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may please the court Michael Park on behalf of the appellant and I would like to reserve four minutes for rebuttal I will be referring to the appellee as the plaintiff below it's just easier for me to remember that way and the appellant says the defendants brief history of the case this is a case where there was a mortgage on a property owned by tarpon lakeside which was collateralized by a 98 room hotel and later added to that as security interests were for condo units there was a foreclosure and the plaintiff obtained a partial summary judgment on the amount owed by the borrower's then in April 2014 after the foreclosure partial summary judgment the bank filed a motion for summary deficiency judgment against all the guarantors which is why you have all the other people listed unfortunately right about that time period the attorney for the defendants passed away in a tragic accident and new counsel was obtained about 60 days later right about the time that the hearing was set to take place the hearing was continued for 30 days effectively and then took place thereafter in June the issue in this case revolves around whether or not there was a question or a matter of fact as it relates to the affidavits in the summary judgment and really this court needs to decide whether or not the affidavit as presented by the defendants which caged the value the fair market value of these properties as a value of X or no more no less than X whether or not that creates an issue of fact because what happened at the summary judgment motion was the plaintiffs abandoned their affidavits and basically said we're going to sign on to the defendants affidavits at the low number of that range our position at the time obviously this was a bit of a surprise move but our position the time the defendants position at the time was that we are not espousing a single number in the last 30 days we hired an expert he did a preliminary evaluation of the property and basically said based on the the approach he used that the property had a minimum value of this but it could be a lot higher and he was going to do additional work such that he would be prepared for trial that's correct putting the purpose of this affidavit was created was to create a fact appraisal correct I mean it was to demonstrate not to create but to demonstrate there was a dispute banks appraisal that's correct yes there in the summary judgment hearing there were references to that and one of the things that the plaintiff brought up was the fact that the Bankruptcy Court had espoused a specific value to it but it was it wasn't utilized in the summary judgment motion because effectively the plaintiffs adopted the much higher as they said much higher value that the defendants placed on it in their affidavits I believe that's correct but as to that valuation in the bankruptcy context there's no dispute well the problem is that was the number yeah and there was a problem because there are a lot of defendants who are guarantor who were not owners of the property obviously and there was an issue as to whether or not collateral estoppel applied in to whom because there weren't the same parties on each side of the bankruptcy so but effectively that's really somewhat of a red herring because what we're here today about was in the number of the judge correct correct and really if this boils down to whether or not this court deems that the number of a value not less than X amount of dollars for these properties creates a issue of fact or whether or not somebody can just come in and say well even though that's a range what you want you to do judge is you want you to torture the construction of that affidavit and say it's not really arranged it's the minimum number and we're going to agree to that minimum number and as if that was somehow the only number that was there now he did would he use comp sales or was an care member what method he he used the cop sale approach memory serves in a manner to do an income base correct because they were part of one of the properties had a business on I believe it was a restaurant that was an ongoing concern I wouldn't say he was going to do one he said I reserve the right to doing an income approach would lead to a different number the affidavit did not however the argument of counsel at the time if you read look at the transcript basically said listen the reason why we had this cage the way it is cage as a value not less than X amount of dollars is because we just got in the case the expert just got in the case he came up with his value because it was a quick way to do it but that the income approach or a different approach that he reserved the right to do will likely here yield a higher value based on comparable sales implies approach will increase yes I think implicit in the affidavit is that the likely number of later on will be higher and I believe the the trial court if you look at the comments that the trial court made during the proceedings got a little fuzzy on the summary judgment issue because the judge made comments like well what we're here today is to resolve a disputed issue we're going to resolve that with the affidavits well obviously you don't resolve a dispute issue at summary judgment with competing out the dailies basically say if there's no issue of fact then you can resolve it in the only issue Court was clearly and obviously concerned with a pattern of dilatory practice that's what a case it established that there had been delay after delay