Kenneth Mace and Janice Mace v. M & T Bank
CourtDistrict Court of Appeal of Florida
Date FiledMarch 25, 2020
Docket2D16-3381
StatusPublished
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Full Opinion
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
KENNETH MACE and JANICE MACE, )
)
Appellants, )
)
v. ) Case No. 2D16-3381
)
M&T BANK, )
)
Appellee. )
___________________________________)
Opinion filed March 25, 2020.
Appeal from the Circuit Court for Lee
County; Michael T. McHugh, Judge.
Mark P. Stopa of Stopa Law Firm, Tampa
(withdrew after briefing); Latasha C. Scott
of Lord Scott, PLLC, Tampa (substituted
as counsel of record), for Appellants.
Charles P. Gufford of McCalla Raymer
Liebert Pierce, LLC, Orlando, for Appellee.
SALARIO, Judge.
Kenneth and Janice Mace appeal from a final judgment of foreclosure in
favor of M&T Bank. We reverse because the Bank failed to introduce legally sufficient
evidence that it mailed the Maces a default notice before filing suit for foreclosure as
required by paragraphs fifteen and twenty-two of the mortgage. We remand for the
entry of an order of involuntary dismissal.
I.
This is a more-or-less typical residential foreclosure case alleging that
borrowers under a mortgage loan defaulted on their obligation to make monthly
payments of principal and interest on a note secured by a mortgage. Paragraph twenty-
two of the mortgage contains a standard provision that requires the lender (here, the
Bank) to give the borrowers (here, the Maces) thirty days' written notice of the default
before accelerating the balance due on the loan.1 Paragraph fifteen of the mortgage
requires that any notice to the borrowers be in writing and be deemed given when
mailed by first-class mail or actually delivered to the borrower. A lender's obligation to
give notice of default in accord with these provisions is a condition precedent to its
acceleration of the debt due on the underlying note and commencement of a
foreclosure suit. See Spencer v. Ditech Fin., LLC, 242 So. 3d 1189, 1191 (Fla. 2d DCA
2018); Green Tree Servicing, LLC v. Milam, 177 So. 3d 7, 12 (Fla. 2d DCA 2015).
The Bank's complaint alleged compliance with all conditions precedent.
The Maces' answer denied that allegation and asserted that the Bank had failed to
provide them with a pre-acceleration default notice. Thus, it became the Bank's burden
to prove that it had given the Maces notice of default in accord with paragraphs fifteen
and twenty-two of the mortgage. See, e.g., Spencer, 242 So. 3d at 1191; Allen v.
Wilmington Tr., N.A., 216 So. 3d 685, 688 (Fla. 2d DCA 2017).
1Here, the Bank was technically the servicer on the loan, and the evidence
established that it was entitled to enforce the note as a holder. See § 673.3011(1), Fla.
Stat. (2015). No one has argued that this affects the applicability of the notice
requirements of the mortgage.
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The case proceeded to a nonjury trial. The Bank's sole witness was
Shelly Andreas, an assistant vice president and operations manager at the Bank.
Through Ms. Andreas, the Bank introduced a default letter addressed to the Maces
dated February 13, 2015. The Bank also introduced a copy of a certified mail card
addressed to the Maces and bearing the return address of an entity called McCalla
Raymer, LLC. When asked about whether there was any evidence that a third party
was used to mail the February 13, 2015 letter to the Maces, Ms. Andreas pointed to the
certified mail card and said she was "considering McCalla Raymer a third party, as an
agent for" the Bank. The certified mail card was admitted as a separate exhibit from the
default letter. It was not dated or signed. There were no markings or other indications
on the document suggesting that it was filled out for purposes of mailing the default
letter or, if it was, that it had in fact been mailed to the Maces. The Bank did not seek to
admit any other documents that might have borne on the questions whether and when
the default letter was mailed.
Ms. Andreas testified that she had personal knowledge that the default
letter was sent because she was "personally involved" in sending the letter. Ms.
Andreas did not, however, actually mail the letter or have any firsthand knowledge that
the letter was mailed. As it turned out, the personal involvement upon which Ms.
Andreas's personal knowledge was based consisted of (1) conversations she had with
people at McCalla Raymer about the default letter and (2) records she had reviewed
that, according to Ms. Andreas, reflected that the letter had been sent. Ms. Andreas did
not describe those records, and the Bank did not have them admitted into evidence.
