author: PALMER, J.

text:
    Gary B. LANE, d/b/a/ Morris USA and Overseas Corp., Appellant, v. WESTFIELD INSURANCE COMPANY, Appellee.
    Nos. 5D02-791, 5D02-1278.
    District Court of Appeal of Florida, Fifth District.
    Nov. 7, 2003.
    Rehearing Denied Jan. 16, 2004.

      David J. Pettinato, Matthew R. Danahy and Douglas L. Grose of Douglas L. Grose, P.A., Tampa, for Appellant.
    W. Douglas Berry, Anthony J. Russo & J. Pablo Caceres of Butler Burnette Pap-pas LLP, Tampa, for Appellee.
   PALMER, J.

Gary Lane appeals the trial court’s final orders entering summary judgments against him on his bad faith claims against Westfield Insurance Company. Concluding that the undisputed facts establish that the conditions precedent to Lane’s maintenance of a first-party bad faith action were not met, we affirm.

This action involves two bad faith lawsuits filed by Lane against his business insurer, Westfield Insurance Company. The first lawsuit arose out of a lightning strike at Lane’s business (Case No. 5D02-791), and the second lawsuit involved a claim for windstorm damage sustained by Lane’s business during Hurricane Erin (Case No. 5D02-1278).

The Lightning Claim

In August 1994, Lane filed a lightning claim in which he included a sworn Proof of Loss form alleging that he had suffered a business interruption loss in the amount of $107,685.02 when lightning struck his office. After a dispute arose between the parties in regard to this claim, Westfield filed a declaratory judgment action in federal court alleging that the claim was fraudulent, that Lane had failed to comply with the conditions of his insurance policy, and that Lane had failed to establish his business income loss claim. In response, Lane filed a counterclaim seeking to recover for his business interruption loss. The matter proceeded to trial, after which the jury returned a verdict finding that Lane did not commit fraud and that he did not fail to comply with the conditions of his insurance policy. The jury further found that Lane did establish his business income loss, but the jury awarded him only $11,706.00 in damages on his counterclaim. A final judgment consistent with the jury’s verdict was entered on July 15,1997.

Westfield did not appeal the final judgment, but instead satisfied the judgment by making full payment to Lane on October 9, 1997. In the meanwhile, on July 16, 1997 (one day after judgment was entered by the district court), Lane filed a Civil Remedy Notice in the circuit court pursuant to section 624.155 of the Florida Statutes (1995) alleging that Westfield had established a general business practice of responding to insurance claim disagreements by filing groundless law suits against its insureds, and that Westfield had failed to provide requested information to Lane regarding its adjustor’s calculations. Three years later, Lane filed a complaint in the circuit court alleging a first-party bad faith claim against West-field.

The Windstorm Claim

In 1995, one year after the lightning damage, Hurricane Erin caused additional windstorm damage to Lane’s office. Lane submitted a Proof of Loss form to West-field for $3,016.90 in relation to this damage and Westfield paid the claim. Lane thereafter submitted a second Proof of Loss form to Westfield for additional damages arising from Hurricane Erin, claiming $7,555.29. While the second Proof of Loss was pending, Lane filed a Civil Remedy Notice against Westfield alleging that Westfield had “responded with accusations and has failed to provide its adjuster’s estimate to date despite repeated request on 3/31/97.”

Westfield responded by filing a declaratory judgment action in federal district court on Lane’s windstorm claim. The complaint alleged fraud, failure to establish business income loss, and restitution. The complaint further alleged the discovery of the fact that Lane had received double insurance reimbursement for the windstorm loss. The complaint also alleged that Westfield had overpaid Lane’s claim and sought reimbursement for same.

Lane moved to dismiss Westfield’s declaratory judgment action, arguing that the district court possessed the discretion to refuse jurisdiction over the matter. The district court agreed and dismissed Westfield’s lawsuit.

Thereafter, Lane filed an action in the circuit court against Westfield for first-party bad faith and for common law fraud regarding his windstorm claim.

Circuit Court Proceedings

At this point Lane’s two bad faith cases were consolidated by the trial court for pretrial purposes. Westfield filed a motion for summary judgment regarding Lane’s lightning strike claim, alleging that Lane’s notice was vague and imprecise and failed to provide Westfield with any meaningful direction as to how Westfield could cure the alleged violation. Additionally, Westfield alleged that the Civil Remedies Notice was filed after the lightning claim had been adjudicated by a jury verdict in the federal court and thus the claim was moot.

Westfield at the same time filed a motion for summary judgment regarding Lane’s windstorm claim, alleging that the lawsuit failed to set forth the same conduct as alleged in the Civil Remedies Notice, thereby denying Westfield its statutory right to cure. In addition, Westfield maintained that it had cured the condition giving rise to the Civil Remedies Notice within the time prescribed by the Florida statutes.

Upon review, the trial court denied Westfield’s motion for summary judgment on the lightning claim and granted the motion for summary judgment on the windstorm claim to the extent that the trial court concluded that Westfield had provided its adjuster’s estimate to Lane within sixty days and, as such, cured this claim of bad faith. The trial court also found that the only issue left to consider on both of the claims was Lane’s allegation that Westfield engaged in the practice of filing “groundless lawsuits” against its insureds.

Lane then moved for leave to add a claim for punitive damages. The trial court denied the motion, stating that Lane had failed to make an adequate proffer that Westfield engaged in the act of filing groundless lawsuits against its insureds with such frequency as to indicate a general practice or that Westfield’s action in commencing the two declaratory judgment actions against Lane in federal court was willful, wanton, and malicious or, alternatively, were in reckless disregard for Lane’s rights.

Westfield again moved for summary judgment claiming that since both lawsuits had been resolved by the district court within sixty days of the date of the filing of Lane’s Civil Remedy Notices, Lane could not succeed on his claim for bad faith. Westfield argued that the circumstances giving rise to the alleged violation regarding the lightning claim had been cured by the jury trial in district court (which West-field did not appeal) and that the alleged violation regarding the windstorm claim had been cured by dismissal of the action in the district court.

Lane responded that Westfield had not cured the violation because Westfield did not pay the jury verdict on the lightning claim within sixty days of the filing of the Civil Remedy Notice. He further argued that dismissal of the windstorm claim by the district court did not constitute a cure by Westfield.

The trial court entered a final summary judgment in favor of Westfield on both the windstorm and lightning claims. Regarding the windstorm claim the trial court concluded as follows:

ORDER GRANTING DEFENDANT’S AMENDED MOTION FOR SUMMARY JUDGMENT AS TO COUNT I OF PLAINTIFF’S SECOND AMENDED COMPLAINT (WINDSTORM DAMAGE).
* * *
J. Plaintiffs June 11, 1997, civil remedy notice purports to allege that Defendant committed two wrongful acts. First, that Defendant “responded with accusations” and second, that Defendant failed to provide its adjuster’s estimate. It is undisputed that Defendant provided the requested estimate within sixty days of the notice and this Court has previously granted partial summary judgment on such issue. The allegation that Defendant “responded with accusations” is simply too vague to give Defendants notice of what it did wrong so that it could cure same within sixty days. Furthermore, the allegation that Defendant “responded with accusations” fails to comply with the statute’s requirement that the civil remedy notice “state with specificity ... the facts and circumstances giving rise to the violation.”
K. Plaintiffs July 16, 1997, civil remedy notice alleges that Defendant also committed the wrongful act of filing groundless lawsuits in federal court against its insured. However, it is undisputed that such circumstance was “cured” approximately five weeks later when the federal court dismissed such action. Furthermore, no appeal was taken by Defendant from such dismissal.

