        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                        BANK OF AMERICA, N.A.,
                              Appellant,

                                      v.

              EDWARD LUKAS a/k/a EDWARD J. LUCAS,
                           Appellee.

                               No. 4D14-933

                              [June 24, 2015]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Kathleen Ireland, Judge; L.T. Case No. 09-68527 (11).

   Nancy M. Wallace, Michael J. Larson of Akerman LLP, Tallahassee,
William P. Heller of Akerman LLP, Fort Lauderdale, and Celia C. Falzone
of Akerman LLP, Jacksonville, for appellant.

    Bruce K. Herman of The Herman Law Group, P.A., Fort Lauderdale,
for appellee.

DAMOORGIAN, C.J.

   Bank of America, N.A. (“BANA”), appeals the denial of its motion to
vacate the trial court’s dismissal of BANA’s foreclosure action against
Edward Lukas a/k/a/ Edward J. Lucas (“Lukas”) with prejudice.
We reverse.

    In December of 2009, BANA filed a two count complaint against
Lukas, alleging one count for mortgage foreclosure and one count for
reestablishment of a lost note.1 As an attachment to its complaint, BANA
filed a copy of the note and mortgage, which identified Countrywide
Bank, FSB as the original lender. The copy of the note attached to the
complaint contained no endorsements. BANA later voluntarily dismissed
its reestablishment of a lost note count and filed the original note and
mortgage with the court. Unlike the note attached to the complaint, the

   1  The complaint was initially filed by BAC Home Loan Servicing, L.P. f/k/a
Countrywide Home Loans Servicing, L.P. (“BAC”). Prior to trial, BAC merged
with BANA, and BANA was substituted as the true party at interest.
original note contained       an   undated,    blank    endorsement     from
Countrywide Bank, FSB.

   The case proceeded to a bench trial. After BANA rested, Lukas moved
for involuntary dismissal under Florida Rule of Civil Procedure 1.420(b),
arguing that because BANA failed to properly amend its complaint to
include the original note, the filing of the original note with the court
constituted an improper amendment to the complaint in violation of
Florida Rule of Civil Procedure 1.190. As such, Lukas maintained that
the original note was not part of BANA’s pleadings and accordingly not
properly before the court. BANA countered that it was not required to
amend its complaint to include the original note because it voluntarily
withdrew its reestablishment of the lost note count prior to trial.
Therefore, BANA maintained that it was only traveling under the
foreclosure count of its complaint.

   The trial court ultimately granted Lukas’ motion and entered an order
dismissing BANA’s foreclosure action with prejudice. The order provided
that: “notice of filing without communicating that filing does not cure
prior filing and does not put that document before [sic] court. Therefore
plaintiff failing to show it was entitled to foreclose as a matter of law the
court dismisses this action.” This ruling misapplies the rules of civil
procedure.

   Florida Rule of Civil Procedure 1.190 addresses amendments to
pleadings and provides in pertinent part:

      (a) Amendments. A party may amend a pleading once as a
      matter of course at any time before a responsive pleading is
      served or, if the pleading is one to which no responsive
      pleading is permitted and the action has not been placed on
      the trial calendar, may so amend it at any time within 20
      days after it is served. Otherwise a party may amend a
      pleading only by leave of court or by written consent of the
      adverse party. . . .

      (b) Amendments to Conform with the Evidence. When
      issues not raised by the pleadings are tried by express or
      implied consent of the parties, they shall be treated in all
      respects as if they had been raised in the pleadings. Such
      amendment of the pleadings as may be necessary to cause
      them to conform to the evidence and to raise these issues
      may be made upon motion of any party at any time, even
      after judgment, but failure so to amend shall not affect the

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      result of the trial of these issues.

Fla. R. Civ. P. 1.190(a)-(b) (emphasis added); see also Feltus v. U.S. Bank
Nat’l Ass’n, 80 So. 3d 375, 376 (Fla. 2d DCA 2012) (“A pleading filed in
violation of rule 1.190(a) is a nullity, and the controversy should be
determined based on the properly filed pleadings.”).

   Here, BANA properly dismissed its count for reestablishment of a lost
note prior to trial. See Fla. R. Civ. P. 1.420(a)(1) (a party may voluntarily
dismiss any part of an action or claim before trial).2 Therefore, by the
time the case proceeded to trial, BANA was only operating under its
foreclosure count. As such, BANA was not required to amend its
complaint in order to properly place the original note before the court.
See Murray v. HSBC Bank USA, 157 So. 3d 355, 356 (Fla. 4th DCA
2015); Sample v. Wells Fargo Bank, N.A., 150 So. 3d 1191, 1192 (Fla. 4th
DCA 2014); see also Fla. R. Civ. P. 1.190(b) (a party may amend a
pleading to conform to the evidence, “but failure so to amend shall not
affect the result of the trial on these issues”). Nor did BANA’s act of filing
the original note with the court serve to improperly amend the complaint.

   Accordingly, we reverse        and       remand       for   further   proceedings
consistent with this opinion.

   Reversed and remanded.

TAYLOR and MAY, JJ., concur.

                             *          *            *

   Not final until disposition of timely filed motion for rehearing.




    2 As of January 1, 2011, Rule 1.420(a)(1) allows a party to voluntarily
dismiss, not only an action, but “a claim, or any part of an action or claim.” In
re Amendments to the Fla. Rules of Civil Procedure, 52 So. 3d 579, 587 (Fla.
2010). Therefore, BANA’s voluntary dismissal of the lost note count in August
of 2013 was proper. Id.

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