Filing # 112609940 E-Filed 08/31/2020 10:21:41 AM

IN THE SUPREME COURT OF FLORIDA

CASE NO.: SC20-1016

DR. MASSOOD JALLALI and

FALLON RAHIMA JALLALI,

Petitioner,

vs.
RECEIVED, 08/31/2020 10:22:29 AM, Clerk, Supreme Court

CHRISTIANA TRUST, A DIVISION OF WILMINGTON SAVINGS FUND

SOCIETY, FSB, AS TRUSTEE FOR NORMANDY MORTGAGE LOAN
TRUST, SERIES 2013-15

Respondent.

The Fourth District Court of Appeal of Florida, Case No.: 4D19-2717

L.T. Case No.: CACE16006194

__________________________________________________________________

RESPONDENT'S AMENDED JURISDICTIONAL BRIEF

__________________________________________________________________

/s/ Nicholas S. Agnello, Esq.

Jacqueline Simms-Petredis, Esq.
(FBN: 906751)
Nicholas S. Agnello, Esq.
(FBN: 90844)
BURR & FORMAN LLP
350 E. Las Olas Boulevard, Suite 1440
Fort Lauderdale, FL 33301
Telephone: (954) 414-6202
Facsimile: (954) 414-6201
Email: flservice@burr.com
Email: nagnello@burr.com
Email: rzamora@burr.com
Counsel for Respondent

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 TABLE OF CONTENTS

Page
TABLE OF CONTENTS .......................................................................................... ii
TABLE OF AUTHORITIES ................................................................................... iii
STATEMENT OF CASE AND FACTS ...................................................................1
SUMMARY OF ARGUMENT .................................................................................3
ARGUMENT .............................................................................................................5
A. There is No Direct and Express Conflict Plain on the Face of the Opinion
Rendered by the Fourth District Court of Appeal as to the Petitioner’s
Claims for Wrongful Foreclosure. ................................................................5
B. There is No Direct and Express Conflict Plain on the Face of the Opinion
Rendered by the Fourth District Court of Appeal as to the Petitioner’s
Claims for Malicious Prosecution. ................................................................6
C. The Court Should Not Exercise Discretionary Review Based on Assertions
by the Petitioner Regarding the Supposed Importance of the Case..............9
CONCLUSION ........................................................................................................10
CERTIFICATE OF SERVICE ................................................................................11
CERTIFICATE OF COMPLIANCE .......................................................................12

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 TABLE OF AUTHORITIES

Cases
Azrikan v. O’Brien
173 So. 2d 711 (Fla. 3d DCA 1965) ......................................................................9
Inlet Beach Capital Investments, LLC v. The Enclave at Inlet Beach
Owners Association, Inc.
236 So. 3d 1140 (Fla. 1st DCA 2018) ...................................................................7
Paddock v. Chacko
553 So. 2d 168 (Fla. 1989).....................................................................................8
Reaves v. State
485 So. 2d 829 (Fla. 1986).....................................................................................5
Taylor v. State,
401 So. 2d 812 (Fla. 5th DCA 1981) ..................................................................10
Rules
Fla. R. App. P. 9.120 ................................................................................................10
Other Authorities
Philip J. Padovano, Florida Appellate Practice § 3:10 (2d ed. 2015) ........................8

iii
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 STATEMENT OF CASE AND FACTS
This is a response to the jurisdictional brief submitted by the Petitioners,

Masood Jallali and Fallon Rahima Jallali (“Petitioners”) in support of their petition

for discretionary review of an opinion of the Fourth District Court of Appeal.

On May 20, 2020, the Fourth District Court of Appeal rendered its opinion

in the appeal Massood Jallali, et al. v. Christiana Trust, a Division of Wilmington

Savings Fund Society, FSB, as Trustee for Normandy Mortgage Loan Trust, Series

2013-15. The Fourth District Court of Appeal described the facts of the case as

follows:

Dr. Massood Jallali (“Dr. Jallali”) and his daughter,

Fallon Rahima Jallali (“Ms. Jallali”), appeal a final
judgment granting summary judgment in a wrongful
foreclosure and malicious prosecution action they filed
against Christiana Trust (“the Trust”), the foreclosure
plaintiff in the underlying action. As set forth below, we
affirm on all issues.

