Torts — Assignment of claims

Torts
— Assignment of claims — Action by plaintiff against his residential tenant,
alleging that tenant was negligent in connection with a fire that damaged
plaintiff’s property — Trial court did not err in entering summary judgment
for defendant on basis that plaintiff, in mortgage, had assigned rights to
recover for property damage to mortgagee

JORGE ARTILES, Appellant, vs. YURISBEL PINO, et al.,
Appellees. 3rd District. Case No. 3D15-1061. L.T. Case No. 11-23164. Opinion
filed January 27, 2016. An Appeal from the Circuit Court for Miami-Dade County,
Gill S. Freeman and Darrin P. Gayles, Judges. Counsel: Martyn W.D. Verster, for
appellant. Walton Lantaff Schroeder & Carson LLP, and Michele E. Ready and
Ian Ronderos, for appellee Yurisbel Pino.

(Before WELLS, ROTHENBERG, and EMAS, JJ.)

(ROTHENBERG, Judge.) Jorge Artiles (“Artiles”) appeals a
final summary judgment entered in favor of Yurisbel Pino (“Pino”) and Balboa
Insurance Company (“Balboa”) insofar as it prohibits Artiles from pursuing
damages against his residential tenant, Pino, in connection with a fire that
damaged Artiles’s real property (“subject property”). Because Artiles assigned
away his rights in his mortgage with Aurora Loan Services, LLC (“Aurora”) to
recover damages from third parties for damaging the subject property up to the
unpaid balance on his mortgage debt, we affirm the trial court’s entry of final
summary judgment, which was based on its determination that Artiles cannot
maintain any further action against Pino for his alleged negligence in causing
the fire.

BACKGROUND

Artiles received a loan from Aurora for $180,044, which was
secured by a mortgage on the subject property. Artiles defaulted on the loan,
and Aurora initiated a foreclosure suit. In June 2010, after the foreclosure
action was filed, the subject property was damaged in a fire. At the time of the
fire, the subject property was covered by a lender-placed insurance policy that
the lender, Aurora, had purchased from Balboa.

In September 2010, pursuant to the lender-placed insurance
policy, Balboa, the insurer, paid the lender, Aurora, $58,941.56 for the fire
damage on the subject property. In July 2011, while the foreclosure action was
still pending, Artiles filed suit against his tenant, Pino, alleging that Pino
had negligently started the fire, and Balboa sought subrogation rights in
Artiles’s claim against Pino and Pino’s insurance provider.

In May 2012, Aurora and Artiles settled the pending
foreclosure action. In their mediated settlement agreement, Aurora agreed to
waive any deficiency judgment against Artiles in the foreclosure case, Artiles agreed
not to contest the foreclosure, both parties agreed to a mutual release of any
actions related to the foreclosure, and the parties agreed that Aurora was
entitled to the insurance proceeds already obtained from Balboa.

In October 2013, the trial court held a hearing on
Artiles’s, Pino’s, and Balboa’s motions for summary judgment regarding
Artiles’s claims against Pino. After the hearing, the trial court entered an
order finding, relevant to this appeal, as follows: (1) Artiles used his right
to receive a benefit from Balboa to negotiate an agreement with Aurora in the
foreclosure action; (2) Balboa is equitably subrogated to Artiles’s claim
against Pino due to Balboa’s payment to Aurora on behalf of Artiles; (3) Pino
is willing to pay the amount of $58,941.56 to Balboa; and (4) Artiles cannot
maintain any action against any party for additional damages caused by Pino’s
alleged negligence because Artiles assigned his rights to any insurance
proceeds up to the unpaid balance on the mortgage to Aurora. The trial court
subsequently entered a final judgment reflecting those findings. Artiles
appeals the final summary judgment only insofar as it prohibits him from
recovering additional damages from Pino.

ANALYSIS

The limited issue raised in this appeal turns on whether
Artiles assigned to Aurora his interest in pursuing any cause of action related
to the fire that damaged the subject property. Because in his mortgage Artiles
clearly assigned his rights to Aurora to recover for property damage up to the
amount due on the mortgage loan, we affirm the final summary judgment finding
Artiles has no right to pursue any action against Pino in connection with the
damage the fire caused to the subject property.

We review a trial court’s entry of final summary judgment de
novo. Volusia Cty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126,
130 (Fla. 2000). “Summary judgment is proper if there is no genuine issue of
material fact and if the moving party is entitled to a judgment as a matter of
law.” Id.

As a matter of law, a party cannot prevail on a cause of
action where that party has assigned away its interest in the cause of action. See
Cont’l Cas. Co. v. Ryan Inc. E., 974 So. 2d 368, 376 (Fla. 2008)
(stating that “once transferred, the assignor no longer has a right to enforce
the interest because the assignee has obtained all rights to the thing
assigned”) (internal quotation omitted). While it is typically true that
personal causes of action are not assignable, see Ginsberg v. Lennar
Florida Holdings Inc., 645 So. 2d 490, 496 (Fla. 3d DCA 1994), causes of
action relating to property damage may be assigned — especially where the
assignee has acquired title to the property. See Florida Power Corp.
v. McNeely, 125 So. 2d 311, 318 (Fla. 2d DCA 1960); 3A Fla. Jur. 2d Assignments
§ 12 (2015).

In the instant case, section 11 of the mortgage
unambiguously states that “[a]ll Miscellaneous Proceeds are hereby assigned to
and shall be paid to [Aurora].” The same section includes that such proceeds,
in the event of property damage, would either be used to restore or repair the
property, or, in the event that such repairs are not economically feasible, to
pay off the balance on the mortgage — with the excess (if any) going to
Artiles. The section of the mortgage labeled Definitions describes
Miscellaneous Proceeds as “any compensation, settlement, award of damages, or
proceeds paid by any third party . . . for: (i) damage to, or destruction of,
the Property . . . .” Because all of the damages Artiles seeks qualify as
miscellaneous proceeds, we find that under the mortgage, Artiles assigned his
rights to such damages to Aurora, and thus Artiles cannot recover damages
against Pino for negligently starting the fire.

In addition to section 11, section 5 of the mortgage
specifically provides that if Aurora acquires the property by foreclosure or
otherwise, Artiles assigns his rights to the proceeds from any insurance
policies covering the subject property to Aurora. Because Artiles agreed in the
mediated settlement agreement not to contest the foreclosure action against
him, the assignment clause in the mortgage as to Artiles’s right to seek
insurance proceeds from Pino’s insurer was also triggered.

Based on the unambiguous assignment of Artiles’s interest
contained in sections 5 and 11 of the mortgage, Artiles is precluded, as a
matter of law, from seeking damages from Pino and Pino’s insurer due to Pino’s
negligence which allegedly caused the fire on the subject property.

Although Artiles does not dispute that, pursuant to the
mortgage, he assigned his interest in the present litigation to Aurora, he
contends that his mediated settlement agreement with Aurora modified the
mortgage. We disagree as the mediated settlement agreement does not address or
modify the original mortgage’s assignment of miscellaneous proceeds to Aurora.
We also find that the remaining arguments raised by Artiles are without merit,
and thus we decline to discuss them here.

Because the damages Artiles seeks to recover against Pino
are “Miscellaneous Proceeds” and Artiles assigned his rights to such proceeds
under the mortgage, which was foreclosed by Aurora, we affirm the final summary
judgment issued by the trial court.

Affirmed.

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