Regarding the lightning claim, the trial court ruled as follows:

ORDER GRANTING DEFENDANT’S AMENDED MOTION FOR SUMMARY JUDGMENT AS TO COUNT I OF PLAINTIFF’S SECOND AMENDED COMPLAINT (LIGHTNING DAMAGE).
* * *
M. Plaintiffs July 16, 1997 civil remedy notice alleges that Defendant committed the wrongful act of filing groundless lawsuits against its insured. It is undisputed that the only lawsuit filed by Defendant, which related to Plaintiffs lightning damage claim, was the federal declaratory judgment action referenced above. Assuming arguendo, such complaint was groundless and filed in bad faith, such wrongful act was “cured” within the aforesaid 60-day window when Defendant chose not to appeal the adverse judgment on its complaint against Plaintiff. If Defendant had chosen to appeal the jury’s verdict, then no “cure” would have occurred within the 60-day window. By not filing an appeal, the alleged wrongful act of “filing groundless lawsuits” was cured by late August, 1997.
N. During the arguments, on Defendants’s Amended Motion for Summary Judgment, Plaintiff acknowledged that if the $11,706.00 judgment entered on his counterclaim had been paid by Defendant within 60 days of the civil remedy notice, summary judgment would admittedly have been appropriate. The Defendant contends that Plaintiffs failure to satisfy the judgment within 60 days requires a different result. The Court rejects this argument. First, the civil notice remedy alleges that Defendant’s wrongful act was the filing of groundless lawsuits, not defending against a claim brought by Plaintiff. The alleged groundless claim (Defendant’s declaratory judgment complaint) was terminated when the federal court entered the final judgment and Defendant did not appeal same. The $11,706.00 award was entered on Plaintiffs counterclaim. The civil remedy notice does not allege that it was wrongful for Defendant to defend against Plaintiffs federal counterclaim. Indeed, Plaintiff sued for in excess of $107,000.00 and was awarded only $11,706.00 by the jury. Thus, it can hardly be argued that defense of the federal counterclaim was “groundless.” But, most importantly, the civil remedy notice did not allege Defendant engaged in wrongful conduct in defending the counterclaim. Therefore, there was no alleged wrongful act committed by the Defendant relating to the federal counterclaim which could be cured or remedied. Second, the civil remedy notice did not allege that Defendant had wrongfully failed to pay a claim or had wrongfully failed to pay on a judgment. The civil remedy notice only alleged that the Defendant wrongfully filed a groundless lawsuit against its insured. Section 624.155(2)(d) requires that the civil remedy notice state with specificity the facts and circumstances giving rise to the violation. The allegation that Defendant has “filed groundless litigation” cannot be fairly construed to also mean that Defendant failed to timely pay a judgment or that Defendant raised groundless defenses to the claim brought by Plaintiff.
O.The undisputed facts establish, as a matter of law, that the conditions precedent to Plaintiffs maintaining of this first party bad faith action against Defendant were not met.

We agree with the trial court’s well-reasoned conclusions and therefore affirm same.

Analysis

In 1982, the Florida Legislature enacted section 624.155 of the Florida Statutes, which provides that any person can institute a civil action against an insurer when the person is damaged by the insurer’s failure to settle claims in good faith. However, as a condition precedent to bringing such an action, Florida’s Department of Insurance and the insurer must be given sixty days written notice of the violation. See § 624.155(2)(a), Fla. Stat. (1993). No action will lie if, within those sixty days, “the damages are paid or the circumstances giving rise to the violation are corrected.” See § 624.155(2)(d), Fla. Stat. (1993). In Talat Enterprises, Inc. v. Aetna Cas. & Sur. Co., 753 So.2d 1278 (Fla.2000), the Florida Supreme Court explained that, “in creating this statutory remedy for bad-faith actions, the Legislature provided this sixty day window as a last opportunity for insurers to comply with their claim-handling obligations when a good-faith decision by the insurer would indicate that contractual benefits are owed.” Id. at 1284. The purpose of the civil remedy notice is to give the insurer one last chance to settle a claim with its insured and avoid unnecessary bad faith litigation — not to give the insured a right of action to proceed against the insurer even after the insured’s claim has been paid or resolved.

Here, the trial court properly granted Westfield’s motion for summary judgment on both the windstorm claim and the lightning claim because the record established, as a matter of law, that the conditions precedent to Lane’s maintaining a first-party bad faith action against West-field were not met. Specifically, Lane’s bad faith complaints alleging that West-field had filed groundless lawsuits against him were cured within or before the expiration of the sixty day period required under section 624.155(2)(d) of the Florida Statutes. The complaint regarding the lightning claim was cured by a jury verdict in favor of Lane in the district court (which became final when no appeal was taken), and the complaint regarding the windstorm claim was cured by dismissal of Westfield’s claim in the district court.

Pursuant to the court’s ruling in this matter, Lane’s argument regarding punitive damages is rendered moot.

AFFIRMED.

SHARP, W. and PLEUS, JJ., concur.

      . Section 624.155 provides as follows:
      624.155. Civil remedy
      (1) Any person may bring a civil action against an insurer when such person is damaged:

      (b) By the commission of any of the following acts by the insurer:
      1. Not attempting in good faith to settle claims when, under all the circumstances, it could and should have done so, had it acted fairly and honestly toward its insured and with due regard for her or his interests;

      [2](d) No action shall lie if, within 60 days after filing notice, the damages are paid or the circumstances giving rise to the violation are corrected.
      § 624.155(l)(b)l(d), Fla. Stat. (1993)(empha-sis added).

      . Without Westfield's knowledge, Lane also submitted a Proof of Loss relating to the same windstorm damage to Nationwide Insurance Company and he received $8,384.39 thereon.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Lisa ADAMS, Petitioner, v. Charles McCRAE, (Successor)*, Acting Director Miami-Dade Department of Corrections, etc., Respondent.
    No. 3D03-1858.
    District Court of Appeal of Florida, Third District.
    Nov. 12, 2003.
    Bennett H. Brummer, Public Defender and John Eddy Morrison, Assistant Public Defender, for petitioner.

      Charles J. Crist, Jr., Attorney General and Fredericka Sands, Assistant Attorney General, for respondent.
    Before SCHWARTZ, C.J., and GREEN and WELLS, JJ.
   PER CURIAM.

Denied. See Sibley v. Sibley, 833 So.2d 847 (Fla. 3d DCA 2002), and cases cited, pet. for review denied, No. SC03-8, 854 So.2d 660 (Fla. Aug. 18, 2003).


text:
    DASHIWA CORPORATION, etc., Appellant. v. TASHI VALLEY, INC., etc., Appellee.
    Nos. 3D03-923, 3D03-922, 3D03-733.
    District Court of Appeal of Florida, Third District.
    Nov. 12, 2003.
    Rehearing Denied Jan. 9, 2004.
    Richman Greer Weil Brumbaugh Mira-bito & Christensen, Gerald F. Richman and Mark A. Romance, Miami, for appellant.
    Ruden, McClosky, Smith, Schuster & Russell, John H. Pelzer and Kristie J. Myers, Fort Lauderdale, for appellee.
    Before LEVY, GERSTEN, and GODERICH, JJ.
   PER CURIAM.

Because the lessee did not establish that there were any special circumstances which would warrant relief from the consequences of its failure to give written timely notice of its intent to renew the lease, we affirm the orders under review. Dugan v. Haige, 54 So.2d 201 (Fla.1951); Thrifty Dutchman, Inc. v. Florida Supermarkets, Inc., 541 So.2d 634, 636 (Fla. 3d DCA), review denied, 551 So.2d 461 (Fla.1989); Investment Builders of Fla., Inc. v. S.U.S Food Mkt. Invs., Inc., 753 So.2d 759 (Fla. 4th DCA 2000).

Affirmed.


author: STRINGER, Judge.

text:
    Donald H. HOIRUP, Appellant, v. Thora H. HOIRUP, Appellee.
    No. 2D02-1079.
    District Court of Appeal of Florida, Second District.
    Nov. 14, 2003.
    Rehearing Denied Jan. 13, 2004.

      Mark A. Neumaier, Tampa, for Appellant.
    David T. Weisbrod, Tampa, for Appellee.
   STRINGER, Judge.