The Maces repeatedly objected to Ms. Andreas's testimony, asserting that Ms. Andreas
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lacked personal knowledge of the mailing of the letter and that her testimony about it
was based on hearsay—namely what she heard from McCalla Raymer and what she
saw in other documents. The trial court overruled the objections.
Ms. Andreas testified that she was "familiar with the normal business
operation and practices of [the Bank] as it pertains to servicing loans and record-
keeping." She further testified that she had received "training" regarding sending out
default notices, which consisted of "interactions" with the department responsible for
sending out breach letters and "interactions with my counsel's office" regarding its
process for sending breach letters. Beyond this, however, Ms. Andreas did not testify
that the Bank had a routine or ordinary practice for sending default letters, what the
practice was, or whether she had personal knowledge of it. To the extent the Bank's
process is to use a third party such as a vendor, she did not testify what the third party's
regular practices or policies were either.
At the close of the Bank's case, the Maces moved for an involuntary
dismissal. They argued, among other things, that the Bank failed to adduce legally
sufficient evidence that the default notice admitted into evidence was mailed by first
class mail to the Maces as required by paragraph fifteen of the mortgage.2 The trial
court denied the motion. After hearing the defense case—during which Mr. Mace
testified that he never received the default notice—the trial court entered a final
judgment of foreclosure in favor of the Bank. This is the Maces' timely appeal.
2The Bank did not attempt to prove, and has not argued in either the trial
court or here, that the evidence was sufficient to show that the default notice was
actually delivered to the Maces.
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II.
On appeal, the Maces argue that the Bank's proof that it mailed them a
default letter was legally insufficient because the only evidence it introduced came from
a witness without personal knowledge and was inadmissible hearsay. We may review
the sufficiency of the evidence in a civil, nonjury trial without the issue being preserved
with a motion in the trial court. See Fla. R. Civ. P. 1.530(e). Our review is de novo.
See Norman v. Padgett, 125 So. 3d 977, 978 (Fla. 4th DCA 2013).
Legally sufficient evidence is generally understood to be equivalent to
competent substantial evidence. See, e.g., N.J. v. Dep't of Children & Families, 143 So.
3d 1109, 1112 (Fla. 2d DCA 2014) ("Competent substantial evidence is tantamount to
legally sufficient evidence." (quoting S.T. v. Dep't of Children & Family Servs., 87 So. 3d
827, 833 (Fla. 2d DCA 2012))); Tsavaris v. NCNB Nat'l Bank of Fla., 497 So. 2d 1338,
1339 (Fla. 2d DCA 1986) (equating legal sufficiency to competent substantial evidence
(quoting Tibbs v. State, 397 So. 2d 1120, 1123 (Fla. 1981))). We have explained that
evidence is competent when it is "admissibl[e] under legal rules of evidence" and is
substantial when it is "material" and has a "definite probative value." Savage v. State,
120 So. 3d 619, 621 (Fla. 2d DCA 2013) (quoting Dunn v. State, 454 So. 2d 641, 649
n.11 (Fla. 5th DCA 1984) (Cowart, J., concurring specially)); see also Lonergan v.
Estate of Budahazi, 669 So. 2d 1062, 1064 (Fla. 5th DCA 1988) (same).
Applying these standards to this case, we begin by observing that it is now
settled that the mere fact that a foreclosure plaintiff drafted a paragraph twenty-two
default letter is not enough to allow a trial court to infer that the letter was mailed.
Spencer, 242 So. 3d at 1191; see also Edmonds v. U.S. Bank Nat'l Ass'n, 215 So. 3d
628, 630 (Fla. 2d DCA 2017) ("Although the letters were admitted into evidence, the fact
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that they were drafted is insufficient by itself to show that they were mailed."). The
reason is plain enough: One cannot conclude from the fact that someone wrote a letter
that they also mailed it, at least not without engaging in speculation about what
happened. See Allen, 216 So. 3d at 688. Thus, we have held that "mailing must be
proven by producing additional evidence such as proof of regular business practices, an
affidavit swearing that the letter was mailed, or a return receipt." Id.; see also Spencer,
242 So. 3d at 1191.
Our statements that these types of "additional evidence" can establish that
a default letter was mailed point to three broad categories of proof that, individually or in
combination, may be capable of doing the job in any given case. See Allen, 216 So. 3d
at 688. One is the testimony of a witness or witnesses with personal knowledge of
relevant facts, perhaps someone involved with the mailing of the letter. See id. A
second is evidence that the organization responsible for mailing the letter had a routine
practice with respect to mailing letters of that type from which a court can infer that the
routine practice was followed and the letter was mailed. See, e.g., Thorlton v.
