The most recent emails I exchanged with out Association settlement mediators
Deed Delivery Court Decision
| Jul 8, 2024, 10:16 AM (6 days ago)
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FYI - below is a Florida court opinion (appears to be one of many) that relies on a 1926 Florida Supreme Court decision regarding when the delivery of a Deed is effective. While it relates to a person's death, the issue is when "delivery" of the deed took effect. I highlighted in red what I thought to be the most relevant points regarding the delivery or constructive delivery of the Deed (to whoever it was who record the Deed and the other documents) because the Deed was delivered to a third person who recorded the Deed (PLV, Kersey, Title Company, employee of PLV or Kersey).
I think that PLV acted with a "clear and unchanging intention" to transfer the property to Kersey with no intention of retaining the property to PLV's use, there was a constructive transfer of the Deed. PLV said they were "built out;" corporate resolutions passed to sell the property; Notice of Deletion signed; Partial Easement Assignment; etc. The issue is whether it was April 20 or 24, but in either case, the Deed was constructively delivered before the Notice of Deletion was recorded on April 25. PLV didn't own the property when it recorded the Notice of Deletion.
I think this argument presents a strong case for the Court to decide. The problem is that B&P apparently is not aware of this aspect of the law and are agreeing with PLV's position that the Deed was recorded before the Notice so the transfer is legitimate. The job of a lawyer is to look at the facts and apply those facts to the law - - and that is not what B&P lawyers are doing. They are playing judge, jury and hangman. B&P lawyers should have explained to Rick Rudd and you why this is not applicable and are not willing to argue this to the court. In my mind it is legal malpractice.
Please remember that I am not a Florida lawyer, I don't have access to anything other than Google, and I am doing this as an Owner and Association member.
We can discuss, if you like, before your meeting with B&P lawyers to prepare for the meditation on Wednesday.
Kerr v. Fernandez
Opinion
No. 3D01-21.
August 29, 2001.
An appeal from the Circuit Court of Monroe County, Sandra Taylor, Judge. Lower Tribunal Case No. 99-625.
Tracy J. Adams (Key West), for appellants.
Browning, Eden Sireci and Shawn D. Smith (Key West), for appellee.
Before GERSTEN and FLETCHER, J.J. and NESBITT, Senior Judge.
FLETCHER, Judge.
Lutgarda F. Kerr and Sylvia M. O'Neal Sheppard appeal the final judgment entered against them and in favor of Dora R. Fernandez, as personal representative of the estate of J. M. Fernandez, Jr. The controlling question before us is whether J. M. Fernandez, Jr., prior to his death, completed the transfer of title to several parcels of real property by constructive delivery of deeds to the persons named therein as grantees. The litigation itself actually is limited to the transfer of title to only one of the parcels of real estate, that is the transfer to Lutgarda Kerr (his sister) and Sylvia Sheppard (his daughter). The other lots were the subject of deeds from J. M. Fernandez, Jr. to other grantees, including Anna Woodruff, Enrique Esperoy, Jr., and Dora Fernandez herself. Although these deeds were prepared the same day as, in the same fashion as, and turned over to these other grantees in the same way as, the Sheppard/Kerr deed, Dora Fernandez has not, either as estate representative or in her own interest, ever challenged the efficacy of the method of delivery of the deeds to herself or to these other grantees. After a careful review of the trial testimony, we find that the trial court reached the wrong legal conclusion on the undisputed facts, and reverse and remand for further proceedings consistent herewith.
After executing the various deeds described above, J. M. Fernandez, Jr., placed them in a closet (with other valuable papers) for safekeeping until they could be physically delivered to the various grantees, including Sylvia Sheppard when she returned to Key West after an absence therefrom. J. M. Fernandez, Jr., shortly thereafter was debilitated by a stroke and became a total invalid. He never regained his health and died before Sylvia Sheppard could return to Key West to receive physical delivery of the deed personally from him. When Sylvia Sheppard did arrive in Key West Betty DeMerritt gave her the deed. This took place two or three days after the death of J. M. Fernandez, Jr.
