SUPREME COURT OF FLORIDA
__________________________
CASE NO. SC11-2146
MARILYN ANN NUNES, Personal
Representative of the Estate of
KATHLEEN L. PHILLIPS and
MARILYN ANN NUNES, individually
Petitioners
vs.
ALLSTATE INVESTMENT
PROPERTIES, INC., GILMAN H. C.
NUNES, DANIELLE A. INTILI,
JESUS M. ALVAREZ, JULISSA ALVAREZ,
husband and wife, and WASHINGTON
MUTUAL BANK, N.A.,
Respondents.
___________________________________________________________
ON REVIEW FROM THE DISTRICT COURT OF APPEAL,
FOURTH DISTRICT, CASE NO. 4D10-992
___________________________________________________________
PETITIONERS’ JURISDICTIONAL BRIEF
___________________________________________________________
KOPPEN & WATKINS, P.A.
R. DANIEL KOPPEN
Fla. Bar No. 0230065
900 W. Linton Blvd., Suite 202
Delray Beach, FL 33444
Phone/Fax: (561) 279-9872/561-279-9873
E-mail: [email protected]
Attorneys for Petitioners
TABLE OF CONTENTS
TABLE OF CITATIONS …………………………………………… ii
JURISDICTIONAL STATEMENT …………………………………. 1
STATEMENT OF THE CASE AND FACTS ………………………. 1
SUMMARY OF ARGUMENT …………………………………….. 3
ARGUMENT ……………………………………………………….. 5
CONCLUSION ……………………………………………………… 8
CERTIFICATE OF SERVICE ………………………………………10
CERTIFICATE OF RULE 9.210 COMPLIANCE …………………. 11
APPENDIX …………………………………………………………. 12
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TABLE OF CITATIONS
Cases:
Coram v. Palmer
58 So. 721 (Fla. 1912) …………………………………………. 2, 3, 5, 7
Hagan v. Ellis
22 So. 727 (Fla. 1897) …………………………………………. 7
Jenkins v. State of Florida
385 So. 2d 1356 (Fla. 1980) …………………………………… 1, 5
Moore v. Smith-Snagg
793 So. 2d 1000 (Fla. 5th DCA 2001) …………………………. 1, 4, 6
Wiser v. Lawler
189 U.S. 260, 23 S. Ct. 624. 47 L. Ed.
802 (1903) ……………………………………………………... 7
Zurstrassen v. Stonier
786 So. 2d 65 (Fla. 4th DCA 2001) ……………………………. 3, 6
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JURISDICTIONAL STATEMENT
This Honorable Court is respectfully requested to invoke its
discretionary jurisdiction, based on the express and direct conflict, on the
same question of law; which legal principles are of importance to the public.
The 4th District Court of Appeal in its Opinion rendered in 4D10-992,
announced new law relating to forged deeds; and misapplied equitable
estoppel as an affirmative defense. The ruling in Moore v. Smith-Snagg, 793
So. 2d 1000 (Fla. 5th DCA 2001) precludes any defense against a forged
deed, which is the prevailing law. Florida Rule of Appellate Procedure
(a)(2)(A)(iv) is applicable. Jenkins v. State of Florida, 385 So. 2d 1356 (Fla.
1980).
STATEMENT OF THE CASE AND FACTS
A Summary Final Judgment was entered in favor of the Respondents,
Allstate Investment Properties, Inc., Gilman H. C. Nunes, Danielle A. Intili,
Jesus M. Alvarez Julissa Alvarez, husband and wife, and Washington
Mutual Bank, N.A., in Case No.: 50 2005 CA 007807 XXXXMB in the
Circuit Court of the 15th Judicial Circuit in and for Palm Beach County,
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Florida. The trial court denied the Petitioners’ claim that deeds forged
against the Petitioners, must be declared void; and, instead approved the
Respondents’ equitable estoppel defense to deny the Petitioners’ claim of
ownership of real property. The Petitioner(s)’ signatures were forged, on the
deed(s) delivered to Allstate Investment Properties, Inc., who the
Petitioner(s) had refused to have any contact with in a transaction with
Petitioner(s)’ ex-husband, Gilman
H. C. Nunes, at a time and in
circumstances which were unknown to the Petitioners. The original grantee
then conveyed to a subsequent grantee who then delivered a deed to the
Respondents, Alvarez, whose identity and whose intention to purchase the
subject real property was unknown to the Petitioners. The opinion of the
majority, in the case at bar, analyzed the elements necessary to establish
equitable estoppel as an affirmative defense, which the court then applied,
for the first time against a forged deed. Such ruling is of importance to the
public as, forged deeds do frequently appear in the public records. The Court
cited Coram v. Palmer, 58 So. 721 (Fla. 1912) as its authority, and then
proceeded to misapply the law relating to the Petitioners’ forged deeds. The
Court held that the Petitioners passive silence (Meaning delay in the filing of
an action to contest the forged deeds) was: “ …tantamount to affirmative
representation to the public as a whole that “go ahead and buy as I don’t
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have an interest in this property. (This quote is the expression of this court,
and is not language from the text any reported case.)” The Respondents
presented no Summary Judgment proof and made no claim that such
representation had ever been made by the Petitioners to the Respondents.
