Albert v. Albert

36 So. 3d 143, 2010 Fla. App. LEXIS 6540, 2010 WL 1875630
CourtDistrict Court of Appeal of Florida
DecidedMay 12, 2010
DocketNo. 3D09-2074
StatusPublished
Cited by3 cases

This text of 36 So. 3d 143 (Albert v. Albert) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Albert v. Albert, 36 So. 3d 143, 2010 Fla. App. LEXIS 6540, 2010 WL 1875630 (Fla. Ct. App. 2010).

Opinion

ROTHENBERG, J.

Georgina Albert appeals a non-final order granting Gervasio Albert’s motion to reinstate an action that was “dismissed with prejudice” pursuant to a final order entered on December 19, 2007. For the reasons that follow, we affirm.

Background

Gervasio Albert sued his son, Miguel Albert, and his son’s then wife, Georgina Albert, in 2005 to recover $750,000 he allegedly loaned the couple for the construction of a house in Coral Gables. The couple divorced in 2006, and Georgina Albert (“former wife”) was awarded a condominium in Vail, Colorado, pursuant to the final judgment dissolving the marriage. In 2007, all three parties entered into a Settlement Agreement (“Agreement”) which stipulated that: Miguel Albert (“former husband”) and Gervasio Albert (“former husband’s father”) would pay the former wife $893,000; the former wife would execute a quitclaim deed transferring the Vail condominium to the former husband’s father; and the former husband’s father would dismiss all claims against his son and the former wife.

The Agreement also provided that if the former husband’s father was unable to secure financing or he failed to make payments timely, the former wife had the right to declare the Agreement null and void, and in that event, “the parties shall be returned to the position they were in immediately prior to the execution of the Agreement including, but not limited to, return of deeds, promissory notes, mortgages, etc.”

The order that was presented to the trial court, approved by the lawyers representing the parties, and signed by the trial court does not provide a modicum of clarity. Although the order approving the settlement states that the trial court is “dismissing the action with prejudice,” the order also states that the trial court was “reserving jurisdiction to both enforce the terms of the Settlement Agreement” and “the right to vacate and/or set aside the Settlement Stipulation and reinstate the action pursuant to the terms of the Settlement [AJgreement.” (emphasis added).

On May 1, 2008, the parties executed a Modification Agreement, allowing the former husband’s father additional time to obtain the required financing and increasing the payment from $893,000 to $907,500. The Modification Agreement required the former wife to quitclaim the Vail condominium to both herself and her former husband’s father so he could obtain financing. This deed was recorded. The former wife and former husband’s father also executed a second quitclaim deed transferring the property from themselves to the former wife individually. The Modification Agreement granted the former wife the authority to record the second deed if the former husband’s father defaulted. The former husband’s father failed to secure a loan and timely comply with his payment obligations. On July 23, 2008, the former [145]*145wife recorded the second deed and sold the property to a third party.

On March 31, 2009, the former husband’s father filed a motion to reinstate the action, alleging that by selling the Vail condominium, the former wife had declared the Agreement null and void, and pursuant to the Agreement, he was entitled to be placed in the same position he was in before the Agreement was executed. The trial court vacated its order approving the Agreement and reinstated the action. This appeal followed.

Analysis

The determinative issues in this appeal are: whether the former wife’s actions were, in effect, a declaration that the Agreement was null and void; whether her actions “returned the parties to the position they were in immediately prior to the execution of the Agreement”; and whether the trial court had jurisdiction to reinstate the lawsuit.

We answer all three questions in the affirmative and conclude that the trial court’s findings were correct. There is no question that the former wife was entitled to record the second quitclaim deed to the Vail condominium if the former husband’s father defaulted, and thereafter sell the condominium to a third party. The question, therefore, is whether the recording of the deed by the former wife quitclaiming the condominium to herself and her subsequent sale of the property was in effect, an election by the former wife to terminate the Agreement and for the trial court to vacate the order approving the Agreement and reinstate the former husband’s action against her. Based on our review of the trial court’s order approving the Agreement and the subsequent Modification Agreement signed by the parties, we conclude that the former wife’s actions — quit-claiming the deed to herself and selling the condominium to a third party after the former husband’s father defaulted on the conditions of the Agreement and the Modification Agreement — was an election by her to terminate the agreements and treat the two agreements as canceled and of no force and effect, thereby vesting the trial court with the authority to reinstate the former husband’s father’s action against her.

We base this finding on the following provisions contained in the trial court’s order approving the Agreement and the subsequent Modification Agreement.

ORDER APPROVING SETTLEMENT

[[Image here]]

ORDERED and ADJUDGED:

1) that this Settlement attached hereto and made a part hereof, be and is hereby approved,
2) that based on the facts so stipulated to between the parties herein, this action including all counterclaims and crossclaim is dismissed with prejudice ... with the Court reserving jurisdiction to both enforce the terms of the Settlement Agreement between the parties, with the Court noting that it specifically reserves the right to vacate and/or set aside the Settlement Stipulation and reinstate the action pursuant to the terms of the Settlement Agreement....
(bold emphasis added).
SETTLEMENT AGREEMENT
[[Image here]]
2. TERMS OF SETTLEMENT:
[[Image here]]
In the event that the Plaintiff [the former husband’s father] cannot, for any reason whatsoever, secure a new first loan from a lender as referred to herein, [146]*146then, and in that event, at the election of the Defendant, Georgina Albert, this Agreement may be declared null and void, of no force and effect, and the parties shall be returned to the position they were in immediately prior to execution of the Agreement including, but not limited to, return of deeds, promissory notes, mortgages, etc.
(bold emphasis added).
[[Image here]]
15. DEFAULT: In the event that Plaintiff or Defendant Miguel Albert, fail to comply with any term or condition of this Agreement ... including, but not limited to, failing to make any payment required ... then, in addition to all other rights to which Defendant, Georgina Albert, may be entitled, she shall also have the right to immediately initiate a foreclosure action.... As an alternative, and at the sole discretion of Defendant, Georgina Albert, in the event of a default of any term or condition of this Agreement or Agreement attached or referred to herein, Defendant, Georgina Albert, will have the right to treat this Agreement as canceled and of no force and effect.

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Cite This Page — Counsel Stack

Bluebook (online)
36 So. 3d 143, 2010 Fla. App. LEXIS 6540, 2010 WL 1875630, Counsel Stack Legal Research, https://law.counselstack.com/opinion/albert-v-albert-fladistctapp-2010.