after delay the court was trying to make sense out of what it had before it and it had a half a day but it really didn't arguably it either addressed you know a value or addressed no value and I guess if your position is that it didn't address a value then the affidavit could have been rejected by the court totally cuz having being probative of nothing well that's a very interesting point and let's let's go down that line of thinking for a moment if you take that approach then the plaintiffs abandoned their affidavits because if they didn't abandon their affidavits then there would be an issue of fact because they'd have dueling allocated to what they view there's an inflated number and an effort to get this matter resolved once and for all this it's fine we'll take that we think it's high but we'll take it Creek you know and the disturbing as you read these briefs need to read the records this case what's disturbing is that this is a dilatory pattern on behalf of the borrower and this was just another effort at delay it appears and you can tell the trial court was frustrated by that it was like you know can't we get this resolved once and for all and that was the effort here so and it appeared that that the lender was trying to do the same thing so to say we'll take your affidavit you know we think it's high but you know what the heck let's get this over with well it's still not over with well let me let me address that the dilatory nature of this first of all yes the case has been going on a long time but that's not all that uncommon foreclosures and different sales and things that have to happen I think the critical issue is to see when was the motion for summary judgment filed for deficiency summary judgment that was filed in April it was set for hearing 60 days later less than 60 days later and the thing that happened in the intervening time period was counsel for the defendants passed away and the gentleman whose mr. Crouse lives in st. Louis I believe so he had from out of state obtained new counsel to defend the summary judgment motion which had just been filed it wasn't as if this motion had been sitting around for 12 months and we had had multiple continuances and it was only continued for about 30 days so with respect to the dilatory nature of what was going on the jury was in a long delay from the standpoint of when the motion for deficiency final judgment was filed and when it was heard and one of the things getting back to the issue of the affidavit first of all the affidavit if it's deficient then it forms no basis for the court to enter an order whatsoever and the plaintiff effectively had already abandoned their affidavits in favor of that and it adopted it and regardless of whether the fish or not that issue is now moot because they adopted it they never objected to it so that's not before the court they waived any objection to that so the issue before the court is really whether or not the affidavit which says a value no less than X amount of dollars creates an issue of fact and it's effectively you can come in and say if there's a range of values I can pick the lower part of the range and agree to that and there's no longer an issue of fact I think that that does violence to the construction of the affidavit does violence of the whole purpose of summary judgment was no range there was only a one number so 2sat least that well it's it's it's a rate of the range of numbers it's a range from or accurate the summary judgment standard or giving the burden on behalf of movement it's whether an affidavit that says the value is no less than conclusively conclusively establishes the value absolutely that's a that's probably a better way of phrasing it and if you have effectively an unbounded range which is it's no less than a million dollars it could be a lot more than that then how can that affidavit which they agreed to using that affidavit how can you agree to an unbounded range and say there's no issue of fact in the sales and accountable sales analysis was there anything any affidavit that suggested that the appraiser was impeded in doing his analysis I think the affidavit was pretty straightforward it basically said I did it I used the the right protocol I use this analysis and my opinion is that the the fair market value as of the date of the foreclosure which is required was a value no less than X money did he didn't fudge it to say it's no less than X because of some externalities that prevented me from doing an appropriate appraisal I don't believe that that was part of the affidavit another thing to consider is that the law basically says an affidavit on the defense for the defense or the part of the non-moving party who's coming in to defend a summary judgment motion the affidavit doesn't have to be full and complete it only has to basically demonstrate that there's an issue of fact that's a Hall case all versus Talca from the Supreme Court 1966 191 7 second 40 and basically the Supreme Court said was the evidentiary matter and I quote the every matter offered must be both relevant and competent as to the issues in the case but it need not be in the exact form or cover all the preliminaries predicates and details which would be required of a witness particularly an expert witness if you're on the stand so it's not as if you have to come in with a final opinion that you're not going to do any more work on really a summary judgment is there's no issues of fact whatsoever and I think that the affidavits filed by both mr. Krause and mr. Carosi Oh who's the