The Respondents presented their claim of estoppel based only on their
position as a bona fide purchaser for value.
The trial court’s finding of facts and application of law ruling has
been confirmed, in its entirety, in the District Court’s Opinion, which
Opinion is to be presented for review in the case at bar. (Appendix #1) The
Petitioners’ Motion for Rehearing was denied by the District Court.
(Appendix #2)
SUMMARY OF ARGUMENT
The Fourth District Court of Appeal’s Opinion in Case No. 4D10-992,
misapplied the doctrine set forth in Coram v. Palmer, 58 So. 2d (Fla. 1912),
cited in Zurstrassen v. Stonier, 786 So. 2d 65 (Fla. 4th DCA 2001) relating to
the elements required for application of the affirmative defense of Equitable
Estoppel to deny the Petitioners’ demand that the recorded deeds bearing
their forged signatures be declared void. There is no other reported case that
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has approved equitable estoppel to be applied as a shield to deny the true
owners recovery of their real property against anyone claiming ownership
under the true owners forged deeds.
Delay in filing an action to have a forged deed declared void does not
constitute a failure to perform any duty on the part of the true owners
towards a good faith purchaser without notice of the forgery. The Petitioners
had no knowledge of the purchasers identity, or of the Respondents’
intention to purchase the property.
The fact of the forgery does not remain in dispute.
The elements required in an appropriate factual situation in which the
doctrine of equitable estoppel may be approved as an affirmative defense,
are relevant to the issue to be presented in this appeal. Application, by the 4th
DCA, of equitable estoppel, as a defense denying the Petitioners’ the right to
have forged deeds from being declared void, is an epress and direct conflict
relating to the same questions of law ruled upon by the Fifth DCA in Moore
v. Smith-Snagg, 793 So. 2d, 1000 (5th DCA 2001), acknowledging no
defense against a forged or wild deed.
The recording of a forged deed does not benefit a good faith purchaser
for value; and knowledge alone of a forged deed does not impose a duty on
part of the true owner to “the public as a whole” to file an action within any
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period of time to have the forged deed judicially declared void; as
determined in the Opinion of the 4th DCA in the case at bar; which is a
misapplication of the law.
ARGUMENT
The express and direct conflict between the opinions issued in the 4th
and 5th District Courts of Appeal, regarding forged deeds, is the focus of
this jurisdictional brief. An express conflict, as discussed in Jenkins v. State,
385 So. 2d 1356 (Fla. 1980), appears in the 4th District’s opinion rendered in
the case at bar, in its analysis relating to the same question of law; i.e.
“Whether there is any defense against a forged or a wild deed”.
The 4th DCA misapplied the law in its opinion approving the defense
of equitable estoppel against a forged deed, as a new legal principal of great
importance to the public.
The 4th DCA misapplied the doctrine announced in Coram v. Palmer,
58 So. 721 (Fla. 1912) improperly imputing a duty on the part of the
Petitioners to speak out and not remain silent in the circumstances appearing
in the case at bar, where the Petitioners did not know the identity of the
Respondents, or of their intention to purchase the subject parcel of real
property. The ruling to be reviewed determined that there was a duty on the
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part of the Petitioners, after discovering that their signatures had been forged
on a recorded deed, to speak out to the “public as a whole”, and that the
Petitioners’ delay was tantamount to “an affirmative representation to the
public as a whole, that “go ahead and buy as I do not have an interest in this
property (This quote is the expression of this court and is not language from
the text of any reported case)”.
The new Panel, in the case at bar, cited Zurstrassen v. Stonier, 786
So. 2d 65 (Fla. 4th DCA 2001) as authority to support its ruling. The Court
ruled: “Accordingly we affirm the Trial Court’s Order granting Summary
Final Judgment in favor of Alvarez (Respondents) and deem that because of
Nunes (Petitioners) knowledge of the forgery prior to the purchase by
Alvarez (Respondents), Nunes (Petitioners) is equitable estoppel from
asserting her interest.” No other court has applied equitable estoppel to deny
the true owners’ forged deed from being declared void. This ruling is new
law and is bad law, and its effect is of great public interest relating to the
rights of all victims whose signatures have been forged, and the forged deed
recorded
The Fifth District Court of Appeals’ Opinion rendered in Moore v
Smith-Snagg, 793 So. 2d 1000 (Fla. 5th DCA 2001), held:
The only way an owner can lose title based on
a forged or wild deed is by application of
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the Marketable Record Title Act, and in that
case, it is the Marketable Record Title Act, and not
the forged or wild deed, which created the new title.
The 4th DCA has misapplied the law to the facts in its ruling that the
conduct of Nunes clearly falls within the doctrine established in Coram v.
Palmer, 58 So. 721 (Fla. 1912), to wit:
If you believe the plaintiffs or those with whom
they may be in privity, and under whom they
claim, stood by and saw other parties delivering
title to the land in question, cultivating and
improving them for 20 years or more when there
was no impediment to bring suit and recover them,
and during the time made no claim to the land,
their claim becomes stale, and they cannot recover
the land although they may have legal title to it.
