(1)* * * * * *The mortgage, trust deed, or other instrument
shall not be enforceable in any court of thisstate
as to any such advance unless and until the tax due thereon upon each advance thatmay have been made thereunder has been paid.§ 201.08(1), Fla.Stat. (1997) (emphasis added). The trial court reserved ruling on the motion and thetrial proceeded.At the close of trial the court, in an effort to reach an equitable result, denied Metra’s motion to dismissbut entered final judgment in Metra’s favor concluding that: 1) Prudential was Mr.
agent andwas authorized to accept the late and deficient payments from Metra and Sun Trust; 2) the deficiency inthe June payment was
and Metra had substantially performed its obligations pursuant to theterms of the note; 3) Mr.
failure to pay the taxes due on the note did not deprive the court of authority to enforce the note; and 4) Metra had waived any objection to Mr.
failure to paytaxes by failing to raise the issue sooner. Both parties have appealed the final judgment.Mr.
contends that the trial court erred in applying the equitable doctrine of substantialperformance and in determining that Prudential was his agent and not merely a depository. On crossappeal Metra argues that the trial court erred in failing to dismiss the action due to Mr.
failureto obtain the requisite documentary tax stamps. Although the arguments raised by Mr.
havepiqued our interest, we only need to determine the issue raised on cross appeal because thatdetermination is dispositive.Other courts have addressed procedural issues arising from the fact that at trial the plaintiff failed toestablish that the requisite taxes had been paid on instruments which they were seeking to enforce. Forexample, in
Owens v. Blitch,
443 So.2d 140 (Fla. 2d DCA 1983),
the trial court refused to admit apromissory note into evidence because the documentary tax stamps on the note had been belatedlypurchased. On appeal, the second district reversed this ruling, holding that “[n]othing in Florida lawwould deny enforceability of promissory notes merely because documentary stamps have beenbelatedly affixed.”
at 141.Similarly, in
Klein v. Royale Group, Ltd.,
578 So.2d 394 (Fla. 3rd DCA 1991),
the plaintiff sued thedefendant for failure to pay a promissory note. After the plaintiff rested his case, the defendant movedto dismiss the action on grounds that the plaintiff had failed to pay the necessary tax on the promissorynote. The court scheduled a hearing on the motion; however, before the hearing commenced theplaintiff paid the tax due and affixed the documentary stamps to the note. Nevertheless, the trial courtdismissed the action without prejudice. On appeal, the third district reversed, holding that “there isnothing in the statute or the case decisions 304*304 that deny enforceability merely because therequired documentary stamps have been belatedly purchased and affixed.”
Silber v. Cn’R Industries of Jacksonville, Inc.,
526 So.2d 974 (Fla. 1st DCA 1988),
the plaintiff sought recovery on a promissory note. At trial, after the close of the plaintiffs case, the trial courtallowed the plaintiff to reopen its case, remove the note from evidence, and affix the requisitedocumentary tax stamps in order “to correct [the] legal impediment to enforcement of the note”.
at977. On appeal, the defendants argued that the trial court erred in so ruling and should have insteadgranted their motion to dismiss the action without prejudice to refiling after payment of the tax due.The first district found the trial court’s ruling “troublesome” primarily because the court had permittedthe plaintiff “to reopen its case,
the evidence to
alter the existing facts,
and then adduce proof