Barnsdale Holdings, LLC v. PHH Mortgage Corp.

Third District Court of Appeal
State of Florida

Opinion filed July 15, 2015.
Not final until disposition of timely filed motion for rehearing.

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No. 3D14-837
Lower Tribunal No. 11-32851
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Barnsdale Holdings, LLC,
Appellant,

vs.

PHH Mortgage Corporation, et al.,
Appellees.

An Appeal from the Circuit Court for Miami-Dade County, Jose M.
Rodriguez, Judge.

Ice Appellate, and Thomas Erskine Ice and Amanda Lundergan (Royal Palm
Beach), for appellant.

Gladstone Law Group, P.A., and Jason F. Joseph and Allen S. Katz (Boca
Raton), for appellees.

Before SHEPHERD, SALTER and LOGUE, JJ.

PER CURIAM.

Affirmed.
 Barnsdale Holdings, LLC, v. Harry C. Emberson
Case No.: 3D14-0837

Shepherd, J., concurring.

I concur in the unelaborated, per curiam affirmance of this appeal, and write

only to state that I would also issue an order to Thomas Erskine Ice, counsel of

record for the appellant, Barnsdale Holdings, LLC, to show cause why he should

not be sanctioned pursuant to 57.105(1)(b) of the Florida Statutes for maintaining a

frivolous appeal in this case.1 This court has defined an appeal to be frivolous

when “it presents no justiciable question and is so devoid of merit on the face of

the record that there is little prospect it will ever succeed.” Visoly v. Sec. Pac.

Credit Corp., 768 So. 2d 482, 490-91 (Fla. 3d DCA 2000). The appeal prosecuted

by Thomas Erskine Ice in this case meets the definition.

Barnsdale Holdings, LLC, is a non-party that acquired an interest to the

subject property after a lis pendens was recorded in the underlying suit. The law

is well settled that a person in Barnsdale Holdings’ position is a “stranger to the

1 Although an associate in Mr. Ice’s office signed the notice of appeal and
appeared for oral argument, Mr. Ice’s signature appears on the substantive written
materials filed by the Ice Law Firm, the Initial Brief and Reply Brief filed on
behalf of Barnsdale Holdings in the case. However, associates working under
supervision of another lawyer are not immune from being held responsible for
participation in a frivolous appeal. See Rules Regulating the Florida Bar, Rule 4-
5.2 ("A lawyer is bound by the Rules of Professional Conduct notwithstanding that
the lawyer acted at the direction of another person."); see also Briarwood Capital v.
Lennar Corp., 125 So. 3d 291, 292, (Fla. 3d DCA 2013) (holding an associate
working under supervision to be responsible nevertheless for the prosecution of a
frivolous appeal). In this case, I would issue the show cause order only to Mr. Ice.

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record” and must file a motion to intervene within 30 days of the lis pendens

recording or be barred. See Portfolio Invs. Corp. v. Deutsche Bank Nat’l Trust

Co., 81 So. 3d 534, 536 (Fla. 3d DCA 2012); Barnett v. Barnett, 705 So. 2d 63, 64

(Fla. 4th DCA 1997) (holding that a bank had no standing to appeal since it failed

to intervene and was a non-party in the proceeding below); see also § 48.23(1)(d),

Fla. Stat. (2014). Intervention was Barnsdale Holdings’ only available avenue of

lawful entry into this case, yet it did not timely pursue this path. Unable to pursue

this avenue, counsel for Barnsdale Holdings argued that Barnsdale Holdings is an

“unknown defendant” named in the complaint. This argument is contradicted by

the plain language of section 49.08 of the Florida Statutes, which defines and limits

“unknown defendants” to “parties having or claiming to have any right, title or

interest in the property herein described.” (emphasis added).

Barnsdale Holdings had no interest in the property in this case at the time the

foreclosure action was filed and the lis pendens recorded. To allow a party to file

pleadings as an “unknown defendant” despite having no interest in the subject

property at the time the suit began and obtaining interest to the subject property

only after the filing of a lis pendens, would render the intervention rule

meaningless. The mere existence of the rules requiring intervention should have

been sufficient to guide the Appellant below, and counsel’s failure to either grasp

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or adhere to the simplicity of this procedure does not excuse the baseless nature of

this appeal.

Absent a showing of good cause, I would at least require Thomas Erskine

Ice to reimburse Barnsdale Holdings for the fees it paid to his law firm for taking

this entirely unmeritorious appeal.

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