               NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                      MOTION AND, IF FILED, DETERMINED


                                             IN THE DISTRICT COURT OF APPEAL

                                             OF FLORIDA

                                             SECOND DISTRICT


BANK OF AMERICA,                             )
NATIONAL ASSOCIATION,                        )
                                             )
             Appellant,                      )
                                             )
v.                                           )         Case No. 2D14-1965
                                             )
BROOKE G. ASBURY,                            )
                                             )
             Appellee.                       )
                                             )

Opinion filed May 27, 2015.

Appeal from the Circuit Court for Sarasota
County; Kimberly Carlton Bonner, Judge.

Elizabeth T. Frau and Robert Schneider
of Ronald R. Wolfe & Associates, P.L.,
Tampa; Jessica Zagier Wallace of Carlton
Fields Jorden Burt, P.A., Miami; Michael
K. Winston and Dean A. Morande,
Carlton Fields Jorden Burt, P.A., West
Palm Beach, Miami, for Appellant.

David A Fernandez of Skyway Law
Group, P.A., Clearwater, for Appellee.


LUCAS, Judge.


             In this residential mortgage foreclosure action, Bank of America appeals

the trial court's entry of a final judgment in favor of the defendant homeowner, Brooke
Asbury. The trial court determined that Bank of America failed to prove that it had

complied with the condition precedent of mailing a default notice to Asbury prior to

initiating its foreclosure lawsuit. The court further found that the default letter proffered

by Bank of America at the nonjury trial was admissible to show that it had been

prepared but would not be admitted to establish that it had been mailed. Because

Asbury never identified this condition precedent or its alleged noncompliance within her

pleadings, we conclude the trial court erred in entering judgment against Bank of

America on that basis. Accordingly, we reverse and remand for further proceedings.

              Asbury was the owner of residential property in Sarasota County that was

encumbered by a promissory note and mortgage. Following nonpayment on her loan,

Bank of America1 accelerated Asbury's note and filed a single-count complaint against

Asbury on July 29, 2009, seeking to foreclose on the mortgage. In her answer, Asbury

generally denied Bank of America's claims, and in response to the bank's general

allegation that "all conditions precedent to the acceleration of the Mortgage Note and

foreclosure of the Mortgage have been performed or have occurred," Asbury replied,

"without knowledge." The pleadings went through minor iterations, none of which




              1
               It is unclear on the record before the court how, or at what point, Bank of
America became the party plaintiff in this matter. Although Asbury filed a motion
challenging Bank of America's standing, the trial court never addressed standing or
ruled on Asbury's motion. Accordingly, we do not consider that issue in this appeal.
See Hamilton v. R.L. Best Int'l, 996 So. 2d 233, 235 (Fla. 1st DCA 2008) (holding that
the preservation of error for appellate review is not completed until the aggrieved party
has obtained a ruling on the motion in the lower tribunal).



                                             -2-
altered Bank of America's general allegation concerning the fulfillment of the conditions

precedent to its lawsuit or clarified Asbury's general denial of that allegation.2

              A nonjury trial was held on February 24, 2014. From the record, it

appears the circuit court was troubled by what it perceived to be Bank of America's

failure to prove that a required default notice had, in fact, been mailed to Asbury before

the filing of the lawsuit. The court ultimately entered a final judgment on May 8, 2014, in

favor of Asbury. In its judgment, the court found that Bank of America had "failed to

introduce any evidence to satisfy to the Court that conditions precedent were met and

the default letter was mailed." Bank of America timely appealed.

              We find Bank of America's first point on appeal, which revolves around the

state of the pleadings at the time of the trial, to be dispositive. Bank of America argues

that the trial court was precluded from considering whether a default notice had been

delivered because Asbury did not properly raise that issue, either within her answer or

as an affirmative defense, prior to trial. Bank of America is correct.

              Litigants in civil controversies must state their legal positions within a

particular document, a pleading, so that the parties and the court are absolutely clear

what the issues to be adjudicated are. As the Florida Supreme Court explained in Hart

Properties, Inc. v. Slack, 159 So. 2d 236, 239 (Fla. 1963):

              [I]ssues in a cause are made solely by the pleadings . . . .
              [The purpose of pleadings] is to present, define and narrow
              the issues, and to form the foundation of, and to limit, the
              proof to be submitted on the trial. The objective sought in
              the present rules is to reach issues of law and fact in one
              affirmative and one defensive pleading.



