Full Opinion

Third District Court of Appeal State of Florida Opinion filed June 24, 2020. Not final until disposition of timely filed motion for rehearing. ________________ No. 3D19-1595 Lower Tribunal No. 17-20456 ________________ Robenson Dumerlus and Eudine R. Dumerlus, Appellants, vs. Wilmington Trust National Association, etc., Appellee. An Appeal from the Circuit Court for Miami-Dade County, Michael A. Hanzman, Judge. Jonathan Kline, P.A., and Jonathan Kline (Weston), for appellants. Greenberg Traurig, P.A., and Vitaliy Kats (Tampa), and Kimberly S. Mello and Arda Goker (Orlando), for appellee. Before SALTER, SCALES and GORDO, JJ. SCALES, J. In this foreclosure case we address the question of whether the trial court committed “fundamental error” – that is, error so egregious that no contemporaneous objection is required to preserve it – by dispensing with closing arguments. Defendants below, Robenson and Eudine R. Dumerlus (“Appellants”) appeal a July 17, 2019 Final Judgment of Foreclosure in favor of Wilmington Trust National Association (“Appellee”). Appellants argue that the trial court violated their due process rights by dispensing with closing arguments. 1 Concluding that the trial court did not commit fundamental error, we affirm the Final Judgment of Foreclosure. I. Relevant Background In 2007, Appellants executed a mortgage securing payment for Appellants’ purchase of a residential property in Miami, Florida. After Appellants defaulted on their mortgage obligations, Appellee, a successor mortgagee, instituted this foreclosure action against Appellants in 2017. At the May 30, 2019 foreclosure trial, Appellee put on one witness, a loan analyst for the mortgage servicer. The loan analyst authenticated the note, the mortgage, the payment history, the demand letter and the business records associated with the loan, confirming that Appellee was the 1 Appellants also argue the trial court erred by finding that Appellee had complied with the trial court’s pre-trial order regarding exhibits and witnesses. Without further discussion, we reject Appellants’ contention on this issue and affirm on this basis as well. 2 party entitled to foreclose and that Appellants had not made a mortgage payment since 2012. Appellants rested their case without presenting any evidence and renewed their procedural objections in a motion for involuntary dismissal. The trial court denied this motion. As the trial court was issuing its oral ruling on the merits of the case, the following exchange took place: [Counsel for Appellants]: What about closing arguments? The Court: I don’t need any closing arguments. You are not going to add anything to this case. Appellants did not object to the trial court dispensing with closing arguments. The trial court completed its oral ruling and entered the Final Judgment of Foreclosure on July 17, 2019. II. Appellants’ Argument/Standard of Review Appellants argue that they are entitled to a new trial because the trial court’s decision to forego closing arguments constituted a due process violation. Because the alleged error was not met with a contemporaneous objection, we review the trial court’s decision for fundamental error. Millen v. Millen, 122 So. 3d 496, 498 (Fla. 3d DCA 2013) (“[I]n the absence of an objection below, this Court will not consider issues for the first time on appeal except in cases of fundamental error.”). The Florida Supreme Court has defined “fundamental error” as “error which goes to the foundation of the case or goes to the merits of the cause of action.” Sanford v. Rubin, 3 237 So. 2d 134, 137 (Fla. 1970). For fundamental error to occur, the error must “reach down into the validity of the trial itself.” Universal Ins. Co. of N. A. v. Warfel, 82 So. 3d 47, 64 (Fla. 2012) (quoting State v. Delva, 575 So. 2d 643, 644-45 (Fla. 1991)). III. Analysis This case involved a civil bench trial. Appellants’ trial strategy was to assert procedural objections to Appellee’s case-in-chief, without offering testimony or other evidence of their own. Appellants’ repeated objections to Appellee’s witness’s testimony – based upon assertions that Appellee did not comply with the pre-trial order’s requirements for document and witness disclosure – were ruled upon methodically by the trial court as having no merit. Appellants did not attack or rebut the sufficiency of Appellee’s evidence. Nor did Appellants attempt to disprove any portion of Appellee’s case. At the close of Appellants’ case-in-chief, the trial court stated, without contemporaneous objection, that it did not need closing arguments from the parties. As stated, Appellants assert that they were denied due process because their attorney was deprived of the opportunity to present a closing argument to the trial court after the close of evidence. We have held that a clear denial of due process – such as a failure to conduct any hearing prior to ruling – does constitute fundamental error. Chiu v. Wells Fargo Bank, N.A., 242 So. 3d 461, 464 (Fla. 3d DCA 2018). A 4 court’s denial of a closing argument also violates due process when a liberty interest is at stake, such as in a criminal or involuntary commitment case. Chalk v. State, 443 So. 2d 421, 423 (Fla. 2d DCA 1989) (“[A] defendant has a right to a closing argument regardless of the length of the hearing or the apparent simplicity of the issues presented.”). Appellants, though, have not cited – and we have not uncovered – authority for the proposition that a trial court’s dispensing with closing arguments in a civil foreclosure case per se constitutes a due process violation. Indeed, “[i]n Florida, there is no constitutional or statutory provision deeming the right to be heard at the close of a non-jury civil trial an absolute right.” Pan Am. Eng’g Co. v. Poncho’s Constr. Co., 387 So. 2d 1052, 1054 (Fla. 5th DCA 1980). Appellants rely on cases where a due process violation occurred because the trial court prevented a party from presenting both evidence and a closing argument. See e.g., Dobson v. U.S. Bank Nat’l Ass’n, 217 So. 3d 1173, 1174 (Fla. 5th DCA 1998); Julia v. Julia, 146 So. 3d 516, 520-21 (Fla. 4th DCA 2014) (holding that due process was violated when the trial court imposed a time limitation that deprived a party from presenting a full case- in-chief, including closing argument). But these cases are distinguishable, as the record in the instant case plainly shows that Appellants were given the opportunity to present their full case-in-chief. 5 We employ the fundamental error doctrine “very guardedly,” Sanford, 237 So. 2d at 137. We are unable to conclude in this case that the trial court’s decision to forego closing arguments “reached down into the validity of the trial itself” or went to the “foundation of the case or . . . to the merits of the cause of action” or otherwise contaminated the proceedings at their core. Therefore, the decision of the trial court to dispense with closing arguments was not fundamental error. Affirmed. 6