Nationstar Mortg., LLC, 257 So. 3d 596, 601-02 (Fla. 2d DCA 2018); CitiMortgage, Inc.
v. Hoskinson, 200 So. 3d 191, 192 (Fla. 5th DCA 2016). And a third is properly
admitted records—such as a return receipt or a log entry generated upon mailing—that
bear on the question of mailing. See Edmonds, 215 So. 3d at 630 (explaining that
plaintiff failed to "produce any return receipts, a mailing log, or any documentary
evidence" bearing on mailing); cf. Knight v. GTE Fed. Credit Union, 43 Fla. L. Weekly
D348 (Fla. 2d DCA Feb. 14, 2018) (describing plaintiff's attempt to prove mailing with a
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mailing log and holding that the log was inadmissible), review stayed, SC18-790 (Fla.
May 29, 2018). None of these kinds of evidence are present in this case.
First, the Bank did not present any testimony by a witness with personal
knowledge that the letter was mailed. Although Ms. Andreas said that she was
personally involved in the mailing of the letter, it quickly became clear that (1) she had
no personal knowledge whatsoever of whether the default notice was mailed and (2)
any information she did have came from conversations she had with someone at
McCalla Raymer and her review of Bank records that were not offered or admitted into
evidence. It should go without saying (1) that testimony by a witness without personal
knowledge is inadmissible, see § 90.604, Fla. Stat. (2016), and (2) that testimony based
on what other people or documents say, when offered for the truth of the matter, is
hearsay and, when unaccompanied by any showing that an exception to the hearsay
rule applies, is inadmissible, see § 90.801(1)(c); Sas v. Fed. Nat'l Mortg. Ass'n, 112 So.
3d 778, 779 (Fla. 2d DCA 2013) (holding that a trial court erred "in allowing Greenlee to
testify over objection about the contents of Fannie Mae's business records . . . without
having first admitted those business records"). The Maces objected to Ms. Andreas's
testimony on personal knowledge and hearsay grounds and on the grounds that her
testimony was not sufficient to sustain a judgment in the Bank's favor. See, e.g., Knight,
43 Fla. L. Weekly D348 (holding that hearsay records were inadmissible and, when that
evidence was excluded, that plaintiff's evidence of mailing was legally insufficient); Holt
v. Calchas, LLC, 155 So. 3d 499, 507 (Fla. 4th DCA 2015) (same; involving hearsay
testimony).
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Second, the Bank did not establish its routine practice for mailing default
letters. Under section 90.406, "[e]vidence of the routine practice of an organization . . .
is admissible to prove that the conduct of the organization on a particular occasion was
in conformity with the routine practice." Thus, we have held that an organization's
legally sufficient proof of its routine business practices for mailing default letters is
legally sufficient to prove that a default letter was mailed in a specific case. See
Thorlton, 257 So. 3d at 601-02; Spencer, 242 So. 3d at 1191 (quoting Allen, 216 So. 3d
at 688). Generally, this requires that a witness testify based on personal knowledge as
to what the organization's routine practice for mailing default letters is. See Spencer,
242 So. 3d at 1191 (stating that a witness testifying to routine practice "must have
personal knowledge of the company's general mailing practice—meaning that the
witness must be employed by the entity drafting the letters and must have firsthand
knowledge of the company's routine practice for mailing letters." (first citing Allen, 216
So. 3d at 688; then citing Edmonds, 215 So. 3d at 630)). When an organization's
routine practice is to use a third party to mail letters, we have found routine practice
evidence legally sufficient "where a testifying witness establishes his or her personal
knowledge of a foreclosing entity's and third-party vendor's routine business practices
and policies for drafting and mailing a default letter." Thorlton, 257 So. 3d at 602
(emphasis added) (citing PNC Bank Nat'l Ass'n v. Roberts, 246 So. 3d 482, 482 (Fla. 2d
DCA 2018)).