              2
              Asbury's response in her answer of "without knowledge" is treated as a
denial of Bank of America's allegation. See Fla. R. Civ. P. 1.110(c).


                                            -3-
              Florida Rule of Civil Procedure 1.120(c) establishes a special pleading

rule in regard to conditions precedent: "In pleading the performance or occurrence of

conditions precedent, it is sufficient to aver generally that all conditions precedent have

been performed or have occurred. A denial of performance or occurrence shall be

made specifically and with particularity." Under this rule a plaintiff is allowed to allege in

a generalized fashion that all the conditions precedent to a cause of action, whatever

they may be, have either occurred or been performed. A defendant, as the responding

party, shoulders the responsibility of identifying a specific, unfulfilled condition precedent

should it wish to deny that general averment. The case at bar presents the issue of

what effect a defendant's failure to comply with rule 1.120(c) should have at trial. It is

an issue we have addressed before.

              In Cooke v. Insurance Co. of North America, 652 So. 2d 1154, 1155 (Fla.

2d DCA 1995), INA, an insurance company, declined its insured customer's claim for

losses resulting from a fire. The insured filed a lawsuit against INA, which included an

allegation of compliance with all conditions precedent. Id. at 1156. INA's answer

offered only a general denial of that allegation, but when the case proceeded to trial,

INA for the first time argued that its customer had failed to prove he had provided notice

of the fire to INA, submitted an adequate proof of loss, or that INA had declined to pay

that loss prior to filing his lawsuit, all of which, INA maintained, were conditions

precedent to the insured's claim. Id.

              Reversing the trial court's directed verdict for INA, we explained the

importance of proper pleading practice for conditions precedent:

              Florida Rule of Civil Procedure 1.120(c) permits the plaintiff
              to plead performance of conditions precedent in general



                                             -4-
              terms. If a defendant wishes to deny such performance, the
              denial must be alleged "specifically and with particularity." In
              this case, Mr. Cooke alleged compliance with all conditions
              precedent in general terms. INA denied these allegations in
              general terms. It never pleaded any of the issues raised in
              its motion for a directed verdict. Thus, it had no right to
              demand proof from the plaintiff of conditions precedent that
              were not preserved in the pleadings.

Id. at 1156 (emphasis added) (citations omitted).

              Similarly, in VonDrasek v. City of St. Petersburg, 777 So. 2d 989, 990

(Fla. 2d DCA 2000), the City of St. Petersburg answered a personal injury complaint,

claiming it was without knowledge whether a plaintiff had fulfilled all of the conditions

precedent to filing a personal injury lawsuit. The city later attempted to argue that the

complaint should have been dismissed because the plaintiffs failed to provide adequate

notice to the city prior to initiating their lawsuit under section 768.28(6), Florida Statutes

(1993). Id. We reversed the trial court's dismissal and held that the city's failure to

plead a timely, specific denial of whether a condition precedent had occurred or been

fulfilled amounted to a waiver of that defense. Id. at 991; see also Griffin v. Am. Gen.

Life & Acc. Ins. Co., 752 So. 2d 621, 623 n.1 (Fla. 2d DCA 1999) ("If satisfaction of the

condition precedent is not denied with specificity, it is waived.").

              The legal rule we applied in Cooke, VonDrasek, and Griffin, that a

defendant's failure to identify a specific condition precedent within its pleading results in

a waiver of the defense, emanates from the mandatory language found in rule 1.120(c),

"[a] denial . . . shall be made specifically and with particularity" (emphasis added), as

well as the underlying purpose of this special pleading rule: that is, to ensure that the

parties in civil litigation are fully apprised, prior to trial, whether the compliance or

occurrence of a condition precedent is an issue to be proven at trial and that the party



                                              -5-
that is presumably in a better position to identify a noncompliance or nonoccurrence

does so within its pleading. Cf. VonDrasek, 777 So. 2d at 991 n.1 (quoting commentary

to Fla. R. Civ. P. 1.110: "The contents of a pleading . . . should clearly and adequately

inform the judge and the opposing party . . . of the position of the pleader.").