In February 2006, the Jallalis purchased a residential

property with funds from a mortgage loan. One month
later, Dr. Jallali deeded his interest in the subject property
to Ms. Jallali and she became the sole titleholder. Not
long after, Ms. Jallali refinanced the mortgage loan that
she and Dr. Jallali used to purchase the property. After
receiving the new mortgage when she refinanced, Ms.
Jallali only made two monthly payments before she
defaulted. In May 2007, Countrywide Home Loans, Inc.
(“Countrywide”) initiated a foreclosure action against
Ms. Jallali based upon a payment default under the loan.
Dr. Jallali was not a party to this foreclosure action
because he previously deeded his interest in the property
to Ms. Jallali. But after Countrywide started the

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 foreclosure action, Dr. Jallali was granted the right to
intervene claiming that he had a $160,000 interest in the
property.

In January 2013, Ms. Jallali filed for Chapter 13

bankruptcy, admitting in her petition that she owed debts
to Countrywide related to the note and mortgage. After
converting her Chapter 13 bankruptcy into a Chapter 7
bankruptcy, Ms. Jallali was granted a discharge of her
debts. In August 2013, Ms. Jallali deeded the property
back to Dr. Jallali, who was named as one of his
daughter’s creditors.

The Trust acquired the right to enforce the Jallali note

and mortgage in November 2013. Countrywide
represented to the Trust through business records that it
had acquired the right to enforce the loan prior to when it
filed its 2007 foreclosure action. The following month,
the Trust was substituted as the party plaintiff in the case.
That case proceeded through the courts at trial and on
appeal. Ultimately, this court reversed the Final
Judgment of Foreclosure entered in favor of the Trust,
finding that the proof offered at trial was insufficient to
prove that Countrywide, and thus the Trust by virtue of
substitution, had standing at the inception of the 2007
foreclosure action. See Jallali v. Christiana Trust, 184
So. 3d 559 (Fla. 4th DCA 2016). Thereafter, this court
issued a substituted opinion solely to clarify instructions
to the trial court on remand. See Jallali v. Christiana
Trust, 200 So. 3d 149 (Fla. 4th DCA 2016). After the
substituted opinion issued, the trial court entered a Final
Judgment in favor of the defendants. In this matter, Dr.
Jallali remains the only titleholder of the property.

After we reversed the Final Judgment of Foreclosure, the

Jallalis went on the offense. They then sued the Trust for
wrongful foreclosure and malicious prosecution for
bringing the 2007 foreclosure action as well as defending
the subsequent appeal. They also sued the Trust’s
appellate lawyers for wrongful foreclosure and malicious

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 prosecution in a separate case that was consolidated by
the trial court with the lawsuit against the Trust solely for
the purposes of discovery.

Both the Trust and the law firm defendants moved for
summary judgment after discovery concluded. The trial
court granted both of those motions for summary
judgment and entered two separate orders detailing the
rulings. Subsequently, the trial court entered its Final
Judgment in favor of the Trust which serves as the basis
for this appeal.

The Fourth District Court of Appeal affirmed the trial court’s entry of

summary judgment in favor of the Respondent, Christiana Trust, a Division of

Wilmington Savings Fund Society, FSB, as Trustee for Normandy Mortgage Loan

Trust, Series 2013-15 (“Respondent”) for a litany of reasons, only a few of which

are discussed by the Petitioners in their Petition.

Following an unsuccessful motion for rehearing and motion for rehearing en

banc, the Petitioner’s gave notice of their intent to seek discretionary review by his

Court based upon a supposed express and direct conflict.

SUMMARY OF ARGUMENT
The Petitioners have failed to demonstrate that the Fourth District Court of

Appeal’s decision “expressly and directly” conflicts with a decision of another

District Court of Appeal or of this Court on the same question of law. Instead, the

Petitioners merely assert that the decision below was incorrectly decided. This is

legally and factually wrong, but also not enough to justify discretionary review by

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this Court in the absence of the direct and express conflict identified in the

Petitioners’ notice of intent to invoke this Court’s jurisdiction.

As further evidence of the absence of a direct and express conflict, the

Petitioners repeatedly resort to directing the Court to the appellate record and facts

outside the Fourth District Court of Appeal’s opinion. Any direct and express

conflict would be apparent on the face of the opinion and require no such citation

to matters outside the four-corners of the decision.

Indeed, at no point in their brief do the Petitioners actually identify the direct

and express conflict they contend requires this Court’s review. Instead, the

Petitioners seek a wholesale review of all aspects of the decision. Such arguments

erroneously treat this Court as if were merely a third tier of appellate review for

any error below, and not a court whose discretionary jurisdiction is constitutionally

limited.

Finally, the Petitioners notice of intent to invoke this Court’s jurisdiction

only specified conflict as a basis for jurisdiction. Thus, the Petitioners waived any

arguments that seek review for reasons other than the existence of an express and

direct conflict. Notwithstanding the waiver, the case is also not appropriately

characterized as a matter of great public importance under the applicable standards.