As the text of section 90.406 and the foregoing authorities make clear, an
organization's reliance on its routine practice to prove its conduct in a specific case
requires that it actually present "evidence of the routine practice of [the] organization"—
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i.e., evidence of what the organization's practice in fact was. See also Eig v. Ins. Co. of
N. Am., 447 So. 2d 377, 379 (Fla. 3d DCA 1984) (holding that section 90.406 requires a
party "to prove by competent evidence what its routine practice is"). That evidence is
entirely missing here. Assuming without deciding that Ms. Andreas's testimony about
her training was sufficient to establish some awareness that the Bank had a routine
practice for mailing—a debatable proposition—she never testified as to what that
practice was. Nor did she testify to any third party's practice for mailing default letters
on behalf of the Bank, if in fact using a third party was the Bank's routine practice. The
trial court was, as a result, in the dark as to what the Bank routinely does with default
notices—whether it mails them itself, whether it uses a third party, whether it uses
McCalla Raymer, whether it does something else, and what any third party does in
terms of mailing. And without that evidence, the trial court had no legally sufficient basis
to infer that the Bank mailed the Maces' default letter in this case on account of it having
a routine practice for mailing them. See Soule v. U.S. Bank Nat'l Ass'n, 253 So. 3d 679,
680 (Fla. 2d DCA 2018) (holding that evidence of routine practice was insufficient
because witness lacked personal knowledge and therefore "could not provide
competent, substantial evidence of those practices"); Eig, 447 So. 2d at 378 (holding
that organization could not rely on routine practice to establish the signing of an
agreement where its trial witness could not testify to what the routine practice was); cf.
Thorlton, 257 So. 3d at 601-02 (holding that plaintiff could rely on routine practice to
establish mailing where a witness with firsthand knowledge testified to what the practice
was). On the evidence the Bank provided, any conclusion as to whether the Bank had
a routine practice or what that practice was would be sheer speculation.
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Third, as far as records that might prove that the default notice was mailed
are concerned, the only record the Bank introduced was the copy of the certified mail
card. The copy of the card was a separate exhibit from the copy of the default letter the
Bank admitted into evidence. The face of the card does not demonstrate any
connection to the default letter, as distinguished from some other piece of
correspondence; the card is, for example, undated and lacks any indication of what
correspondence it was intended to convey. Furthermore, the copy of the card contains
no reflection that it was ever placed in the mail and no return receipt showing its delivery
to the Maces. The most the card establishes, then, is that at some unspecified time
some person addressed a certified mail card to the Maces. See Torres v. Deutsche
Bank Nat'l Tr. Co., 256 So. 3d 903, 906 (Fla. 4th DCA 2018) (concluding that a request
for a return receipt with a barcode at the top of a letter "establishes only that the letter
was created and printed," not that it was mailed). One cannot reasonably infer from that
fact that the card was actually used to mail the default letter or that both were actually
put together in the mail—not any more than one could reasonably infer from the fact
that a default letter was drafted that it was mailed. See Strod v. Lewenstark, 958 So. 2d
1138, 1140 (Fla. 4th DCA 2007) (explaining that an attached certified mail receipt does
not prove the letter was mailed where the receipt is incomplete). That too would be
speculation, not reasonable inference.
When Ms. Andreas's hearsay testimony that the default letter was mailed
is excluded, there is no evidence left that shows that the Bank mailed a default letter to
the Maces. In two decisions that are materially indistinguishable from the facts here,
our court has held that a foreclosure plaintiff's evidence that a default notice was mailed
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was legally insufficient. In Knight, a foreclosure plaintiff's only proof that a default notice
was mailed were documents that were admitted into evidence over a well-taken hearsay
objection. 43 Fla. L. Weekly D348. We held that the evidence was legally insufficient
because the plaintiff "failed to introduce any admissible evidence that the default letter
was actually mailed to the Borrowers" and therefore "did not meet its burden of proving
it satisfied the condition precedent of giving notice." Id. (emphasis added). Likewise, in
Spencer, we reversed a final judgment of foreclosure based on the insufficiency of the
evidence that a default notice was mailed where the plaintiff's only evidence of mailing
was the hearsay testimony of an employee of a mortgage servicer who lacked personal
knowledge of the facts and to which the defendant, like the Maces here, repeatedly
objected. 242 So. 3d at 1190-91. And the Fourth District reached the identical result in
Holt. 155 So. 3d at 507 (holding that foreclosure plaintiff's evidence of mailing was
legally insufficient where it was based on inadmissible, objected-to hearsay).
