA 1985); Bursten v. Green, 172 So, 2d 472, 474 (Fla. 2d DCA
1965). In Bursten, the Plaintiff wrote to his attorney and authorized him to “act in the
matter as fully as he could, including the right to file any proceedings deemed advise and
to negotiate settlement thereon. The court held that the use of the word “negotiate” did
not clearly and unequivocally authorize the plaintiffs attorney to stipulate to settlement,
and the court, accordingly, held the attorney had no authority to settle. The court further
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advised, once negotiations had reached the point of agreement, the attorney was required
to seck the client’s authorization as to the exact tenms of the settlement before entering
into the stipulation as a final settlement.
Quite similar to Bursten, the Defendants in this case authorized their attorney to
negotiate with the bank, which was memorialized in a one page document. The five lines
of text did not clearly and unequivocally authorize Defendants’ former attorney to
stipulate to over 6 Joint Stipulations of Settlement on the merits and against the clients
interests. Defendants’ former attorney did not obtain the required authorization, or even a
ratification, as to the exact terms of the Joint Stipulation before entering into the Joint
Stipulation(s). As such, the Joint Stipulation is void and invalid.
STANDARD IN ENFORCING THE ALLEGED JOINT STIPULATION
EQUIVALENT TO ENFORCING SETTLEMENT AGREEMENT
Under Florida law, a party seeking the enforcement of a settlement agreement
bears the burden of establishing assent by the opposing party. Walker v. Palm West
Hospital, Inc., 819 So. 2d 904, 906 (Fla. 4th DCA 2002)(citing Nehleber v. Anzalone,
345 So. 2d 822, 823 (Fla. 4th DCA 1977). Unlike agency theories of authority, the mere
employment of an attorney to represent a client does not empower that attorney with the
imaplied or apparent authority necessary to settle the client's case. River City Wholesale
Florist, Ltd. v. Equiflor Corp., 864 So .2d 21 (Fla. 3d DCA 2003); Bursten, 172 So. 2d at
474.
Instead, Florida law demands that before a settlement agreement may be
recognized as valid, the party seeking to compel enforcement must show that the subject
attorney had clear and unequivocal authority to settle on the client's behalf. Sharick v.
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Southeastern University of Health Services, Inc., 891 So. 2d 562, 565 (Fla. 34 DCA
2004)(“A party seeking to compel enforcement of a settlement bears the burden of
proving that an attorney has the clear and unequivocal authority to settle on the client's
behalf.”); Jorgensen v. Grand Union Co, 490 So. 2d 214, 215 (Fla. 4th DCA 1986)(“[t]he
law is clear that a client's express authority given to his attomey to settle his cause of
action must be clear and unequivocal.”),
The “clear and unequivocal authority” standard is a stringent one, not easily
satisfied by the moving party. Weitzman v. Bergman, 555 So. 2d 448, 449-50 (Fla. 4th
DCA 1990)(noting that “(cJaselaw indicates that court's have been very stringent in what
they find to be a ‘clear and unequivocal’ grant of authority”) (citations omitted). In this
regard the test demands that an objective standard be utilized in determining the parties!
intent. Sharick, 891 So, 2d at 565; Reed By and Reed Through Reed v. U.S., 717 F.Supp.
1511 (S.D.Fla.1988) (citing Robbie, 469 So.2d at 1385)), aff'd, 891 F.2d 878 (11th
Cir.1991).
Thus, an attorney's belief alone that he or she had the authority to settle on behalf
of his or her client, is not enough to satisfy the high burden imposed on the moving party.
Sharick, 891 So. 2d at 565.(where proof did not establish attorney's clear and unequivocal
authority to file a proposal for settlement, attorney could not make a binding settlement
on client's behalf); Ponce v. U-Haul Co.,_979 So. 2d_ 380, 382 (Fla. 4th DCA
2008) (lawyer's belief he had authority on offer of judgment not sufficient).
It is clear from verified motion that there was no clear and unequivocal grant of
authority to Defendants’ prior counsel to sign the Joint Stipulation on their behalf ict
alone file the Stipulation with the Court. Absent such clear and unequivocal authority
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from the Defendants, there can be no valid and binding agreement/stipuiation this Court
can enforce. Sharick, 891 So. 2d at 565.
THERE WAS NO MEETING OF THE MINDS
Notwithstanding the fact that there is no basis to enforce the Joint Stipulation on
the grounds that Defendants’ prior counsel never had authority to present same to the
Court, in addition and in the alternative there was no “meeting of the minds.”
In order for an agreement to be binding there must be evidence that the parties
agreed on the essential terms and seriously understood and intended the agreement to be
binding upon them. Williams v. Ingram, 605 So. 2d 890, 893 (Fla. Ist DCA
1992)(moving party must establish “meeting of the minds” in action to enforce
settlement, and in so doing agreement must be “sufficiently specific and mutually
agreeable as to every essential element”); Gaines v. Nortrust Realty Management Corp.,
422 So. 2d 1037, 1039-1040 (Fla. 3d DCA 1982)(same). In other words, there must have
been a “meeting of the minds.”
Here the alleged Joint Stipulation is not valid and binding because there was no
“meeting of the minds” on the materially significant terms. This alone provides a basis
for the granting of the Defendants’ Motion. Williams, 605 So. 2d at 893; Gaines, 422 So.
2d at 1039-1040.
Moreover, even when a client retains an attorney to negotiate a settlement or a
stipulation, this relationship normally does not authorize the attorney to stipulate to an
agreement that imposes new liabilities or burdens on the client. See Rushing v.
Garrett, 375 So. 2d 903 (Fla. Ist DCA 1979); Goff v. Indian Lake Estates, Inc., 178 So.
2d 910 (Fla. 2d DCA 1965).
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The Third District Court of Appeals has held that even when the client consents to
a settlement, the agreement may be rescinded on the basis of a unilateral mistake. When
it is shown that (1) the mistake was induced by the party secking to benefit from the
mistake, (2) there is no negligence or want of due care on the part of the party seeking a
return to the status quo, (3) denial of release from the agreement would be inequitable,
and (4) the position of the opposing party has not so changed that granting the relief
would be unjust, a unilateral mistake may provide a basis for rescission of a contract.
Lechuga v. Flanigan's Enterprises, Inc., 533 So. 2d 856, 857 (Fla. 34 DCA 1988). hh
summary, Plaintiff has failed to sustain its burden of proving that Defendants’ attorney,
had clear and unequivocal authority to settle the case on their behalf. Absent such clear
and unequivocal authority, she could make neither a binding offer nor a binding
agreement on their behalf. Sharick, 891 So. 2d at 565; Jorgensen, 490 So. 2d at 215.
Plaintiff has also failed to sustain its burden of proving that the parties agreed on the
essential terms and seriously understood and intended the agreement to be binding upon
them. Specifically, there was no “meeting of the minds”. Without a “meeting of the
minds” on all essential elements, there could be no valid and binding Joint Stipulation
for the Court to enforce. Williams, 605 So, 2d at 893; Gaines, 422 So, 2d at 1039-1040.
Therefore, the Defendants respectfully request the Court grant this Motion in that
they did not clearly and unequivocally authorize their attorney to compromise the merits
of their case against their interests, nor did the Defendants voluntarily, intelligently or
knowingly consent to, let alone comprehend, the Joint Stipulation that was entered into
by their attomey and filed with the Court.
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RELIEF UNDER RULE 1.540(b)
A party seeking relief from an order or stipulation can also employ Rule 1.540 (b)
of the Rules of Civil Procedure and the well-established authority of cases regarding the
vacation of a stipulation. The rule provides that upon motion and such terms as are just,
the Court may relieve a party or a party’s legal representative from a final judgment,
decree, order or proceeding for the good cause. The Third District Court of Appeals has
held that “‘good cause” is determined on a case by case factual analysis. Curr v, Helene
Transp. Corp., 287 So. 2d 695 (Fla. 3d DCA 1973).