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 ARGUMENT
The Petitioners have not identified any aspect of the opinion of the Fourth

District Court of Appeal in this case that directly and expressly conflicts with a

decision of this Court or the District Courts of Appeal. In keeping with the high

standard for discretionary Florida Supreme Court review, the existence of express

and direct conflict “must appear within the four corners of the majority decision”

and the Court should not resort to other sources to make apparent the supposed

conflict. Reaves v. State, 485 So. 2d 829, 830 (Fla. 1986).

A. There is No Direct and Express Conflict Plain on the Face of the

Opinion Rendered by the Fourth District Court of Appeal as to
the Petitioner’s Claims for Wrongful Foreclosure.
The Fourth District Court of Appeal’s holding that the Petitioner’s claim for

wrongful foreclosure failed because a certificate of title did not issue in the

underlying action is entirely consistent with the decisions of both this Court and

other District Courts of Appeal. The Petitioner’s brief does not cite to any

decisions by either this Court, or Florida’s District Courts of Appeal that permit a

wrongful foreclosure claim to proceed where the foreclosure action was terminated

short of the issuance of a certificate of title. Instead, the only decision to pass upon

the issue, Bank of N.Y. Mellon v. Reyes, 126 So. 3d 304, at 309 n. 4 (Fla. 3d DCA

2013) specifically holds that a sale must occur for a claim for wrongful foreclosure

to ripen. The finer point of when a sale actually occurs in a foreclosure action is a

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question this Court answered in Bank of N.Y. Mellon v. Glenville, 252 So. 3d 1120,

1125 (Fla. 2018) and fixed at “the actual transfer of ownership that takes place

upon the issuance of the certificate of title”. Thus, this aspect of the Fourth District

Court of Appeal’s opinion is entirely consistent with the decisions of this Court

and the District Courts of Appeal.

In its opinion, the Fourth District Court of Appeal also held the Petitioners

could not prevail in their claim of wrongful foreclosure because there was no

genuine issue of material fact as to the existence of a payment default. The Fourth

District Court of Appeal cited to out-of-state cases for this legal proposition. The

Petitioners have cited to no decisions by Florida’s District Courts of Appeals or

this Court permitting a wrongful foreclosure action to proceed where it is an

accepted fact that there has been a long standing payment default under the

mortgage. As such, even if the Petitioners believe the law should be different,

there is simply not the direct and express conflict with Florida decisions that would

merit review by this Court of the opinion of the Fourth District Court of Appeal on

these issues.

B. There is No Direct and Express Conflict Plain on the Face of the

Opinion Rendered by the Fourth District Court of Appeal as to
the Petitioner’s Claims for Malicious Prosecution.
The Petitioners’ argument with regards to the Respondents supposed lack of

probable cause to proceed relies exclusively on conclusory statements that are at

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odds with the facts set forth in the opinion of the Fourth District Court of Appeal.

The only case cited by the Appellants is Inlet Beach Capital Investments, LLC v.

The Enclave at Inlet Beach Owners Association, Inc., 236 So. 3d 1140 (Fla. 1st

DCA 2018), but that case is factually distinguishable, and therefore not in direct

and express conflict with the ruling of the Fourth District Court of Appeal. In Inlet

the evidence showed that the foreclosing plaintiff knew it had no cause of action

for foreclosure. Here, as the opinion of the Fourth District Court of Appeal plainly

states, the loan was in default, Respondent was provided documentary evidence

that tended to prove standing, and there was never an adjudication on the merits

regarding an absence of standing. Instead, the only evidence presented was a

reversal on appeal predicated on a technical failure of proof which did not create a

genuine issue of material fact in light of the evidence of standing presented by

Respondent. Since there was no genuine issue of material fact as to Respondent’s

probable cause to proceed, probable cause was an element of malicious

prosecution that can be resolved on summary judgment. See Gause v. First Bank of

Marianna, 457 So. 2d 582, 584 (Fla. 1st DCA 1984). Therefore, the opinion of the

Fourth District Court of Appeal in this matter is not in direct and express conflict

with any decision of this Court or the District Courts of Appeal.

