Florida/Georgia Personal Injury & Workers Compensation

matter. Charles W. Ehrhardt, Florida Evidence § 702.1 (1994 ed.). At trial, before deciding this issue

generally Charles W. Ehrhardt, Florida *1167 Evidence § 702.1 (1992 Edition); Michael H. Graham, Handbook of

testimony. Charles W. Ehrhardt, Florida Evidence § 702.1 (1992). In the instant case, Malone's testimony

expertise. See Charles W. Ehrhardt, Florida Evidence § 702.1, at 548 (1999 ed.); see also State v. Hickson,

(1999). See Charles W. Ehrhardt, Florida Evidence § 702.1 (2001 ed.). First, the court must determine whether

generally Charles W. Ehrhardt, Florida Evidence § 702.1, at 552-53 (1999 ed.). After considering these

court. See Charles W. Ehrhardt, Florida Evidence § 702.1, at 687 (2007 ed.). Mitchell clearly had both knowledge

presented. See Charles W. Ehrhardt, Florida Evidence § 702.1, at 686-87 (2008 ed.). Mr. Amezaga's qualifications

...Scott of Gable, Taylor & Dees, Jacksonville, for appellant. Alan K. Smith of Strohauer & Smith, P.A., Clearwater, for appellees. McDONALD, Justice. Haven Federal Savings & Loan Association (Haven Federal) appeals a district court's express declaration that section 702.01, Florida Statutes (1987), is unconstitutional....

...ptimistic investment outlook and concealing its own financial interest in the development while *732 providing financing for prospective purchasers. Haven Federal moved to sever the counterclaims from the foreclosure action, relying exclusively upon section 702.01 which states: All mortgages shall be foreclosed in equity....

...In a mortgage foreclosure action, the court shall sever for separate trial all counterclaims against the foreclosing mortgagee. The foreclosure claim shall, if tried, be tried to the court without a jury. (Emphasis added.) The trial court granted the motion to sever, finding the language of section 702.01 mandatory and that severance would not preclude a separate hearing on the merits of Kirian's counterclaims....

...would be thwarted if the court did not strike the affirmative defenses. The trial court agreed, struck the affirmative defenses, and granted summary judgment. On appeal, Kirian argued that, unlike the mandatory severance of counterclaims required by section 702.01, the severance of counterclaims is discretionary under Florida Rule of Civil Procedure 1.270(b) which states: The court in furtherance of convenience or to avoid prejudice may order a separate trial of any claim, cross-claim, counterclaim or third party claim or of any separate issue or of any number of claims, cross-claims, counterclaims, third party claims or issues. (Emphasis added.) Kirian contended that, because section 702.01 conflicted with rule 1.270(b), it unconstitutionally encroached upon this Court's exclusive power to regulate matters of practice and procedure in all courts. See art. V, § 2(a), Fla. Const. Kirian further contended that the trial court improperly struck his affirmative defenses. The district court agreed and reversed the trial court's decision. The court held that section 702.01, to the extent it conflicts with rule 1.270(b), unconstitutionally infringes upon the power of this Court to regulate matters of practice and procedure. The court further held that the trial court erred when it struck Kirian's affirmative defenses and granted summary judgment. We agree on both points. With regard to the constitutionality of section 702.01, we must determine whether the statute concerns matters of substantive law, which is within the legislature's domain, or whether it concerns matters of practice and procedure, which this Court has the exclusive authority to regulate....

...It is the method of conducting litigation involving rights and corresponding defenses. Skinner v. City of Eustis, 147 Fla. 22, 2 So.2d 116 (1941). In view of these categorizations of, and distinctions between, procedural and substantive matters, we hold that the severance provision of section 702.01 is procedural in nature....

...nt of the conflict. School Board v. Surette, 281 So.2d 481 (Fla. 1973), receded from on other grounds, School Board v. Price, 362 So.2d 1337 *733 (Fla. 1978). Pursuant to rule 1.270(b) the severance of counterclaims is at a trial court's discretion. Section 702.01, however, removes that discretion in mortgage foreclosure cases and mandates severance of all counterclaims. Thus, section 702.01 is unconstitutional to the extent it conflicts with rule 1.270(b)....