This closet was in the home that J. M. Fernandez, Jr. shared with Betty DeMerritt. They were not married but lived together the final fifteen years of J. M. Fernandez, Jr.'s life.
When questioned as to why she turned the deed over to Sylvia, Betty DeMerritt stated that "I knew he wanted me to do it . . . because he couldn't do it." T.12, lines 15-20. She was speaking of J. M. Fernandez, Jr.'s physical disability. Several times in her testimony she made it perfectly clear that J. M. Fernandez, Jr. wanted to deed the parcel to Sylvia Sheppard and Lutgarda Kerr and at no time intended anything else. T. 10, lines 3-8; T.11, lines 20-23; T.16, line 19;; T.17; T.18, lines 7-10.
It is to be noted from the trial testimony that all involved agree that J. M. Fernandez, Jr. never varied from his intention to deliver the deeds to all of the grantees, including the Sheppard/Kerr deed. Ultimately all the deeds were delivered by Betty DeMerritt in the same fashion (including that deed in which Dora Fernandez, the estate's representative, was named as grantee) and all the grantees accepted such delivery, with no protest from the estate, or from one another. The validity of the method of delivery was accepted by all.
There the matter lay dormant from April 1995, until May 1999, when the delivery was challenged solely as to the Sheppard/Kerr deed and only after Sylvia Sheppard and Lutgarda Kerr sought to correct an error in the deed's legal description. Dora Fernandez, for whatever motive, had the estate reopened and filed this action seeking to invalidate the Sheppard/Kerr deed (and no other) on the basis that there was no delivery of the deed by J. M. Fernandez, Jr., thus the property remained in the estate. Kerr and Sheppard defended on the basis that the undisputed facts demonstrate a constructive delivery had taken place. The trial court entered final judgment for the estate.
It is true that delivery of a deed is essential to its effectiveness. See, e.g., Sargent v. Baxter,
673 So.2d 979 (Fla. 4th DCA 1996). This does not mean, however, that a delivery, in order to be effective, must always be a physical handing over of the deed by the grantor to the grantee. For example, the grantor's recording of the deed can
in some instances be equivalent to delivery. Sargent, at 980.
Acts other than manual delivery (or recording), accompanied by an unchanging and clear intention to pass title can be equally efficacious in establishing delivery. For example, in Parramore v. Parramore,
371 So.2d 123 (Fla. 1st DCA 1978), the First District Court held that the words and acts of the grantor therein, during his last years, accomplished a symbolic and constructive delivery of the deed there involved.
The clearest case we believe most applicable here is Smith v. Owens,
91 Fla. 995, 1001-02,
108 So. 891, 893 (1926), wherein the supreme court stated:
"Actual manual delivery and change of possession are not always required in order to constitute an effectual delivery. The intention of the grantor is the determining factor. . . . In the well-considered case of Gulf Red Cedar Co. v. Cranshaw, 169 Ala. 606, 53 So. 812, the following propositions are announced: No formality or particular words or acts are essential to the delivery of a deed; delivery being a matter of intention, which may be manifested by acts and declarations, and may consist of a transfer of the conveyance without spoken words, or by spoken words without manual act. . . . The test of delivery of a conveyance is whether the grantor intended to reserve to himself the locus poenitentiae, and, if he did, there is no delivery; but if he parts with the control of the deed, or evinces an intention to do so, and to pass it to the grantee, though he may retain the custody or turn it over to another, or place it upon record, the delivery is complete." [e.s.]
The uncontradicted testimony is that J. M. Fernandez, Jr. evinced an intention to deliver the deed personally to Sylvia Sheppard, which intention never changed, but he fell ill and died before he could carry it out. We conclude that the facts here demonstrate an effective delivery.
