5D01-334 Moore v. Snagg

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D01-334

Case Date: 06/18/2001

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2001

CLARENCE MOORE and SAVANNAH MOORE, Appellants, v. MARY JEAN SMITH-SNAGG and PAUL SNAGG, ET AL, Appellees. _________________________________/ Opinion filed June 18, 2001 Non-Final Appeal from the Circuit Court for Orange County, George A. Sprinkel, Judge. Ronald R. Howell, Longwood, for Appellants. Martin S. Awerbach and Michael A. Cohn, of Awerbach, Murphy & Cohn, P.A., Clearwater, for Appellee, Universal City Development Partners. Dana P. Hoffman of Griffin, Linder, Carter & Hoffman, P.A., Orlando, for Appellees, Mary Jean Smith-Snagg, Paul Snagg and Clarence Milton. CASE NO. 5D01-334

PER CURIAM. This appeal challenges the trial court's denial of a post-judgment motion filed pursuant to Florida Rule of Civil Procedure 1.540, said motion seeking relief on the basis of newly-discovered evidence. In the original action the plaintiffs, Clarence and Savannah Moore, sought to set aside a 1987 warranty deed which purported to transfer a remainder interest in their property to her granddaughter, Mary Jean Smith-Snagg. The Moores asserted, inter alia , that the deed was a forgery. Ultimately, the trial judge entered

summary judgment in 1999 against the Moores on all counts, including that based upon forgery, and referred (erroneously) to a four-year statute of limitations. Of course, there is no statute of limitations in respect to the challenge of a forged deed, which is void ab initio. See Holland v. Hattaway, 438 So. 2d 456 (Fla. 5th DCA 1983). Only the 30-year curative period prescribed by the Marketable Record Title Act1 has any application to a forged deed as opposed to one procured by fraud. As recently stated by Judge Warner in her opinion in Zurstrassen v. Stonier, 26 Fla. L. Weekly D1275 (Fla. 4th DCA 2001): We think Klaus is correct in his assertion that the forged deed is void and thus creates no legal title nor affords protection to those claiming under it. See McCoy v. Love, 382 So. 2d 647, 648 (Fla. 1979); Lloyd v. Chicago Title Ins. Co., 576 So. 2d 310, 311 (Fla. 3d DCA 1990). See also Jamnadas v. Singh, 731 So. 2d 69, 70 (Fla. 5th DCA 1999)(forged mortgage is void and a legal nullity); Southeast Bank, N.A. v. Sapp, 554 So. 2d 1193, 1195 (Fla. 1st DCA 1989)(same). In Wright v. Blocker, 198 So. 2d 88 (Fla. 1940), relied on in McCoy, the court said of the effect of such deeds, "`[a] forged deed, in the sense defined above, is absolutely void and wholly ineffectual to pass title, even to a subsequent innocent purchaser from the grantee under such forged deed.'" Id. at 91 (quoting 16 Am Jur. 451-2). This court summarily affirmed the 1999 summary judgment without opinion. See Moore v. Smith-Snagg, 761 So. 2d 1128 (Fla. 5th DCA 2000)(Table). We can only assume that affirmance was based on an absence of supporting evidence to establish forgery since 30 years had not elapsed from the ostensible execution and recordation of the deed. That being the case, the newly discovered evidence purporting to show other forgeries by SmithSnagg of the signatures of the Moores, which evidence was unavailable at the time of entry of summary judgment, is certainly relevant and sufficient to preclude disposition of this case, insofar as the forgery issue is concerned, by summary judgment.

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