Donald Hoirup, the Former Husband, seeks review of the trial court’s scheme of equitable distribution in the final judgment of dissolution of marriage. The final hearing was not recorded, and no statement of the evidence was prepared. Because the trial court’s equitable distribution of marital assets is fundamentally erroneous on the face of the final judgment, we reverse and remand as to the trial court’s equitable distribution scheme. We affirm the final judgment of dissolution in all other respects.

The Former Husband and the Former Wife, Thora Hoirup, were married for sixteen years and have no children together. The Former Husband was seventy-four years old on the date of the final judgment, and the Former Wife was fifty-nine years old. After consideration of the factors set forth in section 61.075(3), Florida Statutes (2001), the trial court made an award of equitable distribution of the parties’ marital assets as follows: to the Former Wife, $211,331.60 from the proceeds of the sale of the marital home and $26,550 in tangible personal property, totaling $237,881.60 in assets; to the Former Husband, all of the right, title, and interest in and to World America, Inc., the corporation formed in connection with the operation of the parties’ marital business, Tan Four Seasons Salon, $187,000 from the proceeds of the sale of the marital business, and $60,210 in tangible personal property, totaling $247,210 in assets. The Former Husband claims the trial court erred by awarding him $187,000 in proceeds from the sale of the marital business, since the proceeds had yet to be collected and were the subject of a lawsuit in California. We agree.

In reviewing a trial court’s equitable distribution of marital assets, the equitable distribution scheme will be upheld absent an abuse of discretion. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980). However, where a trial transcript or proper substitute does not appear in the record on appeal, the trial court’s order must be upheld unless the order is fundamentally erroneous on its face. Bank of Va. v. Estate of Ingraham, 564 So.2d 627 (Fla. 2d DCA 1990); Hirsch v. Hirsch, 642 So.2d 20, 21 (Fla. 5th DCA 1994).

Section 61.075(1) requires that the trial court distribute marital assets and liabilities between the parties “beginning with the premise that an equal distribution should occur.” Feger v. Feger, 850 So.2d 611, 615 (Fla. 2d DCA 2003). However, a trial court may make an unequal distribution of assets, provided the court supplies a specific finding of fact to justify its unequal distribution. Id.

In this case, the trial court’s distribution scheme ostensibly awarded to the parties a substantially equal distribution of assets, with the proceeds from the sale of the marital business constituting the major asset awarded to the Former Husband. However, while the marital business was sold for $187,000, the trial court states in the final judgment that “the undisputed testimony establishes that the parties have not received any of the payments in connection with that sale” and that “there is a pending lawsuit in the State of California regarding collection of the sale price.”

It is thus apparent from the face of the final judgment that the trial court awarded the Former Husband an asset that was not in existence. The marital asset that existed at the time of dissolution was a chose in action for the sale proceeds. Cf. Seither v. Seither, 779 So.2d 331, 333 n. 3 (Fla. 2d DCA 1999) (citing Green v. Green, 64 Md.App. 122, 494 A.2d 721 (1985), for proposition that a chose in action in a contract for stock purchase is within section 61.075(5)(a)(4)’s broad definition of marital assets). Furthermore, because the Former Wife was the only plaintiff listed in the collection lawsuit, awarding the Former Husband the chose in action would remain an illusory award without a requirement that the Former Wife prosecute the collection action in good faith.

Because the proceeds awarded to the Former Husband did not exist at the time of dissolution, nor is there any evidence that they were likely to materialize pursuant to the collection action, the trial court’s distribution scheme is grossly unequal. Without the value of the marital business, the remaining equitable distribution awards $237,881.60 to the Former Wife and $60,210 to the Former Husband; yet, the final judgment contains no finding of fact attempting to justify the inequity of the distribution. The final judgment is thus fundamentally erroneous on its face. Accordingly, we reverse and remand to the trial court for reconsideration of the equitable distribution scheme. We affirm as to all other aspects of the trial court’s final judgment.

Affirmed in part, reversed in part, and remanded.

NORTHCUTT and DAVIS, JJ., concur.

      . The trial court's final judgment states the total value of the assets distributed to the Former Wife is $237,856.60. This appears to be a scrivener’s error.


author: DAVIS, Judge.

text:
    Robert E. MADDOX, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-4143.
    District Court of Appeal of Florida, Second District.
    Nov. 14, 2003.
    James Marion Moorman, Public Defender, Bartow, and Anthony C. Musto, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Donna S. Koch, Assistant Attorney General, Tampa, for Appellee.
   DAVIS, Judge.

Robert E. Maddox challenges his convictions and sentences for two counts of forgery, two counts of uttering forged instruments, and one count each of giving false information to a law enforcement officer and driving while license suspended or revoked. We affirm Maddox’s convictions and sentences without comment but write to address the issue of the admissibility of the forged traffic citations at his trial.

A Polk County Deputy Sheriff stopped Maddox for an improper lane change. Upon being asked for his driver’s license and proof of insurance, Maddox advised the deputy that he did not have his license or proof of insurance with him. The deputy then asked for his name and date of birth, in response to which Maddox said his name was Nathaniel Lewis Maddox and his date of birth was November 1, 1980. Based on this information, the deputy issued two citations in the name of Nathaniel Lewis Maddox — one for improper lane change and the other for failure to produce proof of insurance. When Maddox was hesitant to sign the citations, the deputy advised that failure to sign was a criminal offense. Maddox then signed the citations.

During the traffic stop, a second deputy arrived on the scene. The owner of the car, who had been riding in the front passenger seat, gave permission for the deputies to search the vehicle. During the search, the second deputy found an identification card that identified Maddox as Robert Edwin Maddox. A license check for Robert Edwin Maddox showed that his driver’s license was suspended. The deputy retained possession of the two traffic citations issued to Nathaniel Maddox and issued a citation to Maddox charging him with driving while his licensed was suspended. Maddox initially refused to sign this citation but agreed to after the deputy issued him a subsequent citation for refusing to sign a citation. Later, while in custody, Maddox volunteered that Nathaniel Maddox was his brother. Accordingly, Maddox was charged with two counts of forgery for signing the citations issued in the name of Nathaniel and two counts of uttering a forged instrument.

Maddox went to trial on the forgery and uttering counts, as well as on one count of giving false information to a police officer and one count of driving while license suspended. He was found guilty as charged.

On appeal, Maddox argues that, pursuant to section 316.650(9), Florida Statutes (2001), the trial court erred by admitting these traffic citations into evidence. In making this assertion, Maddox relies on the First District’s opinion in Dixon v. State, 812 So.2d 595, 595 (Fla. 1st DCA 2002) (“Because the language of section 316.650(9) unambiguously provides that traffic citations are not admissible in any trial, we must reverse [appellant’s forgery conviction].”). We, however, do not agree with the reasoning in Dixon.

Initially, we note that whether this issue was preserved for appeal is questionable. At the hearing on the motion in limine, and again at trial, the deputy who issued the citations testified that his observation of Maddox’s signature on one of the citations led him to conclude that Maddox had signed the citation “N. Maddox.” At the motion in limine hearing, Maddox’s counsel informed the trial court that if the officer testified at trial that the citation was signed “N. Maddox,” she wanted the citations published to the jury to show that Maddox merely signed his last name of “Maddox.” When in fact the officer did testify at trial that the signature contained a first initial, Maddox’s counsel used the citations to cross-examine the officer. Accordingly, this issue may have been waived.

However, even if the objection was not waived, we do not believe the trial court erred in admitting the citations as evidence of the forgeries. Although section 316.650(9) does provide that traffic citations “shall not be admissible evidence in any trial,” that statutory proscription does not apply to the facts of this case. Based on our reading of the statute, we conclude that the purpose of the statute is to protect the person to whom the citation is issued. Here, the citation was issued to a person the deputy believed to be Nathaniel Maddox; the deputy charged Nathaniel Maddox with two civil infractions. When the deputy learned that Maddox was, in fact, not Nathaniel Maddox, but rather Robert Maddox, he withdrew the charges against Nathaniel Maddox and retained the documents as evidence of the criminal offenses of forgery. Maddox misrepresented himself to be Nathaniel and signed the ticket to carry out the misrepresentation. Maddox was not on trial for either of the civil infractions, nor was Nathaniel Maddox. In fact, after the withdrawal of the citations, the charges of improper lane change and failure to show proof of insurance were no longer pending against anyone. Thus, the documents were not “citations” as contemplated by the statute, but rather were documentary evidence of Maddox’s criminal conduct. Thus, the statute does not apply.

