05-2929 PENTON V. INTERCREDIT

SUPREME COURT CASES

Laws-info.com » Cases » Florida » Third District Court of Appeal » 2006 » 05-2929 PENTON V. INTERCREDIT

State: Florida

Court: Florida Southern District Court

Docket No: 3d05-2929

Case Date: 11/15/2006

Plaintiff: 05-2929 PENTON

Defendant: INTERCREDIT

Preview:NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF. IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JULY TERM, A.D. 2006

** PEDRO PENTON, et al., ** Appellants, ** v. ** INTERCREDIT BANK, N.A., ** Appellee. ** LOWER TRIBUNAL NO. 05-19980 CASE NO. 3D05-2929

Opinion filed November 15, 2006. An Appeal from a non-final order from the Circuit Court for Miami-Dade County, Leon M. Firtel, Judge. Blaxberg, Grayson, Kukoff & Segal, and David A. Strauss, for appellants. Perez, appellee. Goran, Rodriguez, and William G. Essig, for

Before RAMIREZ, and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge. RAMIREZ, J. This is an appeal from two orders in connection with an action brought by Intercredit Bank, N.A., seeking to foreclose

upon

several

mortgages

granted

by

Pedro

Penton

and

Yaknel

Penton.

We affirm on the issues raised because the trial court

correctly allowed Intercredit to amend its complaint, it did not err in finding that it had subject matter jurisdiction, and venue was proper in Miami-Dade County. Appellant Carlos Penton was not originally named in the action, which only identified defendants Pedro Penton, Yaknel Penton, John Doe and All Others in Possession. Carlos Penton

was personally served with a "John Doe" Summons on October 6, 2005. At that time, his name did not appear in the caption of

the Complaint or the Summons. After a default was entered against Carlos Penton, the

circuit court entered an Agreed Order on December 15, 2005, setting aside the default as against Carlos Penton. court contemporaneously to substitute granted appellant Intercredit's Carlos Penton The trial ore for tenus "John

application Doe." which

The court also denied the appellant's motion to dismiss, had asserted that the Eleventh Circuit lacked subject

matter jurisdiction to award a judgment of foreclosure as to real property located entirely within the borders of Hendry

County, thus ruling that venue was proper and that the court had subject matter jurisdiction to grant a judgment of foreclosure against the property located in Hendry County.

2

The

first

order

under

appeal

simply

allowed

the

substitution of Carlos Penton as a party-defendant for "John Doe." Despite appellant's argument to the contrary, the order

does not determine whether Carlos Penton was properly served with process to when "John he was personally Florida addition served of with Civil "by a summons

addressed 1.250(c)

Doe." the

Rule of

Procedure order of

provides

for

parties

court... on motion of any party at any stage of the action and on such terms as are just." allowing the substitution. The appellant also complains that the trial court erred in finding that it had subject matter jurisdiction over the Hendry County property. rem jurisdiction Normally, a circuit court cannot exercise in over property situated beyond the circuit's Statutes, We can find no error in the court

territorial

boundaries.

Section

47.011,

Florida

provides that actions shall be brought only in the county where the property in litigation is located. Goedmakers, 520 So. 2d 575 (Fla. See also Goedmakers v. This is commonly

1988).

referred to as the "local action rule." The Legislature, however, has created an exception to the local action rule, codified at section 702.04, Florida Statutes, which provides, in pertinent part: When a mortgage includes lands . . . . lying in two or more counties, it may be foreclosed in any one of said counties, and all proceedings shall be had in that

3

county as if all therein . . . . Appellant intended nevertheless to provide a

the

mortgaged

land

.

.

.

.

lay

argues remedy

that

the a

exception mortgage

was

only a

where

covers

contiguous parcel of land that extends into multiple counties. We conclude that this argument can find no support in the

language of the statute, the legislative history or the case law. On the contrary, a 1959 opinion of the Attorney General

interpreted the statute as relating to both contiguous and noncontiguous real properties. (1959). See Op. Att'y. Gen. Fla. 59-57

We agree with this interpretation.

We therefore affirm the trial court in all respects.

4

Download 3d05-2929.pdf