...ompanies in litigation against their insureds was substantive because of the legislature's long and continuing interest in the insurance area and its policy determination that the statute was in the public's best interest. Haven Federal asserts that section 702.01 reflects the legislature's intent to provide greater legal protection to commercial mortgage lenders and is therefore substantive in nature. We disagree. We do not interpret the legislative history of the pertinent amendments to section 702.01 to show that the legislature clearly intended to grant lenders a substantive right to foreclose mortgages undelayed by counterclaims. The amendments were part of a comprehensive revision of laws addressing difficulties lenders encountered in enforcing assignment of rents provisions in mortgage contracts. [1] Amending section 702.01 to require severance of counterclaims in foreclosure actions was merely an ancillary measure in addressing the assignment of rents problem....

...T & J Losurdo, Inc., 440 So.2d 621 (Fla. 2d DCA 1983). Haven Federal does not dispute that it failed to rebut the affirmative defenses. Thus, the trial court erred by striking Kirian's affirmative defenses. We therefore affirm both the district court's holding that section 702.01 is unconstitutional to the extent it conflicts with rule 1.270(b) and its holding that the trial court improperly struck Kirian's affirmative defenses and granted summary judgment. It is so ordered. *734 SHAW, C.J., and OVERTON, BARKETT, GRIMES and KOGAN, JJ., concur. NOTES [1] Specifically, the amendments to § 702.01, Fla. Stat. (1987), were part of CS for HB 1153 which the legislature enacted during the 1987 session. According to the final staff analysis of the House Commerce Committee, that legislation amended §§ 697.07, 201.022, and 702.01 to create a simple, equitable, and inexpensive method by which a mortgage lender could enforce an assignment of rents contract....

practical experience in the subject matter." Ehrhardt, § 702.1, at 512. The problem in this case is that Brown

...See generally Josecite, 97 So.3d at 266 ; Wells Fargo Bank, N.A. v. Lupica, 36 So.3d 875, 876 (Fla. 5th DCA 2010). The Florida Legislature recognized the need for equitable remedies in foreclosure actions and, thus, codified that foreclosure cases involving mortgages will be tried in equity courts. See § 702.01, Fla....

...Significantly, the supreme court has also recently rendered a decision which is partially supportive of the Nassau court's interpretation of this statute. Although its decision in Haven Federal Savings & Loan Ass'n v. Kirian, 579 So.2d 730 (Fla. 1991) addressed the constitutionality of section 702.01, Florida Statutes (1987), to the extent that it conflicted with Florida Rule of Civil Procedure 1.270(b), the decision contains the following footnote: Specifically, the amendments to § 702.01, Fla. Stat. (1987), were part of CS for HB 1153 which the legislature enacted during the 1987 session. According to the final staff analysis of the House Commerce Committee, that legislation amended §§ 697.07, 201.022 and 702.01 to create a simple, equitable, and inexpensive method by which a mortgage lender could enforce an assignment of rents contract....

testimony. See Charles W. Ehrhardt, Florida Evidence § 702.1, at 555 (1999 ed.). However, the circuit court's

See also Charles W. Ehrhardt, Florida Evidence § 702.1 at 469 (1992 ed.). We fail to see why a different

...The Court having already resolved this issue in the motion to dismiss finds this portion of the motion should be denied. MOTION TO STRIKE DEMAND FOR JURY TRIAL AND SEVER AMENDED COUNTERCLAIM In this last motion, Plaintiff/Counter-Defendant relies on Section 702.01, Fla.Stat., which provides that: All mortgages shall be foreclosed in equity. In a mortgage foreclosure action, the court shall sever for separate trial all counterclaims against the foreclosing mortgagee. The foreclosure claim shall, if tried, be tried to the court without a jury. Defendant/Counter-Plaintiff asserts that Section 702.01 is unconstitutional. The Court on consideration finds that the part of Section 702.01, which requires the severance of the counterclaim is procedural in nature and, therefore, is not binding on this Court....

