Verzura Construction, Inc., Appellant, v. LLC (2025)

Verzura Construction, Inc., purchased a property in Miami Beach at a foreclosure sale. The foreclosed former owner, Hotel La Petite Muse, LLC, (HLPM), objected and moved to set aside the sale. HPLM argued that it had been “deprived of an opportunity to bid” due to its attorneys’ failure to notify it of the sale. After an evidentiary hearing, the trial court granted HLPM's motion and set aside the sale. We reverse the order on two grounds: HLPM had constructive notice of the sale through its attorneys and one of its attorneys attended the sale.

I. Background

HLPM hired Verzura to act as general contractor overseeing renovation of the hotel at the subject property, but their relationship quickly soured. Verzura filed a lien on the property for unpaid expenses related to the project and eventually obtained a judgment of foreclosure. We affirmed the judgment on direct appeal,¹ and remanded for further proceedings. After the time to discharge the lien had expired, the trial court set a date that the hotel would go to judicial auction. That date was memorialized in an order served on the parties through counsel.

Donald Hodson served as co-counsel for HLPM. Two weeks before the auction date, Hodson moved to cancel the auction and vacate the judgment, noting the scheduled date in his motion. A week later, he filed a motion to stay the sale, again noting the auction date. The court heard argument on these motions four days before the sale, and Hodson appeared on behalf of HLPM. The court denied the motions as meritless, and the auction proceeded as scheduled. Verzura placed the winning bid. Hodson, who was also in attendance at the sale, did not bid on behalf of HLPM.²

A few days later, HLPM objected to the sale, arguing lack of notice. At an evidentiary hearing, HLPM's owner and manager testified. She claimed that she never knew about the foreclosure sale because Hodson's co-counsel had not told her about it and that the property was worth significantly more than the final sale price. Verzura argued that there was no lack of notice because, regardless of Hodson's co-counsel, Hodson, himself counsel, had actual notice and attended.

The trial court ultimately sustained the objection and set the sale aside. The trial court found that the sale price was grossly inadequate and that HLPM's owner and manager “was not informed of the foreclosure sale by her attorneys, resulting in her being deprived of an opportunity to bid.” Verzura appealed.

II. Standard of Review

Generally, we review orders setting aside a judicial foreclosure sale for abuse of discretion. Venezia v. Wells Fargo Bank, N.A., 306 So. 3d 1096, 1097 n.2 (Fla. 3d DCA 2020). Legal error constitutes an abuse of discretion. See Mitschke-Collande v. Skipworth Props. Ltd., 201 So. 3d 660, 664 (Fla. 3d DCA 2016).

III. Analysis

Under Florida law, foreclosure actions are convened in equity. Sutton v. Wilmington Tr., N.A., 359 So. 3d 385, 386 (Fla. 3d DCA 2023). A court ruling on post-sale objections to judicial foreclosure sales must assure that “no wrong has been accomplished in and by the manner in which [the sale] was conducted.” Tanis v. HSBC Bank USA, N.A., 289 So. 3d 517, 520 (Fla. 3d DCA 2019) (alteration in original) (quoting Pewabic Mining Co. v. Mason, 145 U.S. 349, 356 (1892)). But an inadequate sale price, even a grossly inadequate one, cannot alone justify setting aside an otherwise proper foreclosure sale. Venezia, 306 So. 3d at 1097 (citing Arsali v. Chase Home Fin., LLC., 121 So. 3d 511, 516 (Fla. 2013)). This is because the amount of the bid is “conclusively presumed to be sufficient consideration for the sale.” § 45.031(8), Fla. Stat. So an objecting party must raise an additional factor, like a “mistake, accident, surprise, fraud, misconduct, or irregularity” that impacted the sale and caused the price to be grossly inadequate. Venezia, 306 So. 3d at 1097 (quoting Arlt v. Buchanan, 190 So. 2d 575, 577 (Fla. 1966)). Only then may the sale be set aside. Id.

Here, the court ruled that the sale price was grossly inadequate. But the only additional factor that the court cited aside from the price was the fact that HLPM was “deprived of an opportunity to bid,” quoting U.S. Bank, N.A. v. Vogel, 137 So. 3d 491, 494 (Fla. 4th DCA 2014), as authority. And the only reason it concluded that HLPM was “deprived of an opportunity to bid” is because HLPM's attorneys failed to “inform” it. Regardless of whether HLPM's attorneys notified anyone of the sale, Vogel is inapposite. That is because, as a matter of law: (1) HLPM had notice of the sale, and (2) HLPM was not “deprived of an opportunity to bid.” The trial court abused its discretion in concluding otherwise.

Hodson, an attorney for HLPM, had notice of the foreclosure sale. He filed motions expressly noting the sale date and argued in court to cancel or delay it. And “notice to the attorney constitutes notice to the client.” Comprehensive Health Ctr., Inc. v. United Auto. Ins. Co., 56 So. 3d 41, 43 (Fla. 3d DCA 2010) (citing Fla. R. Civ. P. 1.080(b)); see also Sebree v. Schantz, Schatzman, Aaronson & Perlman, 963 So. 2d 842, 847 (Fla. 3d DCA 2007) (charging client “with all of the knowledge its counsel ․ had”). In Voss v. Household Realty Corp., this Court reversed an order setting aside a judicial sale, explaining:

We need not consider whether the lack of [notice to the foreclosed party] may, under the law, justify the relief granted or any of the other arguments for reversal because the record demonstrates that appropriate notice was in fact given to the attorney who had filed an appearance in the trial court on behalf of the appellee.

687 So. 2d 972, 972 (Fla. 3d DCA 1997) (emphasis added).

Although such notice would end the inquiry, the record here reflects more than constructive notice—Hodson attended the sale. And “there is a presumption that an attorney, as an officer of the court, is duly authorized to act for a client whom he professes to represent. In the absence of some pleading questioning the attorney's acts ․ the presumption is conclusive.” Jensen v. Sierra Grill, Inc., 876 So. 2d 1264, 1266 (Fla. 3d DCA 2004) (quoting Mendelsund v. S.-Aire Coats of Fla., Inc., 210 So. 2d 229, 231 (Fla. 3d DCA 1968)); see also Fla. R. Gen. Prac. & Jud. Admin. 2.505(h) (“An attorney ․ is the agent authorized to bind the client for purposes of the action, hearing, or proceeding.”).

Whether Hodson or his co-counsel “informed” the client provides no relief. The record conclusively established that Hodson knew of the auction and actually attended it. Absent more, either ground would bar the relief sought. See Maryland Cas. Co. v. Krasnek, 174 So. 2d 541, 543 (Fla. 1965) (“[T]he law ․ prevent[s] equitable relief on ground of unilateral mistake in instances in which the mistake is the result of a lack of due care ․”); Griffith v. Inv. Co., 110 So. 271, 271 (Fla. 1926) (“[A]n attorney acting within the scope of his authority represents his client and his acts of omission as well as commission are to be regarded as the acts of the person he represents, and therefore his neglect is equivalent to the neglect of the client himself.”).

IV. Conclusion

For the foregoing reasons, we reverse the trial court's order granting the motion to set aside the sale.

Reversed and remanded.

FOOTNOTES

1.   Hotel La Petite Muse, LLC v. Verzura Constr., Inc., 395 So. 3d 574 (Fla. 3d DCA 2024).

2.   HLPM's filings below and on appeal concede that he was in attendance.

BOKOR, J.