JOHN MENTZ
v.
DOUGLAS NOSBISCH, JR. AND DEBORA HOLLAND AS CO-TRUSTEES OF THE DOUGLAS NOSBISCH REVOCABLE TRUST
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An appellant's failure to provide a trial transcript on appeal compels affirmance of the trial court's judgment.
[1] Payment of documentary stamp taxes is not a condition precedent to the enforceability of an unrecorded promissory note under the current version of section 201.08(1), Flo…
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Join FLexlaw to unlock all legal intelligence“promissory notes for which documentary taxes have not been paid are, as a matter of law, unenforceable by any Florida court”
Cohen, J., concurring specially, discussing the holding in Somma v. Metra Electronics Corp., 727 So. 2d 302 (Fla. 5th DCA 1999), and noting that this rule no longer applies under the current version of section 201.08(1), Florida Statutes.
Mentz defaulted on an unrecorded promissory note owed to Nosbisch and Holland as co-trustees of a revocable trust. The trial court entered final judgm…
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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
JOHN MENTZ,
Appellant,
v. Case No. 5D21-1539 LT Case No. 2020-11048-CIDL
DOUGLAS NOSBISCH, JR., AND DEBORA HOLLAND
AS CO-TRUSTEES OF THE DOUGLAS NOSBISCH
REVOCABLE TRUST,
Appellees.
________________________________/
Opinion filed February 11, 2022
Appeal from the Circuit Court for Volusia County, Kathryn D. Weston, Judge.
Cody L. Frank, of Frank Law Firm, P.A., Fort Lauderdale, for Appellant.
Harlan G. Paul, of Paul, Elkind, Branz & Paul, LLP, DeLand, for Appellees.
PER CURIAM.
John Mentz appeals the final judgment entered in favor of Douglas Nosbisch, Jr., and Debora Holland, as co-trustees of the Douglas Nosbisch
AFFIRMED.
EVANDER and TRAVER, JJ., concur. COHEN, J., concurs specially, with opinion.
3
Case No. 5D21-1539 LT Case No. 2020-11048-CIDL COHEN, J., concurring specially. I agree that the lack of a transcript is fatal to Mentz’s appeal. Without it or a proper substitute, he is unable to overcome the presumption of correctness afforded to the trial court’s judgment and meet his burden of establishing harmful error. I write only to address Mentz’s argument that the note was unenforceable because Appellees allegedly failed to prove payment of documentary stamp taxes.1 Metra Electronics Corp., 727 So. 2d 302 (Fla. 5th DCA 1999). In Somma, we held that “promissory notes for which documentary taxes have not been paid are, as a matter of law, unenforceable by any Florida court.” Id. at 305. However, Somma interpreted the 1997 version of section 201.08(1), Florida Statutes. Id. at 303–05. Subsequent to that decision, the Florida Legislature amended subsection (1) of the statute. See ch. 2002–218, § 9, Laws of Fla. (2002). I agree with our sister court’s analysis, in Glenn Wright Homes (Delray) LLC v. Lowy, 18 So. 3d 693 (Fla. 4th DCA 2009), that the current version of section 201.08(1) contains no
1 Based upon the lack of a transcript, I make no assumptions about what evidence, if any, was presented on this issue.
4 provision requiring payment of documentary stamp taxes on an unrecorded promissory note before the note can be enforced. Accordingly, I would find that the condition precedent to enforcing a promissory note, as reflected in Somma, no longer applies.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Somma v. Metra Elecs. Corp., 727 So. 2d 302 (Fla. 5th DCA 1999)
- Delio Sanchez v. State, 18 So. 3d 693 (Fla. 1st DCA 2009)