In similar circumstances—although not involving the mailing issue—where
without some wrongly admitted evidence, the remaining evidence is insufficient to
sustain a foreclosure judgment after a nonjury trial, our court has found the evidence
legally insufficient and reversed. See Mathis v. Nationstar Mortg., LLC, 227 So. 3d 189,
193 (Fla. 2d DCA 2017) (holding that evidence was insufficient to prove plaintiff's
standing after determining that the trial court incorrectly allowed a witness to testify,
over objection, to the contents of an allonge in violation of the best evidence rule);
Evans v. HSBC Bank, USA, Nat'l Ass'n, 223 So. 3d 1059, 1062 (Fla. 2d DCA 2017)
("Accordingly, the admission of the payment history into evidence was erroneous.
Consequently, HSBC Bank failed to present sufficient evidence as to its damages.");
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Channel v. Deutsche Bank Nat. Trust Co., 173 So. 3d 1017, 1020 (Fla. 2d DCA 2015)
("Because those documents were admitted in error, there is insufficient evidence to
support the amount due and owing under the loan."); see also Burdeshaw v. Bank of
N.Y. Mellon, 148 So. 3d 819, 826 (Fla. 1st DCA 2014) (reversing due to evidentiary
insufficiency where a foreclosure plaintiff's evidence of the amount due was hearsay
and "no other evidence was presented to support the amount owed on the note"). This
case is not different in any legally consequential respect, and our precedents require
that we reverse as well.
III.
The parties dispute—and have helpfully provided us with supplemental
briefs about—whether on remand the Bank gets a new trial or the Maces get an order of
involuntary dismissal. How we make that decision has been a hotly contested matter in
residential foreclosure cases, and our opinions on the subject have not always been
explicit. See generally Spencer, 242 So. 3d at 1191-95 (Salario, J., concurring)
(overviewing various outcomes courts have reached when remanding residential
foreclosure cases). Last year, our court clarified the proper inquiry for "scope of
remand" decisions in Tracey v. Wells Fargo Bank, N.A., 264 So. 3d 1152, 1157-69 (Fla.
2d DCA 2019).
In Tracey, the plaintiff filed a complaint alleging payment defaults on a
note and mortgage without making any reference to a modification of the loan the note
and mortgage evidenced. Id. at 1154. At trial, however, the plaintiff sought to proceed
on a theory that the defendant had breached the terms of certain loan modification
agreements. Id. Over the defendant's objection, the trial court admitted the agreements
into evidence and granted the plaintiff's motion to amend the pleadings to conform to
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the evidence—namely to present a theory based on the loan modification agreements
that was not alleged in the complaint. Id. We held that the trial court erred by granting
the motion to amend, reasoning that the defendant had been prejudiced by the late
amendment, and we reversed a final judgment the trial court rendered in the plaintiff's
favor. Id. at 1155-56. Without the erroneous decision to allow amendment, the
plaintiff's evidence at trial did not prove the theory it alleged in its complaint. See id. at
1154.
We then addressed the proper scope of remand—whether the trial court
should on remand hold a new trial or enter an order of involuntary dismissal. See id. at
1157-69. We conducted a detailed review of the applicable statutory and case law,
emphasizing two key principles throughout: (1) that interests of finality and fairness
have yielded a "long-standing aversion to remanding" a case for retrial when a party
fails to prove its case in the first trial, id. at 1161; and (2) that appellate courts retain
discretion to remand for further proceedings notwithstanding a failure of proof in cases
presenting exceptional circumstances in which the interests of equity and fairness call
for an "extra bite of the apple," id. at 1162 (quoting Morton's of Chicago, Inc. v. Lira, 48
So. 3d 76, 80 (Fla. 1st DCA 2010)). We concluded as follows:
[W]hen fashioning remand for a civil appeal where the
party with the burden of proof fails to sufficiently plead
the claim it presents at trial or to establish a basis in
admissible evidence for a claim at trial, an appellate
panel may exercise some level of equitable discretion
to consider the circumstances of a particular case.