...To read the statute regarding assignments of rent as Glendale would wish would create a forfeiture within the lien context without a judicial foreclosure which is required by Florida law. Carolina Portland Cement Corp. v. Baumgartner, 99 Fla. 987, 128 So. 241 (1930); Fla.Stat. § 702.01....

the U.S. Administrative Procedure Act, 5 U.S.C. § 702,[1] by an environmental organization seeking judicial

generally Charles W. Ehrhardt, Florida Evidence § 702.1 (1992 Edition); Michael H. Graham, Handbook of

...Trazenfeld, 833 So.2d 734, 738 (Fla.2002) (“The word ‘may’ when given its ordinary meaning denotes a permissive term rather than the mandatory connotation of the word ‘shall.’ ” (citation omitted)). The nature of mortgage foreclosures lends support to this interpretation. Mortgages are “foreclosed in equity.” § 702.01, Fla....

Charles W. Ehrhardt, Ehrhardt’s Florida Evidence § 702.1 (2015 ed.) ("It is not necessary for counsel to

example, C. Erhardt, 5 Florida Practice, Evidence § 702.1 (1977). Nicholas Murray Butler, former President

...3d DCA 1981) (summary judgment of foreclosure in multicount complaint is reviewable nonfinal order). II. THE SEVERANCE For a brief time, the legislature attempted to require trial courts to sever counterclaims *737 against mortgagees in foreclosure actions. § 702.01, Fla....

Pub.L. No. 99-500, § 702(1), 100 Stat. 1783-74 (1986); Pub.L. No. 99-591, § 702(1), 100 Stat. 3341-74

subject matter. C. Ehrhardt, Florida Evidence § 702.1 (Second Ed. 1984) [footnotes omitted] [emphasis

...Any other treatment would be an impermissible modification of Barnett's rights. The Debtor asks for this treatment on equitable principles. The Bankruptcy Court is a court with extensive equitable powers. See 11 U.S.C. § 105. Mortgages are foreclosed in equity in Florida. See Fla. Stat. § 702.01 (1987)....

See § 90.702; Charles Ehrhardt, Florida Evidence § 702.1, at 677-78 (2009 ed.) (noting that definition of

...They contend that the trial court should have stayed the entire foreclosure action pending resolution of the federal action. Both parties agree, as do we, that the trial court was correct in staying and severing the counterclaims from the foreclosure action. See § 702.01, Fla....

...This -8- is unique to mortgage foreclosure cases and is unlike the reduction to judgment of a consumer debt unrelated to real property that is directly converted from that debt to a money judgment upon it. See § 702.01 ("All mortgages shall be foreclosed in equity."); cf....

education.'" Charles W. Ehrhardt, Florida Evidence § 702.1, at 501 (1994). For medical negligence cases the

expressed." Charles W. Ehrhardt, Florida Evidence § 702.1, at 492. We find no abuse of discretion in the

specialized knowledge.” C. Ehrhardt, Florida Evidence, § 702.1 (2010 ed.). The lack of licensure in Florida does

...That he does not qualify for that status is based on substantial competent evidence in the record, supporting an affirmance. Appellant next argues that it was error to sever the foreclosure complaint for a bench trial prior to a jury trial on appellant's compulsory counterclaim. While the statute requiring severance, section 702.01, Florida Statutes (1987), has been declared unconstitutional, Haven Federal Sav....

...443 (Fla. 1989). We would also reference the numerous statutes on the books that involve procedural, as opposed to substantive, laws. [1] As mentioned above, Williams relies upon the Haven case, but it does not support his position. Haven held that section 702.01, Florida Statutes (1987), which mandated severance of counterclaims in mortgage foreclosure actions, was both procedural and in conflict with Rule 1.270(b) of the rules of civil procedure, which itself permits judicial discretion in the severance of counterclaims....

...on March 25, 2005. The two adversary proceedings have been consolidated for trial. [4] Neither the Debtor nor Funding USA addressed, nor, does it appear that any court has addressed, the impact of the 1997 changes to the Florida foreclosure statute, Fla. Stat. § 702.01, which requires the state court to sever any counterclaims from foreclosure actions....

...Hamilton, II, of Holland & Knight, Jacksonville, for appellants. James J. Taylor, of Gable, Taylor & Deese, Jacksonville, for appellee. BARFIELD, Judge. Appellants challenge a trial court order granting a motion to sever legal counterclaims from a foreclosure action under the authority of section 702.01, Florida Statutes (1987), which they claim violates the doctrine of separation of powers....

