       Third District Court of Appeal
                               State of Florida

                           Opinion filed March 4, 2015.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                                No. 3D14-66
                         Lower Tribunal No. 07-43714
                             ________________


                               Mario Taverna,
                                    Appellant,

                                        vs.

                              Bank of America,
                                    Appellee.


      An appeal from the Circuit Court for Miami-Dade County, Rosa I.
Rodriguez, Judge.

     Debra Kay Cohen, for appellant.

     Arnaldo Velez, for appellee.


Before WELLS and SUAREZ, JJ., and LEVY, Senior Judge.

     PER CURIAM.

     Appellant Mario Taverna (“Taverna”) challenges entry of judgment in favor

of Marisela Fonseca (“Fonseca”) on his claims relating to the guaranty of an
underlying debt owed by an entity known as Taverna Imports, Inc. (“Taverna

Inc.”). We reverse and remand for a new trial.

      In the underlying action, Bank of America filed suit against Taverna Inc. to

collect on a line of credit which had gone into default. The bank also made claims

against both Taverna and Fonseca as guarantors of the line of credit. Taverna filed

a cross-claim for indemnity against Fonseca, also asserting Fonseca was a

guarantor of the line of credit. In defense of both the bank’s claim and Taverna’s

claim Fonseca argued that she had not signed the guaranty. Eventually, the bank

obtained judgment against Taverna, but not against Fonseca.

      When Taverna’s cross-claim later came to trial, the bona fides of Fonseca’s

signature was the only issue to be tried. At the beginning of the bench trial on the

cross-claim, counsel for Fonseca made the following “introductory statement”:

           [L]et me bring you [the trial court] up to speed on the
           procedural setting that we find ourselves in. Bank of
           America sues Taverna Imports, Mr. Taverna and Marisela
           [Fonseca], predicated upon a loan transaction that was said
           to have occurred December 11th, 2005. There was some
           papers signed, and one of those papers is a – includes a
           guarantee signed by Mr. Taverna, and purportedly signed
           by Marisela Fonseca, who has claimed from the inception,
           or asserted it was a forgery. Bank of America has chosen
           for – and after being supplied with information relative to
           this, and taking handwriting examples as in like (sic),
           decided not to pursue Marisela Fonseca. (emphasis added).




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In essence, Fonseca’s counsel represented to the trial court that Bank of America

had been provided handwriting exemplars and, that he had knowledge that on the

basis of the exemplars, the bank had decided not to pursue its claims against

Fonseca. However, Fonseca made no attempt to provide any evidence of those

“facts” either by way of testimony from Fonseca or a bank representative or by

way of documentary proof. Further, despite the representation that the bank had

“decided not to pursue” Fonseca, the bank’s claim against Fonseca was then in fact

still pending.1 Counsel for Taverna objected and tried to inform the trial court that

Fonseca had not been dismissed from the case.           The trial court stated that

Fonseca’s attorney was just bringing the case “up to speed on where we are today”

and further concluded “[t]here was an issue. I got it. There was an issue about the

handwriting of some kind, and they didn’t go on.”

      While the trial court did not expressly state that it was taking judicial notice

of the bank’s decision not to pursue Fonseca, the transcript reflects that the trial

court accepted the representation as an accurate description of the status of the case

and of the reasons behind the bank’s actions. This was improper in the absence of


1 Later in the trial Taverna attempted to have the trial court take judicial notice of
the file and counsel for Fonseca stated: “[C]ounsel wants you to know [] that there
is no voluntary dismissal by plaintiff as to Marisela Fonseca, and I don’t dispute
that.” That concession did nothing to erase the representation regarding the alleged
reasons for Bank of America’s decision “not to pursue” Fonseca or the
representation regarding the “fact” that handwriting exemplars had been provided
to the bank and served as the basis for the bank’s actions.

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record evidence of those facts, especially under the circumstances where the trial

court rejected Taverna’s objections to the representations and did not afford

Taverna the opportunity to present evidence to the contrary. Brandt v. Brandt, 561

So. 2d 1353 (Fla. 4th DCA 1990); Pan American Stone Co. v. L.A. Meister, 527

So. 2d 275 (Fla. 4th DCA 1988); Rodriguez v Philip, 413 So. 2d 441 (Fla. 3d DCA

1982).

      We conclude, under the circumstances here, that Taverna was unduly

prejudiced by the unsubstantiated representation regarding the ultimate fact in

issue and, consequently, was not afforded a fair trial. Reversed and remanded for a

new trial.




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