expert create an issue of fact based upon the plain language the affidavit to rule otherwise you'd effectively have to rewrite the affidavit you'd have to strip out the terms which were specifically put in there for the purpose of saying this could be more and you're going to have to basically say this is the final opinion you can't modify it any more and and restructure the affidavit which is inappropriate in a summary judgment motion I have no idea what he'd be happy with arguing your honor all I know is that the facts that I have in front of me which are they agreed to this affidavit and they agreed to the terms they didn't modify it they said that we stipulate to their numbers we stipulate to their affidavit and part of that affidavit was a number of no value let no value less than this particular number so they can't basically agree to a document and then restructure the terms of it afterwards he either agreed to it or you don't and this is a summary judgment motion this isn't saying that they're not going to prevail on the issues later on it basically just allows my client to get to a trial on the merits of the fair market value he may lose he may get less than what you know they were potentially agreeing to now but for purpose of the summary judgment what this court is required to look at is whether or not there's a disputed issue of fact and on the face of the affidavit there is a disputed issue of fact and for that reason this is not an appropriate of summary judgment to also you know look at some other things which make this a little less clear some of the things that the judge did in the ruling he said we're gonna base this on mr. klore Zio's values then later on the order is based on both a mixture of Krause's and cola ratios it benefited my client because mr. trousers were potentially higher but still there's an inconsistency there and this record is replete with inconsistent statements by the court he basically said I'm going to resolve issues I'm going to you know this has gone on long enough this is judgement day is what he said well summary judgment isn't judgement day it's not a trial it is a question of whether or not there's any disputed issues and to say basically I'm frustrated with how long this has taken that's an inappropriate methodology to use when you look at a summary judgment motion if so I mean go you know go have a trial on the issues if it's ready to go it's ready to go but it's still not appropriate for summary judgment for that reason I don't know where my time is your honor you have about five and a half minutes okay for that reason we would request the court reverse the summary judgment and allow this to proceed forward to a trial and the issue of fair market value thank you may it please the court Joe Lange from Carlton fields Jordan Burt for PNC Bank at counsel table with me is Dana blunt and also on the briefs with me PNC made a practical decision when they came to this hearing Tolu to leave two million dollars of potential deficiency judgment on the table to bring an end to a proceeding that had already lasted 40 months from the filing of the foreclosure complaint until July 1st it as judge Morris pointed out it'd been a long process and and they don't dispute that it had been a long process PNC had numbers that would have led to a 3.8 million dollar deficiency judgment has they've been accepted at trial there was obviously a dispute of fact between the two affidavits but then PNC left their affidavits to the side they acquiesced in the plaintiffs affidavits which had the effect of leaving two million dollars on the table and led to a deficiency judgment of 1.7 million everybody agreed Krauss's counsel agreed that a deficiency was going to be entered no matter what it was the amount that was at issue was just a valuation dispute from anybody's point of view there was going to be a deficiency here on anybody's numbers and if the transcript pages 9 and 24 Krauss's council admitted that so PNC comes and they leave as I say about two million dollars on the table and agree to those numbers there's nothing wrong with that procedurally it was not an unfair move because they accepted the evidence that was on the record they accepted the other side evidence now I think it is conclusive it's the only actual number that is on the face of the affidavit he says all the affidavits say not less than but anybody can take an actual number if I was going to make an affidavit that says my watch is worth $100 it would be accurate to say my watch is worth not less than $100 and that comes to the key of this whole case if this tactic works to avoid summary judgment without saying anything more than it's not less than a number specific then we're going to just give up on any summary judgments in deficiency actions everything can survive summary judgment just by a little bit of semantic game and ship you can something that's worth $100 will become worth not less than $100 and if that's enough to make it worth one cent more possibly conceivably then you just can't have a summary judgment in this situation because there is zero evidence of any number more than the number on the face your your your appraiser would have said it's not that your appraiser would have said where the watch is worth no more than 100 because he actually believes it's worth less we we gave actual numbers you gave an actual note did your number say not less than no that's the terminology they use to avoid no I mean once we abandon our affidavits once we abandon our affidavit then the