Appeals — Sanctions — Maintenance of indefensible position in trial court and on appeal — Rare circumstance in which appellee may be sanctioned

Appeals
— Sanctions — Maintenance of indefensible position in trial court and on
appeal — Rare circumstance in which appellee may be sanctioned — Appellee
directed to show cause why appellant’s attorney’s fees should not be assessed
against appellee

HSBC Bank USA, N.A., Appellant, vs. BISCAYNE POINT
CONDOMINIUM ASSOCIATION, Appellee. 3rd District. Case No. 3D14-2980. L.T. Case
No. 12-28355. Opinion filed January 27, 2016. An Appeal from a non-final order
from the Circuit Court for Miami-Dade County, Jorge E. Cueto, Judge. Counsel:
Elliot B. Kula and W. Aaron Daniel, for appellant. Appellee precluded from oral
argument.

(Before SALTER, FERNANDEZ and LOGUE, JJ.)

(SALTER, Judge.) HSBC Bank USA, N.A., as Trustee (“HSBC”),
appeals a circuit court order denying its motion to vacate a default judgment
as void and for lack of personal jurisdiction as to HSBC. The appellee,
Biscayne Point Condominium Association (“Association”), has not appeared
through counsel in this case, has not filed an answer brief, and has not filed
a memorandum of points and authorities in support of its position in this
appeal.1 The end result of the frivolous legal
proceedings2 below and here is a waste of time and
judicial resources.

On the Court’s own motion, the Association is directed to
show cause, within thirty days from the issuance of this opinion, why HSBC’s
appellate attorney’s fees and costs should not be assessed against the
Association as a sanction pursuant to Florida Rule of Appellate Procedure 9.410
and section 57.105, Florida Statutes (2014). The Clerk is directed to serve a
copy of this opinion by email upon the Association’s counsel designated on the
notice of appeal, and on the Association via the U.S. Postal Service at: Silvio
Fuentes, President, Biscayne Point Condominium Association, Inc., 12105 N.E.
11th Place, Miami, Florida 33161.

Within that same period of thirty days, counsel for the
appellant shall file a brief memorandum indicating whether HSBC or its counsel
communicated with the Association’s circuit court counsel or the Association in
an effort to procure a concession of error before the filing of the initial
brief in this appeal.

The Supreme Court of Florida has held that, although “not
shielded as a matter of law from the imposition of sanctions,” an
appellee should only be sanctioned in “rare circumstances.” Boca Burger,
Inc. v. Forum, 912 So. 2d 561, 570 (Fla. 2005). This proceeding smacks of
just such a set of circumstances: an “indefensible” position below and on
appeal, “where there is no chance of victory.” Id. Nonetheless, we will
consider the parties’ responses before ruling on the issue.

We do not address here the method or manner by which the
Association’s counsel in the circuit court apparently led one of our “[b]usy
judges[,] managing overloaded motion calendars,” into error, but we remind
counsel of their ethical obligations of complete candor to their client as well
as the circuit judge. Id. The order below is reversed, and the case is
remanded to the trial judge with directions to vacate the final default
judgment. U.S. Bank Nat’l Ass’n v. Proenza, 157 So. 3d 1075 (Fla. 3d DCA
2015). We retain jurisdiction for the limited purpose of considering sanctions
following our review of the Association’s response, if any, to this opinion’s
directive to show cause.

Reversed and remanded.

__________________

1We authorized such a memorandum, not
to exceed three pages, in our order of September 16, 2015, following an earlier
order to the Association to file a brief, or by failing to do so, be
sanctioned.

2As disclosed on the face of the
Association’s pleadings, its lien for unpaid condominium assessments was junior
in recordation and priority to HSBC’s purchase-money mortgage. The Association
alleged, nonetheless, that the certificate of title it obtained in February
2012 by foreclosing on the assessment lien was senior to HSBC’s unsatisfied
mortgage recorded in 2006. The Association’s lien foreclosure did not properly
identify HSBC as a party or set forth any legal basis for extinguishing the
mortgage lien.

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