Accordingly, we affirm the trial court’s ruling admitting the citations into evidence against Robert Maddox. Because in reaching this conclusion we disagree with the majority in the First District’s opinion in Dixon, 812 So.2d 595, we certify conflict with that opinion.

Affirmed; conflict certified.

NORTHCUTT and KELLY, JJ., concur.

      . We acknowledge that our decision could be read to conflict with our recent opinions in State v. Veilleux, 859 So.2d 1224 (Fla. 2d DCA 2003), and State v. Martinez, 28 Fla. L. Weekly D1916, - So.2d -, 2003 WL 21946474 (Fla. 2d DCA Aug. 15, 2003). However, those cases were before this court on petitions for writ of certiorari, which we denied. In doing so,, we concluded that the trial court in each case had not departed from the essential requirements of law because it followed Dixon, which was the only case law on the issue available at that time. Although Veilleux and Martinez did elaborate on the reasoning of the Dixon court, these discussions were not directly related to the issues being reviewed by the certiorari standard and thus did not reflect the expressed opinion of this court as to the meaning of section 316.650(9). See Shaps v. Provident Life & Accident Ins. Co., 826 So.2d 250 (Fla.2002) (holding that in the denial of certiorari, the appellate court does not rule on the merits of the case and that any discussion of the merits is dicta); Carol City Utils., Inc. v. Dade County, 183 So.2d 227 (Fla. 1966) (holding that the denial of certiora-ri is not determinative of the merits of the underlying issue and that the denial cannot be said to be an actual decision on the merits). Accordingly, our decision here is not in conflict with our holdings in Veilleux and Martinez, which were denials of petitions for writ of certiorari and not decisions on the merits.


text:
    David R. JOYNER, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-5709.
    District Court of Appeal of Florida, Second District.
    Nov. 14, 2003.
    James Marion Moorman, Public Defender, and Howardene Garrett, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Robert J. Krauss, Chief Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

We affirm David Joyner’s judgment and sentence for handling and fondling a child under the age of sixteen years. However, we note that a scrivener’s error appears on the order revoking his probation which states that Joyner violated condition two of his probation rather than condition three. Accordingly, we remand for correction of the order.

Affirmed; remanded with directions.

ALTENBERND, C.J., and CASANUEVA and KELLY, JJ., Concur.


author: FLETCHER, Judge.

text:
    NOMO RESEARCH, INC., f/k/a Sea & Ski Corporation, Appellant, v. CCL PLASTIC PACKAGING, INC., Appellee.
    No. 3D02-2255.
    District Court of Appeal of Florida, Third District.
    Nov. 19, 2003.
    Rehearing Denied Jan. 9, 2004.

      Payton & Carlson and Harry A. Payton, Miami and Amy L. Koltnow, for appellant.
    Weissman, Dervishi, Borgo & Nordlund and Jeffrey M. Weissman (Ft.Lauderdale), for appellee.
    Before GREEN, FLETCHER, and WELLS, JJ.
   FLETCHER, Judge.

Nomo Research, Inc. [Nomo] seeks to reverse an adverse final summary judgment. We reverse.

Nomo, a distributor of sun screen products, bought customized plastic tube containers from CCL Plastic Packaging, Inc. [CCL], a component manufacturer of containers and labels. The record reflects that Nomo and CCL had a business relationship that lasted several years. Sometime in 1998-99 printing irregularities and tube defects in CCL’s product were brought to the attention of CCL by various Nomo distributors, and by Nomo itself. In 1999, the business relationship began to deteriorate when Nomo failed to make its scheduled payments, resulting in CCL’s filling Nomo’s purchase orders on a prepaid basis.

In February 2000, Nomo’s past due balances were still unpaid, leading to CCL’s suing Nomo on three counts: Count I— Open Account; Count II — Account Stated; Count III — Action for Price of Undelivered Goods. Nomo summarily denied CCL’s allegations and filed a counterclaim for defective and nonconforming goods, seeking damages for CCL’s alleged breach of its agreement with Nomo as well as for breach of implied warranty of merchantability and implied warranty of fitness for a particular purpose. CCL moved for final summary judgment on all claims and counterclaims. After two hearings on the motion the trial court granted final summary judgment on all claims and counterclaims in CCL’s favor.

We conclude that the trial court should not have granted CCL’s motion. Summary judgment is only proper where there are no genuine issues of material fact and where the moving party is entitled to a judgment as a matter of law. See Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000); Collections, USA, Inc. v. City of Homestead, 816 So.2d 1225 (Fla. 3d DCA 2002). If the slightest doubt exists, summary judgment must be reversed. See Cox v. CSX Intermodal, Inc., 732 So.2d 1092, 1095 (Fla. 1st DCA 1999) (“If the record reflects even the possibility of a material issue of fact, or if different inferences can be drawn reasonably from the facts, that doubt must be resolved against the moving party and summary judgment must be denied.”).

An examination of the record reveals no shortage of genuine issues of material fact, rendering summary judgment inappropriate. For example, factual disputes remain concerning defects in the tubes CCL manufactured, the cause of the defects, whether Nomo provided timely and sufficient notice thereof to CCL, and the nature of CCL’s response. The efficacy and timeliness of notice, in particular, are issues that are rarely properly resolved on summary judgment. See Shaffran v. Holness, 93 So.2d 94 (Fla.1957).

Additionally, had the trial court found that Nomo failed to reject CCL’s product or revoke acceptance and must therefore pay the balance due, that determination would not preclude a counterclaim or set-off for nonconforming goods. Thus, the trial court should not have entered summary judgment in CCL’s favor regarding Nomo’s claims for set-off.

As CCL did not show the absence of genuine issues of fact it was error for the court to enter the summary final judgment. The final summary judgment is reversed and the cause remanded to proceed to trial.

Reversed and remanded.

      . The evidence considered should have included the affidavit of Ms. Poitras, submitted by Nomo in opposition to CCL's motion for summary judgment, as it included testimony relevant to the issue of notice of defective product and CCL’s response to that notice.


author: FULMER, Judge.

text:
    Jeffrey M. LASMAN and Tina M. Lasman, Appellants, v. FREEDOM LIFE INSURANCE COMPANY OF AMERICA, Appellee.
    No. 2D02-977.
    District Court of Appeal of Florida, Second District.
    Nov. 21, 2003.

      Matthew R. Danahy and Douglas L. Grose of Douglas L. Grose, P.A., Tampa, for Appellants.
    Robert E. Biasotti of Carlton Fields, P.A., St. Petersburg, for Appellee.
   FULMER, Judge.

Jeffrey and Tina Lasman challenge the trial court’s order dismissing their suit against Freedom Life Insurance Company of America for breach of an insurance contract. The dismissal was based on the trial court’s determination that the dispute was subject to mandatory arbitration pursuant to an arbitration clause in the contract at issue. We reverse the dismissal and remand for the trial court to resolve the threshold issue of whether a contract exists between the parties.

On 'June 13, 2000, after discussions with Freedom Life’s agent, Frederick T. Stahl, the Lasmans completed an application for health insurance with Freedom Life. Stahl provided the Lasmans with a benefits and features brochure and advised them that, upon receipt of the initial premium, the insurance coverage would be effective as of June 15, 2000. The Lasmans provided the initial premium to Stahl prior to the June 15, 2000, effective date.

On June 25, 2000, Tina Lasman broke her ankle. After Stahl verified that the Lasmans’ insurance with Freedom Life was in full force and effect, Tina Lasman underwent surgery on her ankle. Following surgery, the Lasmans received two letters from Freedom Life, both dated June 28, 2000, notifying them that their application for insurance had been denied.

