Mentz v. Nosbisch

336 So.3d 775 (Mem)

John MENTZ, Appellant,

v.Douglas NOSBISCH, Jr., and Debora Holland as co-trustees of the Douglas Nosbisch Revocable Trust, Appellees.

Case No. 5D21-1539

District Court of Appeal of Florida, Fifth District.

Opinion filed February 11, 2022

Cody L. Frank, of Frank Law Firm, P.A., Fort Lauderdale, for Appellant.

Harlan G. Paul, of Paul, Elkind, Branz & Paul, LLP, DeLand, for Appellees.

PER CURIAM.

John Mentz appeals the final judgment entered in favor of Douglas Nosbisch, Jr., and Debora Holland, as co-trustees of the Douglas Nosbisch Revocable Trust, due to his default on an unrecorded promissory note. Because no trial transcript was provided, we are compelled to affirm. See Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150, 1152 (Fla. 1979).

AFFIRMED.

EVANDER and TRAVER, JJ., concur.

COHEN, J., concurs specially, with opinion.

COHEN, J., concurring specially.

I agree that the lack of a transcript is fatal to Mentz's appeal. Without it or a proper substitute, he is unable to overcome the presumption of correctness afforded to the trial court's judgment and meet his burden of establishing harmful error. I write only to address Mentz's argument that the note was unenforceable because Appellees allegedly failed to prove payment of documentary stamp taxes.¹ Because this is a question likely to reoccur, it is appropriate to address this Court's opinion in Somma v. Metra Electronics Corp., 727 So. 2d 302 (Fla. 5th DCA 1999).

In Somma, we held that "promissory notes for which documentary taxes have not been paid are, as a matter of law, unenforceable by any Florida court." Id. at 305. However, Somma interpreted the 1997 version of section 201.08(1), Florida Statutes. Id. at 303–05. Subsequent to that decision, the Florida Legislature amended subsection (1) of the statute. See ch. 2002–218, § 9, Laws of Fla. (2002). I agree with our sister court's analysis, in Glenn Wright Homes (Delray) LLC v. Lowy, 18 So. 3d 693 (Fla. 4th DCA 2009), that the current version of section 201.08(1) contains no provision requiring payment of documentary stamp taxes on an unrecorded promissory note before the note can be enforced. Accordingly, I would find that the condition precedent to enforcing a promissory note, as reflected in Somma, no longer applies.

1 Based upon the lack of a transcript, I make no assumptions about what evidence, if any, was presented on this issue.