In seeking relief from a stipulation, good cause has been interpreted as a mistake
of fact resulting in no meeting of the minds, when an agreement is not voluntarily
undertaken, and there is indication that the agreement was obtained by fraud or
mistepresentation. Curr v. Helene Transportation Corporation, 287 So. 2d 695 (Fla. 3d
DCA 1973); Bradley v. Brotman, 8 So. 2d 1129 (Fla. 4th DCA 2003)( stipulation is
ambiguous and therefore unenforceable); Troup v. Bird, 53 So. 2d 717 (Fla.
1951)(Asserting fraud, overreaching, and withholding of the facts); City of Miami v.
Florida E. Coast Ry. Co., 428 So. 2d 674 (Fla. 3d DCA 1983)(Showing subject matter of
stipulation is against public policy); Fouts v. Fouts, 61 So. 2d 322 (Fla. 1952)(showing
stipulation would control question of law); Alvarez v. Smith, 714 So. 2d 652 (Fla. Sth
DCA 1998)(Showing attorney had no authority to act on party's behalf}.
A party may attempt to set aside a stipulation where the party’s attorney has
entered into an agreement on its behalf, but the client denies authorizing the attorney to
settle the claim, or on those terms. Bradley v. Brotman, 836 So. 2d 1129 (Fla. 4th DCA
2003). Although there is a presumption that the attorney is authorized to act on behalf of
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his client that presumption can be overcome. Jd. This presumption specifically can be
overcome when the attorney settles on terms that are unconscionable to the client.
Federal Land Bank v. Brooks, 139 Fla. 506 (Unconscionable stipulations are disfavored
and courts are to construe in furtherance of justice). If a party attempts to avoid a
stipulation by asserting that his attorney did not have authority, an evidentiary hearing is
required. Allbritton v. Stahiman, 683 So, 2d 536 (Fla. 2d DCA 1996).
The Stipulation entered into was and is both procedurally and substantively
unconscionable and should not be enforced. See Steinhardy v. Rudolph, 422 So. 2d 884
(Fla. 3d DCA 1982) (noting that Florida courts may refuse to enforce an unconscionable
contract). Furthermore, if it is evident that there is no meeting of the minds of the
allegedly stipulated parties, and there is a mistake pertaining to a material fact due to
attorney conduct, the court may grant relief without conducting a hearing on whether any
fraud was involved. Schreiber, 795 So. 2d 1054 (Fla. 4th DCA 2001).
THE MATTER SHOULD BE STAYED PENDING RESOLUTION
OF ALL MOTIONS
Defendant pursuant to Fla.R.Civ.P. 1.550 moves the Court for its Order staying
execution in this issue and contend that good cause is shown to establish the basis for
such a stay. Such a stay will prevent BB&T, an over-zealous judgment creditor, from
trampling the rights of judgment debtors before they have their full-day in court,
including the filing and determination of post-final judgment motions. In Blimpie
Capital Venture, Inc., v. Palms Plaza Partners, Ltd., 636 So.2d 838 (Fla. 2nd DCA 1994)
(Copy attached as Exhibit A) the court reviewed the historical authority of trial courts to
stay process or the issuance of process under former F.S. Section, 55.38. The Court
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pointed out the language of Rul 1.550(b) is substantially the same as former Section
55.38 and concluded that under proper circumstances, i.e., where good cause is shown, a
trial court has authority to “correct, restrain and control their own proceedings.” See also,
City of Coral Gables v. Hepkins, 107 Fla. 778, 144 So. 2d 385 (Fla. 1932); Gann v. Levitt
& Sons of Florida, Inc., 193 So. 2d 200 (Fla. 4th DCA 1966) (the purpose of F.S.A.
Section 55.38 is to expressly authorizes courts to correct, restrain and control their own
proceedings.).
THE DEFENDANTS MOVE TO HAVE THE FINAL JUDGMENT VACATED
AND THE ORDER STRIKING PLEADINGS VACATED
Final Judgment Should be Vacated
Orders, decrees or judgments “procured through fraud, collusion, deceit, or
mistake may be reopened, vacated, or modified at any time, on the proper showing made
by the parties injured.” Goldfarb v. Daitch, 696 So. 2d 1199, 1203 (Fla. 3d DCA 1997).
The appropriate vehicle for seeking relief from a previously entered
judgment obtained by fraud, collusion, deceit, or mistake is a motion under Rule 1.540 of
the Florida Rules of Civil Procedure, Rule 1.540(b) states in relevant part:
On motion and upon such terms as are just, the court the court may relieve
a party or a party's legal representative from a final judgment, decree, order or proceeding
for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence which by due diligence could not have been discovered in
time to move for a new trial or rehearing;
(3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or
other misconduct of an adverse party.
(4) that the judgment or decree is void; or
(5) that the judgment or decree has been satisfied, released, or discharged, or a prior
judgment or decree upon which it is based has been reversed or otherwise vacated, or it
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no longer equitable that the judgment or decree should have prospective application.
For the reasons stated herein, the final judgment should be vacated.
Order Granting Motion to Strike Should be Vacated
A motion to strike should only be granted if the material is wholly irrelevant, can
have no bearing on the issues, and cannot influence the decision. Fla. R. Civ. P. 1.140. A
motion to strike must be directed only to that portion of the complaint or answer which is
in question, and not to all of it, or the trial court will rule against it. Thus, in Barnett Nat.
Bank of Jacksonville v. Murrey, 49 So. 2d 535 (Fla. 1950), for example, the court ruled
that the motion to strike was too broad and should have only been directed to the part of
the answer which was nonresponsive. Town of Howey-in-the-Hills v. Graessle, 36 So. 2d.
619 (Fla. 1948) (a motion to strike, addressed to paragraphs of complaint in their entirety
should be denied if any of the allegations in the paragraph are relevant). Where a defense
is legally sufficient on its face and presents a bona fide issue of fact, it is improper to
grant a motion to strike. Fla. R. Civ. P. 1.140(b). lf any evidence can be presented to
support a defense, it is reversible error for a court to strike it.
This is particularly true where it is shown, as in this case, that there are
meritorious foreclosure defenses separate and apart from the meritorious grounds to
withdraw the Joint Stipulation, questionable legal judgment by Defendant’s former
counsel on behalf of Defendant’s, and the due diligence of Defendant’s recently retained
counsel in seeking relief from the Joint Stipulation entered into unknowingly by former
counsel on behalf of the Defendants. Warriner v. Burdines, 93 So. 2d 108 (Fla. 1957).
Here the facts clearly suggest issues that would prevent the striking of the
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pleadings and the entry of final judgment.
THE MOTION FOR REHEARING SHOULD BE GRANTED AS DEFENDANTS
RECEIVED SUBSTANDARD REPRESENATION
Every legal matter, no matter how small, deserves the diligence and proficiency
the public expects from a Florida lawyer. The Florida Bar v. Morse, 784 So. 2d 414 (Fla.
2001). Here, Defendants deserved such counsel. Most important, and particularly
instructive for this Court when considering the motion for rehearing is the fact that
Defendants should not be punished for the ineffectiveness of their prior counsel or
incompetent or substandard representation. If they Defendants did sign the Joint
Stipulation, consent to all the terms of same or understand the terms thereof, they should
be undone and they should be permitted to defend this case on its merits and bring their
counterclaims. See Olesh v. Greenberg, 978 So. 2d 238 (Fla. s* DCA 2008) (reversing
trial court’s denial of motion for rehearing of summary judgment as abuse of discretion
where the record reflects that Defendant’s original attorney rendered substandard legal
representation).