only affidavit in the record was said not less than right right and that's what I'm pouring on obviously our affidavit has much different numbers but we have put those to the side Weaver they didn't say which numbers the appraiser that you you're aphid a right we had higher number right did it say it is worth not less than whatever this number was no and so when we come in and we say we will take these numbers which are the numbers on the face of the affidavit which we think are grossly inflated over our numbers just to put an end to the litigation there is no by using the terminology not less than that doesn't create an issue of fact because there's zero evidence that it's any more than that and I mean you have the burden to prove that there's conclusively prove well that there's an absence of any genuine issue of fact but there's and they've said that their their appraiser did a comparative you know comparative sale right correct and so the work generally would seem to be incomplete and you know but for purposes of establishing that there was an issue of fact about the value let me respond a number of ways to that because there are a few points that need to be made first you know we have for condominiums at issue and one hotel the reservation of jurisdiction to do an income approach applies only to the hotel there is no reservation to do anything else as to the condominium units where we accepted mr. Kraus as numbers which were higher even than his expert appraisers numbers so there's no reservation to do anything else as to the four condominiums we took the highest number that was stated on either of the affidavits we took mr. Kraus his number which is the higher of his two numbers even his appraiser was lower and there is no reservation all that those affidavits say is not less than but nobody says they're doing any further work on the condominiums now as to the hotel he does say the expert mr. klore is eyo says I reserve jurisdiction I didn't have well well you don't say he does say this is that the value is not less than this and then I reserve whatever he reserves the right I think he said the right to do us income approach prior to trial he doesn't say he's going to do an income approach and very importantly in the the affidavit once you adopt it it is your burden to conclusively establish the value of the property and and you know so now you're you're in position of advocating this document and it does not establish the value of the property but on its face I would say it does it has one number on it and it has no there's no evidence of any bigger number once we you have to there is no evidence that is not speculative that there will be a bigger number because he doesn't say he's going to do an income approach he doesn't say that if he does an income approach it will be bigger and to that point in the reply brief and just dialogue it at the hearing I think what they picked up in the reply brief is argument of counsel where counsel says he thinks it would likely be higher but the it's very important to note the expert never said that the affidavit doesn't say that that's what I thought I'm after I thought I understood and that's what I thought you said right the affidavit does is just merely rhetoric that's come out of the briefs correct there's no foundation correct and it was argument at the hearing below that they believe that if the expert had done the income approach that it would have been on but we don't know and the expert didn't say that the expert didn't say I'm going to do it and the expert didn't say if I did it it would be higher he says not less than right right but he doesn't say he's going to he doesn't say it would be higher one could draw an inference perhaps I don't believe so and in fact if there's an inference to be drawn I would point the court to Brian Fornells affidavit that's our expert in the record and we're not doing fact-finding here but he did both approaches on the hotel and his income approach came out lower but I don't think there's an inference to be drawn either way I think there's only one number and it's not less than and I think B and C has the right to come in and accept the only numbers that are there that day to put an end to a lengthy litigation I don't think it's a settlement I think it's a practical way to finally bring it into a lengthy litigation where you know they're going to leave two million dollars of a deficiency potential deficiency judgment on the table but you know it had been 40 months then by this time as I stand here today were closer to 50 months and on the deficiency no it was April of 2014 where the deficiency motion was filed and there's been no subsequent motions filed a summary judgment an attempt to bring some higher number or any of that no after after this final judgment I after this ruling at the hearing I would have thought that you might see a rehearing motion you know with a supplemental affidavit saying let me be clear let me be clear no such supplemental affidavit nothing on rehearing like that here we are an appeal based solely on what was in the record of that hearing I think that there may be a continuum of these different types of ways to word affidavits but frankly I think the not less than wording is the cleanest case I mean you can imagine some other affidavits where somebody might say $100 or more or $100 or it's likely to be more when I get around to doing more work we don't have any of those even closer to the line cases all this says it's not less than is it and as I say that's the same