Shlomo Chelminsky and Beach King, LLC v. Branch Banking & Trust Company (BB&T), Beach Club Master Association, Inc., Beach Club Three of Hallandale Condominium Association, Inc.

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT

SHLOMO CHELMINSKY and BEACH KING, LLC,
Appellants,

v.

BRANCH BANKING & TRUST COMPANY (BB&T), BEACH CLUB
MASTER ASSOCIATION, INC., BEACH CLUB THREE OF
HALLANDALE CONDOMINIUM ASSOCIATION, INC., UNKNOWN
TENANT #1 n/k/a TORA BRAUNA, MEDUSA IMPORTS, INC., d/b/a
SOLAR TAN THRU SUITS, and FLORIDA DEPARTMENT OF
REVENUE,
Appellees.

No. 4D14-1680

[February 17, 2016]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; John J. Murphy, III, Judge; L.T. Case No. 10-25347(11).

Mark L. Pomeranz of Pomeranz & Associates, P.A., Hallandale Beach,
for appellants.

Andrew J. Mayts, Jr., Alissa M. Ellison, and William E. Roberts of Gray
Robinson, P.A., Tampa, for appellee, Branch Banking & Trust Company
(BB&T).

GROSS, J.

At the end of a mortgage foreclosure trial, the trial judge declined to
enforce an earlier judge’s order that the defendant’s requests for admission
be deemed admitted. The earlier judge had twice refused to rescind this
ruling. Because of the late timing of the trial judge’s decision, we reverse
the final judgment and remand for a new trial.
Early on, the homeowner filed requests for admission pursuant to
Florida Rule of Civil Procedure 1.370. The requests asked the bank to
admit facts crucial to its case; among other things, the requests asked the
bank to admit that it was not the holder of the mortgage and note, that it
“failed to fulfill or perform all conditions precedent to the acceleration of
the subject mortgage,” that it failed to provide “the requisite notice prior to
acceleration,” and that the homeowner did not owe the bank “any monies.”
The homeowner moved to compel the bank to respond to interrogatories
and requests for admission, which was denied. Almost ten months after
the requests for admissions were served, the bank filed a response.
Unhappy with the response, the homeowner moved to determine the
sufficiency of the answers or to deem the requests admitted. On July 20,
2011, the circuit court granted the homeowner’s motion and ordered that
“[a]ll Requests for Admissions are Deemed Admitted.” The bank moved for
relief from the technical admissions, which was denied. The bank moved
for reconsideration of this ruling, which was also denied.
We pause at this point to note that the court likely abused its discretion
in refusing to grant relief from admissions resulting from the untimely
responses. A trial judge has broad discretion in dealing with requests for
admission. Florida Rule of Civil Procedure 1.370 provides that when a
trial court determines that an answer does not comply with the
requirements of the rule, the court “may order either that the matter is
admitted or that an amended answer be served.” Fla. R. Civ. P. 1.370(a).
Subsection (b) states that any matter admitted under the rule is
“exclusively established unless the court on motion permits withdrawal or
amendment of the admission.” Fla. R. Civ. P. 1.370(b). Additionally, the
court may allow “withdrawal or amendment when the presentation of the
merits of the action will be subserved by it and the party who obtained the
admission fails to satisfy the court that withdrawal or amendment will
prejudice that party in maintaining an action or defense on the merits.”
Id. The rule provides that a court “may determine that final disposition of
the request be made at a pretrial conference or at a designated time before
trial.” Fla. R. Civ. P. 1.370(a).
In July 2011, trial was not close and the homeowner had time to take
discovery on the disputed issues in the case. See Pelkey v. Commander
Motel Corp., 510 So. 2d 965 (Fla. 4th DCA 1987). The admissions went to
issues central to the foreclosure case and were contrary to proveable facts.
“The use of admissions obtained through a technicality should not form a
basis to preclude adjudication of a legitimate claim.” United Auto. Ins. Co.
v. W. Hollywood Pain & Rehab. Ctr., 162 So. 3d 98, 100 (Fla. 4th DCA
2014). However, the propriety of the July 20, 2011 order is not the issue
on this appeal.
The case was set for trial on April 2, 2014. On the day of trial, the
homeowner moved in limine seeking to exclude evidence that was contrary
to the admissions established by the July 20, 2011 order. The trial judge
was not the one who entered the July 20, 2011 order and he was unaware

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of the technical admissions; he declined to rule on the motion in limine
and the trial proceeded. During trial, the homeowner objected based on
the motion in limine, but the trial court deferred ruling and asked the
parties to file memoranda. The court later found that the “true facts” at
trial were contrary to the admissions and ultimately entered a final
judgment of foreclosure.
It was not unreasonable for the homeowner to rely on the technical
admissions, given the July 20, 2011 order and two failed attempts by the
bank to have the order rescinded. Rule 1.370 contemplates that, at the
latest, a court would make a determination on admissions at a “pretrial
conference” or “before trial.” Here, the trial court’s ruling came at the end
of trial. Without the benefit of the admissions, the homeowner may have
pursued a different trial strategy and steered a different course during
discovery. For these reasons, we reverse the final judgment and remand
to the circuit court for a new trial.

WARNER and LEVINE, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

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