CONCLUSION
This court should grant the requested relief and permit both Motions to be reheard
so that Defendants can defend it with the Court considering whether the Joint Stipulation
should be enforced. They should be able to conduct discovery’, to explore their existing
4 With that said, here, not a single deposition or any written discovery had been taken prior to Motion
being granted. Moreover, no written discovery was served by any party to this litigation. Final judgments
should not be entered or entertained before the parties have had an opportunity to conduct and complete
discovery. A.& B Pipe and Supply Co. v. Turnberry Towers Corp., 500 So. 2d 261 (Fla. 3d DCA 1986);
Derosa vy. Shands Teaching Hospital and Clinic, Inc., 468 So. 2d 415 (Fla. lst DCA 1985); Cullen v. Big
Daddy's Lounges, Inc., 364 So. 2d 839 (Fla. 3d DCA 1978). That is, it is abuse of discretion for trial court
to grant a final judgment where opposing party has not had opportunity to complete discovery, Crowell v.
Page 17 of 19
Law Offices of Aaron Resnick, P.A.
Attorneys and Counselors
defenses, to assert counterclaims, to file amended defenses and to otherwise defend this
case. They should not be punished as the result counsel filing with the Court a Stipulation
the terms of which they did not understand, consent to, sign, or agree to.
The Final Judgment dated October 14, 2010 should be vacated, and the Order
Granting Plaintiffs Motion to Strike the Pleadings dated September 27, 2010 should be
vacated, and the Agreed Order Approving the Joint Stipulated dated March 17, 2010
should be vacated.
Respectfully submitted, this Monday, November 1, 201
BY:
AGront REA
Kesnj
ee
:
Florida-ar No. 0141
Brittany Rawli Sq.
Sworn in, /10, FBN Pending
Law Offices of Aaron Resnick, P.A.
235 Lincoln Road
Suite 310
Miami Beach, FL 33139
Telephone: (305) 672-7495
E-mail: aresnick@thefirmmiami.com
Kaufmann, 845 So. 2d 325 (Fla. 24 DCA 2003); Sanchez v. Sears, Roebuck and Co., 807 So. 2d 196 (Fla.
3d DCA. 2002), and indeed is reversible error. Kimball v. Publix Super Markets, Inc., 901 So. 2d 293 (Fla.
2d DCA 2005).
Page 18 of 19
Law Offices of Aaron Resnick, P.A.
Attorneys and Counselors
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished via
facsimile, electronic mail and regular mail upon all counsel of record this Monday,
November 1, 2010
BY, =
a oo
Aaron Resnick, Esquire
Brittany Rawlings, Esquire
Page 19 of 19
Law Offices of Aaron Resnick, P.A.
Attorneys and Counselors
EXHIBIT “A”
—
.
BB&T v Palm Tech, Palm Depot, Garden Depot, Merod, Romer, urnamental Nursery
Four Rod, et al.
The undersigned parties understand that the Stipulation of Settlement being entered into
with BB&T requires payments to be made on a timely basis for the next 90 days. [f any
of those payments are not made in a timely basis BB&T will receive a Final Judgment of
Forecfosure in all the loans with BB&T. The undersigned hereby authorize Jacqueline
Hernandez-Valdes, Esq. to execute the Stipulation of Settlement on out behalf.
7
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Ornamental Nursery 2 “alberto Rodriguez
Juan Carlos Merlo
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VERIFICATION OF ALBERTO RODRIGUEZ,
I have read the foregoing motion and know the factual contents of the motion.
The factual contents are te of my own knowledge, and are verified by me under oath as
truthful and accurate. My understanding of what was to be consented and what was to be
stipulated to is encapsulated in. Exhibit “A” hereto, which I executed. ft is my
recollection that the date of I signed Exhibit “A” was March 3, 2010. Rod Investments &
Enterprises Corp. was not a party to Exhibit “A” and I did not sign the Exhibit “A” on its
behalf.
At the time, I understood that the stipulation was limited to the fact that if we
made timely payments we understood them during the 90 day period there would bea
stay of the litigation in all the pending cases related to BBY. Tt was told to me that it
was a Stipulation of Settlement that was necessary or BB&T would not mediate with us.
T only understood the Stipulation of Settlement at the time along these terms.
Jt was my understanding that we made all the payments that would be paid to
BB&T. These payments were made as I understood they needed to be. We made the
payments which we understood were the payments to be made as we understood it as we
were advised to make them. We understood tbat when the fimds were provided for these
payments to our counsel they were to make the payments that were due timely.
I understood that if those payments were not made BB&T would be able to obtain
a final judgment for foreclosure on the properties covered by the loans with BB&T, but 1
did not understand or agree that I would waive my defenses to actions for damages
{ |
against me directly in any of the actions, that T would w aive my rights to bankruptcy
protection and that if I filed for bankruptcy that BB&T would be entitled to stay relief, or
that I would waive my rights and claims against BR&T. In addition, I did not understand
or agree that BB&T would have.a right to the collateral that was pledged as part of the
loans with BB&T if we did not make the payments under the Stipulation of Settlement. 1
did not understand or consent to waiving notices, or the fact that a default would entitled
BB&T to the same relief against other entities.
The consent was issued as it was my understanding that it was mandatory, and the
only way the bank would negotiate with us. I only consented to those terms under
extreme financial duress as it was represented that if we did not consent to these terms we
would lose everything and that it was our only option. I did not understand that there
were six (6) Joint Stipulations to Stay Action and Discovery for 90 Days in the pending
cases.
All payments that were due to BB&T during that period as I understoad them
were timely paid. Additiona] payments were made to BB&T that 1 understood were
made as it was understood by me that was the only way that BB&T would continue to
negotiate with us.
Attorney Jacqueline Hernandez-Valdes, Esq. was our attorney at the time. q
consented for her to execute a stipulation pursuant to my understanding of the terms as
set forth herein and in Exhibit “A”.
I did not sign the Joint Stipulation that is the basis for the Final Judgments sought
by BB&T, and did not understand the terms of it as it was submitted. My consent fora
stipulation to be filed on my behalf did not contemplate that | would waive all such
i
tights if we did not oring current the all the loans to BB&T's, .thin three (3) months or to
refinance same in that time period.
J understood that the only issue would be if we did not make payments that we
knew we could make would be that BB&T could get a judgment for foreclosure on the
properties at issue. I never understood or agreed to terms that would permit a judgment
for damages against the company or against me personally, that we would waive
bankruptcy protection for me and the company, that it would cause us to lose
immediately all the pledged security without the right to defend such claims against it
and that we would waive claims that we might have or the company bad. I never
understood or oo ented to th e terms of the Joint Stipulations as filed with the court.
~—>
BY: Lies Lf “eo
LY
PRINT NAME: Miedle PY OLDY LE
STATE OF FLORIDA
COUNTY OF MIAMI-DADE )
The forgoing instrument was acknowledged before me this 2 g » day of
October, 2010 by Alberto Rodriguez, who has produced his Florida Driver’s
License as identification.
g
NOTRAY PUB) C State of Florid. a
Print Name: aALdb ad Z
Commission No.
#4 CARIDAD FM
MY COMMISSION # DDSE2499
ren ‘May
28, 2011
‘ismnanorany FL, Notary Discount
Assoc. Co,
VERIFICATION OF DANIEL RODRIGUEZ,
Thave read the foregoing motion and know the factual contents of the motion.
The factual contents are true of my own knowledge, and are verified by me under oath as
truthful and accurate.
My understanding of what was to be consented and what was to be stipulated to is
encapsulated in Exhibit “A” hereto, which I executed. It is my recollection that the date
of I signed Exhibit “A” was March 3, 2010. Rod Investments & Enterprises Corp. was
not a party to Exhibit “A” and I did not sign the Exhibit “A” on its behalf.