Further, we conclude that the estate, by challenging the Sheppard/Kerr deed delivery, but accepting the validity of the delivery of the other deeds which were delivered in the identical fashion, is violating the maxim that precludes a party from "approbating" and "reprobating" in asserting a right in court. Several examples of the application of this maxim include Armour Co. v. Lambdin,
154 Fla. 86,
16 So.2d 805 (Fla. 1944), which holds that a party is not permitted to invoke the aid of the courts upon contradictory principles or theories based upon one and the same set of facts, such as here, where Dora Fernandez has sought the court's assistance to invalidate a deed because of the method of delivery while accepting the validity of other deeds from the same grantor delivered in precisely the same fashion. In Griley v. Griley,
43 So.2d 350 (Fla. 1949) the court cited with approval In Re Cummings' Estate, 150 Pa. 397, 25 A. 1125, which applied the maxim to a fact situation in which a party who was a devisee under a will accepted his devise, but attempted to defeat the will's operation as to property devised to other parties. The Pennsylvania court held:
This maxim applied outside of judicial proceedings is recognizable as "one may not eat his cake and yet have it." Griley v. Griley,
43 So.2d 350 (Fla. 1949).
Which the court identified as a well-settled doctrine termed in the Scotch law as the doctrine of `approbate' and `reprobate.' . . . Griley, at 352.
"The orphans' court correctly held that the appellant could not be permitted to affirm the validity of the will in Pennsylvania, and take under it, and at the same time deny its validity in Washington, to prevent other devisees from taking under it, so as to draw to himself, as heir at law, what the testator did not intend he should have, but had distinctly given to others."
Griley, at 353; Cummings' Estate, 25 A. at 1126. Dora Fernandez is violating the maxim in the same fashion, but without the involvement of a will — a mirror image of Cummings. It is seen that the Scotch doctrine is alive, well, and justly applicable here.
For the foregoing reasons, we reverse the final judgment and remand the cause to the trial court for further proceedings consistent herewith, including, but not limited to, entry of judgment for Lutgarda F. Kerr and Sylvia M. O'Neal Sheppard on the amended complaint of Dora R. Fernandez and on the counterclaim of Lutgarda F. Kerr and Sylvia M. O'Neal Sheppard as well as enforcement of the parties' stipulation as to the correct legal description.
Reversed and remanded with instructions.
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Gary Loser
15650 Villoresi Way
Naples, Florida
| Jul 11, 2024, 8:16 AM (3 days ago)
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I hope that the lawsuit was not settled at the mediation yesterday. FYI - attached two Florida court decisions showing that the Smith et al v. Owens Florida Supreme Court decision in 1926 is still the law in Florida. I suspect that neither the B&P lawyers or the Defendants' lawyers are aware of the law - - they both assume that recording is when transfer of the Deed takes place.
https://www.govinfo.gov/content/pkg...k-01928/pdf/USCOURTS-flmb-6_19-bk-01928-0.pdf
https://caselaw.findlaw.com/court/fl-district-court-of-appeal/2033577.html
See page 5 in the first link and half way through in the second link under the "Florida Law on Delivery" heading refers to the Smith et al decision.
I also saw that Lisa Van Dien's affidavit is posted on the court's web site. I think she must be deposed because she was involved in the negotiations for the sale of the property and she prepared the Deed.
Also, I have not seen that the B&P lawyers ever raised the "Now, Therefore" recital on the first page of the Master Declaration which says, "Declarant declares that all off the Master Property shall be held,
transferred, sold, conveyed, mortgaged, occupied and otherwise dealt with subject to the covenants, conditions, reservations,
EASEMENTS, charges, and liens, as set forth in this Master Declaration, all of which are in furtherance of the foregoing purposes. Such covenants, conditions, restrictions, reservations,
EASEMENTS, charges and liens
SHALL RUN WITH THE MASTER PROPERTY,
shall be binding upon all parties having or acquiring any right, title or interest in the Master Property, their successors, assigns and legal representatives, and shall inure to the benefit of each and every person or entity from time to time owning or holding an interest in said Master Property." I think this would apply to the transfer/sale of the property to Kersey. The Board probably should determine whether this supports the Associations position as it now stands.
