NOT FINAL UNTIL TIME EXPI RES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT

GEORGE A. ANDRASI and EDITH S. ) ANDRASI, ) ) Appellants, ) ) v. ) Case No. 2D13-4767 ) JPMORGAN CHASE BANK, NATIONAL ) ASSOCIATION, ) ) Appellee. ) ) Opinion filed August 11, 2017.

A ppeal from the Circuit Court for Sarasota County; Rick DeFuria, Judge, and Harry Rapkin, Senior Judge. H. Daniel McKillop of McKillop Law Firm, Sarasota, for Appellants. William L. Grimsley of McGlinchey Stafford, Jacksonville, for Appellee.

VILLANTI, Judge. George and Edith Andrasi seek review of the final judgment of f oreclosure entered in favor of JPMorgan Chase Bank, National Association ( the Bank), after a bench trial. The Andrasis raise two issues on appeal, one rela ting to standing and one relating to the amounts included in the final judgment. We rej ect without comment the- 2 - Andrasis' standing argument and therefore affirm the judgment t o the extent that it awards foreclosure. However, b ecause the final judgment includ es awards of damages that were specifically waived by the Bank during trial, we reve rse the amount of indebtedness included in the final judgment and remand with ins tructions. The Bank filed its foreclosure complaint against the Andrasis in September 2008. After a lengthy pretrial process, the case was tried to the court on August 26, 2013. During trial, the court admitted into evidenc e a copy of the promissory

note 1 signed by Edith Andrasi. 2 This note had a face value of $500,000; however, it was an adjustable rate note with a negative amortization provis ion. Hence, under certain circumstances, the principal amount owed under the note could increase during

the term of the note. In addition to the note, the trial court also admitted into ev idence a transaction history of the Andras is' loan. This document showe d that the principal balance of the note was $535,347.38 at the time of default. Th e Bank argued that the transaction history also substantiated various other amounts fo r which it sought judgment, including accrued interest, late fees, property tax e xpenditures, insurance expenditures, and the like. How ever, when the Andrasis challen ged the factual basis for these amounts, the Bank told the court that it was introduc ing the transaction history to prove only the existence of the default and the amount of pr incipal owed. At that point, the following ensued:

1 The original note had been previ ously filed in the court file.

2 While only Edith Andrasi signed the promissory note, both Edith and George Andrasi signed the mortgage.- 3 - MR. McKILLOP [Counsel for the Andrasis]: Just to clarify, are you only looking for principal or are you looking for everything? MR. MILANI [Counsel for the Bank]: We're only looking for the principal balance. MR. McKILLOP: So I won't ask on anything other than principal. (Emphasis added.) Nevertheless, a short time later, the Andras is asked the Bank's witness whether he could explain some of the figures on the tra nsaction history. The Bank objected again, stating specifically "we are only establis hing the principal balance. None of the other figures are going to be included in our final judgment." (Emphasis added.) With this assurance, the Andrasis then ceased pursuing this line of questioning. After both parties rested their cases, the court ruled in favo r of the Bank, and it asked counsel for the Bank to hand it the proposed final judgment that the Bank brought to the trial. Before handing the document to the court , counsel for the Bank stated, "I'm just going to strike out all of the added figures, " referring to the amounts other than the principal balance. However, the court apparentl y took the proposed final judgment from counsel before he could finish these edits. Henc e, when the Andrasis asked for the amount of the judgment, the court replied, "$535 – oh, that's the principal. $704,334." The court then signed the proposed final judgment w ithout striking the amounts other than the principal balance. The Andrasis brought this timely appeal. In their brief, the Andrasis a rgue that the evidence presente d at trial was insufficient to support the amount of indebtedness included in the final judgment for two reasons: first because the evidence did not support the princi pal balance included in- 4 - the judgment, and second because the Bank waived its right to s eek an award of any amount other than the principal balance. We agree with only th e second contention. As to the amount of principal, the transaction history admitt ed into evidence showed a principal balance of $535,347.38 as of the da te of default. Once that transaction history was admitted into evidence, the trial court was entitled to rely on it in determining whether the Bank had sufficiently proved the amounts due to it. See, e.g., WAMCO XXVIII, Ltd. v. Integrated Elec. Env'ts, Inc., 903 So. 2d 230, 233 (Fla. 2d DCA 2005) (holding that properly admitted business records show ing the amount of debt provided competent, substantial evidence of the amount of damages); Cayea v. CitiMortgage, Inc., 138 So. 3d 1214, 1218 (Fla. 4th DCA 2014) ( affirming final judgment

of foreclosure based on bank's payment records that were proper ly admitted). While the Andrasis questioned the Bank's witness at trial about how t he principal balance was determined, they offered no evidence to show that the principal balance identified in the transaction history was incorrect. Hence, while the trial cour t certainly could have given no weight to the principal amount listed in the transaction his tory based on the Andrasis' questioning, its decision to rely on the properly admitted evid ence was within its discretion, and we are not at liberty to reweigh that evidence on appeal. See, e.g., GNB, Inc. v. United Danco Batteries, Inc., 627 So. 2d 492, 493 (Fla. 2d DCA 1993) ("As an appellate court, it is not our function to reweigh the evide nce but, rather, to view the record to determine if it contains competent and substantial ev idence to support the conclusions of the trier of fact."). Because the transaction h istory provided evidence to support the principal balance of $535,347.38, this amount was p roperly included in the final judgment of foreclosure and must be affirmed.- 5 - As to the remaining amounts included in the final judgment, h owever, they were not properly awarded because the Bank voluntarily waived i ts right to seek them. During trial, counsel for the Bank told the court and the Andra sis at least three times that the Bank was not seeking a judgment for any amount other t han the unpaid principal balance. The Andrasis relied on the Bank's assertion s by ceasing their questioning of the Bank's witnes s concerning the other amounts allegedly supported by the transaction history. Having specifically waived its right to seek a judgment for amounts other than the unpaid principal balance, the Bank was n ot then entitled to entry of a final judgment that included those additional amounts for interest, taxes, insurance, late fees, and the like. See Band v. Libby, 113 So. 3d 113, 11 5 (Fla. 2d DCA 2013) ("Parties, by their own knowledge and conduct, can waive or be estopped to raise a wide array of constitutional, statutory, and common law rights . . . .") (quoting Ruggio v. Vining, 755 So. 2d 792, 795 (Fla. 2d DCA 2000)); see also Good Samaritan Hosp. Ass'n v. Saylor, 495 So. 2d 782, 782-83 (Fla. 4th DCA 1986) (holding that hospital would be bound by its stipulation to waive certain damages and objection s that it otherwise could have raised). Under these circumstances, the trial court had n o authority to override the

Bank's concession. Accordingly, while we affirm the entry of a judgment of forec losure, we reverse the final judgment to the extent that it includes an aw ard of amounts other than the documented unpaid principal balance. On remand, the trial court shall enter an amended final judgment of foreclosure in the amount of $535,347 .38. Affirmed in part, reversed in part, and remanded with instruc tions. SILBERMAN, J., Concurs. LUCAS, J., Concurs in result only.