...Statutes, and agreed to assist in painting a rosy investment picture, concealing its own financial interest in the project, and providing financing for prospective purchasers. Haven moved to sever the counterclaims for separate trial, citing amended section 702.01: All mortgages shall be foreclosed in equity....

...The rule provides: The court in furtherance of convenience or to avoid prejudice may order a separate trial of any claim, cross-claim, counterclaim or third party claim or of any separate issue or of any number of claims, cross-claims, counterclaims, third party claims or issues. Appellants argued that construing section 702.01 as absolutely requiring the trial court to sever the legal counterclaims in all foreclosure actions, as Haven had urged, would render the statute unconstitutional by denying the right to jury trial of the legal issues....

...ssues of law and fact at subsequent trial of the counterclaim." Judge Wilkes granted the motion to sever, stating that "severance of a mortgagee's foreclosure action and all counterclaims thereto is mandatory under the provisions of Florida Statutes Section 702.01" and that the ruling in the foreclosure action "shall not be used in any way to preclude a full hearing of the merits of Defendants' counterclaim." Appellants moved for rehearing, arguing that section 702.01 as construed by the trial court violates Article V, section 2(a) of the Florida Constitution, which confers exclusive authority on the supreme court to "adopt rules for the practice and procedure in all courts" and that the statute unc...

...Haven responded that this issue should have been raised earlier, that joinder and severance of claims is not a purely procedural matter, and that statutes affecting joinder and severance of claims must be held constitutional if they contain a substantive element. Haven argued that the legislative history of section 702.01 indicates the legislative intent to provide "greater legal protection for commercial loans granted within this state upon passage of this bill" and that this creates a substantive right to foreclose on a defaulted mortgage undelayed by legal counterclaims....

...defenses. The court reserved ruling pending submission of memoranda. Appellants' memorandum argued that the prior order had severed only the counterclaim, not the affirmative defenses; that Haven admitted it had not rebutted these defenses; and that section 702.01 does not provide for severance of affirmative defenses....

...in the consolidated cases, stating that nothing in his orders "shall be used in any way to preclude a full hearing on the merits of Defendants' Counterclaim," and stayed the scheduled foreclosure sale pending the outcome of this appeal. We find that section 702.01 is procedural in nature and that its language is unequivocally mandatory....

...courts, that Florida Rule of Civil Procedure 1.270(b) gives the trial judge discretion to decide whether to order a separate trial in a situation like the one presented in this case, and that to the extent *383 the statute conflicts with this rule, section 702.01 violates Article V, section 2(a) of the Florida Constitution....

...3 As amended in 2014, which renumbered the definition provision, without change, from section 559.55(1) to 559.55(6). Ch. 2014-116, Laws of Fla. 4 Mortgage foreclosures are equitable in nature. § 702.01, Fla....

judgment and the amount realized from the sale. § 702.01, Florida Statutes (1975), provides that “[a]ll

...370 (2005), Staff Analysis 4 (Apr. 4, 2005). - 15 - [UCC] governs whether an assignment of a security interest in a mortgage has perfected or attached to the mortgage.” Id. at 7-8 (emphasis added). Finally, the inapplicability of section 702.01 to determine priority between competing mortgage assignments is supported by Uniform Commercial Code Comment 7 to section 679.1091....

...Finally, it is implicit from [subsection (2)] that one cannot obtain a security interest in a lien, such as a mortgage on real property, that is not also coupled with an equally effective security interest in the secured obligation. Because section 702.01 does not apply as between HSBC and LaSalle Bank, HSBC’s earlier perfection of its security interest in a note arising from the Perez-FGMC transaction establishes its priority over LaSalle....

...4th DCA 2007). In this case, the court’s resort to its “equitable power and authority” to fashion a sanction for unspecified delays in this case constituted an abuse of discretion which must be reversed. Mortgage foreclosure actions are equitable in nature. § 702.01, Fla....

...able to enforce it as it was not the original lender. We reject both of Appellants’ arguments. By statute, “[a]ll mortgages shall be foreclosed in equity” and “foreclosure claim[s] shall, if tried, be tried to the court without a jury.” § 702.01, Fla....