Furthermore, the Petitioners’ brief makes extensive use of allegations and

recitations of facts that are outside the four corners of the opinion authored by the

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Fourth District Court of Appeal. Any conflict with the decisions of this Court or

the District Courts of Appeal that can only be made apparent by reference to the

record on appeal or other facts is not direct and express. See Paddock v. Chacko,

553 So. 2d 168, 168-69 (Fla. 1989) (McDonald, J., concurring) (“[I]t is neither

appropriate nor proper for us to review a record to find conflict . . .; the opinion

itself must directly and expressly, on its face, conflict with another opinion.”);

accord Philip J. Padovano, Florida Appellate Practice § 3:10, at 72 (2d ed. 2015)

("A decision of a district court of appeal is no longer reviewable on the ground that

an examination of the record would show that it is in conflict with another

appellate decision; it is only reviewable if the conflict can be demonstrated from

the district court of appeal's opinion.")

Finally, Petitioners argue that the issue of malice and good faith must be

reserved for the jury but their own case law supports the ruling of the Fourth

District Court of Appeal in this case. It must be noted that the words “good faith”

do not appear in the opinion of the Fourth District Court of Appeal so there is

plainly no express and direct conflict on the issue of good faith because the Fourth

District Court of Appeal plainly did not speak to the issue, and instead disposed of

the case on other grounds. There can be no express and direct conflict on an issue

that the Fourth District Court of Appeal does not directly and expressly address

because it decides an appeal on other case dispositive issues.

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 With regards to malice, the Petitioners’ own case law makes clear that,

“[m]alice becomes a jury question once a lack of probable cause is found.” Gause

v. First Bank of Marianna, 457 So. 2d 582, 584 (Fla. 1st DCA 1984) (emphasis

added); see also Azrikan v. O’Brien, 173 So. 2d 711, 713 (Fla. 3d DCA 1965)

(“The determination of the existence or lack of malice is within the province of the

jury after lack of probable cause has been established.”). As set forth above, the

Fourth District Court of Appeal found that the undisputed facts in this case,

including the existence of a payment default and the documentary evidence of

standing, established that there was probable cause to proceed with the foreclosure

action notwithstanding the purely technical failure of proof at trial. As such, there

was no reason to send the issue of malice or good faith to the jury, and nothing in

the opinion of the Fourth District Court of Appeal is in direct and express conflict

with any of the decisions cited by Petitioners that provide that once lack of

probable cause is established (something they failed to establish) the issue of good

faith and malice would become one for the jury.

C. The Court Should Not Exercise Discretionary Review Based on

Assertions by the Petitioner Regarding the Supposed Importance
of the Case.
The Petitioners’ jurisdictional brief asserts that this Court should exercise

discretionary review because the issues presented below are of "exceptional

importance" but the Petitioners waived any right to assert that the alleged

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importance of the case is grounds for review. This basis for review was not

included in the Petitioners’ notice of intent to invoke this Court's discretionary

jurisdiction, and as such was waived. See Fla. R. App. P. 9.120(c) (requiring the

notice contain "the basis for invoking the jurisdiction of the court.") Furthermore,

it is clear that this case falls short of the high standard for cases of great public

importance. This case addresses discrete issues with the Petitioner’s specific case

and cause of action. It lacks any of the hallmarks of a case of great public

importance. For example, this is not a case with far reaching consequences for

other litigants or an issue that requires the Court to revisit and possibly reconsider

its old case law. See e.g. Taylor v. State, 401 So. 2d 812, 816 (Fla. 5th DCA 1981)

(accepting jurisdiction to revisit old Florida Supreme Court case law with far

reaching implications). Thus, discretionary review should not be granted on the

grounds that the case is of great importance because it lacks the typical indicia of

such cases.

CONCLUSION
The Petitioner has failed to show an express and direct conflict between the

ruling of the Fourth District and any ruling of this Court or the District Courts of

Appeal. The Petitioner also waived, and failed to show, that discretionary review

should be exercised based on the supposed importance of the case. This Court

should therefore decline to exercise jurisdiction over this case.

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 CERTIFICATE OF SERVICE

I FURTHER CERTIFY that on August 31, 2020, I electronically filed the

foregoing with the Clerk of Court by using the Florida Eportal, which will send an

electronic service copy to:

Eugene Steele, Esq.

STEELE LAW
P.O. Box 30212
Fort Lauderdale, FL 33303
Email: apiggg@yahoo.com
Counsel for Massood Jallali and Fallon Rahima Jallali

/s/ Nicholas S. Agnello

Nicholas S. Agnello, Esq. (FL Bar No. 90844)
BURR & FORMAN LLP

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 CERTIFICATE OF COMPLIANCE

I HEREBY CERTIFY the Respondent's Jurisdictional Brief has been

prepared in Times New Roman 14-point font, in compliance with Fla. R. App. P.

9.210(a)(2).

/s/ Nicholas S. Agnello

Nicholas S. Agnello, Esq. (FBN 90844)
BURR & FORMAN LLP

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