At the time, I understood that the stipulation was limited fo the fact that if we
made timely payments we understood them during the 90-day period there would be a
stay of the litigation in al! the pending cases related to BB&T. It was told to me that it
was a Stipulation of Settlement that was necessary or BB&T would not mediate with us.
T only understood the Stipulation of Settlement at the time along these terms.
It was my understanding that we made all the payments that would be paid to
BB&T. These payments were made as | understood they needed io be. We made the
payments which we understood were the payments to be made as we understood it as we
were advised to make them. We understood that when the funds were provided for these
payments to our counsel they were to make the payments that were due timely.
T understood that if those payments were not made BB&T would be able to obtain
a final judgment for foreclosure on the properties covered by the loans with BB&T, but I
did not understand or agree that I would waive my defenses to actions for damages
f
against me directly in any of the actions, that I would watve my rights to bankruptcy
protection and that if filed for bankruptcy that BB&T would be ent
Preview
IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT, IN AND FOR CHARLOTTE COUNTY, FLORIDA GENERAL JURISDICTION DIVISION BRANCH BANKING & TRUST COMPANY, CASE NO.: 09-6571 CA a Foreign Corporation, as successor- in- interest to Colonial Bank, NA, Plaintiff, Vv. MEROD LLC., a Florida Limited Liability Company, DANIEL RODRIGUEZ, ESTEBAN RODRIGUEZ, ALBERTO RODRIGUEZ, JUAN CARLOS MERLO a9 aa individually, and FOUR ROD INVESTMENTS BS == Saf CORP., a Florida Corporation, ROMER BOn 5a% ak ENTERPRISES CORP., a Florida Corporation, so METRO BANK OF DADE COUNTY, RP a Florida Corporation, and CHALOTTE COUNTY, Florida, Defendants. VERIFIED (1) MOTION FOR REHEARING REGARDING MOTION FOR ENTRY OF FINAL JUDGMENT OF FORECLOSURE AND MOTION FOR SUMMARY FINAL JUDGMENT AND (Il) MOTION TO STRIKE PLEADINGS AND DEFENSES AND (III) FOR RELIEF FROM JOINT STIPULATION AND TO VACATE THE STIPULATION, AND (IV) FOR STAY RELIEF ON EXCUTION! Defendants, MEROD LLC, a Florida Limited Liability Company, DANIEL ' Under separate cover, affidavits may be filed if necessary to support this motion, and the verifiers are prepared to attend any evidentiary hearings on the same. Additional motions may be filed, including a motion to set aside the final judgment, a motion to withdraw the joint stipulation and motion to stay proceedings. Page 1 of 19 Law Offices of Aaron Resnick, P.A. Attorneys and Counselors RODRIGUEZ, ESTEBAN RODRIGUEZ, ALBERTO RODRIGUEZ, JUAN CARLOS MERLO, individually, and FOUR ROD INVESTMENTS CORP., and ROMER ENTERPRISES CORP., Florida Corporations, (hereinafter collectively teferred to as “Defendants”), by and through their recently retained undersigned counsel, hereby files this Verified Motion for Rehearing of the October 14, 2010 hearing on the Motion for Final Judgment of Foreclosure and Incorporated Memorandum of Law, of the September 27, 2010 Motion to Strike Pleadings and Defenses, and for Relief from Joint Stipulation . In support of the motion, Defendants state that: PREFACE Defendants move this Court to grant their Verified Motion for Rehearing of the October 14, 2010 Final Judgment, the September 27, 2010 Motion to Strike Pleadings and Defenses and associated Motion granting same. In addition, Defendants move this Court for relief from the Joint Stipulation, to Vacate same, and to Withdraw same, and for a Stay of Execution. FACTUAL HISTORY SUPPORTING THE RELIEF REQUESTED This is a foreclosure action upon a note and mortgage for residential lots 1 through 12 in Charlotte County, Florida, and against the guarantors of the loan obligations there under. On September 27, 2010, an Order granting Plaintiff's Verified Motion to Strike Pleadings and Defenses was entered in this case. On or about October 14, 2010, an Order granting Plaintiff's Verified Motion for Entry of Final Judgment of Foreclosure (the “Motion”) was entered in this case, and such Judgment was recorded on or about October 15, 2010 in Book 3518, pages 1511 thru 1517. Defendants’ former counsel’s Motion to Withdraw was granted on or about October 14, 2010. The Page 2 of 19 Law Offices of Aaron Resnick, P.A. Attorneys and Counselors undersigned filed a Notice of Appearance on Monday, November 1, 2010. The Motion was based upon the Joint Stipulation filed with the Court by Defendants’ prior counsel that was not signed by any of the Defendants pursuant to which they purportedly agreed to waive all defenses to this matter as to all claims if they did not bring the loan at issue current (as well as other loans with the Plaintiff) or refinance the loan within a 3. month period (or or before May 31, 2010). The penalty provisions in the Joint Stipulation which they Defendants contend that they consent to let alone understand were and are draconian and unconscionable. Under the Joint Stipulation, if the Defendants failed to bring current all outstanding loans (and related loans to other entities), then the Plaintiff was entitled to a striking of pleadings, a dismissal of counterclaims with prejudice, dismissal of all discovery, and entry of Final Judgment establishing liability to all Defendants as to ail sums owed as well as for foreclosure on all real and personal property, including rents, securing the loans. Moreover, in the event they failed to do so the Defendants, under the Joint Stipulation, granted the Plaintiff automatic stay relief if they filed for bankruptcy protection. The Defendants contend that they did not understand or knowingly agree to aforementioned terms or Joint Stipulation, and advise that they never would have agreed to same had the terms actually been clearly worded, explained, and understood the multiple meanings under the interchangeable terms of the Joint Stipulation surrounding this case and the other cases filed by the Plaintiff against them. Notably, the Defendants understanding of what was to be consented and what Page 3 of 19 Law Offices of Aaron Resnick, P.A. Attorneys and Counselors was to be stipulated to is encapsulated in Exhibit “A” hereto, which contains five lines of text. The Defendants did not understand or consent to their counsel filing the Joint Stipulation that was provided to this Court. The consent that was signed is set forth in that one page Stipulation of Settlement. The Joint Stipulation that the Final Judgment was based upon was never consented to by the Defendants. Even if they did consent to something being filed, it was not the Joint Stipulation that was the basis for the Final Judgment and the striking of pleadings. It is incredulous to believe that these Defendants understood and consented to these draconian and unconscionable terms (which Defendants swear they did not understand or consent to): @) The cross-default penalty provisions within this Joint Stipulation and the six (6) “Related Stipulations”, which Plaintiff contends Defendants were fully aware of, consented to, and understood, were and are draconian and unconscionable, as the Joint Stipulation strips the Defendants of all legal and bankruptcy rights. Gi) if the Defendants “defaulted” then the Plaintiff was entitled to a striking of the Defendants’ pleadings, a dismissal of counterclaims with prejudice, dismissal of all discovery, and entry of Final Judgment establishing liability to all Defendants as to all sums owed, as well as for foreclosure on all real and personal property, including rents, securing the loans. (ii) That they consented to granting the Plaintiff immediate entitlement to stay relief if Defendants filed for bankruptcy protection, or involuntarily had a bankruptcy proceeding filed against the Defendants. The Defendants contend they never reviewed six (6) Joint Stipulations that were filed with the Court, never went over them with Counsel, never read them before they were filed, did not sign or initial each individual stipulation, and were never informed by Page 4 of 19 Law Offices of Aaron Resnick, P.A. Attomeys and Counselors their counsel of the multiple meanings of the cross-default provisions, and the significance of the Joint Stipulation and it’s “Related Stipulations”. Notwithstanding this