       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                    FLORIDA HOLDING 4800, LLC,
                             Appellant,

                                    v.

LAUDERHILL LENDING, LLC and LAUDERHILL MALL INVESTMENT,
                          LLC,
                        Appellees.

                             No. 4D18-1948

                             [June 26, 2019]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Raag Singhal, Judge; L.T. Case No. CACE16-012986.

  Robert J. Hauser of Pankauski Hauser PLLC, West Palm Beach, for
appellant.

   Todd L. Wallen of Wallen Kelley, Coral Gables, for appellee Lauderhill
Lending.

KLINGENSMITH, J.

   Florida Holding 4800, LLC appeals the trial court’s order granting
Lauderhill Lending, LLC’s motion for summary judgment for foreclosure.
The property that is the subject of the foreclosure dispute was originally
owned by Lauderhill Mall Investment (LMI), who then sold it to Florida
Holding. Florida Holding raises several points on appeal claiming the trial
court erred in granting the summary judgment, but we affirm as to all
issues.

   LMI filed a complaint to foreclose on the commercial mortgage, alleging
that Florida Holding was in default of the promissory note. Florida Holding
answered the complaint asserting affirmative defenses, as well as a
compulsory      counterclaim      for     rescission,   fraud,    negligent
misrepresentation, and unjust enrichment among other things. In its
counterclaim, Florida Holding alleged that LMI fraudulently
misrepresented zoning requirements and their effect on leases with its
tenant, the Broward Sheriff’s Office (BSO). Florida Holding further alleged
that these misrepresentations induced it to purchase the property and
execute the promissory note and mortgage in question.

   LMI moved for summary judgment, supported by an affidavit from LMI’s
representative Carlos Segrera who stated that LMI was in physical
possession of the note, that the note was endorsed in blank, and that he
was prepared to present the note at the summary judgment hearing.
Segrera also confirmed that Florida Holding was in default under the note
and mortgage. Before the trial court heard the motion, LMI assigned the
note and mortgage to Lauderhill Lending who was substituted as the new
plaintiff “for all purposes.”

   Lauderhill Lending then filed its own amended complaint for
foreclosure while also seeking to re-establish the promissory note, which
had been lost. Regarding the note, Lauderhill Lending alleged that LMI
assigned the note to Ocean Bank, a non-party, who then assigned the note
back to LMI. LMI in turn assigned the note to Lauderhill Lending, but
Ocean Bank “lost or misplaced” the original note while it was in its
possession. These allegations were corroborated by an affidavit from
Rogelio Villarreal of Ocean Bank attesting to those facts.

   Florida Holding answered Lauderhill Lending’s amended complaint
with the same affirmative defenses and counterclaim that had been
directed against LMI, asserting that LMI procured the mortgage and note
by false pretenses and misrepresentations relating to BSO’s lease on the
mortgaged property. Since LMI was no longer a party following its
assignment of the note to Lauderhill Lending, the trial court determined
that this counterclaim would be considered a third-party claim.

   While the third-party claim against LMI was still pending, Lauderhill
Lending moved for summary judgment on both the foreclosure and re-
establishment of the lost note. 1 The motion stated in part:

      2. Plaintiff relies on The Affidavits Filed in Support of this
      Motion for Summary Judgment, which establish the execution
      of the note and mortgage, the note’s maturity, the existence
      and loss of the note, the defaults thereon and the balance
      presently due.

      3. In further support of this Motion, Plaintiff relies on the
      pleadings of record.

1Along with this motion, Lauderhill Lending filed an affidavit of indebtedness,
among other things.

                                      2
   Florida Holding responded to Lauderhill Lending’s motion claiming: the
amount owed was in dispute, its affirmative defenses were unresolved and
precluded summary judgment, and that Lauderhill Lending did not
produce the original note. Florida Holding submitted an affidavit by its
manager, Harry Dorvilier, who claimed LMI made various false
representations about the condition of the property during the purchase
negotiations. Specifically, Dorvilier claimed LMI stated the BSO leases
were “true and correct and have not been modified,” but he later learned
those leases had been modified by a 2009 ordinance which required BSO
to leave the property before the end of its lease. According to Dorvilier,
LMI also stated that the building had a new roof when it was in fact just
made to look like the roof had been repaired.

