PACIFIC NATIONAL BANK, N.A., APPELLANT,
v.
HOME TOWER CONDOMINIUM, INC., A FLORIDA CORPORATION, NOT-FOR-PROFIT, HART DISTRICT, LTD, CHARTER SCHOOLS USA AT HOLLYWOOD, L.C., 1805 HOLDINGS, LLC, MARK F. BUTLER, LIBERTY FAITH LUKASIEVICH AS SOLE HEIR OF MICHAEL LUKASIEVICH, DECEASED, MYRON H. BURNSTEIN, MIETTE K. BURNSTEIN, ALAN L. GOLDBERG, CHAPTER 7 TRUSTEE OF THE BANKRUPTCY ESTATE OF AVENTURA BUSINESS CENTER, INC., AND MCMAHON ASSOCIATES, INC., APPELLEES

Fla. 4th DCA | 2015-09-02
No. 4D13-2491
STEVENSON and LEVINE, JJ., concur.
174 So. 3d 565 Florida District Court of Appeal, Fourth District (2015) Positive Treatment
Cited by 3 cases

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Holding

The court held that a party who consents to the entry of a judgment without reservation of the right to appeal, or fails to object to its inclusion despite opportunity, waives the right to appeal that judgment.


Headnotes

[1] A party who affirmatively agrees to the entry of a judgment without reservation of the right to appeal is barred from later seeking to upset that judgment.

[2] Failure to object to the inclusion of specific language in a judgment, despite an opportunity to do so, precludes appellate review of that language.

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Facts & Procedural History

Home Tower filed a foreclosure action against a condominium owner for unpaid fees. PNB, not a party to the foreclosure, was included in a quiet title …

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Opinion of the Court
FORST, J.

FORST, J.

Appellant Pacific National Bank (“PNB”) appeals the entry of a final judgment of foreclosure in favor of Appellee Home Tower Condominium, Inc. (“Home Tower”). Because PNB affirmatively agreed to the entry of the judgment, we affirm.

This appeal began as a foreclosure action filed by Home Tower, a condominium owners association, against the owner of property in the condominium, Hart District, Ltd. (“Hart”), for failure to pay condominium association fees. As part of the action, individual condo owners and a tenant of Hart were impleaded into the case. Home Tower also initially included a count, dropped post-hearing, to quiet title versus PNB. PNB was not a party to the foreclosure action.

As a defense in the foreclosure action, the condo owners and Hart’s tenant alleged that, three years earlier, the condo owners had obtained an injunction (“the 2009 injunction”) against Hart, requiring it to restore the common areas of the building to its prior condition. The other parties raised this injunction, with which Hart allegedly failed to comply, as a defense in the foreclosure action.

Home Tower filed a motion for summary judgment and this matter proceeded to a hearing on the motion. While PNB did not provide a transcript of the summary judgment hearing, the trial court provided a summary of the proceedings. This summary shows: (1) counsel for Home Tower provided counsel for the parties, including PNB, 'with an initial proposed final judgment; (2) counsel for Appellee Burnstein then insisted on the insertion of a clause related to the 2009 injunction and counsel for Home Tower “participated in drafting the agreed upon language with which PNB now appeals”; (3) “[cjounsel for PNB was shown the agreed upon language” and, *567when “asked to comment upon this language, [PNB’s counsel] offered no comment or objection”; and (4) “[c]ounsel for Home Tower, without objection from counsel for any party, including counsel for PNB, chose to move forward and have summary judgment entered inclusive of the mandatory injunction disclosure.” The trial court’s summary emphasized that had a party not agreed to the final judgment’s language regarding the 2009 injunction, it would not have entered judgment but “deferred] ruling for the submission of further affidavits or memorandum of law on the issue.... ”

The facts, as conveyed to this Court through the limited record provided by Appellant PNB, indicate that PNB consented to the judgment at issue. As the Eleventh Circuit stated in Shores v. Sklar, 885 F.2d 760 (11th Cir.1989):

The law is clear that consent to entry of judgment without reservation of the right to appeal a particular claim bars an appeal:
Where the parties have agreed to entry of an order or judgment without any reservation relevant to the issue sought to be appealed, one party may not later seek to upset the judgment, unless lack of “actual consent” or a failure of subject matter jurisdiction is alleged.

Id. at 762 (quoting Dorse v. Armstrong World Indus., Inc., 798 F.2d 1872, 1375 (11th Cir.1986)). To the extent that PNB argues “actual consent” has not been shown, the record before us certainly indicates consent. Responsibility for any failure to include a proper transcript for review to show otherwise lies with the appellant. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979).

Even if the acquiescence reflected in the summary of proceedings was insufficient to show affirmative consent to the judgment, the evideñce in the record indicates PNB knew of the language it now finds erroneous and failed to object to its inclusion, despite every opportunity to do so. “The requirement of an objection at trial avoids ‘the creation of ‘gotchas’ whereby the defense is allowed to sit on its rights, saying nothing until after it sees whether the jury returns an adverse verdict.’ ” Brazill v. State, 845 So.2d 282, 290 (Fla. 4th DCA 2003) (quoting Jones v. State, 571 So.2d 1374, 1376 n. 3 (Fla. 1st DCA 1990)); see also South Puerto Rico Sugar Co. v. Tem-Cole, Inc., 403 So.2d 494, 495 (Fla. 4th DCA 1981) (holding that a defendant is precluded from contesting his co-defendant’s directed verdict on appeal when defendant’s counsel fails to “voice an objection to the granting of [the co-defendant’s] motion for a directed verdict, or inform the court how his client’s interest would be prejudiced if the motion were granted.”). Because of PNB’s failure to object, this issue was not preserved for review by this Court. Accordingly, we affirm.1

Affirmed.

STEVENSON and LEVINE, JJ., concur.


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Citator

Cited By

  • Roberts v. PNC Bank, N.A., 263 So. 3d 119 (Fla. 5th DCA 2018)
    …nts and their attorney failed to preserve the issue for appeal, as they entered into a stipulated final judgment which set forth the entitlement to and amount of the sanctions that were imposed. See Pac. Nat'l Bank, N.A. v. Home Tower Condo., Inc. , 174 So. 3d 565, 567 (Fla. 4th DCA 2015). Additionally, Appellants' argument that the trial court erred by imposing sanctions against their attorney is not properly before this court because the attorney did not individually appeal and failed to include himself as…
  • Roberts v. PNC Bank (Fla. 5th DCA 2018)

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