hindsight of informed consent, the Defendants contend they never would have agreed to same under the circumstances had they truly understood the terms of the Joint Stipulation surrounding this case and the other cases filed by the Plaintiff against them. The Defendants understanding of what was to be consented to and what was to be stipulated to is encapsulated in Exhibit “A”. This one page document, without page numbers and with the title “Stipulation of Settlement”, contains five lines of text and states that if timely payments were made during the 90 day period there would be a stay of the litigation involving BB&T. Thus Defendants contend their counsel failed to fully inform them that not only was the one page Stipulation of Settlement not the actual legally operative document, but also that counsel thereafter, and without authority and their signing, would be entering into six (6) legally operative Joint Stipulations with thirty (30) pages of terms on behalf of Merod. It was the Defendants’ understanding that their counsel would advise them of when necessary payments were coming due, so that the Defendants could wire money to their counsel’s trust account. These payments were made in a lump sum amount on behalf of their many entities and in conjunction with the Defendants’ understanding of the payment terms under the one page Stipulation of Settlement, and in reliance upon their counsel’s advisement and notice of due payments. Defendants believed that Merod was only going to be foreclosed upon during the natural process of Court Proceedings, which they understood they could defend. Page 5 of 19 Law Offices of Aaron Resnick, P.A. Attomeys and Counselors To be clear, the terms of the one page document the Defendants agreed to and signed, attached here to as Exhibit A, was unknowingly preempted by the later Joint Stipulations signed solely by their attorney. The consent that was provided in Exhibit “A” is remarkably different than that filed with the Court. To be clear, Defendants contend that any stipulation entered into was limited to Exhibit “A”. Exhibit “A” was prepared before and independent of the Joint Stipulation that ultimately was entered into by the attorneys and on behalf of their respective clients. The Final Judgment and Orders should be vacated and the Court should permit the Defendants to have an evidentiary hearing as to whether the Joint Stipulation should be withdrawn and vacated. In any event a rehearing should be held. MEMORANDUM OF LAW The Florida Rules of Civil Procedure provide for a motion for rehearing of matters heard without a jury, and permit the court on such a motion to open the judgment, take additional testimony, and enter a new judgment. Fla. R. Civ. P. 1.530(a).?_ Indeed, when a motion for rehearing is filed by one against whom a judgment has been entered, the discretion not to grant the rehearing is narrowed and every disposition should be indulged in favor of granting the motion. Anderson v. Aamco Transmissions of Brevard, Inc., 265 So. 2d 5 (Fla. 1972); Holl v. Talcott, 191 So. 2d 40 (Fla. 1966). This is particularly true where it is shown, as in this case, that the party against whom the judgment was granted had inefficient counsel, and in such cases the denial of a motion for rehearing is an abuse of discretion. Coastal States Mortg. Corp. v. One of the purposes of a motion for rehearing is to give the trial court an opportunity to consider matters which it failed to consider or overlook. Pingree v. Quaintance, 394 So, 2d 161 (Fla. 1* DCA 1981). Page 6 of 19 Law Offices of Aaron Resnick, P.A. Attorneys and Counselors Commonwealth Sav. & Loan Ass'n of Florida, 497 So. 2d 917 (Fla. 3d DCA 1986); Fatherly v. California Federal Bank, FSB, 703 So. 2d 1101 (Fla. 2d DCA 1997). THE DEFENDANTS SEEK TO WITHDRAW THE STIPULATION The Defendants seek to withdraw the Joint Stipulation. They did not sign the Joint Stipulation, and assert that their prior counsel could not stipulate to, or bind them to, any matter that affects the merits of the case, their remedy, the cause(s) of action, or entry of a final judgment or settlement on the merits. See, e.g., State ex rel. Personal Finance Co. v. Lewis, 140 Fla. 86, 191 So. 295, 296 (1939); Mungin v. Florida East Coast Railway Co., 318 F.Supp. 720 (M.D. Fla. 1970); Kramer v. City of Lakeland, 38 So. 2d 126 (Fla. 1949); Ponce v. U-Haul of Florida, 979 So. 2d 380 (Fla. 4th DCA 2008); Cross-Aero Corp, v. Cross-Aero Service Corp., 326 So. 2d 249 (Fla. 3d DCA 1976) (the only time an attorney may stipulate to compromise or settle a client’s cause of action is when the attorney is confronted with an emergency and immediate action is required, and only then the action must be to protect the client’s interest). The dismissal of an action, a settlement, or an entry of a final judgment is a substantive matter and therefore an attorney cannot effectively bind a client without the informed consent or informed express authorization from the client. Jd. Such is the case here. Pursuant to the evidence before this Court, it is established that Defendants’ prior counsel did not have the informed consent or informed express authorization of the Defendants to enter into the Joint Stipulation? Bor example, the Florida Rules of Civil Procedure state that a stipulation is not binding on those who are not parties to the stipulation. For instance, Rule 1.420 (a)(1) provides for the voluntary dismissal of actions upon a stipulation if and only if all the parties sign the stipulation. Such is not the case here, where only the Detendant’s former counsel signed the Stipulation, thereby invalidly and ineffectively dismissing with prejudice all defenses and rights. Page 7 of 19 Law Offices of Aaron Resnick, P.A. Attorneys and Counselors To be clear, under Florida law a stipulation {in this case the Joint Stipulation) entered into by an attorney on behalf of their client(s) is only enforceable when the attorney was given clear and unequivocal authority by the client to compromise the client’s claim and only then a compromise to clearly defined set terms. Dixie Operating Co. v. Exxon Co., U.S.A, 493 So. 2d 61, 63 (Fla. 1st DCA 1986). Thus, the implied or apparent authority to compromise a client’s claim against the client’s interest is deemed no authorization and any such compromise is void. Cibula v. Ross, 597 So. 2d 915 (Fla. 4th DCA 1992). Notably, the party seeking to enforce such an agreement or stipulation bears the burden of showing that an attorney for the opposing party had the clear and unequivocal authority to settle on the client's behalf." Architectural Network, Inc. v. Gulf Bay Land Holdings I, Ltd., 989 So. 2d 662, 663 (Fla. 2d DCA 2008); Weitzman v. Bergman, 555 So. 2d 448 (Fla. 4th DCA 1990). To be clear, although a client may give his attorney special or express authority to compromise or settle a cause of action, such authority must be clear and unequivocal and on clearly defined terms. Vantage Broadcasting Co. v. WINT Radio, Inc., 476 So. 24 796, 797 (Fla. Ist DCA 1985); Bursten v. Green, 172 So, 2d 472, 474 (Fla. 2d DCA 1965). In Bursten, the Plaintiff wrote to his attorney and authorized him to “act in the matter as fully as he could, including the right to file any proceedings deemed advise and to negotiate settlement thereon. The court held that the use of the word “negotiate” did not clearly and unequivocally authorize the plaintiffs attorney to stipulate to settlement, and the court, accordingly, held the attorney had no authority to settle. The court further Page 8 of 19 Law Offices of Aaron Resnick, P.A. Attorneys and Counselors advised, once negotiations had reached the point of agreement, the attorney was required to seck the client’s authorization as to the exact tenms of the settlement before entering into the stipulation as a final settlement. Quite similar to Bursten, the Defendants in this case authorized their attorney to negotiate with the bank, which was memorialized in a one page document. The five lines of text did not clearly and unequivocally authorize Defendants’ former attorney to stipulate to over 6 Joint Stipulations of Settlement on the merits and against the clients interests. Defendants’ former attorney did not obtain the required authorization, or even a ratification, as to the exact terms of