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Capstead Mortgage Corp. v. Sun America Mortgage Corp.3/8/2001
Presenting two issues, Capstead Mortgage Corporation challenges the trial court's order granting a traditional motion for summary judgment that it take nothing by its action against Sun America Mortgage Corporation based upon alleged defaults by Sun America under a Conventional Mortgage Loan Purchase and Sale Agreement. By its first issue, Capstead contends the trial court erred in granting summary judgment based on the doctrine of election of remedies. By its second issue, Capstead contends that summary judgment should not be affirmed on alternative grounds presented in Sun America's motion for summary judgment. Based upon the rationale expressed herein, we affirm.
Capstead and Sun America executed a mortgage purchase and sale agreement on March 11, 1992. By the agreement, Sun America made 31 express warranties and representations, including (1) the absence of usury, (2) the proceeds of the mortgage loan had been fully disbursed, and (3) the mortgage note and mortgage were genuine and that each was the valid obligation of the maker and enforceable in accordance with its terms. Pursuant to the agreement, Sun America sold several mortgage loans to Capstead, including one loan wherein Kadeem Omari was the mortgagor and maker of the mortgage note in the amount of $231,800. The loan was made on November 2, 1994, and the loan was sold to Capstead before the first payment became due on January 1, 1995. Because Omari failed to pay the first and second installments, by letter of April 18, 1995, Capstead demanded that Sun America repurchase the loan.
Notwithstanding its demand to Sun America to repurchase the loan, because of Omari's default, Capstead also commenced foreclosure proceedings. Before Sun America responded to the demand of Capstead, the foreclosure was held on May 2, 1995. Capstead bid the remaining balance due and owing on the mortgage note, including foreclosure expenses, and the real estate was conveyed to Capstead as high bidder at the mortgage sale. Following the foreclosure, Capstead sold the property for less than the balance owing and then filed suit against Sun America.
As material here, Capstead asserted three causes of action, to-wit: (1) breach of duty to indemnify, (2) breach of duty to repurchase loan, and (3) breach of warranties. By its first amended motion for summary judgment, Sun America presented five grounds for its motion, to-wit: (1) the foreclosure extinguished the loan, (2) the loan was extinguished and Sun America had no obligation to repurchase the loan, (3) the repurchase obligation was discharged because rights to proceed against the maker of the note were impaired, (4) election of remedies, and (5) waiver/estoppel. Before we commence our consideration of Capstead's issues, we must first determine if the trial court's order signed April 12, 1999 is a final judgment for purposes of appeal.
Final Judgment
Initially, Capstead alleged six causes of action against Sun America based on claims arising out of two mortgage loans sold to Capstead. The first amended motion for summary judgment of Sun America addressed Capstead's claims as to both mortgage loans. The clerk's record demonstrates some uncertainty regarding partial dismissals of certain claims that prompted the granting of a new trial, the history of which is noted in the order entitled Final Partial Summary Judgment signed April 12, 1999. Even though the April 12, 1999 order recites that it is a partial summary judgment, because the clerk's record demonstrates that three claims on one mortgage note were non-suited, the order provides the motion for summary judgment was granted as to the remaining three claims arising out of the second mortgage loan. The order also c
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