    Lauderhill Lending responded in turn by filing the affidavit of David
Scharf, a BSO representative, opposing Florida Holding’s allegations.
Scharf stated that BSO executed estoppel letters, which were filed with the
affidavit, confirming its obligation to remain as a tenant through the
duration of its lease. However, Scharf stated the conditions of the property
were “deplorable,” and BSO previously notified Florida Holding of “its
obligation to repair water leaks, mold and other physical conditions that
were causing [BSO’s] constructive eviction from the property.” 2 Scharf
alleged that BSO would have fulfilled its contractual obligations under the
lease but for the above defects and its alleged constructive eviction. He
also affirmatively stated that BSO’s decision to vacate the property had
nothing to do with the 2009 ordinance mentioned by Dorvilier in his
affidavit.

   Lauderhill Lending also pointed out that under the initial contract
between Florida Holding and LMI, Florida Holding acknowledged it was
purchasing the property “as is” and LMI made “absolutely no warranties,
representations or covenants . . . regarding the Property or the condition
or quality thereof . . . .” Lauderhill Lending highlighted the provision of
the contract wherein Florida Holding stipulated to performing and relying
on its own inspections.

   At the hearing on Lauderhill Lending’s motion for summary judgment
of foreclosure, Florida Holding argued that Lauderhill Lending’s “three
sentence” motion was inadequate and that, as a result, it was “confounded
as to how to respond.” Lauderhill Lending responded to these alleged
inadequacies and ambiguities by setting out in detail what materials it was

2Ultimately, BSO sued Florida Holding, and the parties entered into a mediated
settlement agreement allowing BSO to break its lease and vacate the premises.

                                      3
relying on for the motion. Lauderhill Lending also confirmed that it was
not seeking summary judgment on the “factual claims in the third-party
complaint against [LMI],” but only on the issues of foreclosure and the lost
note.

    Due to Florida Holding’s claim that it could not properly respond to
Lauderhill Lending’s motion, the trial court elected to continue the hearing
to allow Florida Holding time to respond. As to whether Lauderhill Lending
would have to file another motion for summary judgment to correct its
alleged lack of specificity, the trial court and Florida Holding’s counsel had
the following discussion:

      [FLORIDA HOLDING]: Your Honor, could we — you know, part
      of the problem is that in order for me to be able to recall
      everything —

      THE COURT: I think we are going to make the court reporter
      happy.

      [FLORIDA HOLDING]: — I think that is probably what is going
      to have to be required. I don’t know that I should bear the
      entirety of that expense. Maybe we split the expense if he
      wants to I mean, it saves some money actually than to have
      to redraw his summary judgment. I’m willing to go off of
      what the court reporter has transcribed or alternatively, I
      would suggest that a proper motion for summary judgment be
      filed in this case with a proper statement of undisputed facts
      and the case law that he’s going to rely upon and the record
      citations that he’s going to point to for the places for his
      motion. If I receive a proper motion, Your Honor, I promise
      you will receive a proper response. And I think then we could
      have a more informed discussion at a hearing.

      THE COURT: I think at this point, [Lauderhill Lending] has
      laid it all out on the record. I don’t know that necessarily,
      [Lauderhill Lending], you need to go back and draft a motion
      that reiterates what you said here today. If you guys can agree
      on splitting the transcript that would be great, and I would
      love a copy of that too, so I could be prepared. And then you
      get your response and we will just keep moving forward.

(Alterations and emphasis added).



                                      4
   In line with this discussion, the parties ordered a transcript of the
hearing. Because of Florida Holdings’ agreement with this proposed plan,
Lauderhill Lending never submitted an amended motion for summary
judgment.

   Two months after that initial hearing, the trial court reconvened on
Lauderhill Lending’s motion and heard arguments from both parties.
Again, Florida Holding complained Lauderhill Lending’s written motion
and its testimony in support of that motion at the initial hearing were
insufficient to support summary judgment:

      [FLORIDA HOLDING]: We looked at, we ordered the transcript
      from the last hearing so we could kind of apprise ourselves of
      all the arguments that were made and we received the hearing
      transcript. I went through it and frankly, there’s not much
      more that’s in the transcript other than just kind of more of
      [the] same thing; that everything is kind of before your Honor
      and there’s no genuine issue of material fact.