the Joint Stipulation before entering into the Joint Stipulation(s). As such, the Joint Stipulation is void and invalid. STANDARD IN ENFORCING THE ALLEGED JOINT STIPULATION EQUIVALENT TO ENFORCING SETTLEMENT AGREEMENT Under Florida law, a party seeking the enforcement of a settlement agreement bears the burden of establishing assent by the opposing party. Walker v. Palm West Hospital, Inc., 819 So. 2d 904, 906 (Fla. 4th DCA 2002)(citing Nehleber v. Anzalone, 345 So. 2d 822, 823 (Fla. 4th DCA 1977). Unlike agency theories of authority, the mere employment of an attorney to represent a client does not empower that attorney with the imaplied or apparent authority necessary to settle the client's case. River City Wholesale Florist, Ltd. v. Equiflor Corp., 864 So .2d 21 (Fla. 3d DCA 2003); Bursten, 172 So. 2d at 474. Instead, Florida law demands that before a settlement agreement may be recognized as valid, the party seeking to compel enforcement must show that the subject attorney had clear and unequivocal authority to settle on the client's behalf. Sharick v. Page 9 of 19 Law Offices of Aaron Resnick, P.A. Attorneys and Counselors Southeastern University of Health Services, Inc., 891 So. 2d 562, 565 (Fla. 34 DCA 2004)(“A party seeking to compel enforcement of a settlement bears the burden of proving that an attorney has the clear and unequivocal authority to settle on the client's behalf.”); Jorgensen v. Grand Union Co, 490 So. 2d 214, 215 (Fla. 4th DCA 1986)(“[t]he law is clear that a client's express authority given to his attomey to settle his cause of action must be clear and unequivocal.”), The “clear and unequivocal authority” standard is a stringent one, not easily satisfied by the moving party. Weitzman v. Bergman, 555 So. 2d 448, 449-50 (Fla. 4th DCA 1990)(noting that “(cJaselaw indicates that court's have been very stringent in what they find to be a ‘clear and unequivocal’ grant of authority”) (citations omitted). In this regard the test demands that an objective standard be utilized in determining the parties! intent. Sharick, 891 So, 2d at 565; Reed By and Reed Through Reed v. U.S., 717 F.Supp. 1511 (S.D.Fla.1988) (citing Robbie, 469 So.2d at 1385)), aff'd, 891 F.2d 878 (11th Cir.1991). Thus, an attorney's belief alone that he or she had the authority to settle on behalf of his or her client, is not enough to satisfy the high burden imposed on the moving party. Sharick, 891 So. 2d at 565.(where proof did not establish attorney's clear and unequivocal authority to file a proposal for settlement, attorney could not make a binding settlement on client's behalf); Ponce v. U-Haul Co.,_979 So. 2d_ 380, 382 (Fla. 4th DCA 2008) (lawyer's belief he had authority on offer of judgment not sufficient). It is clear from verified motion that there was no clear and unequivocal grant of authority to Defendants’ prior counsel to sign the Joint Stipulation on their behalf ict alone file the Stipulation with the Court. Absent such clear and unequivocal authority Page 10 of 19 Law Offices of Aaron Resnick, P.A. Attorneys and Counselors from the Defendants, there can be no valid and binding agreement/stipuiation this Court can enforce. Sharick, 891 So. 2d at 565. THERE WAS NO MEETING OF THE MINDS Notwithstanding the fact that there is no basis to enforce the Joint Stipulation on the grounds that Defendants’ prior counsel never had authority to present same to the Court, in addition and in the alternative there was no “meeting of the minds.” In order for an agreement to be binding there must be evidence that the parties agreed on the essential terms and seriously understood and intended the agreement to be binding upon them. Williams v. Ingram, 605 So. 2d 890, 893 (Fla. Ist DCA 1992)(moving party must establish “meeting of the minds” in action to enforce settlement, and in so doing agreement must be “sufficiently specific and mutually agreeable as to every essential element”); Gaines v. Nortrust Realty Management Corp., 422 So. 2d 1037, 1039-1040 (Fla. 3d DCA 1982)(same). In other words, there must have been a “meeting of the minds.” Here the alleged Joint Stipulation is not valid and binding because there was no “meeting of the minds” on the materially significant terms. This alone provides a basis for the granting of the Defendants’ Motion. Williams, 605 So. 2d at 893; Gaines, 422 So. 2d at 1039-1040. Moreover, even when a client retains an attorney to negotiate a settlement or a stipulation, this relationship normally does not authorize the attorney to stipulate to an agreement that imposes new liabilities or burdens on the client. See Rushing v. Garrett, 375 So. 2d 903 (Fla. Ist DCA 1979); Goff v. Indian Lake Estates, Inc., 178 So. 2d 910 (Fla. 2d DCA 1965). Page 11 of 19 Law Offices of Aaron Resnick, P.A. Attorneys and Counselors The Third District Court of Appeals has held that even when the client consents to a settlement, the agreement may be rescinded on the basis of a unilateral mistake. When it is shown that (1) the mistake was induced by the party secking to benefit from the mistake, (2) there is no negligence or want of due care on the part of the party seeking a return to the status quo, (3) denial of release from the agreement would be inequitable, and (4) the position of the opposing party has not so changed that granting the relief would be unjust, a unilateral mistake may provide a basis for rescission of a contract. Lechuga v. Flanigan's Enterprises, Inc., 533 So. 2d 856, 857 (Fla. 34 DCA 1988). hh summary, Plaintiff has failed to sustain its burden of proving that Defendants’ attorney, had clear and unequivocal authority to settle the case on their behalf. Absent such clear and unequivocal authority, she could make neither a binding offer nor a binding agreement on their behalf. Sharick, 891 So. 2d at 565; Jorgensen, 490 So. 2d at 215. Plaintiff has also failed to sustain its burden of proving that the parties agreed on the essential terms and seriously understood and intended the agreement to be binding upon them. Specifically, there was no “meeting of the minds”. Without a “meeting of the minds” on all essential elements, there could be no valid and binding Joint Stipulation for the Court to enforce. Williams, 605 So, 2d at 893; Gaines, 422 So, 2d at 1039-1040. Therefore, the Defendants respectfully request the Court grant this Motion in that they did not clearly and unequivocally authorize their attorney to compromise the merits of their case against their interests, nor did the Defendants voluntarily, intelligently or knowingly consent to, let alone comprehend, the Joint Stipulation that was entered into by their attomey and filed with the Court. Page 12 of 19 Law Offices of Aaron Resnick, P.A. Attorneys and Counselors RELIEF UNDER RULE 1.540(b) A party seeking relief from an order or stipulation can also employ Rule 1.540 (b) of the Rules of Civil Procedure and the well-established authority of cases regarding the vacation of a stipulation. The rule provides that upon motion and such terms as are just, the Court may relieve a party or a party’s legal representative from a final judgment, decree, order or proceeding for the good cause. The Third District Court of Appeals has held that “‘good cause” is determined on a case by case factual analysis. Curr v, Helene Transp. Corp., 287 So. 2d 695 (Fla. 3d DCA 1973). In seeking relief from a stipulation, good cause has been interpreted as a mistake of fact resulting in no meeting of the minds, when an agreement is not voluntarily undertaken, and there is indication that the agreement was obtained by fraud or mistepresentation. Curr v. Helene Transportation Corporation, 287 So. 2d 695 (Fla. 3d DCA 1973); Bradley v. Brotman, 8 So. 2d 1129 (Fla. 4th DCA 2003)( stipulation is ambiguous and therefore unenforceable); Troup v. Bird, 53 So. 2d 717 (Fla. 1951)(Asserting fraud, overreaching, and withholding of the facts); City of Miami v. Florida E. Coast Ry. Co., 428 So. 2d 674 (Fla. 3d DCA 1983)(Showing subject matter of stipulation is against public policy); Fouts v. Fouts, 61 So. 2d 322 (Fla. 1952)(showing stipulation would control question of law); Alvarez v. Smith, 714 So. 2d 652 (Fla. Sth DCA 1998)(Showing attorney had no authority to act on party's behalf}. A party may attempt to set aside a stipulation where the party’s