...he foreclosure suit under [the Florida Constitution].” Id. at 1249. It found further support in foreclosure claim, not allowing the borrowers to sever their claims for a jury trial. Id. at 61−62. 3 section 702.01, which the court pointed out “[d]oes not provide that the determination of the deficiency shall be within the sound discretion [o]f a jury [but] provides that it shall be within the sound judicial discretion of [t]he court.” Id....

Pub.L. No. 99-500, § 702(1), 100 Stat. 1783-74 (1986); Pub.L. No. 99-591, § 702(1), 100 Stat. 3341-74

...h Blatchley could exercise his equity of redemption. Blatchley actually received the benefit of a much longer redemption period than if the sale had occurred as originally slated for January 9. Foreclosure suits are governed by equitable principles. § 702.01, Fla....

utterance is question for court); Eh-rhardt, supra, § 702.1 (whether witness is qualified as expert is preliminary

...� (quoting § 90.953(1), Fla. Stat. (2010))); see also § 697.02, Fla. Stat. (2011) (“A mortgage shall be held to be a specific lien on the property therein described, and not a conveyance of the legal title or of the right of possession.”). And section 702.01 provides that “[a]ll mortgages shall be foreclosed in equity.” Originally enacted in 1834, section 701.01, Florida Statutes (2011), provides that “[a]ny mortgagee may assign and transfer any mortgage made to her or him” and tha...

...Sloan, 134 Fla. 632, 184 So. 128 (1938); Macfarlane v. Macfarlane, 50 Fla. 570, 39 So. 995 (1905); Commw. Mortg. Corp. of Am., L.P. v. Frankhouse, 551 So.2d 599 (Fla. 4th DCA 1989). This seems consistent with the equitable nature of such proceedings. See § 702.01, Fla....

...equity. The Florida Legislature recognized the need for equitable remedies in foreclosure actions and, thus, codified that foreclosure cases involving mortgages will be tried in equity courts. See § 702.01, Fla....

...ecause they did not attend the sale, seek to purchase the property on foreclosure, or otherwise show any harm resulting to them. That argument of appellee is without merit. In this state, by statute, mortgages must be foreclosed by a suit in equity. § 702.01, Fla.Stat., F.S.A....

...cipal, which are due and unpaid, as well as a redemption of all outstanding tax sales certificates unredeemed against the property in question. The proceedings in foreclosure were brought under the provisions of § 702.02, Fla.Stat., F.S.A. Sections 702.01 and 702.-02, Fla.Stat., F.S.A., provide two methods for the foreclosure sale of mortgaged property. The first is a foreclosure in chancery with the aid of a special master (§ 702.01) and the second is a statutory proceeding with the sale being made by the clerk of the circuit court (§ 702.02)....

...We realize the trial court did not have the benefit of Haven Fed. Sav. & Loan Ass’n v. Kirian, 579 So.2d 730 (Fla.1991), which makes severability of all other claims than the foreclosure a discretionary decision under Florida Rule of Civil Procedure 1.270(b) rather than a compulsory one under section 702.01, Florida Statutes (1989)....

orders. See Moore, 113 F.3d at 994; 5 U.S.C. § 702.1 Therefore, the Moore court concluded that ASCS

W. Ehrhardt, Ehrhardt's Florida Evidence § 702.1 (2023 ed.) ("A witness may only testify as

of expert opinion. Ehrhardt, Florida Evidence § 702.1 (2d Ed.1984); see also Machado v. Foreign Trade

PER CURIAM. Affirmed. David v. Sun Fed. Sav. & Loan Ass’n, 461 So.2d 93 (Fla.1984); Quiring v. Plackard, 412 So.2d 415 (Fla.3d DCA 1982); § 702.01, Fla.Stat....

exist as to whether the note was in default. See § 702.01, Florida Statutes; Cross v. Federal Nat’l Mortgage

Charles W. Ehrhardt, Ehrhardt’s Florida Evidence § 702.1 (2015 ed.) (“It is not necessary for counsel to

Administrative Procedure Act ("APA"), 5 U.S.C. § 702.[1] On February 27, 2001, an evidentiary hearing