   After considering the arguments and submissions of counsel, the trial
court granted summary judgment in favor of Lauderhill Lending on both
the foreclosure and lost note counts. This appeal follows.

   This court reviews orders granting summary judgment de novo. See
Craven-Lazarus v. Pennymac Holdings, LLC, 199 So. 3d 1029, 1030 (Fla.
4th DCA 2016).

    Under Florida Rule of Civil Procedure 1.510, a motion for summary
judgment “must state with particularity the grounds upon which it is
based and the substantial matters of law to be argued and must
specifically identify any affidavits, answers to interrogatories, admissions,
depositions, and other materials as would be admissible in evidence
(‘summary judgment evidence’) on which the movant relies.” Fla. R. Civ.
P. 1.510(c). Rule 1.510(c) “is designed to prevent ‘ambush’ by allowing the
nonmoving party to be prepared for the issues that will be argued at the
summary judgment hearing.” City of Cooper City v. Sunshine Wireless Co.,
Inc., 654 So. 2d 283, 284 (Fla. 4th DCA 1995) (quoting Swift Indep. Packing
Co. v. Basic Food Int’l, Inc., 461 So. 2d 1017, 1018 (Fla. 4th DCA 1984)).
Where a motion states “only in general terms that no material issues of
fact or law existed” and that its movant is entitled to relief, such motion is
insufficient to place the nonmoving party on notice of the issues that will
be argued. Locke v. State Farm Fire & Cas. Co., 509 So. 2d 1375, 1377
(Fla. 1st DCA 1987).


                                      5
    Florida Holding contends Lauderhill Lending’s motion for summary
judgment did not meet the requirements of rule 1.510. However, the
record shows Florida Holding waived the right to require Lauderhill
Lending to refile its motion with more specificity at the first hearing when
it stated—on the record—that Lauderhill Lending did not have to “redraw
its summary judgment motion” if Florida Holding received the hearing
transcript. As stated in Millsaps v. Kaltenbach, 152 So. 3d 803, 805 (Fla.
4th DCA 2014), “[a] party cannot successfully complain about an error for
which he or she is responsible or of rulings that he or she has invited the
trial court to make.” A plaintiff may “waive[] any procedural irregularity in
[a] motion for summary judgment.” Wong v. Crown Equip. Corp., 676 So.
2d 981, 982 (Fla. 3d DCA 1996); accord Vidal v. Liquidation Props., Inc.,
104 So. 3d 1274, 1276 (Fla. 4th DCA 2013). And if an “issue [i]s waived,
it cannot be grounds for reversal on appeal.” Vidal, 104 So. 3d at 1276.
Therefore, Florida Holding cannot now complain that the trial court opted
to proceed down one of the roads it agreed to travel.

   Regarding Lauderhill Lending’s motion for summary judgment on the
lost note issue, this court stated in U.S. Bank National Ass’n v. Benoit, 190
So. 3d 235, 237 (Fla. 4th DCA 2016), that:

      [A] judgment of foreclosure does not always require surrender
      of the original note. For example, where a plaintiff satisfies
      the requirements for the enforcement of a lost, destroyed, or
      stolen instrument, the plaintiff may foreclose on a property
      even where the plaintiff no longer has possession of the
      original note.

  The requirements to enforce a lost note are set forth in Section
673.3091, Florida Statutes (2017), which provides:

      (1) A person not in possession of an instrument is entitled to
          enforce the instrument if:

         (a) The person seeking to enforce the instrument was
             entitled to enforce the instrument when loss of
             possession occurred, or has directly or indirectly
             acquired ownership of the instrument from a person
             who was entitled to enforce the instrument when loss
             of possession occurred;

         (b) The loss of possession was not the result of a transfer
             by the person or a lawful seizure; and


                                     6
         (c) The person cannot reasonably obtain possession of
             the instrument because the instrument was
             destroyed, its whereabouts cannot be determined, or
             it is in the wrongful possession of an unknown
             person or a person that cannot be found or is not
             amenable to service of process.

