Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT DONALD WARREN, SR. and SYLVIA L. WARREN, Appellants, v. HMC ASSETS, LLC, solely in its capacity as separate Trustee of Cam Xi Trust, Appellee. Nos. 2D22-14, 2D22-463 CONSOLIDATED July 12, 2023 Appeals from the Circuit Court for Hillsborough County; Caroline Tesche Arkin, Judge. Jesse R. Butler of Dickinson & Gibbons, P.A., Sarasota, for Appellants. Melisa Manganelli of Law Offices of Mandel, Manganelli & Leider, P.A., Boca Raton, for Appellee. LaROSE, Judge. In appeal number 2D22-14, Donald Warren, Sr., and Sylvia L. Warren appeal the partial final foreclosure judgment entered in favor of HMC Assets, LLC, solely in its capacity as separate Trustee of Cam Xi Trust. In appeal number 2D22-463, they appeal the amended final foreclosure judgment awarding attorneys' fees to HMC. We have jurisdiction. See Fla. R. App. P. 9.030(b)(1)(A); 9.110(k). We affirm. We write to address the Warrens' claim that the trial court granted summary judgment based on improper evidence. I. BACKGROUND The Warrens executed a mortgage and note to purchase real property. The lender assigned the instruments to CitiMortgage, Inc. Later, CitiMortgage assigned the mortgage to Granite Loan Acquisition Venture V, LLC. Granite, in turn, assigned the mortgage and, purportedly, the note to Sequoia Financial Solutions, Inc. Sequoia filed a foreclosure lawsuit against the Warrens. See Sequoia Fin. Sols., Inc. v. Warren, No. 8:12-cv-2453-T-35-EAJ, 2014 WL 12573983, at *1 (M.D. Fla. Jan. 24, 2014); see also Sequoia Fin. Sols., Inc. v. Warren, No. 812-cv-2453-T-35-EAJ, 2014 WL 12617799, at *1 (M.D. Fla. May 19, 2014). Sequoia failed to establish that CitiMortgage assigned the note to Granite. Sequoia Fin. Sols., No. 812CV2453T35EAJ, 2014 WL 12617799, at *2. Accordingly, the federal court ruled that Sequoia lacked standing to sue. Id. Sequoia then sued CitiMortgage and Granite in Florida state court, seeking a declaratory judgment that it owned the note. The Warrens were not parties. Based on the parties' stipulation, the trial court entered a Consent Declaratory Judgment concluding that Sequoia owned and held the mortgage and note. Sequoia, now named Ackley, Inc., assigned the mortgage and note to Kirkland Financial LLC. Kirkland filed a foreclosure action after the Warrens failed to make a loan payment. Kirkland attached the various assignments and Consent Declaratory Judgment to its verified complaint. Kirkland then assigned the mortgage and note to HMC, which became the party plaintiff. HMC moved for summary judgment. It filed certified copies of the Consent Declaratory Judgment, mortgage, assignments of mortgage, and CitiMortgage's business records. A CitiMortgage employee provided a supporting affidavit. She averred that she was CitiMortgage's authorized 2 custodian. She stated that the affidavit was based upon her personal knowledge and review of CitiMortgage's records kept in the regular course of its business. The employee explained that the bailment letter agreement, mortgage loans, and related documents were "kept in the course of regularly conducted business activities." A bailment letter agreement and mortgage loan sale agreement reflected that CitiMortgage sold mortgage loans identified in an attached schedule to Granite. The schedule listed the Warrens' loan. HMC's counsel argued at the summary judgment hearing that the affidavit "provides a mortgage and loan sale agreement from CitiMortgage to Granite. So it includes that loan, the loan . . . that's in this case." The Warrens argued that HMC lacked standing. They maintained that the affidavit did not prove standing [b]ecause that sale agreement that's attached there does not identify the mortgage that's at issue in this case. And at least from my examination of that attachment, the sale agreement, it doesn't I.D. specifically the Warren[s'] mortgage. And so there's no way for anyone to know whether in fact the Warren[s'] mortgage and loan was in fact part of that CitiBank affidavit. The Warrens also contended that the Consent Declaratory Judgment could not be used against them as a matter of law. The trial court found that although CitiMortgage's assignment of mortgage did not explicitly assign the Warrens' note to Granite, the CitiMortgage's business records "demonstrate[ed that] the Note as identified in the records was assigned to Granite." As for the Warrens' argument regarding the Consent Declaratory