attorney has entered into an agreement on its behalf, but the client denies authorizing the attorney to settle the claim, or on those terms. Bradley v. Brotman, 836 So. 2d 1129 (Fla. 4th DCA 2003). Although there is a presumption that the attorney is authorized to act on behalf of Page 13 of 19 Law Offices of Aaron Resnick, P.A. Attorneys and Counselors his client that presumption can be overcome. Jd. This presumption specifically can be overcome when the attorney settles on terms that are unconscionable to the client. Federal Land Bank v. Brooks, 139 Fla. 506 (Unconscionable stipulations are disfavored and courts are to construe in furtherance of justice). If a party attempts to avoid a stipulation by asserting that his attorney did not have authority, an evidentiary hearing is required. Allbritton v. Stahiman, 683 So, 2d 536 (Fla. 2d DCA 1996). The Stipulation entered into was and is both procedurally and substantively unconscionable and should not be enforced. See Steinhardy v. Rudolph, 422 So. 2d 884 (Fla. 3d DCA 1982) (noting that Florida courts may refuse to enforce an unconscionable contract). Furthermore, if it is evident that there is no meeting of the minds of the allegedly stipulated parties, and there is a mistake pertaining to a material fact due to attorney conduct, the court may grant relief without conducting a hearing on whether any fraud was involved. Schreiber, 795 So. 2d 1054 (Fla. 4th DCA 2001). THE MATTER SHOULD BE STAYED PENDING RESOLUTION OF ALL MOTIONS Defendant pursuant to Fla.R.Civ.P. 1.550 moves the Court for its Order staying execution in this issue and contend that good cause is shown to establish the basis for such a stay. Such a stay will prevent BB&T, an over-zealous judgment creditor, from trampling the rights of judgment debtors before they have their full-day in court, including the filing and determination of post-final judgment motions. In Blimpie Capital Venture, Inc., v. Palms Plaza Partners, Ltd., 636 So.2d 838 (Fla. 2nd DCA 1994) (Copy attached as Exhibit A) the court reviewed the historical authority of trial courts to stay process or the issuance of process under former F.S. Section, 55.38. The Court Page 14 of 19 Law Offices of Aaron Resnick, P.A. Attorneys and Counselors pointed out the language of Rul 1.550(b) is substantially the same as former Section 55.38 and concluded that under proper circumstances, i.e., where good cause is shown, a trial court has authority to “correct, restrain and control their own proceedings.” See also, City of Coral Gables v. Hepkins, 107 Fla. 778, 144 So. 2d 385 (Fla. 1932); Gann v. Levitt & Sons of Florida, Inc., 193 So. 2d 200 (Fla. 4th DCA 1966) (the purpose of F.S.A. Section 55.38 is to expressly authorizes courts to correct, restrain and control their own proceedings.). THE DEFENDANTS MOVE TO HAVE THE FINAL JUDGMENT VACATED AND THE ORDER STRIKING PLEADINGS VACATED Final Judgment Should be Vacated Orders, decrees or judgments “procured through fraud, collusion, deceit, or mistake may be reopened, vacated, or modified at any time, on the proper showing made by the parties injured.” Goldfarb v. Daitch, 696 So. 2d 1199, 1203 (Fla. 3d DCA 1997). The appropriate vehicle for seeking relief from a previously entered judgment obtained by fraud, collusion, deceit, or mistake is a motion under Rule 1.540 of the Florida Rules of Civil Procedure, Rule 1.540(b) states in relevant part: On motion and upon such terms as are just, the court the court may relieve a party or a party's legal representative from a final judgment, decree, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial or rehearing; (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party. (4) that the judgment or decree is void; or (5) that the judgment or decree has been satisfied, released, or discharged, or a prior judgment or decree upon which it is based has been reversed or otherwise vacated, or it Page 15 of 19 Law Offices of Aaron Resnick, P.A. Attorneys and Counselors no longer equitable that the judgment or decree should have prospective application. For the reasons stated herein, the final judgment should be vacated. Order Granting Motion to Strike Should be Vacated A motion to strike should only be granted if the material is wholly irrelevant, can have no bearing on the issues, and cannot influence the decision. Fla. R. Civ. P. 1.140. A motion to strike must be directed only to that portion of the complaint or answer which is in question, and not to all of it, or the trial court will rule against it. Thus, in Barnett Nat. Bank of Jacksonville v. Murrey, 49 So. 2d 535 (Fla. 1950), for example, the court ruled that the motion to strike was too broad and should have only been directed to the part of the answer which was nonresponsive. Town of Howey-in-the-Hills v. Graessle, 36 So. 2d. 619 (Fla. 1948) (a motion to strike, addressed to paragraphs of complaint in their entirety should be denied if any of the allegations in the paragraph are relevant). Where a defense is legally sufficient on its face and presents a bona fide issue of fact, it is improper to grant a motion to strike. Fla. R. Civ. P. 1.140(b). lf any evidence can be presented to support a defense, it is reversible error for a court to strike it. This is particularly true where it is shown, as in this case, that there are meritorious foreclosure defenses separate and apart from the meritorious grounds to withdraw the Joint Stipulation, questionable legal judgment by Defendant’s former counsel on behalf of Defendant’s, and the due diligence of Defendant’s recently retained counsel in seeking relief from the Joint Stipulation entered into unknowingly by former counsel on behalf of the Defendants. Warriner v. Burdines, 93 So. 2d 108 (Fla. 1957). Here the facts clearly suggest issues that would prevent the striking of the Page 16 of 19 Law Offices of Aaron Resnick, P.A. Attomeys and Counselors pleadings and the entry of final judgment. THE MOTION FOR REHEARING SHOULD BE GRANTED AS DEFENDANTS RECEIVED SUBSTANDARD REPRESENATION Every legal matter, no matter how small, deserves the diligence and proficiency the public expects from a Florida lawyer. The Florida Bar v. Morse, 784 So. 2d 414 (Fla. 2001). Here, Defendants deserved such counsel. Most important, and particularly instructive for this Court when considering the motion for rehearing is the fact that Defendants should not be punished for the ineffectiveness of their prior counsel or incompetent or substandard representation. If they Defendants did sign the Joint Stipulation, consent to all the terms of same or understand the terms thereof, they should be undone and they should be permitted to defend this case on its merits and bring their counterclaims. See Olesh v. Greenberg, 978 So. 2d 238 (Fla. s* DCA 2008) (reversing trial court’s denial of motion for rehearing of summary judgment as abuse of discretion where the record reflects that Defendant’s original attorney rendered substandard legal representation). CONCLUSION This court should grant the requested relief and permit both Motions to be reheard so that Defendants can defend it with the Court considering whether the Joint Stipulation should be enforced. They should be able to conduct discovery’, to explore their existing 4 With that said, here, not a single deposition or any written discovery had been taken prior to Motion being granted. Moreover, no written discovery was served by any party to this litigation. Final judgments should not be entered or entertained before the parties have had an opportunity to conduct and complete discovery. A.