This discretion is bounded by both the substantive
relief sought within the appeal and the strong
preference for finality of trial proceedings. The
prohibition against proverbial multiple "bites at the
apple" for trials remains rooted as the leading, guiding
principle to govern the scope of remand and should
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serve as the default direction when these kinds of
decisions are being made. We agree with how the
Morton's court put it: only "exceptional legal or factual"
circumstances will justify a deviation from this general
prohibition.
Id. at 1168 (emphasis added) (quoting Morton's, 48 So. 3d at 80). In so holding, we
rejected the argument that remand for a new trial is necessarily required when a party
relies in good faith on a trial court ruling we later find to be erroneous—in Tracey, the
trial court's decision on a motion to amend the pleadings. Id. at 1167 n.9, 1172-73
(Sleet, J., dissenting).
Applying that holding to the facts of the case, we concluded that the
default assumption against a retrial applied and found no exceptional circumstances
warranting a different outcome. See id. at 1165. Our analysis emphasized equities
relating to the procedure in the trial court and the reasons why the plaintiff's proof was
insufficient. Among other things, we focused on the facts that the plaintiff failed to
explain why it waited until trial to raise the issue, that on appeal the plaintiff confessed to
an "inadvertent" pleading error, and that the defendant would be prejudiced by "having
to relitigate her defense in piecemeal, seriatim trials while her adversary vacillates
around what the alleged basis of its claims will ultimately be." Id.
Informed by our decision in Tracey, we conclude that remand for entry of
an order of involuntary dismissal is the correct result in this case.3 The Bank failed to
present legally sufficient evidence that the paragraph twenty-two letter was mailed, so
3In nonjury cases where a party has not moved for involuntary dismissal
but nonetheless shows on appeal that the evidence is insufficient to support the
judgment, see Fla. R. Civ. P. 1.530(e), the correct instruction would be to enter a
judgment in favor of the appellant, see Winchel v. Pennymac Corp., 222 So. 3d 639, 646
n.5 (Fla. 2d DCA 2017).
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remand for involuntary dismissal is our default direction. And our record reflects no
exceptional circumstances that would warrant a do-over. Without intending to require a
subsequent panel to consider any particular factors in deciding whether to exercise its
discretion to determine whether exceptional circumstances warranting further
proceedings exist, the following facts are salient to us. The Bank's proof was
insufficient because the only evidence of mailing it offered was inadmissible because
the testifying witness lacked personal knowledge and conveyed only hearsay. That is
not a close call; Ms. Andreas had no relevant personal knowledge to convey, and the
idea that testimony about what other people and documents say is generally regarded
as inadmissible hearsay is the stuff of law school evidence classes. It appears from the
record that Ms. Andreas's testimony was presented to the trial court as though it was
actually based on Ms. Andreas's "personal involvement" in mailing the letter—even
though it was quickly revealed that her personal involvement consisted of nothing more
than conversations with others and a review of documents.
Moreover, we see nothing in our record to suggest that had the trial court
excluded the evidence as the law requires, the Bank would have been prepared to
present other admissible evidence of mailing—Ms. Andreas was the only witness it
brought to trial. Given those facts, we see no exceptional circumstances that justify a
remand for a new trial. See also Spencer, 242 So. 3d at 1194 (Salario, J., specially
concurring) (explaining that remanding for a new trial in similar circumstances "seems to
reward either (or both) a litigant's insufficient trial preparation or a strategic decision that
it might be able to convince a court to admit clearly inadmissible evidence—precisely
the kinds of results the general rule against granting a new trial . . . is designed to
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avoid"). Remanding for an involuntary dismissal in this case is consistent both with the
scope of remand analysis we clarified in Tracey and with every published decision this
court has rendered in which we have reversed a foreclosure judgment because the
plaintiff's proof of mailing a default letter was insufficient. See Soule, 253 So. 3d at 681
(remanding for entry of order of involuntary dismissal); Spencer, 242 So. 3d at 1191
(same); Knight, 43 Fla. L. Weekly D348 (same); Edmonds, 215 So. 3d at 631 (same);
Allen, 216 So. 3d at 688 (same). Seen in that light, there is nothing exceptional about
the circumstances of this case.