The Lasmans filed suit against Freedom Life seeking damages for breach of contract and claiming estoppel to deny coverage due to the acts of its agent, Stahl. Freedom Life filed a Motion to Stay Pending Alternative Dispute Resolution. In its motion, Freedom Life denied that an insurance contract existed; however, it claimed that if a policy had been issued, the parties would be required to resolve all issues under the dispute resolution procedure set forth in the disputed contract. It attached a specimen policy to its motion. After a hearing, the trial court denied the motion citing to United Services General Life Co. v. Bauer, 568 So.2d 1321 (Fla. 2d DCA 1990), and stating: “[T]he first issue that needs to be resolved is whether or not there was indeed a contract and what that contract is. That is the threshold decision to be determined by the court.”

Freedom Life then filed a motion to dismiss, again denying the existence of the contract but asserting that the policy it filed as an exemplar required the Lasmans to submit all disputes to arbitration. After a hearing, the trial court reversed its prior decision on Freedom Life’s motion to stay and granted Freedom Life’s motion to dismiss the civil action. Although the order of dismissal does not compel arbitration, it is clear from the record that the trial court concluded that the Lasmans’ dispute with Freedom Life must be resolved through arbitration. We disagree. Seifert v. U.S. Home Corp., 750 So.2d 633, 636 (Fla.1999); see also Chastain v. Robinson-Hymphrey Co., 957 F.2d 851 (11th Cir.1992) (holding that where a party is challenging the existence of an agreement, including the existence of an agreement to arbitrate, trial court is required to determine the existence tof the agreement before compelling arbitration). Here, the conflicting allegations in the parties’ pleadings put the making of the arbitration agreement at issue. Thus, the first task of the trial court was to determine whether a valid written agreement to arbitrate existed. Resolution of that issue turns entirely on whether the parties agreed to an insurance contract. Thus, the trial court’s first ruling in this case, on the motion to stay, was correct, and the trial court erred in granting the motion to dismiss.

Under both federal statutory provisions and Florida’s arbitration code, there are three elements for courts to consider in ruling on a motion to compel arbitration of a given dispute: (1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration was waived.

Accordingly, we reverse and remand for further proceedings consistent with this opinion.

CASANUEVA and DAVIS, JJ., concur.


author: WALLACE, Judge.

text:
    Denise C. SHARON, Appellant/Cross-Appellee, v. C. William SHARON, Appellee/Cross-Appellant.
    No. 2D02-4272.
    District Court of Appeal of Florida, Second District.
    Nov. 21, 2003.
    Rehearing Denied Dec. 30, 2003.

      Marie Tomassi and Karen E. Lewis of Trenam, Kemker, Scharf, Barkin, Frye, O’Neill & Mullís, P.A., St. Petersburg, for Appellant/Cross-Appellee.
    Virginia R. Vetter of Vetter & Hunter, Tampa, for Appellee/Cross-Appellant.
   WALLACE, Judge.

Denise C. Sharon appeals the final judgment dissolving her long-term marriage to C. William Sharon, asserting that the trial court abused its discretion in its determination of the nature and amount of alimony awarded to her and in its equitable distribution of the parties’ marital property. On cross-appeal, the Husband argues that it was error for the trial court not to impute to the Wife unearned income that she would receive from her liquid investments. We affirm the judgment in part and reverse in part. On remand, the trial court shall make additional findings of fact and adjust the awards of permanent and rehabilitative alimony and the plan of equitable distribution in a manner consistent with this opinion.

Rehabilitative Alimony

The Wife argues that the trial court erred in making an alimony award that included both rehabilitative and permanent periodic alimony in lieu of an award consisting only of permanent periodic alimony because the evidence at trial was insufficient to establish that she could return to work. However, it is clearly established that the propriety of an award of rehabilitative alimony is within the scope of the trial court’s broad discretion in dissolution proceedings. Canakaris v. Canakaris, 382 So.2d 1197, 1202 (Fla.1980). Although the record includes evidence that the Wife suffers from fibro-myalgia and migraine headaches, the record also includes substantial, competent evidence to support the trial court’s finding that the Wife can and should become partially self-supporting after a three-year rehabilitative period. Therefore, the judgment including rehabilitative alimony for three years as part of the award was not an abuse of discretion.

Nevertheless, the purpose of rehabilitative alimony is to provide the former spouse “the capacity for self-support ..., either through the redevelopment of previous skills or provision of the training necessary to develop the potential supportive skills.” Id. The trial court’s combined award of permanent and rehabilitative alimony to the Wife was in the exact amount that the trial court determined was sufficient to meet the Wife’s current needs for support. Thus the rehabilitative component of the alimony award did not include any amount to cover the cost of retraining the Wife for her anticipated return to work. The trial court’s award of rehabilitative alimony should have included the costs of training based upon the evidence presented by the parties. See Welch v. Welch, 685 So.2d 895 (Fla. 2d DCA 1996). Therefore, we reverse the portion of the judgment granting rehabilitative alimony to the Wife for the trial court to revisit the matter and to adjust the award as needed, based upon a review of the existing evidence, in accordance with Ingram v. Ingram, 750 So.2d 130 (Fla. 2d DCA 2000). Upon review, if the record does not reveal that detailed evidence has been presented of the cost of the proposed training, an award of rehabilitative alimony for this purpose is inappropriate. Id. at 132.

Tax Impact

The Wife additionally asserts that the trial court erred in failing to take into account the tax implications of the alimony award. Both parties agree that the trial court did not factor the tax consequences of the alimony award into its judgment. However, the Husband argues that the Wife failed to offer evidence on this issue. The record indicates that the Wife did offer evidence of potential tax impacts on awards of alimony in several different amounts, although not in the precise amount awarded by the trial court. When evidence of the tax impact of an alimony award is presented, it is error for the trial court to fail to consider these consequences. Farley v. Farley, 800 So.2d 710, 712 (Fla. 2d DCA 2001). Because the trial court did not consider the tax consequences in making the alimony award to the Wife, we reverse the portion of the judgment determining the Wife’s need for alimony and remand for consideration of the tax consequences of the award. On remand, the trial court may receive additional evidence from both parties to determine the tax impact of the alimony award.

Marital Home

In the equitable distribution of the marital property, the trial court allocated the marital home to the Wife. She argues that the home should have been awarded to her as a support-based, lump sum alimony payment and not as part of the equitable distribution of the marital assets. However, allocating the marital home to the Wife as part of the plan of equitable distribution falls within the scope of the trial court’s broad discretion described in Canakaris, 382 So.2d at 1202. Because the Wife has not demonstrated that the trial court abused its discretion in this regard, this portion of the plan of equitable distribution must be affirmed.

In the alternative, the Wife contends that even if the award of the marital home to her as part of the equitable distribution was proper, the trial court erred by failing to include the costs of repairs and maintenance to the home in its determination of her monthly needs. However, in its calculation of the amount of the Wife’s needs, the trial court included a miscellaneous household line item intended to cover these costs. Thus the Wife’s argument on this point is without merit.

Equitable Distribution

The Wife also asserts that the trial court erred in its assessment of a $27,500 charge to the Wife’s portion of the equitable distribution award. We agree. While the case was pending, the trial court permitted three withdrawals from the parties’ money market account. Initially, each party was allowed to withdraw $15,000 for fees and costs associated with the dissolution of marriage proceedings. Later, the Wife was permitted to withdraw $12,500 to replace the roof on the marital home. The court deferred the determination of who would bear this expense until the final hearing. Thus the court-ordered withdrawals totaled $42,500. However, when the court accounted for these withdrawals, the Wife was charged $12,500 (the full cost of the new roof) in addition to the $15,000 withdrawal for fees, while the Husband was only charged $15,000. The Husband received one-half of the benefit of the new roof because the entire $245,000 value of the newly-repaired home was charged to the Wife as part of her share of the equitable distribution. The extra $6,250 charge to the Wife was not compensated for elsewhere in the plan of equitable distribution. Although a trial court may distribute marital assets unequally, it is required to justify such an award. Staton v. Staton, 710 So.2d 744, 745-46 (Fla. 2d DCA 1998). In the absence of such findings and in the interests of an equitable distribution, we remand for the trial court to make a revised equitable distribution award with an additional credit of $6,250 to the Wife’s portion.

