Probate, trust, guardianship and inheritance litigation
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Notary Who Notarized Forged Deed Caused Damages To Florida Estate

By:  Jeffrey Skatoff, Esq.

In Scheible v. Brown, a February 9, 2022 opinion from the Florida Fourth District Court of Appeal, the appellate court determined that a notary who notarized a forged deed which permitted the property to eventually be sold to third-party purchasers caused damage to a Florida estate.

The Facts Of Scheible v. Brown

Jeffrey Scheible was the personal representative of his sister Joyce’s Florida estate.  Joyce owned a home in Pembroke Pines at the time of her death, which she left to Scheible.  Scheible allowed Joyce’s daughter, Janice, to live there rent free, so long as she paid taxes and utilities. Janice lived there for two years with her boyfriend, Audley Brown.  Scheible transferred the property to Janice via a quit-claim deed.  Janice then died intestate in June 2015, and Scheible became the personal representative of Janice’s estate.

The Deeds

Scheible discovered that Janice’s boyfriend, Brown, had sold the property to third-party purchasers.  Unaware that Brown had ever owned the property, Scheible investigated and found a series of deeds:

  • February 9, 2015 quit-claim deed transferring the property from Janice to Brown. The deed was notarized by appellee Nea Richardson and was recorded on July 8, 2015, a month after Janice’s death.
  • A “corrective deed” recorded on July 28, 2015, which appeared to be the same quit-claim deed as recorded on July 8, 2015, with a lengthier legal description, that was neither re-executed nor re-notarized.
  • October 26, 2015 warranty deed transferring the property from Brown to the third party purchasers.

Scheible, as the personal representative of Janice’s estate, sued multiple parties, including the Florida notary.  Scheible claimed damages against the notary for notarizing the deed in the absence of Janice’s presence or without ascertaining the identity of the individual signing the deed.

The Trial

At trial, Scheible presented a case that the deed was forged, and that Richardson had been negligent in notarizing the deed without properly ascertaining the identity of the person signing it. The original deed and corrective deed were admitted into evidence. A handwriting expert testified that the signature on the deed was not written by Janice.

Richardson testified as to her pattern and practice of notarizing documents. She had no memory of notarizing the document and admitted that she did not record the entire driver’s license number of the signatory, although it was her usual practice to do so. She also admitted to differences between the signature and the name on the driver’s license.

The jury was instructed, deliberated, and awarded the Florida estate $247,000 in damages.

Richardson moved to set aside the verdict and in the alternative for a new trial.  Scheible also moved for a new trial as to damages.

The trial court issued an amended order granting Richardson a new trial on three grounds:

  1. the original deed was a forgery and void; thus, “the actions of Defendant Richardson are of no consequence”;
  2. the original deed had an incomplete legal description which rendered it void; and
  3. the legal description in the deed was corrected without re-executing the corrected deed and without the appropriate formalities; thus it was ineffective to convey an interest in property.

The court also found that “Richardson had nothing to do with the correction of the legal description, the failure to execute the corrected deed with appropriate formalities, or the re-recording of the deed.” The court denied Scheible’s motion for additur, or in the alternative for a new trial on damages only, as moot.  Scheible appealed.

Negligence Under Florida Law

Scheible argues that the evidence proved all the elements of negligence, and the court erred in granting the motion for new trial.

To prove a cause of action for negligence, a plaintiff must prove that the defendant had a legal duty of care to the plaintiff; the defendant breached that duty; the breach proximately caused the plaintiff’s injury; and the plaintiff incurred damages as a result. Bryan v. Galley Maid Marine Prods., Inc., 287 So. 3d 1281, 1285 (Fla. 4th DCA 2020).

Duties Of a Florida Notary

As a notary, Richardson had a statutory duty to have “satisfactory evidence, that the person whose signature is to be notarized is the individual who is described in and who is executing the instrument.” § 117.05(5)(b), Fla. Stat. (2015).

Further, section 117.107(9) provides that “[a] notary public may not notarize a signature on a document if the person whose signature is being notarized is not in the presence of the notary public at the time the signature is notarized.” § 117.107(9), Fla. Stat. (2015).

The breach of that statutory duty creates liability when it is the proximate cause of the damages sustained by the plaintiff. See Ameriseal of N.E. Fla., Inc. v. Leiffer, 673 So. 2d 68 (Fla. 5th DCA 1996).

Notary Was the Proximate Cause Of Damages To the Florida Estate

The Florida Court of Appeals determined that here there was sufficient evidence to show that Richardson breached her statutory duty, and that the trial court incorrectly determined that Richardson could not be the proximate cause of the damages, stating:

In this case, in order for the forged quit claim deed to be recorded, it was required to be notarized. See § 695.03(1), Fla. Stat. (2015). Without the notarization of the original quit claim deed, neither it nor the corrective deed were entitled to be recorded. Without recordation of the original quit claim deed, title of the property would not pass to Brown and subsequently to the third-party purchasers. Thus, the negligence of Richardson in failing to properly identify the person signing the deed directly and in natural and continuous sequence contributed to or produced the damage, the loss of Janice’s property. See Fla. Std. Jury Instr. (Civ.) 401.12(a).

In sum, the negligent notarization of the quit claim deed in this case allowed it to be recorded and the property sold to third-party purchasers. Thus, the notarization was a proximate cause of the injuries sustained.

The appellate court also disagreed with the trial court’s determination that because the deed was forged, it was void, and Richardson’s negligence was of no consequence, stating:

The fact that the deed was void, however, does not, as a matter of law, relieve Richardson of liability where she has been sued in negligence.  Even if the deed is of no effect and does not pass title, that does not mean that no damages have resulted from the fact that the forged deed was recorded, and the property sold.

Without the original notarization by notary Richardson, Brown was able to sell to third-party purchasers as a result of recording the corrective deed, causing damage to the Florida estate.  Therefore, the notary was part of the chain of title that allowed the property to be sold to third party purchasers.

The Court concluded:

Here, Richardson’s negligence operated in combination with the fraud of Brown (or someone else) to deprive Janice’s estate of the home. It was for the jury to determine whether Richardson’s negligence was a proximate cause of damage. The court erred in granting a new trial on this ground as well.  For the foregoing reasons, we reverse the order granting new trial and direct the reinstatement of the jury’s verdict.

Jeffrey Skatoff is a Florida probate attorney.  To have Mr. Skatoff review your case free of charge, please go to his website.

Probate attorney Jeffrey Skatoff handles probate, trust, guardianship and inheritance litigation.

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