Inglis v. Wells Fargo Bank, N.A.

Filing 140

OPINION AND ORDER overruling 126 Objections; overruling as moot 130 Objection; granting in part and denying in part 86 Motion for Leave to Amend Caption and Complaint; adopting 119 Report and Recommendations, as clarified in 139 Order. Plaintiff may file an Amended Complaint within SEVEN (7) DAYS of this Order removing the Rose S. Berlinger Trust from the party descriptor, and clarifying damages in the Wherefore clause only. Signed by Judge John E. Steele on 10/19/2016. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
RICHARD
K.
INGLIS,
as
Special Trustee to the trust
under the will of Rosa B.
Schweiker, dated February 2,
1961,
the
Frederick
W.
Berlinger Revocable Deed of
Trust, dated 10/17/1991, as
amended and restated,
Plaintiff,
v.

Case No: 2:14-cv-677-FtM-29CM

WELLS FARGO BANK N.A.,
Defendant.
OPINION AND ORDER
This matter is before the Court on consideration of the
Magistrate Judge’s Report and Recommendation (Doc. #119), filed
September 23, 2016, recommending that plaintiff's Motion for Leave
to Amend Caption and Complaint be granted in part and denied in
part.

Plaintiff filed Objections (Doc. #126) on October 3, 2016,

and Wells Fargo Bank, N.A. filed an Objection (Doc. #130) “in an
abundance of caution” raising the same issues raised in the Motion
for Clarification Regarding Report and Recommendation (Doc. #127).
Defendant did not file a response to plaintiff’s Objections.
After conducting a careful and complete review of the findings
and recommendations, a district judge may accept, reject or modify
the magistrate judge’s report and recommendation.

28 U.S.C. §

636(b)(1); United States v. Powell, 628 F.3d 1254, 1256 (11th Cir.
2010).

A district judge “shall make a de novo determination of

those portions of the report or specified proposed findings or
recommendations
636(b)(1)(C).

to

which

objection

is

made.”

28

U.S.C.

§

See also United States v. Farias-Gonzalez, 556 F.3d

1181, 1184 n.1 (11th Cir. 2009).

This requires that the district

judge “give fresh consideration to those issues to which specific
objection has been made by a party.”

Jeffrey S. v. State Bd. of

Educ. of Ga., 896 F.2d 507, 512 (11th Cir. 1990) (quoting H.R.
1609, 94th Cong., § 2 (1976)).

The district judge reviews legal

conclusions de novo, even in the absence of an objection.

See

Cooper-Houston v. Southern Ry. Co., 37 F.3d 603, 604 (11th Cir.
1994).
The Magistrate Judge found an absence of good cause shown,
but nonetheless recommended granting leave to remove the Rose S.
Berlinger Trust from the party descriptor.
Magistrate

Judge

recommended

denying

In doing so, the

defendant’s

motion

for

attorney’s fees and costs because no findings were being made as
to

whether

the

claim

was

“without

substantial

fact

or

legal

support” under Fla. Stat. § 772.11(1), only whether leave to amend
should be granted.

The Court also recommended granting leave to

amend and clarify the Wherefore Clause regarding damages despite
no good cause being shown for the amendment and because defendant
made no opposition to the amendment.

- 2 -

As to the request to amend and insert “all of” and to change
the dates in paragraphs 28 and 29 of the Complaint, the Magistrate
Judge recommended denying leave to amend.

Once again, plaintiff

did not show good cause for the untimely amendments, but rather
simply asserted it was to correct the vagueness.

Defendant argued

that it had overwhelming evidence that the trust assets were
transferred by the date set forth in the Complaint, and that it
would be prejudiced by the amendment.
Plaintiff’s Objections
Plaintiff filed objections to preserve the issue for trial,
and to object to defendant’s assessment of the impact on damages
because plaintiff’s position is that the return of property has no
effect on liability.
good

cause

for

the

Plaintiff does not otherwise now indicate
change.

Paragraph

27

of

the

Complaint

unequivocally provides that defendant had until the close of
business on October 27, 2011 in which to comply, which is 30 days
from the date of the pre-suit notice alleged in paragraph 25 of
the Complaint.

The Court finds that the typographical error by

using November 2, 2011 in paragraphs 28 and 29 makes no difference
to the allegations, and that there is no reason why the error could
not have been discovered prior to 2 years after its filing.

The

Court finds that adding “all of” changes the meaning of the
paragraphs, and goes beyond clarity at this late stage of the
proceedings.

- 3 -

After a careful and complete review of the findings and
recommendations, as well as the record in this case, the Court
will adopt the Report and Recommendation of the magistrate judge
and overrule the objections.
Defendant’s Objection
Defendant filed an objection because it was uncertain if it
retained the right to seek attorney’s fees and costs under the
civil theft statute providing that “[t]he defendant is entitled to
recover reasonable attorney's fees and court costs in the trial
and appellate courts upon a finding that the claimant raised a
claim that was without substantial fact or legal support.”
Stat. § 772.11(1).

Fla.

Defendant acknowledges that no final judgment

has issued in the case, and admits that the objection will be moot
if

clarification

is

provided

pursuant

to

its

Motion

Clarification Regarding Report and Recommendation (Doc. #127).

for
On

October 17, 2016, the Magistrate Judge entered an Order (Doc. #139,
pp. 10-11) clarifying that the Report and Recommendation contained
no language barring defendant from raising a claim for fees and
costs, and it was reiterated that no finding had been made with
regard to the viability of plaintiff’s claim.

In light of the

clarification, the objection will be deemed moot.
Accordingly, it is now
ORDERED:
1. Plaintiff's Objections (Doc. #126) are overruled.

- 4 -

2. Defendant’s Objection (Doc. #130) is overruled as moot as
a

decision

has

been

rendered

on

the

Motion

for

Clarification (Doc. #127).
3. The Report and Recommendation (Doc. #119) is hereby adopted
as set forth above, and as clarified by the Order (Doc.
#139).
4. Plaintiff’s Motion for Leave to Amend Caption and Complaint
(Doc. #86) is granted in part and denied in part.
5. Plaintiff may file an Amended Complaint within SEVEN (7)
DAYS of this Order removing the Rose S. Berlinger Trust
from the party descriptor, and clarifying damages in the
Wherefore clause only.
DONE and ORDERED at Fort Myers, Florida, this
of October, 2016.

Copies:
Hon. Carol Mirando
All Parties of Record

- 5 -

19th

day