In the first instance, the Coram court was not considering the
rights of an owner claiming under a forged deed. The Coram case involved a
claim for ejectment and cites, with approval, Hagan v. Ellis, 22 So. 727 (Fla.
1897). The close personal relationship (or the lack thereof) between the
parties is explicitly reflected in both Coram and Hagan.
The Panel’s ruling is also in direct conflict with the holding, relating
to the issue of ‘silence”, set forth in Wiser v. Lawler, 189 U.S. 260, 23 S. Ct.
624, 47 L. Ed. 802 (1903):
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It cannot be that A would be estopped by silence with
respect to title to property which B is about to purchase,
when he has no knowledge that B contemplates buying
and B has no knowledge that A is connected to the
property. (Pg. 272)
The Panel has determined that the Petitioners knowingly “let the bad
guy walk”. This finding is not relative to any of the issues in this appeal.
There is nothing in the law to establish that the Petitioners, as victims
themselves, have a duty to determine who forged their signatures, before
having their deeds declared void.
The opinion rendered by the 4th DCA, regarding the approval of an
equitable estoppel defense to confirm ownership of real property in a bona
fide purchaser for value, must not be confirmed as new law affecting the
claims of victims, whose signatures have been forged on recorded deeds.
CONCLUSION
The 4th District Court of Appeal has misapplied the law relating to
forged deeds, and has misapplied the defense of equitable estoppel; and has
failed to consider the gravity and effect that its ruling will have on the
marketability of title to real property throughout the State of Florida. A
forged deed will always remain void, and the application of estoppel to
prevent the true owner from having a forged deed declared void, would not
8
change the fact that the deed remains void. If allowed, some other
proceeding would be required to quiet title, whenever disputed, relevant
facts appear between the parties.
Equitable estoppel as a defense against a claim of possession, by a
party not claiming under a forged deed, requires proof of facts to establish
that all of the required elements have been fulfilled. Representation, as a
necessary element, can not be imputed from mere delay in the filing of an
action to contest a forged deed. Equating passive silence as a fact tantamount
to an imputed representation would require actual knowledge by the true
owner of an intent by another to acquire an interest in the property; which
knowledge would establish a duty, on the part of the party against whom the
estoppel is made, to speak out, and make known the owner’s claim to
prevent the purchaser’s loss: There is the significant difference between
delay and silence.
The principles involved, relating to forged deeds, are of importance to
the public. The discretionary review that rests in the Supreme Court is
founded on a concern that its decisions will become precedent, which will be
important to the public as a whole; as opposed to the adjudication of rights
between particular parties. There can be no right of greater importance to
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the public than the right not to be deprived ownership of real property by
forgery of their signatures.
The reversal of the 4th DCA’s ruling, approving equitable estoppel as
a defense, does not prevent any party in possession of property from
claiming ownership on some other legal theory, such as adverse possession,
quiet title, mistake, fraud, etc. whenever factual circumstances may justify
such claims; However, no such claim can change the prevailing law that a
forged deed is void ab initio.
The 4th DCA stands alone in its announcement of the new law
applying equitable estoppel against a forged deed. Such new law would
have a negative effect on titles to real property impacting all property
owner’s whose signatures have been forged. The Petitioners’ forged deed
must be declared void. The ruling of the 4th DCA, announcing new law,
must be reversed upon review, after invoking the discretionary jurisdiction
of this Honorable Court.
KOPPEN, WATKINS, PARTNERS
& ASSOCIATES, P.A.
900 W. Linton Blvd., Ste. 202
Delray Beach, FL 33444
Phone: 561-279-9872
Fax: 561-279-9873
E-mail: [email protected]
BY: __________________________
R. DANIEL KOPPEN, ESQ.
Fla. Bar No.: 0230065
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CERTIFICATION OF MAILING
I HEREBY CERTIFY that a copy of the foregoing was furnished to
the following attorney for Respondents by U.S. Mail to David I. Brodt, Esq.,
214 Brazilian Ave., Ste. 200, Palm Beach, FL 33480 this _____ day of
November, 2011.
BY: __________________________
R. DANIEL KOPPEN, ESQ.
Fla. Bar No.: 0230065
CERTIFICATION OF TYPE SIZE AND STYLE
The undersigned attorney hereby certifies that this brief was prepared
using a 14-point Times New Roman font in accordance with Rule
9.210(a)(2), Florida Rules of Appellate Procedure.
BY: __________________________
R. DANIEL KOPPEN, ESQ.
Fla. Bar No.: 0230065
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APPENDIX
#1
Corrected Opinion – Marilyn Ann Nunes, Etc., et al,
Appellant/Petitioners v. Allstate Investment Properties, Inc. et al,
Appellee/Respondent(s), 4th DCA. Case No. 4D10-992.
#2
Order - October 10, 2011, Order Denying Appellants’ 9-19-11,
Motion for Rehearing.
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