I look forward to hearing from you.
| Jul 11, 2024, 9:46 AM (3 days ago)
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You may want to ask B&P lawyers if they think that the lawsuit is about "Deleting" the PROPERTY sold to Kersey in the Notice of Deletion because I think the issue should be about the Deletion of the "Encumbrance" (i.e., the Easement - - there is no right to delete the property.) The easement goes to the Buyer per the Now, Therefore recital. Take a look at Article II.C.1 about Deletions from Master Property: "Declarant may . . . delete any portion of the Master Property
owned by Declarant from encumbrance by this Master Declaration. . ."
It doesn't say that the "Property" can be deleted. Only the easement can be deleted. Implicit is that the easement goes with the to Kersey per the Now, Therefore recital because it "runs with the land." A deposition of Van Dien is where this would be addressed.
| Jul 11, 2024, 2:57 PM (3 days ago)
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I must have inadvertently deleted from my last email that Article II.C.2. is what controls the Deletion of Property
without Owners approval, and that is where I think we have a problem. And that is why I think to be successful, the argument has to be when the transfer of Deed was effective - - I think it was effective before the deletion of the Property was recorded based on PLV's intent and it didn't reserve the right to cancel or withdraw the conveyance of the Deed. Basically, there should be included a "quiet title" claim on behalf of the Association.
| Jul 11, 2024, 8:35 PM (3 days ago)
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The argument of both the Association and the Defendants appears to me to be about "deleting the property" sold to Kersey from the Master Declaration via the Notice of Deletion; however, the Notice of Deletion in paragraph 2 says, " Deletion of Released Property. Declarant hereby
deletes the Released Property from the encumbrance of the Master Declaration, and every part thereof. The Released Property is hereby
deleted from the description of the Master Property and shall be and is forever free of and discharged from the lien, encumbrance and effect of the Master Declaration."
To me it is clear that it is the "encumbrance" that has been deleted from the Master Declaration; there is no deletion of the "Property" itself. The encumbrance is the "easement" (Google "encumbrance" definition if you want to confirm this). The second sentence merely says that the Master Declaration no longer has the "easement" encumbrance for the property sold to Kersey; but it clearly doesn't say that the property sold to Kersey has been deleted from the Master Declaration.
FYI - ordinarily, the heading is not included in the meaning of a provision of a document, so that "Deletion of Released Property" heading is only for information purposes.
In conclusion, I am surprised that you haven't gotten back to me about how the mediation went, so I feel compelled to ask you, has Mr. Kurian or anyone else asked/told you to not communicate with me?
| Jul 12, 2024, 1:48 PM (2 days ago)
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Let me be blunt - - I have no confidence in Mr. Kurian and the B&P lawyers as trial counsel representing the Association. This should be clear from the emails that I have sent to you. If you don't want to rely on what I told you and you want to rely on B&P, there is nothing that I can do about that. But please be kind enough to email me what you will do so that I don't waste time in an effort to help the Association to resolve this litigation.
| Jul 12, 2024, 2:04 PM (2 days ago)
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FYI - in case no one has figured it out yet, Article II.C.1. says the Declarant without consent of the Owner can delete ENCUMBRANCES from the Master Declaration.
Article II.C.2. has to do with DELETION OF MASTER PROPERTY without the consent of Owners.
Read the Notice of Deletion and it specifically says ". . . deletes the Released Property FROM ENCUMBRANCES of the Master Declaration. . ." It doesn't delete the property conveyed to Kersey Smoot. Add to that, Delivery of the Deed is based on the intent of PLV and PLV delivered on April 20 or April 24, but certainly before it was recorded on April 25.
Essentially, B&P are concealing from you the true facts and the true Florida law.
| Jul 12, 2024, 2:16 PM (2 days ago)
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Gary,
As mentioned before, I appreciate your input. At least until we are presently done with mediation, I'm riding the horse we started on. My business experience leads me to continue to ride the horse that we started on. They are answering questions.
Rick
| Jul 12, 2024, 2:29 PM (2 days ago)
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I'll be interested to find out how all of the parties are answering what was conveyed by the Notice Of Deletion other than the Easement, and why the Smith et al v. Owens decision isn't pertinent to when the Deed delivery effective date.
Remember that Lincoln changed his horse many times until he found U.S. Grant to get the win. At least another opinion from a different law firm would give some confidence.
Good Luck.
