Vollmer v. Key Development Properties, Inc.

966 So. 2d 1022, 2007 WL 3034890
CourtDistrict Court of Appeal of Florida
DecidedOctober 19, 2007
Docket2D06-4161, 2D06-5714
StatusPublished
Cited by21 cases

This text of 966 So. 2d 1022 (Vollmer v. Key Development Properties, Inc.) 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
Vollmer v. Key Development Properties, Inc., 966 So. 2d 1022, 2007 WL 3034890 (Fla. Ct. App. 2007).

Opinion

966 So.2d 1022 (2007)

Robert W. VOLLMER, Appellant,
v.
KEY DEVELOPMENT PROPERTIES, INC., an Indiana corporation, f/k/a Key Financial Corp., Appellee.

Nos. 2D06-4161, 2D06-5714.

District Court of Appeal of Florida, Second District.

October 19, 2007.

*1025 Rodney L. Salvati, Venice, for Appellant.

Robert W. Vollmer, pro se.

William E. Stockman of DeBoest, Stockman, Decker, Broughton & Hagan, P.A., Fort Myers, for Appellee.

STRINGER, Judge.

This is the latest appeal in a ten-plus-year mortgage foreclosure action brought by Key Development Properties against Robert Vollmer. In this appeal, Vollmer seeks review of two orders that disbursed funds held in the court registry to Key Development. Vollmer argues that the trial court denied him due process when it entered each order. We agree and reverse.

Background Facts

This case began as a mortgage foreclosure action filed by Key Development on a mortgage with a face value of $72,828.50. It ultimately blossomed into a six-count complaint by Key Development with a fifteen-count counterclaim by Vollmer. After extensive proceedings in the trial court and in this court, the case proceeded to a jury trial. On April 2, 2004, following the jury trial, the trial court entered a final judgment that awarded Key Development $162,738.21 on its claims and Vollmer $25,566.49 on his counterclaims based in part on the jury's verdict and in part on directed verdicts entered by the trial court. The trial court also reserved jurisdiction to consider Key Development's claims for attorney's fees and costs. On April 5, 2004, Vollmer paid $120,645.15 into the registry of the court in an effort to satisfy a portion of the final judgment.[1] Vollmer then appealed the final judgment to this court. This court subsequently affirmed the final judgment. Vollmer v. Key Dev. Props., Inc., 908 So.2d 1073 (Fla. 2d DCA 2005) (table decision).

During the pendency of that appeal, the trial court entered an order finding Key Development entitled to an award of attorney's fees and costs. After mandate issued from this court, the trial court held a hearing on the amount of fees and costs reasonably incurred by Key Development. At the conclusion of that hearing, the trial court entered a "Supplemental Final Judgment in Foreclosure and for Assessment of Reasonable Attorney's Fees" on April 27, 2006. This supplemental final judgment "reaffirmed and ratified" the final judgment dated April 2, 2004. It also calculated the postjudgment interest due to Key Development as of April 27, 2006, and determined the amount of attorney's fees, interest on attorney's fees, and costs due to Key Development. According to the supplemental final judgment, the amount due to Key Development as of that date *1026 was $395,912.24. No calculation was made in the supplemental final judgment of the postjudgment interest due to Vollmer on the counterclaims on which he prevailed. The supplemental final judgment set the foreclosure sale of Vollmer's property for May 31, 2006.

The foreclosure sale was subsequently stayed by this court when Vollmer filed a petition for writ of certiorari. After this court denied Vollmer's petition on June 23, 2006, the foreclosure sale was rescheduled for August 23, 2006.

During late June and early July 2006, Vollmer and his counsel contacted Key Development's counsel on several occasions seeking a determination of the redemption amount that Vollmer needed to pay to redeem his property and cancel the foreclosure sale. Counsel for Key Development refused to provide a redemption amount to Vollmer or his counsel. On August 3, 2006, Vollmer appeared at the Clerk of Court's office seeking to pay into the court registry the amount needed to redeem his property and cancel the foreclosure sale. Personnel in the Clerk's office contacted counsel for Key Development seeking a redemption amount. Counsel for Key Development refused to provide the Clerk with this information. Ultimately, the Clerk made a rough calculation of the redemption amount based on the daily interest figures included in the supplemental final judgment. Based on the Clerk's calculations, Vollmer paid $410,774.74 into the registry of the court to redeem his property. Thus, as of August 3, 2006, there was $531,419.89 in the court registry to satisfy the supplemental final judgment in favor of Key Development.

On August 7, 2006, Vollmer filed a motion seeking to be permitted to withdraw the $120,645.15 that he had paid into the registry of the court back in April 2004. On August 11, 2006, Key Development filed a motion seeking an order directing the Clerk to disburse $405,500.12 to it from the registry in satisfaction of the supplemental final judgment. Key Development asserted that the additional $9587.88 that it sought was for additional interest, attorney's fees, and costs that had accrued since entry of the supplemental final judgment on April 27, 2006. The trial court held a hearing on these motions on August 22, and subsequently granted in part Vollmer's motion to withdraw the funds deposited in April 2004. The trial court also granted Key Development's motion in part and directed the clerk to disburse $404,698.24 to Key Development. The trial court took Key Development's motion under advisement to the extent that it sought additional attorney's fees and requested that Key Development file a memorandum of law within ten days concerning its entitlement to those amounts.

On September 13, 2006, without having filed the memorandum requested by the court, Key Development filed a motion seeking an order directing the Clerk to disburse the balance of the funds in the registry of the court to it. Key Development set this motion for hearing on October 23, 2006, without clearing the hearing time with Vollmer.

On September 29, 2006, Vollmer filed a "Notice of Unavailability," in which he asserted that he would be out of the state on October 23, and in which he requested that the court cancel the October 23 hearing and reschedule it to a date on which he would be available. There is no indication in the record that Vollmer set this motion for hearing.

On October 23, the trial court went forward with the hearing on Key Development's motion without Vollmer present. The trial court subsequently granted Key Development's motion in part and entered an order on November 3, 2006, directing *1027 the Clerk to disburse an additional $3452.30 to Key Development and the remaining $47.60 to Vollmer.[2]

In these consolidated appeals, Vollmer seeks review of both orders disbursing funds to Key Development. As to each order, Vollmer contends that the trial court denied him due process by preventing him from having any meaningful participation in the hearings. We address each order in turn.

August 29, 2006, Order

Vollmer first contends that the trial court denied him due process by refusing to allow him to participate in the evidentiary hearing held on August 22, 2006, which resulted in the August 29 order that disbursed $404,698.24 to Key Development. We agree.

The transcript of the August 22 hearing shows that Vollmer was representing himself at that time. The trial court began by hearing from Key Development's counsel in what was, in essence, an opening statement. The trial court then allowed Key Development to call one of its attorneys as a witness. The trial court then called, as court witnesses, personnel from the Clerk's office to testify concerning the calculation of the redemption amount.

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Bluebook (online)
966 So. 2d 1022, 2007 WL 3034890, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vollmer-v-key-development-properties-inc-fladistctapp-2007.