U. S. BANK NATIONAL ASSOCIATION, AS TRUSTEE, ET AL.

v.

JOSE L. MARTINEZ, ET AL.

LUCAS, Judge. U.S. Bank National Association, as Trustee, on behalf of the Holders of the Terwin Mortgage Trust 2006-5 Asset-Backed Securities, Series 2006-5 (U.S. Bank), appeals from an order of involuntary dismissal entered at the conclusion of a nonjury mortgage foreclosure trial. The defendant below, Jose Martinez, challenged the sufficiency (and, in several instances, the admissibility) of the record evidence that U.S. Bank's servicer, Select Portfolio Servicing (SPS), presented through its one witness. Although the court found SPS's witness "to be straightforward, genuine and credible," it deemed her testimony insufficient to establish U.S. Bank's right to foreclose on a note that had been lost before SPS began servicing it. The court was troubled by the contradictory business records that were presented, as well as whether SPS's witness could competently testify about a prior servicer's record-keeping and the general practices and regulatory oversight of mortgage loan servicers. At the conclusion of the trial,

the court entered the order of involuntary dismissal that is now before us.1 Like the circuit court, we are not particularly impressed with the evidence U.S. Bank presented to establish its purported right to enforce a lost note. Nevertheless, from our de novo review, Allard v. Al-Nayem Int'l, Inc., 59 So. 3d 198, 201 (Fla. 2d DCA 2011), there was enough evidence to require the court's rendering of a judgment on the merits. As we summarized in Deutsche Bank National Trust Co. v. Kummer, 195 So. 3d 1173, 1175 (Fla. 2d DCA 2016), When a party raises a motion for involuntary dismissal in a nonjury trial the movant admits the truth of all facts in evidence and every reasonable conclusion or inference based thereon favorable to the non-moving party. Where the plaintiff has presented a prima facie case and different conclusions or inferences can be drawn from the evidence, the trial judge should not grant a motion for involuntary dismissal. 1 In its order, the court attempted to fashion an alternative basis of finding "that Plaintiff should not prevail." It has been suggested, for the sake of expediency, that we should simply construe this alternative holding as if it were a final judgment and review it accordingly. We decline to do so. Instead, we must construe the circuit court's ruling as being what the court issued— an involuntary dismissal—and review it as such.

Day v. Amini, 550 So. 2d 169, 171 (Fla. 2d DCA 1989). A trial court can neither weigh the evidence nor consider the credibility of witnesses when deciding a motion for involuntary dismissal. Capital Media, Inc. v. Haase, 639 So. 2d 632, 633 (Fla. 2d DCA 1994).

We have also remarked (albeit in footnotes) that when a trial court has heard all the evidence in a nonjury trial, and all sides have rested their cases, it is a far better practice for the court to simply enter a judgment, rather than an involuntary dismissal under Florida Rule of Civil Procedure 1.420(b), if the court is inclined to rule in favor of a defendant. See Morroni v. Wilmington Sav. Fund Soc'y FSB, 292 So. 3d 514, 519 n.4 (Fla. 2d DCA 2020) ("We have explained that a defense motion for involuntary dismissal at the close of all the evidence in a nonjury trial—as distinguished from at the close of the plaintiff's case—is not best practice because the trial court can just as easily at that point render a judgment." (citing Kummer, 195 So. 3d at 1175 n.2)); Ventures Tr. 2013-I-H-R v. Asset Acquisitions & Holdings Tr., 202 So. 3d 939, 940 n.1 (Fla. 2d DCA 2016) ("[W]e reiterate that it would have been preferable for the circuit court to have rendered a final judgment at the conclusion of this nonjury trial, rather than an order of involuntary dismissal.").

We reiterate that point again2 because under the heightened standard of involuntary dismissal, the circuit court's involuntary dismissal must be reversed. However, we decline U.S. Bank's invitation to order a new trial. U.S. Bank has had its opportunity to put on its case. We see no reason to replicate the judicial labor of another trial. Cf. Mace v. M&T Bank, 292 So. 3d 1215, 1224 (Fla. 2d DCA 2020) (declining to remand for a new trial, noting, "our record reflects no exceptional circumstances that would warrant a do-over"); Tracey v. Wells Fargo Bank, N.A., 264 So. 3d 1152, 1168 (Fla. 2d DCA 2019) ("The prohibition against proverbial multiple 'bites at the apple' for trials remains firmly rooted as the leading, guiding principle to govern the scope of remand and should serve as the default direction when these kinds of decisions are being made."). Therefore, on remand, the circuit court shall enter a 2 And note, we are now "elevating" a previously footnoted point into the lofty heights of an opinion's main text—to the extent that matters to the reader—if only in the hope that this observation may gain a little wider recognition. See generally Edward R. Becker, In Praise of Footnotes, 167 F.R.D. 283, 293 (1996) ("Many readers will not need any footnotes; most will need some footnotes, but not all the footnotes. Others will want to read all the footnotes.").

judgment based upon the evidence U.S. Bank chose to present and the court's consideration of the weight of that evidence. Reversed and remanded with instructions. KELLY and ROTHSTEIN-YOUAKIM, JJ., Concur. Opinion subject to revision prior to official publication.