    When a party relies on an affidavit to reestablish a lost note, “the
affidavit must establish that whoever lost the note ‘was entitled to enforce
it when the loss of possession occurred; the loss of the note was not the
result of a transfer or lawful seizure; and [the bank] cannot reasonably
obtain possession of the note because of the loss.’” Sabido v. Bank of N.Y.
Mellon, 241 So. 3d 865, 867 (Fla. 4th DCA 2017) (alteration in original)
(quoting Home Outlet, LLC v. U.S. Bank Nat’l Ass’n, 194 So. 3d 1075, 1078
(Fla. 5th DCA 2016)), clarified on denial of reconsideration, 238 So. 3d 867
(Fla. 4th DCA 2018). Here, Villarreal’s unrebutted affidavit attested to the
fact that Ocean Bank had rightful possession of the original promissory
note which served as security for its previous loans to LMI. When Ocean
Bank sought to retrieve the original note to deliver it back to LMI, the
location of the note “could not be determined despite OCEAN BANK’s
diligent search and inquiry.” Villarreal’s affidavit confirmed that although
the original note had either been “lost, misplaced or otherwise destroyed,”
LMI was entitled to enforce the instrument after it acquired possession
from Ocean Bank. See § 673.3091(1)(a). The affidavit also verified that
the location of the note could not be determined, but “to the best of [his]
knowledge” this loss of possession was not the result of a transfer or
seizure since it had not been “endorsed, pledged, transferred, sold,
encumbered, conveyed or hypothecated” to anyone else.                  See §
673.3091(1)(b) & (c).

    Based on the pleadings, depositions, answers to interrogatories, and
admissions on file together with the unrebutted lost note affidavit of
Villarreal of Ocean Bank, Lauderhill Lending met the requirements for the
enforcement of the lost note, and the trial court properly granted summary
judgment on this issue. Florida Holding’s failure to explicitly contest the
alleged discrepancies between Villarreal’s and Segrera’s affidavits at the
summary judgment hearing precludes it from doing so here on appeal. See
Wildwood Props., Inc. v. Archer of Vero Beach, Inc., 621 So. 2d 691, 692
(Fla. 4th DCA 1993) (“As to the granting of summary judgment on
appellant’s lien foreclosure against appellee, we affirm because the
grounds now raised were not brought to the attention of the trial court in
opposition to the summary judgment.”).



                                     7
    As to the issue of summary judgment on the count seeking foreclosure
on the note and mortgage, we also find no error. Lauderhill Lending
represented to the trial court that it was not seeking summary judgment
on Florida Holding’s third-party claims against LMI. To the extent that
those claims for fraud or misrepresentation are viable, and that material
issues of fact remain as to those issues, they were not disposed by the
foreclosure or lost-note judgment. In fact, Lauderhill Lending conceded at
trial that those third-party claims would still be left for resolution by the
court separate and apart from the foreclosure action.               Therefore,
Lauderhill Lending’s final judgment, as to the foreclosure and lost note
issues, still allows Florida Holding to proceed on its related third-party
claims for relief against LMI. See, e.g., Penmont Enters., Inc. v. Dysart, 340
So. 2d 1285, 1286 (Fla. 3d DCA 1977) (stating that the issues of
cancellation and rescission of contract are “severable and do not affect the
right to foreclosure”).

   For these reasons, we affirm the trial court’s summary judgment
entered in favor of Lauderhill Lending as to its claims for foreclosure and
re-establishing the lost note.

   Affirmed.

DAMOORGIAN, J., concurs.

WARNER, J., concurs in part and dissents in part with opinion.

WARNER, J., concurring in part, dissenting in part.

    I concur with that part of the majority opinion which holds that Florida
Holding waived the right to require Lauderhill Lending to refile its motion
for summary judgment to allege more specifically its grounds for summary
judgment. I would reverse, however, on the merits as to the claim to re-
establish the lost note, as I think the evidence is not conclusive that Ocean
Bank was entitled to possession of the note when its loss occurred. There
were two conflicting affidavits filed in this case as to who had possession
of the note. LMI had filed an affidavit of its representative, Carlos Segrera,
in which he stated that LMI was in physical possession of the note in
September 2016. The affidavit of Rogelio Villarreal of Ocean Bank, filed
with Lauderdale Lending’s motion for summary judgment, stated that
Ocean Bank had possession of the note from 2013 to 2017. The two
affidavits conflict. Therefore, a material issue of fact remained on the lost
note issue, on which the foreclosure depended.

                            *         *         *

                                      8
Not final until disposition of timely filed motion for rehearing.




                               9