as saying $100 unless you go on and make some opinion that some basis in fact as to why it would ever be more than that if he had said it's not less than it's not less than this number and I think with more work it would be more that would be a different case but all they say is not less than you know their number and they don't give any reason why it would ever be more than that and I don't think it's a fair inference that it will be more than that and you know I've cited these cases in the brief but you know you have this cessna case you have the continental casualty case they all go to you know the insufficiency of speculative affidavits or affidavits that just put assertions in affidavit form that aren't real evidence and you know here we have just you know an open-ended argument of that not less than creates a range i heard that a couple times that that creates a range well that's not a range that's just a semantic turner phrase if you don't give something to support the fact that it could be more than that number yeah but see here's the problem you know they when they file the affidavit and I submit that have you not adopted that affidavit that affidavit between that affidavit in your affidavit there would have been an issue of fact precluded summary that there's a fact dispute and by having an expert just say the value is not less than this number which is different from your number there's the fact that and that's all that affidavit did and so then when you adopted it that's all you got it does not conclusively establish the value of the property never never on its face was never intended to buy that qualification and your burden as the movement was to establish the value of the property if you had filed that affidavit I submit that you would not have carried your burden initial on motion for summary judgment that's where the problem and you know if you're wanting to disregard that language for you know just by saying well this case has lasted a long time well I think mr. Park is right that's not that's not in the summary judgment rule no we are not making just an efficiency argument although this clearly goes to judicial efficiency well as well but I think we have jumped through the hoops because I don't believe there's any genuine issue of material fact once we put our affidavits to the side and there are values on the face of these affidavits these are not affidavits that say that we will come up with a value once we do some work and in fact mr. park admitted at the hearing that he couldn't file an affidavit that just said that that I can't file an affidavit that just says there is a fair market value that we'll come up with he had to come forward with a value at the hearing and he did that he filed an affidavit with the value and then we come in and we say we will accept that value we think it's grossly inflated but we want to put an end to this and I think that if all you need to do to survive summary judgment and a deficiency action is file an affidavit that says that the value is not less than then I think the courts are going to be flooded with you know trials of deficiency actions that really don't have any well no because in that case if it said a number or not less than there would have been a fat dispute visa vie your affidavit you know you're talking about the difference between an affidavit submitted by the party who does not have the burden the affidavit for the first purpose was sufficient and I submit that for the second purpose was not that's the problem here right but it would have created a fact issue that would have precluded summary judgment you say the value is X he says the value is not less than X plus there's a fact issue and we agreed with that right so now you drop your right and you say the value is the value and we think you should be able to do that because there is no reason to believe that not less than means even one cent more you have to prove it conclusively it's you don't get the advantage of the of an inference that it couldn't be more he would have said there's no evidence there's nothing to believe have to do I don't even see that there's an inference there Your Honor with all due respect he says I have done a comparative sales the value is not less than this but I have not done an income approach and I reserve you know the ability to do that I think the inference is that is going to be more or it could be more and your burden is not if you say it could be more you have it satisfied your burden is moving for summary judgment especially given that the Moores to the benefit of the other side let me emphasize it I I understand your point I don't agree with it but I do want to but we disagree we don't but I do want to emphasize that if that is the analysis that only applies to the hotel because that reservation of the right to do anything else is not as to the condos the for condos the only language was not less than with zero indication that anything else was going to take place and so it's only with the hotel that he was talked about reserving his right to do some income approach but in all events I think I've made our position clear I not sure I can say anything more about it I would ask for an affirmance across the board but I would also point out that there is a distinction between the four condos and the hotel and then finally I want to point out that the only issue that's been raised on the appeal is the valuation issue there were some affirmative defenses below that were subject to the final judgment that haven't been