Judgment, the trial court found that the Warrens lacked standing "to contest such action" because the transfer of assignments was an issue between creditors. The trial court entered summary judgment for HMC. 3 II. DISCUSSION The Warrens argue that the trial court erroneously relied on the Consent Declaratory Judgment and the CitiMortgage affidavit. Our standard of review is de novo. See Est. of Wolfe through Maass v. 224 Via Marila, LLC, 338 So. 3d 912, 915 (Fla. 4th DCA 2022) (citing Fla. Inv. Grp. 100, LLC v. Lafont, 271 So. 3d 1, 4 (Fla. 4th DCA 2019)). "The [trial] court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fla. R. Civ. P. 1.510(a). "[T]he correct test for the existence of a genuine factual dispute is whether 'the evidence is such that a reasonable jury could return a verdict for the nonmoving party.' " In re Amends. to Fla. R. Civ. P. 1.510, 317 So. 3d 72, 75 (Fla. 2021) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). "Stated another way, the inquiry is 'whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.' " Mane FL Corp. v. Beckman, 355 So. 3d 418, 425 (Fla. 4th DCA 2023) (quoting Anderson, 477 U.S. at 251-52). The mere possibility that an issue of fact might exist is no longer sufficient to preclude summary judgment in Florida. Olsen v. First Team Ford, Ltd., 359 So. 3d 873, 877 (Fla. 5th DCA 2023) (citing In re Amends. to Fla. R. Civ. P. 1.510, 317 So. 3d at 75). The movant must support an assertion that there is no genuine dispute of a fact by "citing to particular parts of materials in the record." Fla. R. Civ. P. 1.510(c)(1)(A). "The [trial] court need consider only the cited materials, but it may consider other materials in the record." Fla. R. Civ. P. 1.510(c)(3). If the movant relied on an affidavit to support its motion, the affidavit "must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or 4 declarant is competent to testify on the matters stated." Fla. R. Civ. P. 1.510(c)(4). A. Consent Declaratory Judgment The Warrens claim that the trial court's reliance on the Consent Declaratory Judgment was an impermissible and offensive use of collateral estoppel because they were not parties to the declaratory judgment action. HMC counters that the Warrens were not necessary parties to the declaratory judgment action. Indeed, "the Warrens were not parties to any prior assignments of the [n]ote and [m]ortgage and had no right to be included as parties in a case that did not concern their interests." Thus, according to HMC, the Consent Declaratory Judgment was admissible evidence of HMC's standing. The doctrine of collateral estoppel bars, in pertinent part, relitigation of an issue between the same parties that was actually litigated in a prior proceeding and determined by a valid judgment. Goodman v. Aldrich & Ramsey Enters., Inc., 804 So. 2d 544, 546-47 (Fla. 2d DCA 2002) (citing Holt v. Brown's Repair Serv., Inc., 780 So. 2d 180 (Fla. 2d DCA 2001)). Significantly, however, the trial court did not rule that collateral estoppel barred either party from litigating the issues of note ownership and standing. Rather, the trial court considered the parties' arguments and the Consent Declaratory Judgment in finding that there was no genuine dispute as to HMC's standing to foreclose. The Warrens fail to show any clear error as to the trial court's consideration of the Consent Declaratory Judgment.1 See generally 1 The Warrens do not argue that the Consent Declaratory Judgment was inadmissible under the rules of evidence or that HMC failed to comply with rule 1.510 in filing the judgment with the trial court. We will not consider positions not taken in their appellate briefs. See Polyglycoat Corp. v. Hirsch Distribs., Inc., 442 So. 2d 958, 960 (Fla. 4th DCA 1983) ("When points, positions, facts and supporting authorities 5 Polyglycoat Corp. v. Hirsch Distribs., Inc., 442 So. 2d 958, 960 (Fla. 4th DCA 1983) ("It is the duty of counsel to prepare appellate briefs so as to acquaint the Court with the material facts, the points of law involved, and the legal arguments supporting the positions of the respective parties."). B. Business Records Affidavit The Warrens argue that the trial court erroneously relied on CitiMortgage's affidavit. More specifically, they maintain that HMC did not cite the affidavit in its summary judgment motion and that the affidavit contained no facts to establish that CitiMortgage assigned the mortgage and note to Granite. The Warrens