IV.
Now we must address the dissent. The dissent concedes that Ms.
Andreas's testimony about mailing inadmissible, and it all but concedes that her
testimony was the Bank's sole evidence of mailing.4 The dissent boils down to an
argument that our decision is in "conflict with long-standing precedent" holding (1) that
we are legally required to consider inadmissible evidence—here, Ms. Andreas's
testimony—in determining whether the evidence at a nonjury trial is legally sufficient
and (2) that when a party's sole evidence on a point on which it bears the burden of
proof is inadmissible, we are legally required to remand for a new trial. The dissent
4The dissent inaccurately characterizes the certified mail card as
"indicating that the letter had been mailed to the Maces," but as explained in part II,
there was no evidence that the card was used to mail the default notice or that the
default notice was mailed. The dissent also implies that the fact that some of Ms.
Andreas's testimony about the default letter was elicited by the Maces' counsel is
important—for what reason, it does not say—but fails to note that the testimony was
elicited by the Maces' counsel in support of the argument that Ms. Andreas lacked
personal knowledge of the matters to which she testified.
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overclaims the authorities upon which it relies and overlooks those most applicable
here.
The dissent's objection that an appellate court reviewing the sufficiency of
the evidence to support a judgment after a nonjury trial must consider improperly
admitted, objected-to testimony is puzzling because our dissenting colleague has
previously authored an opinion for a unanimous court doing the precise opposite—
excluding inadmissible evidence and holding the remainder legally insufficient. See
Doyle v. CitiMortgage, Inc., 162 So. 3d 340, 342 (Fla. 2d DCA 2015). In Doyle, the
court held that a foreclosure plaintiff's proof of the amount of the defendant's
indebtedness was legally insufficient because "the testimonial evidence presented to
establish the total amount of indebtedness was inadmissible hearsay and the total
amount of indebtedness is not supported by competent, substantial evidence."5 As
shown in part II, our colleague is far from alone in having evaluated evidentiary
sufficiency in the context of a nonjury trial in this way.
5The dissent's attempt to characterize Doyle as a case of unfortunate
wording is not convincing. It says that Doyle rests on the absence of proof to support
certain figures in the final judgment but overlooks that those figures were simply
component parts of the total amount of indebtedness, proof of which is necessary to
secure a foreclosure judgment. See Ernest v. Carter, 368 So. 2d 428, 429 (Fla. 2d
DCA 1979). The final judgment in Doyle stated a total amount of indebtedness and
identified it as being comprised of five items. Doyle, 162 So. 3d at 341 & n.3. The
problem Doyle identified was that while there was admissible evidence supporting the
principal component—a payment history—the only other evidence supporting the total
amount of the indebtedness was hearsay testimony as to the total amount. Id. at 341-
42. Doyle held that "the testimonial evidence . . . was inadmissible hearsay and the
total amount of indebtedness is not supported by competent substantial evidence." Id.
at 342. This reads like a holding predicated on admissibility and not a case of words not
expressing the court's true meaning. That is made clear by Doyle's reliance on Sas,
which also held that the evidence of the total amount of evidence insufficient because
the plaintiff's only evidence was inadmissible hearsay. See Sas, 112 So. 3d at 779.
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Furthermore, the dissent actually concedes that our decision in Knight and
the Fourth District's decision in Holt stand for the proposition that where a plaintiff's sole
proof of mailing is inadmissible, the evidence is insufficient to sustain a foreclosure
judgment. And although the dissent tries to cast Spencer as a case that did not involve
a determination that the plaintiff's only evidence of mailing was inadmissible, it does not
read that opinion fairly. In Spencer, the plaintiff's evidence of mailing was, like the
Bank's here, the testimony of an employee of a servicer who lacked personal
knowledge. 242 So. 2d at 1190. Like the Maces here, the defendant objected to that
testimony on personal knowledge and hearsay grounds. Id. On appeal, we agreed that
the witness lacked personal knowledge and held the evidence was insufficient. Id. at
1191. The requirement that a witness have personal knowledge is, of course, a
requirement of the evidence code, and a determination that a witness lacks personal
knowledge means that the witness's testimony is inadmissible. See § 90.604; Leonard
v. State, 192 So. 3d 1258, 1260 (Fla. 2d DCA 2016) ("[T]he detective's testimony on this
point was inadmissible because it was not based on personal knowledge."). Spencer
was thus quite plainly a case where the plaintiff's only evidence of mailing was
inadmissible, and we held the evidence insufficient. See also 242 So. 3d 1189 (Salario,
J., specially concurring) ("The Spencers argue in this appeal that the evidence was
insufficient to sustain the judgment. They correctly point out that Everhome's sole trial
witness, Ms. Knight, lacked any personal knowledge . . . and that without her testimony
the evidence was insufficient as a matter of law. . . .").