& B Pipe and Supply Co. v. Turnberry Towers Corp., 500 So. 2d 261 (Fla. 3d DCA 1986); Derosa vy. Shands Teaching Hospital and Clinic, Inc., 468 So. 2d 415 (Fla. lst DCA 1985); Cullen v. Big Daddy's Lounges, Inc., 364 So. 2d 839 (Fla. 3d DCA 1978). That is, it is abuse of discretion for trial court to grant a final judgment where opposing party has not had opportunity to complete discovery, Crowell v. Page 17 of 19 Law Offices of Aaron Resnick, P.A. Attorneys and Counselors defenses, to assert counterclaims, to file amended defenses and to otherwise defend this case. They should not be punished as the result counsel filing with the Court a Stipulation the terms of which they did not understand, consent to, sign, or agree to. The Final Judgment dated October 14, 2010 should be vacated, and the Order Granting Plaintiffs Motion to Strike the Pleadings dated September 27, 2010 should be vacated, and the Agreed Order Approving the Joint Stipulated dated March 17, 2010 should be vacated. Respectfully submitted, this Monday, November 1, 201 BY: AGront REA Kesnj ee : Florida-ar No. 0141 Brittany Rawli Sq. Sworn in, /10, FBN Pending Law Offices of Aaron Resnick, P.A. 235 Lincoln Road Suite 310 Miami Beach, FL 33139 Telephone: (305) 672-7495 E-mail: aresnick@thefirmmiami.com Kaufmann, 845 So. 2d 325 (Fla. 24 DCA 2003); Sanchez v. Sears, Roebuck and Co., 807 So. 2d 196 (Fla. 3d DCA. 2002), and indeed is reversible error. Kimball v. Publix Super Markets, Inc., 901 So. 2d 293 (Fla. 2d DCA 2005). Page 18 of 19 Law Offices of Aaron Resnick, P.A. Attorneys and Counselors CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished via facsimile, electronic mail and regular mail upon all counsel of record this Monday, November 1, 2010 BY, = a oo Aaron Resnick, Esquire Brittany Rawlings, Esquire Page 19 of 19 Law Offices of Aaron Resnick, P.A. Attorneys and Counselors EXHIBIT “A” — . BB&T v Palm Tech, Palm Depot, Garden Depot, Merod, Romer, urnamental Nursery Four Rod, et al. The undersigned parties understand that the Stipulation of Settlement being entered into with BB&T requires payments to be made on a timely basis for the next 90 days. [f any of those payments are not made in a timely basis BB&T will receive a Final Judgment of Forecfosure in all the loans with BB&T. The undersigned hereby authorize Jacqueline Hernandez-Valdes, Esq. to execute the Stipulation of Settlement on out behalf. 7 Oe of Vuh tips fhe of Palm Depot her A bile Mud «: — tbh €.€- Lond Garden Depot Four Rod oO a fi} hai Patin Tech labo for oy C VY ZL0g, anny Rodriguez al eA wa? ee ae my tod, LLC one an Rodriguez Le elise Wo ihe ee. Ornamental Nursery 2 “alberto Rodriguez Juan Carlos Merlo sft yahenrallyy ahife a Ee VERIFICATION OF ALBERTO RODRIGUEZ, I have read the foregoing motion and know the factual contents of the motion. The factual contents are te of my own knowledge, and are verified by me under oath as truthful and accurate. My understanding of what was to be consented and what was to be stipulated to is encapsulated in. Exhibit “A” hereto, which I executed. ft is my recollection that the date of I signed Exhibit “A” was March 3, 2010. Rod Investments & Enterprises Corp. was not a party to Exhibit “A” and I did not sign the Exhibit “A” on its behalf. At the time, I understood that the stipulation was limited to the fact that if we made timely payments we understood them during the 90 day period there would bea stay of the litigation in all the pending cases related to BBY. Tt was told to me that it was a Stipulation of Settlement that was necessary or BB&T would not mediate with us. T only understood the Stipulation of Settlement at the time along these terms. Jt was my understanding that we made all the payments that would be paid to BB&T. These payments were made as I understood they needed to be. We made the payments which we understood were the payments to be made as we understood it as we were advised to make them. We understood tbat when the fimds were provided for these payments to our counsel they were to make the payments that were due timely. I understood that if those payments were not made BB&T would be able to obtain a final judgment for foreclosure on the properties covered by the loans with BB&T, but 1 did not understand or agree that I would waive my defenses to actions for damages { | against me directly in any of the actions, that T would w aive my rights to bankruptcy protection and that if I filed for bankruptcy that BB&T would be entitled to stay relief, or that I would waive my rights and claims against BR&T. In addition, I did not understand or agree that BB&T would have.a right to the collateral that was pledged as part of the loans with BB&T if we did not make the payments under the Stipulation of Settlement. 1 did not understand or consent to waiving notices, or the fact that a default would entitled BB&T to the same relief against other entities. The consent was issued as it was my understanding that it was mandatory, and the only way the bank would negotiate with us. I only consented to those terms under extreme financial duress as it was represented that if we did not consent to these terms we would lose everything and that it was our only option. I did not understand that there were six (6) Joint Stipulations to Stay Action and Discovery for 90 Days in the pending cases. All payments that were due to BB&T during that period as I understoad them were timely paid. Additiona] payments were made to BB&T that 1 understood were made as it was understood by me that was the only way that BB&T would continue to negotiate with us. Attorney Jacqueline Hernandez-Valdes, Esq. was our attorney at the time. q consented for her to execute a stipulation pursuant to my understanding of the terms as set forth herein and in Exhibit “A”. I did not sign the Joint Stipulation that is the basis for the Final Judgments sought by BB&T, and did not understand the terms of it as it was submitted. My consent fora stipulation to be filed on my behalf did not contemplate that | would waive all such i tights if we did not oring current the all the loans to BB&T's, .thin three (3) months or to refinance same in that time period. J understood that the only issue would be if we did not make payments that we knew we could make would be that BB&T could get a judgment for foreclosure on the properties at issue. I never understood or agreed to terms that would permit a judgment for damages against the company or against me personally, that we would waive bankruptcy protection for me and the company, that it would cause us to lose immediately all the pledged security without the right to defend such claims against it and that we would waive claims that we might have or the company bad. I never understood or oo ented to th e terms of the Joint Stipulations as filed with the court. ~—> BY: Lies Lf “eo LY PRINT NAME: Miedle PY OLDY LE STATE OF FLORIDA COUNTY OF MIAMI-DADE ) The forgoing instrument was acknowledged before me this 2 g » day of October, 2010 by Alberto Rodriguez, who has produced his Florida Driver’s License as identification. g NOTRAY PUB) C State of Florid. a Print Name: aALdb ad Z Commission No. #4 CARIDAD FM MY COMMISSION # DDSE2499 ren ‘May 28, 2011 ‘ismnanorany FL, Notary Discount Assoc. Co, VERIFICATION OF DANIEL RODRIGUEZ, Thave read the foregoing motion and know the factual contents of the motion. The factual contents are true of my own knowledge, and are verified by me under oath as truthful and accurate. My understanding of what was to be consented and what was to be stipulated to is encapsulated in Exhibit “A” hereto, which I executed. It is my recollection that the date of I signed Exhibit “A” was March 3, 2010. Rod Investments & Enterprises Corp. was not a party to Exhibit “A” and I did not sign the Exhibit “A” on its behalf. At the time, I understood that the stipulation was limited fo the fact that if we made timely payments we understood them during the 90-day period there would be a stay of the litigation in al! the pending cases related to BB&T. It was told to me that it was a Stipulation of Settlement that was necessary or BB&T would not mediate with us. T only understood the Stipulation of Settlement at the time along these terms. It was my understanding that we made all the payments that would be paid to BB&T. These payments were made as | understood they needed io be. We made the payments which we understood were the payments to be made as we understood it as we were advised to make them. We understood that when the funds were provided for these payments to our counsel they were to make the payments that were due timely. T understood that if those payments were not made BB&T would be able to obtain a final judgment for foreclosure on the properties covered by the loans with BB&T, but I did not understand or agree that I would waive my defenses to actions for damages f against me directly in any of the actions, that I would watve my rights to bankruptcy protection and that if filed for bankruptcy that BB&T would be ent