further argue that the trial court could not rely on HMC's counsel's explanation of the documents. HMC states that rule 1.510 "permitted the trial court to rely on the entirety of record evidence before it, which included the . . . [a]ffidavit." The summary judgment rule allowed the trial court to consider materials in the record even if not cited in the summary judgment motion. See Fla. R. Civ. P. 1.510(c)(3). Further, an affidavit can support a summary judgment motion, if it is "made on personal knowledge, set[s] out facts that would be admissible in evidence, and show[s] that the affiant or declarant is competent to testify on the matters stated." Fla. R. Civ. P. 1.510(c)(4). HMC submitted the affidavit to lay a foundation to admit the attached documents as business records. See generally United Auto. Ins. Co. v. Affiliated Healthcare Ctrs., Inc., 43 So. 3d 127, 130 (Fla. 3d DCA 2010) ("[T]o lay a proper foundation for the admission of a business record as required by section 90.803(6)(a), [Florida Statutes (2009),] the are omitted from the brief, a court is entitled to believe that such are waived, abandoned, or deemed by counsel to be unworthy. Again, it is not the function of the Court to rebrief an appeal."). 6 affidavit must show that the record was: '1) made at or near the time of the event recorded, 2) by, or from information transmitted by, a person with knowledge, 3) kept in the course of a regularly conducted business activity, and 4) it was the regular practice of that business to make such a record.' " (quoting Lowe's of Tallahassee v. Giaimo, 552 So. 2d 304, 305 (Fla. 1st DCA 1989))); compare Lindsey v. Cadence Bank, N.A., 135 So. 3d 1164, 1168 (Fla. 1st DCA 2014) (holding that "the trial court did not err in relying on Ms. Wiley's affidavit to establish the amount due on the loan" because her affidavit "demonstrated a sufficient understanding of the bank's computerized loan processing system to establish the foundation necessary to admit the printouts attached to her amended affidavit under the business records exception") with Everett v. Avatar Prop. & Cas. Ins. Co., 310 So. 3d 536, 540-41 (Fla. 2d DCA 2021) (holding that the affidavit was insufficient and did not provide admissible evidence to support summary judgment where the affiant did not specify her corporate duties or state that the affidavit was made based on personal knowledge). The Warrens do not argue on appeal that the affidavit failed to sufficiently lay that foundation; thus, the issue is waived. See Polyglycoat Corp., 442 So. 2d at 960. Instead, the Warrens contend that the affidavit failed to state facts demonstrating that CitiMortgage assigned the note to Granite or indicating why the documents were relevant to the summary judgment motion. An explicit statement in the affidavit or the summary judgment motion that the business records were relevant to prove the assignment may have been helpful. However, rule 1.510(c)(4) required only that the affidavit "set out facts that would be admissible in evidence" and facts for which the affiant was competent to testify. HMC satisfied this burden. See Lindsey, 135 So. 3d at 1168. Because the documents were admissible, the trial court could properly consider them. See Ginsberg v. 7 Nw. Med. Ctr., Inc., 14 So. 3d 1250, 1252 (Fla. 4th DCA 2009) (holding that the trial court erroneously considered the hospital's consent form on a summary judgment motion where the hospital failed "to properly lay the predicate for the business records exception to hearsay before admitting the consent form into evidence"). Further, the documents included a sale agreement that demonstrated that the Warrens' loan was assigned by CitiMortgage to Granite. HMC's counsel's argument permissibly detailed the facts reflected in the documents. Cf. Hosang v. State, 984 So. 2d 671, 672 (Fla. 4th DCA 2008) (explaining that attorneys may argue using "facts and evidence presented to the jury and all logical deductions from the facts and evidence" (quoting Knoizen v. Bruegger, 713 So. 2d 1071, 1072 (Fla. 5th DCA 1998))). Once again, the Warrens fail to show trial court error as to the trial court's consideration of the documents and affidavit. See Polyglycoat Corp., 442 So. 2d at 960. III. CONCLUSION We affirm the partial final foreclosure judgment and the amended final foreclosure judgment. Affirmed. KELLY and ATKINSON, JJ., Concur. Opinion subject to revision prior to official publication. 8