raised here and I want to make sure that they don't get open anyway Thank You mr. Lee you did well under fire I'd like to address just a couple of these issues first of all I think the the the suggestion that overturning this and allowing an affidavit by the the non-moving party to say a number not less than will create this flood of cases I think is incorrect because what we have here is a really unique situation where one side has an affidavit at such a number they're moving for summary judgment saying there's no issues of fact then you have the non-movement come in and say well this is the issue it's not less than this number they abandoned they're not at that point there's a fact issue and you go to trial a little maybe another submerged exactly and you're not going to have a lot of these issues or these situations I don't think we're the knot or the moving party is going to abandon their side and just adopt the other side's affidavit and it's interesting and it's a bit ironic that in one hand they're relying upon this affidavit in order to get a summary judgment but on the other hand they're attacking the validity of it because they're saying well it's it's it has speculative language it's too speculative in all the cases they've cited with regardless speculation all relate to the affidavit the sufficiency of it so they're attacking the sufficiency of the document they're attempting to have you in force to get a summary judgment and that's really circular reasoning other thing is if they didn't like this affidavit or they think that the language contained the affidavit wasn't sufficient or it's speculative they should have tacked the affidavit at the trial court level and said no judge the only evidence you have in front of you that's confident substantial evidence is our affidavit this one's too speculative and you can't use it but that's not what they elected to do they chose to use this this affidavit and they now have to live with it judge Northcott I think your point was right on what very well taken right on point which was you have different standards for these affidavits the case law says it you have a different standard for conclusively proving no issues of fact in one affidavit whereas the defense or the non-moving party does not have that same burden and now they're effectively adopting the language of the non-moving party's affidavit which may be sufficient to survive a summary judgment motion but insufficient to conclusively prove a specific value and for all five properties the language in the affidavit says a value not less than X so I would disagree with the assertion that the only disputed value here is with regard to the hotel if you agree that the hotel has a disputed issue of fact then the rest of them have a disputed issue of fact regardless of the right to reserve or the right to do it income approach all of the values were caged in the terms of not less than this and as I said the 1966 Supreme Court case of I think was hull says that to survive a motion for summary judgment the defending affidavit the non-moving affidavit doesn't have to be conclusive it doesn't have to lay out all your proof it basically just has to create an issue or demonstrate that there's an issue of fact and this affidavit did that as to all five properties so with respect to that I think that there's a big difference between trying to travel on this document or the affidavit for purposes of establishing the right to summary judgment versus defending one they also said you know this is not a settlement or you you were talking about you know was this a settlement they said now summary judgment well in fact they call it a stipulation they said we will stipulate to that number well there wasn't a stipulation because the the point their defendant never agreed to a stipulation to stipulate you gotta have both parties agree there was no agreement here so effectively what they attempted to do was to take the low end of the number of the affidavit because they just didn't want to continue on in the case now it's their right to attempt to get a summary judgment using the affidavits that they they're traveling under but they can't modify the affidavit to suit their own needs and that's effectively what they're asking you to do to affirm that what the trial court did was to modify that affidavit so what we have here is an affidavit which sets a floor and it is arranged it's an unbounded range if I remember Matt my mathematics correctly from middle school it's an unbounded range not less than it could go up to infinity so the number could be any number of things on these values and to survive summary judgment all we had to do is demonstrate there potentially there could be aspect or an inference that there may be an issue of fact of the values maybe something different and judge Northcote you're absolutely correct these don't establish a number they just simply say it could be a number greater than this so if you want to attack the validity or the nature of the affidavit that's fine they can't do that anymore because they adopted it and that's the affidavit the traveling under so we have an affidavit which they're attempting to get summary judgment on which is a range of numbers and doesn't conclusively establish for any of the properties a specific number and for that reason summary judgment was inappropriate and this needs to be reversed or remanded back for continuing trial basically to continue to trial in the fair of market value of the properties thank you mr. prank you thank you all