Cross-Appeal

The Husband contends the trial court failed to account for the Wife’s future earnings from her liquid assets in determining the alimony award. A court is required to impute income for earnings that can reasonably be projected based on liquid assets awarded as part of the property division. Greenberg v. Greenberg, 793 So.2d 52, 55 (Fla. 4th DCA 2001). Although they disagreed about the amount of the appropriate rate of return, both parties presented evidence concerning the income the Wife could reasonably expect to receive from her liquid assets. The final judgment does not reflect that the trial court took the Wife’s anticipated income from her liquid assets into account in determining the amount of permanent alimony the Husband was ordered to pay. On remand, the trial court should make findings concerning the amount of income the Wife can reasonably expect to receive on her liquid assets and take the Wife’s projected income into account in its redetermination of an appropriate award of permanent alimony.

In all other respects, the final judgment is affirmed.

Affirmed in part, reversed in part, and remanded with directions.

CASANUEVA and SALCINES, JJ., concur.


author: ANDREWS, ROBERT LANCE, Associate Judge.

text:
    LAWYERS TITLE INSURANCE COMPANY, INC., Appellant, v. NOVASTAR MORTGAGE, INC., d/b/a Novastar Mortgage, Austin W. Mills, III, Mary Mills, Aurora Loan Services, Inc., and Option One Mortgage Corporation, Appellees.
    Nos. 4D02-3039, 4D02-4684.
    District Court of Appeal of Florida, Fourth District.
    Nov. 26, 2003.
    Rehearing Denied Jan. 28, 2004.

      Robert A. Cohen and Mario M. Ruiz of Cohen/Fox, P.A., Miami, for appellant.
    Gregg W. McClosky and David J. Pas-cuzzi of McClosky, D’Anna, Ioannou & Dieterle, LLP, Boca Raton, for appellee Novastar Mortgage, Inc., d/b/a Novastar Mortgage.
   ANDREWS, ROBERT LANCE, Associate Judge.

Lawyers Title Insurance Company appeals a final judgment allowing policy coverage for NovaStar Mortgage, Inc. (“No-vastar”).

Novastar is a nonconforming wholesale mortgage lender that buys and sells mortgage loans from challenged credit borrowers. Novastar had a mortgage warehousing arrangement with Netwide Funding Corp. (“Netwide”), whereby Novastar extended a secured line of credit to Netwide to facilitate Netwide’s origination of mortgage loans. On or about July 6, 1998, Rosalba Serrano (“Serrano”) purchased a parcel of real property located in Palm Beach County, Florida. In connection with her purchase of the property, Serrano secured a mortgage loan from Netwide for $174,200, and executed a note and mortgage in favor of Netwide. The loan to Serrano had been pre-approved by Novas-tar. Pursuant to the mortgage warehousing agreement between them, Netwide endorsed the note to Novastar and executed an assignment of the mortgage to Novas-tar. The mortgage and the assignment of mortgage were both recorded on July 13, 1998. Appellant issued a title policy to Novastar on the same day.

After the closing of the Serrano loan, Netwide sent a closing package to Novas-tar that included the original mortgage and assignment. The parties are in dispute as to whether Novastar ever physically received the original note. Novastar then submitted the loan to its quality control department for an audit. The audit revealed that Serrano had made material misrepresentations concerning her employment, income, and social security number. Novastar became concerned the loan was too risky. It notified Netwide that there was a problem with the Serrano loan and consequently Novastar was not going to buy the loan. It instructed Netwide to resell the loan so that Novastar could recoup its money.

Netwide sold the loan to BNC on July 28, 1998, struck through its endorsement of the note to Novastar and marked it “canceled,” and then endorsed the note to BNC and executed an assignment of the mortgage to BNC. After selling the note to BNC, Netwide failed to repay Novastar. BNC subsequently endorsed the note and assigned the mortgage to Aurora Loan Services, Inc. (“Aurora”) on July 31, 1998.

On September 30, 1998, Serrano sold the property to Austin and Mary Mills and received a pay-off statement from Option One Mortgage Corporation. The pay-off statement indicated payment should be made to Aurora. Serrano made the payment, and the property was transferred to the Mills. First National Title Company served as settlement agent for the sale. First National paid Aurora even though a title search showed that Novastar had a senior lien on the property.

Around August 1998, Novastar requested the original note from Netwide. No-vastar learned that the note had been sold by Netwide; however, Novastar did not inquire as to the identity of the purchaser, or take any other action on the note. Relying on Netwide’s promises to pay, No-vastar pursued Netwide for repayment. However, Netwide never paid Novastar and ultimately went out of business. No-vastar then filed a claim under its title insurance policy with appellant for recovery of its loss. Appellant denied the claim stating that: 1) the loss was not covered under the policy; 2) Novastar did not suffer a loss due to the failure of title; and 3) Novastar did not own the note. Consequently, Novastar filed a three-count amended complaint against the parties involved. Count I was a mortgage foreclosure against the Mills’ successors-in-title, James and Euphemia Strassberger. In Count II Novastar sought a declaratory judgment against appellant. Count III alleged civil liability for violation of the Mortgage Brokerage and Mortgage Lending Act against Netwide and its principals, Paul Aguirre and Craig Smith. The Strassbergers filed a third-party complaint against Aurora for indemnification, misrepresentation, and unjust enrichment. Aurora filed a fourth-party complaint against Netwide.

After a bench trial, the court entered two final judgments. The first was against Novastar on Count I and in favor of No-vastar on Count III. Regarding Count III, a judgment of default was entered and Novastar was awarded $245,232.11 in damages. The second final judgment, at issue in this appeal, found in favor of Novastar on Count II, entering a declaratory judgment against appellant. As a result, No-vastar was awarded $245,232.11, plus interest against appellant. Appellant moved for rehearing, relief from judgment, and remittitur. The trial court denied the motions and appellant appealed.

Soon after, the parties to this appeal and the Strassbergers mediated the issue of Novastar’s attorneys’ fees and costs. A settlement was reached and an agreed final judgment was entered by the trial court whereby Novastar would receive $135,200.00 in attorney’s fees and costs from appellant. The trial court noted in its order that appellant could appeal the trial court’s decision on Novastar’s entitlement to attorneys’ fees. Appellant did, in fact, appeal the trial court’s order.

Appellant argues that the trial court erred in finding coverage under the title policy because Novastar’s claim does not fall within the grant of coverage since the alleged defect came into existence subsequent to the date of policy, and that additionally, the loss is precluded by policy exclusions. Novastar, in turn, argues that the trial court properly found coverage because Novastar never received the original note from Netwide, and this wrongful retention of the original note caused the unenforceability of the mortgage.

The insurance policy was issued on July 13, 1998, the same date Novastar recorded the note and mortgage. The policy, which governs the rights and liabilities of the parties provided:

SUBJECT TO THE EXCLUSIONS FROM COVERAGE, THE EXCEPTIONS FROM COVERAGE CONTAINED IN SCHEDULE B AND THE CONDITIONS AND STIPULATIONS, LAWYERS TITLE INSURANCE COMPANY, a Virginia corporation, hereinafter called the Company, insures as of Date of Policy shown in Schedule A, against all loss or damage, not exceeding the Amount of Insurance state in Schedule A, sustained or incurred by reason of:
1. Title to the estate or interest described in Schedule A being vested other than as stated therein;
2. Any defect in or lien or encumbrance on the title;
3. Unmarketability of title;
4. Lack of a right of access to and from land;
5. The invalidity or unenforceability of the lien of the insured mortgage upon title.