Thus, to agree with the dissent, we would have to ignore two precedents
of this court and one of a sister court that involve materially identical facts. We would
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also have to ignore our court's decisions in Doyle, Evans, Channel, and Mathis and at
least the First District's decision in Burdeshaw, all of which involve an appellate court
reviewing the sufficiency of the evidence after a nonjury foreclosure trial and expressly
excluding inadmissible, objected-to evidence from its consideration of evidentiary
sufficiency.6 These decisions cannot be understood as anomalies. There are ample
judicial opinions in a variety of contexts outside foreclosure in which appellate courts
reviewing the sufficiency of the evidence after a nonjury proceeding have excluded
objected-to, inadmissible evidence from their consideration in determining whether the
evidence is legally sufficient. See, e.g., Tallahassee Hous. Auth. v. Fla. Unemployment
Appeals Comm'n, 483 So. 2d 413, 414 (Fla. 1986) ("[T]he summary of absences upon
which the referee relied in denying Barron's unemployment compensation benefits was
erroneously admitted into evidence. Consequently, no substantial competent evidence
supports a finding of misconduct . . . ."); De Hoyos v. Bauerfeind, 286 So. 3d 900, 901,
904-05 (Fla. 1st DCA 2019) (reversing injunction against domestic violence where
movant's sole evidence was inadmissible hearsay and concluding that movant "did not
provide competent, substantial evidence to support the injunction"); D.J.S. v. State, 242
So. 3d 448, 449 (Fla. 2d DCA 2018) (holding that objected-to, inadmissible hearsay was
insufficient to prove value for purposes of a grand theft delinquency adjudication);
6The dissent's effort to characterize Evans and Mathis as not involving
sufficiency problems created by our determination on appeal that the plaintiff's only
evidence on a point was inadmissible is, like its effort to distinguish Doyle, contradicted
by what those decisions explicitly state. See Evans, 223 So. 3d at 1062 (Fla. 2d DCA
2017) ("[T]he admission of the payment history into evidence was erroneous.
Consequently, HSBC Bank failed to present sufficient evidence as to its damages.")
(emphasis added); Mathis, 227 So. 3d. at 192-93 (finding plaintiff's proof of standing
"insufficient" where it failed to produce an original allonge and the "testimony regarding
the contents of the allonge was inadmissible under the best evidence rule").
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Washburn v. Washburn, 211 So. 3d 87, 91 (Fla. 4th DCA 2017) (holding, in a child
support case, that when improperly admitted hearsay was excluded "there is no
competent, substantial evidence of the husband making any income other than that
from his business" and remanding with directions to consider "only the evidence
properly admitted"); Council v. State, 206 So. 3d 155, 156 (Fla. 1st DCA 2016)
(reversing conviction after nonjury trial for grand theft where the State's evidence on
value "constituted inadmissible hearsay and was legally insufficient as a matter of law to
prove the stolen ring's replacement value"); A.S. v. State, 91 So. 3d 270, 271 (Fla. 4th
DCA 2012) (reversing delinquency adjudication because hearsay testimony "should
have been stricken" and "[w]ithout this evidence the record does not provide competent,
substantial evidence demonstrating the essential element of value"); St. Augustine
Marine Canvas & Upholstery, Inc. v. Lunsford, 917 So. 2d 280, 286 (Fla. 1st DCA 2005)
(reversing award of medical benefits by judge of compensation claims where the expert
testimony supporting the award "was not admissible . . . and without his testimony there
was no competent, substantial evidence" supporting the award); Henderson v.
Henderson, 537 So. 2d 125, 128 (Fla. 1st DCA 1988) (holding that evidence was
insufficient to support factual finding in support of modification of child custody wh