RAUCH, WEAVER, MILLSAPS, BIGELOW & COMPANY, AS AGENTS FOR THE BENEFICIARIES OF THE ESTATE OF HENRY VAN BAAY, APPELLANT,
v.
CENTRAL BANK AND TRUST COMPANY OF MIAMI, TRUSTEE; WHATEVER, INC., A FLORIDA CORPORATION, ROMAN MORETH, ET AL., APPELLEES
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The court concurred with the majority opinion, emphasizing the distinction in Florida Statute Section 48.23(3) regarding lis pendens based on whether the action is founded on a duly recorded instrument.
The concurring opinion agrees with the majority but elaborates on the statutory treatment of lis pendens, highlighting that actions not founded on recorded instruments are treated differently and are subject to greater court control.
[1] An agent with the power to litigate on behalf of beneficiaries has standing to appeal a trial court's ruling on jurisdiction over those beneficiaries, as an identity of i…
[2] A trial court errs by declaring beneficiaries as involuntary parties-plaintiff when the suit was properly initiated by their agent in a representative capacity.
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Join FLexlaw to unlock all legal intelligenceThe case involves a discussion of lis pendens in property disputes, specifically differentiating between actions founded on recorded instruments and t…
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PER CURIAM.
This is a non-final appeal, taken pursuant to Rule 9.130(a)(3)(C)(i), Fla.R.App.P., which questions the propriety of a trial court order determining jurisdiction over several parties-plaintiff.1 We reverse.
To facilitate collection of monies due on a promissory note, several beneficiaries of the estate of Henry Van Baay named the appellant, Rauch, Weaver, Millsaps, Bige-low & Company (Rauch), as their agent. The beneficiaries gave Rauch title to the promissory note on which Whatever, Inc., was the promisor and Roman Moreth was the guarantor. The note was secured by a mortgage on property owned by appellee, Central Bank and Trust Company of Miami. The beneficiaries also empowered Rauch to institute legal action, if necessary, to collect upon the note and collateral.
Accordingly, Rauch, in its representative capacity, filed suit to collect upon the promissory note and foreclose the mortgage. As discovery progressed, the trial court granted Central Bank’s motion to compel discovery and therein stated that each of the beneficiaries was a party-plaintiff. Rauch appeals this aspect of the ruling.
As a preliminary matter, we must determine whether Rauch has standing to appeal. In National Lake Developments, Inc. v. Lake Tippecanoe Owners Association, 417 So. 2d 655, 657 (Fla.1982), the court stated that “[t]he right to challenge jurisdiction has always been reserved to the person over whom the court is asserting jurisdiction.” A literal application of this principle would suggest that only the beneficiaries, in their individual capacities, have standing to contest the trial court’s ruling.
However, by naming Rauch as their agent with the power to litigate, the beneficiaries created an identity of interest with Rauch. Rauch, therefore, is not an uninvolved bystander. To the contrary, Rauch has a real stake in the outcome of this appeal so as to assure concrete adverseness which is necessary to sharpen the presentation of issues. See Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968).
Accordingly, we conclude that Rauch has standing to pursue this appeal.
Turning to the merits, it is clear that Rauch instituted this suit in its representative capacity as the beneficiaries’ agent.
Moreover, it cannot be questioned that Rauch was entitled to commence this action in its representative capacity. See Durrant v. Dayton, 396 So. 2d 1225 (Fla. 4th DCA 1981); Schurkman v. Stolar, 347 So. 2d 653 (Fla. 3d DCA 1977); see also Kramer v. Smith, 99 Fla. 147, 128 So. 477 (1930); 3 Am.Jur.2d Agency § 92 (1962). Since neither Florida law nor the rules of civil procedure provide for the creation of an “ ‘involuntary plaintiff[J ” see Paul v. Blake, 376 So. 2d 256, 260 (Fla. 3d DCA 1979), the trial court’s action was erroneous.
Thus, we hold that the trial court committed reversible error by declaring each of the beneficiaries a party-plaintiff and, accordingly, we reverse.
ANSTEAD, C.J., BERANEK and HURLEY, JJ., concur. . Fla.R.Civ.P. 1.250 enables a trial judge to add parties "on its own initiative ... on such terms as are just.” However, neither party suggests the court’s order was entered pursuant to this rule; nor is it clear that the rule applies in this instance.
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Sivak v. Brady-Spencer Mgmt. Co., Inc., 590 So. 2d 944 (Fla. 5th DCA 1991)…because the Plaintiff lacked standing to maintain the action on her own behalf. See, e.g., De Toro v. Dervan Investments Limited Corp., 483 So. 2d 717 (Fla. 4th DCA 1985); Rauch, Weaver, Millsaps, Bigelow & Company v. Central Bank and Trust Company, 453 So. 2d 459 (Fla. 4th DCA 1984); Schurkman v. Stolar, 347 So. 2d 653 (Fla. 3d DCA 1977). The evidence established that she was not Andrade’s “successor in interest” as she had alleged, but merely Andrade’s agent by virtue of the Power of Attorney.1 Andrade may…
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Superior Ins. Co. v. David A. Libert, M.D., 776 So. 2d 360 (Fla. 5th DCA 2001)…money and who is authorized to commence legal action to collect has standing to appeal the matter. See 2 Fla.Jur. 2d § 63 Agency and Employment p. 640 (West 1999) (citing Rauch, Weaver, Millsaps, Bigelow & Co. v. Central Bank and Trust Co. of Miami, 453 So. 2d 459, 460 (Fla. 4th DCA 1984)); see also Sivak v. Brady-Spencer Management Co., Inc., 590 So. 2d 944, 945 (Fla. 5th DCA 1991). Assuming arguendo that despite the language in the POA stating that it was not an assignment, the trial court properly found L…
Authorities Cited
- Flast v. Cohen, 392 U.S. 83 (U.S. 1968)
- Paul v. Al Blake, 376 So. 2d 256 (Fla. 3d DCA 1979)
- Nat'l Lake Developments, Inc. v. Lake Tippecanoe Owners Ass'n, Inc., 417 So. 2d 655 (Fla. 1982)
- Schurkman v. Stolar, 347 So. 2d 653 (Fla. 3d DCA 1977)
- Durrant v. Dayton, 396 So. 2d 1225 (Fla. 4th DCA 1981)