The policy also contained exclusions from coverage including, but not limited to the following:

3. Defect, liens, encumbrances, adverse claims or other matters:
(a) created, suffered, assumed or agreed to by the insured claimant; (d) attaching or created subsequent to Date of Policy (except to the extent that this policy insures the priority of the lien of the insured mortgage over any statutory lien for services, labor or material)

The trial court found that Novastar was entitled to coverage under the policy because its loss resulted from the “invalidity or unenforceability of the lien.” The trial court held Novastar’s mortgage lien was unenforceable due to the wrongful deprivation by Netwide of the original note. The trial court further found Novastar was unable to enforce its mortgage lien because it never properly obtained the original note; that the unenforceability of Novastar’s mortgage lien did not arise by reason of defect, lien, encumbrance, adverse claim or matter created, suffered, assumed or agreed to by Novastar subsequent to the date of the policy; and Netwide’s wrongful retention of the original note preceded or was coincident with the date of the policy.

It is well-settled that a trial court’s ruling comes to this court clothed with a presumption of correctness and the burden is on appellant to demonstrate error. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979); see also Royal Oak Landing Homeowner’s Ass’n v. Pelletier, 620 So.2d 786, 788 (Fla. 4th DCA 1993) (recognizing that a trial court’s decision in a declaratory action is accorded a presumption of correctness). A trial court’s findings of fact in a declaratory judgment action will be upheld if supported by competent substantial evidence. See Collier v. Parker, 794 So.2d 616, 618 (Fla. 1st DCA 2001). Conversely, any conclusions of law are reviewed de novo. See Panama City Beach Cmty. Redevelopment Agency v. State, 831 So.2d 662, 665 (Fla.2002); First Union Nat’l Bank v. Turney, 824 So.2d 172, 185 (Fla. 1st DCA 2001).

Section 624.608, Florida Statutes (1997), defines title insurance as: “insurance of owners of real property or others having an interest in real property or contractual interest derived therefrom, or liens or encumbrances on real property, against loss by encumbrance, or defective titles, or invalidity, or adverse claim to title.” While most insurance is protection against future occurrences such as fire or accident, title insurance is protection against future loss because of past events. See Livingston v. Am. Title & Ins. Co., 133 So.2d 483, 486 (Fla. 1st DCA 1961).

Generally, title insurance policy coverage for loss or damage from the invalidity or unenforceability of a lien or an insured mortgage insures against defects in the mortgage itself, but not against problems arising from, or related to, the underlying debt. See Lawyers Title Ins. Corp. v. JDC (Am.) Corp., 52 F.3d 1575, 1582 (11th Cir.1995). “A mortgagee’s title policy protects that mortgagee against certain risks related to the validity of the mortgage itself, such as fraud, incompetency of the mortgagor, or failure to properly execute the mortgage.” Id. at 1583. Instances which give rise to a claim under title insurance include where it was found that there was a forgery in the execution of the mortgage, see Ferrell v. Inter-County Title Guaranty & Mortgage Co., 213 So.2d 518 (Fla. 3d DCA 1968); where the mortgagor has been previously adjudged incompetent, see Citicorp Savings of Illinois v. Stewart Title Guaranty Co., 840 F.2d 526 (7th Cir.1988); or where there was a lien on the real property because the mortgagor previously had conveyed the property to another, see Henningsen v. Title & Trust Co., 151 Or. 318, 49 P.2d 458 (1935).

A title insurer will not be held liable for loss resulting merely from the invalidity of the debt, the unenforceability of the note, or the obligor’s failure to repay the debt underlying the insured mortgage. See JDC (Am.) Corp.; Bank of Miami Beach v. Fid. & Cas. Co. of N.Y., 239 So.2d 97, 100 (Fla.1970) (holding that because a mortgage lien and a mortgage debt are two entirely different concepts, a mortgagee’s loss was not found to be within the coverage of title insurance policy where mortgagors legally and properly executed the mortgage, but the mortgagors’ son forged their signatures on the note, rendering the note invalid, as this fact did not extinguish the debt or invalidate the mortgage lien). It has further been found that title insurance does not provide coverage for errors in disbursing monies, see Mark Twain Kansas City Bank v. Lawyers Title Insurance Corp., 807 F.Supp. 85 (E.D.Mo.1992); or where an assignee of a mortgagee suffers a loss because the mortgagee wrongfully paid the mortgagor from a checking account with insufficient funds, see Gerrold v. Penn Title Insurance Co., 271 N.J.Super. 50, 637 A.2d 1293 (App.Div.1994).

In the matter herein, the trial court erred in finding Novastar’s mortgage lien was unenforceable due to the wrongful retention of the original note by Netwide. The law is clear that the absence of a note does not make a mortgage unenforceable. See Thomas v. Thomas, 96 So.2d 771, 773 (Fla.1957) (finding the mere absence of a promissory note evidencing a debt did not prohibit a holding that the transaction was a mortgage arrangement); Crum v. U.S. Fid. & Guar. Co., 468 So.2d 1004, 1007 (Fla. 1st DCA 1985) (a one-month period between the execution of mortgage and the corresponding promissory note does not render the mortgage unenforceable for lack of consideration); see also First Am. Bank of N.Y. v. Sloane, 235 A.D.2d 656, 651 N.Y.S.2d 734 (1997) (finding a mortgage is not invalidated by the absence of the note or bond manifesting the debt). Here, it is undisputed the mortgage and note executed by Serrano in favor of Net-wide was valid and enforceable. As owner and possessor of the note, Netwide had the right to enforce the mortgage lien. Net-wide assigned all of its rights, title, and interest to the mortgage, together with the notes therein described, the money due and to all rights accrued under the mortgage. It is well-established that an assignment transfers to the assignee all the interests and rights of the assignor in and to the thing assigned. See Deakter v. Menendez, 830 So.2d 124, 129 (Fla. 3d DCA 2002). Upon the assignment from Net-wide, Novastar had the right to enforce the mortgage and note, notwithstanding the fact that the note was not delivered to Novastar. See Beaty v. Inlet Beach, 151 Fla. 495, 9 So.2d 735, 741 (1942) (finding that mere fact that notes secured by a mortgage are in possession of other persons than assignor of a mortgage does not in and of itself support contention the assignment of the mortgage did not also carry assignment of notes); Slizyk v. Smi-lack, 825 So.2d 428, 430 (Fla. 4th DCA 2002) (holding that assignment by first husband, who was in possession of notes, to second husband, gave second husband right to foreclose mortgage despite his inability to produce original note and mortgage).

Furthermore, while it is true under Florida law that delivery is necessary to validate a negotiable instrument, “Florida courts recognize constructive delivery as a sufficient form of delivery.” Harmony Homes, Inc. v. United States, 936 F.Supp. 907, 913 (M.D.Fla.1996) (citations omitted). “Delivery of a written assignment of an instrument has been held effective as a constructive delivery without delivery of the negotiable instrument itself.” Id. (citations omitted). An assignee of a mortgage and note assigned as collateral security is the real party in interest, holds legal title to the mortgage and the note, and is the proper party to file suit to foreclose the mortgage. Id. at 914. In the instant case, there has been no allegation that the assignment from Netwide to Novastar was ineffective. As such, the assignment constituted constructive delivery of the note, making Novastar a person entitled to enforce the note, even without physical possession.

As the owner of the note, whether it was lost or wrongfully retained by Net-wide, Novastar could have sought to reestablish the note pursuant to Florida statutes. A party may enforce its rights by reestablishing the lost, stolen, or destroyed paper or instrument under the applicable statutes and then sue upon the reestablished instrument. See § 71.011, Fla. Stat. (2003). Instruments that may be reestablished include notes secured by mortgages, see Lovingood v. Butler Construction Co., 100 Fla. 1252, 131 So. 126 (1930); and promissory notes, see Bigelow v. Summers, 28 Fla. 759, 9 So. 690 (1891).