               While recognizing the pleading requisites of rule 1.120(c), Asbury argues

that the rule does not apply here because the only condition precedent to the

acceleration of her promissory note was the lender's compliance with Paragraph 22 of

her mortgage. That paragraph includes the requirement that the lender furnish a default

notice to the borrower prior to instituting a foreclosure action. According to Asbury,

Bank of America could not have been surprised or caught unaware at trial that it would

have to furnish evidence of mailing a default notice because that was the only condition

precedent to its lawsuit, and she generally denied that the bank had satisfied that

requirement.

               Regardless of whether or not the only condition precedent for the filing of

the bank's lawsuit was the delivery of a default notice, Asbury's argument for affirmance

must be rejected. There is no exception in rule 1.120(c) for claims that have a single

condition precedent to their maintenance. Nor will we construe one as Asbury

suggests. See Barco v. Sch. Bd. of Pinellas Cnty., 975 So. 2d 1116, 1121-22 (Fla.

2008) ("[I]t is well settled that the Florida Rules of Civil Procedure are construed in

accordance with the principles of statutory construction. When the language of the

statute is clear and unambiguous and conveys a clear and definite meaning, there is no

occasion for resorting to the rules of statutory interpretation and construction; the statute

must be given its plane and obvious meaning.") (citations omitted). Asbury's




                                            -6-
construction would turn the special pleading requirements of rule 1.120(c) completely

around. It was Asbury, not Bank of America, who was obliged to frame the specific

issue within her pleadings of whether or not a default letter's mailing had occurred. She

failed to do so. Nowhere within Asbury's answer or affirmative defenses was there any

mention of a purported failure to deliver a default notice. She should not have been

heard to challenge that condition precedent at the trial. See VonDrasek, 777 So. 2d at

991; Cooke, 652 So. 2d at 1155.

              Accordingly, we reverse the final judgment and remand for a new trial

consistent with this opinion.


VILLANTI, C.J., Concurs.
SILBERMAN , J., Concurs with opinion.




                                          -7-
SILBERMAN, Judge, Concurring specially.

              I concur in the decision to reverse but make the following observations.

              First, Bank of America presented evidence through its sole witness

attempting to establish it had properly sent a notice of default, thereby performing that

condition precedent to foreclosure. Asbury challenged the evidence, including the

witness's competence to testify as to the sending of the notice. But she then elicited

specific testimony from the witness supporting Bank of America's contention that the

default notice was properly sent. In fact, based on Asbury's prodding, the witness

testified that Bank of America's business records would establish the mailing.

              Bank of America then resumed questioning the witness. Oddly, rather

than introducing the business records into evidence or obtaining additional testimony

regarding mailing of the default notice, Bank of America instead got its witness to agree

that it was possible a default letter would not be mailed but would instead be "sent to the

trash can."

              The majority correctly observes that Asbury failed to properly raise Bank

of America's noncompliance with a condition precedent as an affirmative defense.

However, based on the evidence summarized above and the rest of the trial transcript,

Asbury might have been able to make a colorable argument both in the trial court and

on appeal that the issue was tried by consent. See C.J. v. Dep't of Children & Family

Servs., 9 So. 3d 750, 755 (Fla. 2d DCA 2009); Scariti v. Sabillon, 16 So. 3d 144, 145-

46 (Fla. 4th DCA 2009). But Asbury never made that argument.

              Second, in announcing judgment for Asbury, the trial court ruled that

"there's no -- nothing in the evidence to satisfy the Court's need to know that the default




                                           -8-
letter was mailed." The court noted the testimony of the sole witness regarding a postal

bar code that was contained in Bank of America's records. The witness had testified

that the bar code proved the default letter was sent and went through the mail. The trial

court rejected the testimony as hearsay even though no objection was made and, in

fact, Asbury had elicited that testimony. Although on appeal Bank of America points to

the testimony as establishing its compliance with the condition precedent, it failed to

argue to the trial court that the testimony should have been accepted as proof of

compliance. See Aills v. Boemi, 29 So. 3d 1105, 1108-09 (Fla. 2010) (recognizing that

for an argument to be preserved for appeal, the specific legal ground on which the claim

is based must be asserted in the trial court).

              Based on the foregoing and Asbury's failure to plead the affirmative

defense of noncompliance with a condition precedent, I concur in the majority decision.




                                            -9-