Moreover, in the case of a lost, stolen, or destroyed negotiable instrument, a party may enforce the negotiable instrument without reestablishing it. See § 673.3091, Fla. Stat. (2003). Pursuant to this statute, an owner of a lost, stolen, or destroyed instrument may maintain an action to recover upon the note by showing proof of his or her ownership, facts that prevent the owner from producing the instruments, and the terms of the instrument, without first reestablishing the instrument. See Dunn v. Willis, 599 So.2d 271 (Fla. 5th DCA 1992); Gutierrez v. Bermudez, 540 So.2d 888 (Fla. 5th DCA 1989); Barber v. Ehrich, 394 So.2d 220 (Fla. 5th DCA 1981); see also Deakter, 830 So.2d at 128 (finding that a party seeking to enforce an instrument need not have physical possession of the instrument when the loss occurred).

Here, although there were remedies available to Novastar, it took no action, either to reestablish the note or to directly enforce it. It is undisputed that, Novastar rejected the loan and agreed that Netwide should sell the loan to another “takeout investor.” Netwide did indeed sell the loan to BNC, cancelled its endorsement to Novastar, and endorsed it to BNC. Novastar, however, never asked to whom Netwide sold the loan, but continually relied on Netwide’s assurances regarding repayment. BNC assigned the mortgage and the note to Aurora for value and transferred physical possession of the note to Aurora. Aurora took the note in good faith and without notice that it was overdue, had been dishonored, contained an unauthorized signature, had been altered, or of any claim or defense to the note on the part of any party. As such, Aurora was the holder in due course of the note.

Unable to recover payment from Net-wide, Novastar sought to foreclose the mortgage assigned to it by Netwide against the Mills/Strassburgers. After a bench trial, the trial court found that No-vastar was not entitled to enforce the note because Novastar was not a holder of the note at the time it filed suit or any time thereafter and, as such was entitled. See Am. Bank of the S. v. Rothenberg, 598 So.2d 289, 291 (Fla. 5th DCA 1992) (finding that it is elementary that to be a holder, one must be in possession of the instrument; but noting that an exception to this requirement exists where the owner can prove ownership, the facts which prevent production of the instrument and its terms).

Novastar’s rejection of the note caused Netwide to resell the loan to BNC, which subsequently endorsed the note and assigned the mortgage to Aurora. After the loan was resold, Netwide failed to repay Novastar the proceeds. Novastar’s failure to take any action to enforce its rights on the note, whether at the time the closing package was received without the note, at Netwide’s refusal to forward the note, at the time it learned that the loan had been resold, or at any time thereafter, made the machinations of Netwide possible. It is unreasonable for an insured to expect that a title insurance policy would insure against a wrongful act such as Netwide failing to repay Novastar when it resold the loan. See Gerrold, 637 A.2d at 1296.

All of the acts that prevented Novastar from enforcing its mortgage lien occurred subsequent to the issuance of the title insurance policy and arose as a direct result of Novastar’s actions or inactions. As such, Novastar’s loss was either not covered by, or was excluded by the policy provisions. Therefore, we reverse the trial court’s judgment finding coverage under the title insurance policy and awarding Novastar damages, and remand this matter with instructions to the trial court to enter judgment in favor of appellant.

Inasmuch as this matter is being remanded for entry of judgment in favor of appellant, the award of attorney’s fees to Novastar as prevailing party must also be reversed. Appellant’s remaining issues are rendered moot and we decline to address them.

REVERSED AND REMANDED.

FARMER, C.J., and POLEN, J., concur.

      . The trial court entered two final judgments in this case. The first did not involve appellant and was not appealed. The second, appealed here, awarded a declaratory judgment against appellant.

      . Netwide was a mortgage lender that originated mortgage loans and later sold them on the secondary mortgage market.

      . This court must additionally note that because the closing package which allegedly did not contain the original note was forwarded to Novastar after closing took place, on the date the title insurance policy was issued, there was no evidence that the note was being wrongfully detained.


author: KLEIN, J.

text:
    Michael J. UNDERWOOD, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-3816.
    District Court of Appeal of Florida, Fourth District.
    Nov. 26, 2003.
    Rehearing Denied Jan. 26, 2004.
    Thomas Montgomery of Thomas Montgomery, P.A., Belle Glade, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Monique E. L’ltalien, Assistant Attorney General, West Palm Beach, for appellee.
   KLEIN, J.

Appellant was convicted of eleven counts of grand theft as a result of his use of funds while running the City of Belle Glade’s marina, golf course and campground. Because the state did not refute appellant’s explanation in this circumstantial evidence case, which was that even though he had engaged in improper bookkeeping, all of the funds were used to benefit the city, we reverse for a judgment of acquittal.

The theft charges involved the cash proceeds from golf tournaments which were not deposited into the city’s accounts by appellant. The amounts ranged from around $300 to over $2,000. The state’s case consisted of establishing that appellant would take in cash without ringing it up on the register or properly recording it in the books. The state put on no evidence to establish what was done with these funds.

Appellant, who had worked for the city for many years, admitted that he had not followed proper procedures in accounting for cash receipts, but testified that none of the cash was used for his own benefit, and all of it was used for the benefit of the city. He testified that he was told that it was his job to make the facilities he was managing profitable, that he was never properly trained in how to account for the funds, and that he ran things in his own way. Following formal procedures would have prevented him from using the money as he saw fit.

Appellant testified that when the city could not afford new equipment, he used the cash to purchase a used mower, a used machine which picks up golf balls, a microwave, two television sets and a satellite dish, and merchandise including used golf clubs to be sold in the pro shop. He used some of the cash to pay for barbecues to promote the city, to pay for fishing guides for a fishing tournament, to pay employees working in golf tournaments, and to hold functions such as parties for campers, all to benefit the city. Appellant did not document his testimony with more specific proof of his purchases so that all of the cash was accounted for, but he did testify that all of it was spent to benefit the city, not himself. There was independent evidence that the barbecues and parties he testified about did take place, and that the inventory in the golf shop increased.

He testified that if he had been using the city’s purchase order system, he would not have accomplished these things. He had explained this to his superiors and the city manager told him to do whatever he had to do to make the golf club profitable.

The state put on no evidence to contradict appellant’s explanation as to how the funds were expended. Appellant contends that the state failed to negate his reasonable hypothesis of innocence, and that he is entitled to a judgment of acquittal. The state’s response is that it makes no difference how appellant expended the funds, that his convictions for grand theft should stand, even if the funds were used solely to benefit the city. We cannot agree. ■

Theft is defined in section 812.014(1), Florida Statutes (2000) as follows:

(1) A person commits theft if he or she knowingly obtains or uses, or endeavors to obtain or to use, the property of another with intent to, either temporarily or permanently:
(a) Deprive the other person of a right to the property or a benefit from the property.
(b) Appropriate the property to his or her own use or to the use of any person not entitled to the use of the property.

As is apparent from the statute, theft requires intent. Intent, being a state of mind, is generally established by circumstantial evidence, Jones v. State, 192 So.2d 285 (Fla. 3d DCA 1966). That was the case here. Where the only proof is circumstantial, a conviction cannot stand unless the proof is inconsistent with any reasonable hypothesis of innocence. State v. Law, 559 So.2d 187 (Fla.1989).

In Everett v. State, 831 So.2d 738 (Fla. 4th DCA 2002), the defendant was convicted of exploiting an elderly person, a crime which contains, in addition to other elements, the elements of theft. § 825.103(l)(a), Florida Statutes. The facts in Everett were somewhat similar to the facts in this case, in that Everett had obtained funds from an elderly person without properly accounting for them. She testified in her defense, however, that all of the funds had been spent for the benefit of, or at the direction of, the victim. As in the present case, the state did not refute this explanation. Observing that there was no evidence that the defendant took the money for her own use, nor any evidence inconsistent with her explanation as to what she did with the funds, we concluded that the state failed to present evidence of exploitation which would exclude every reasonable hypothesis except that of guilt.

We agree with the state that its case in chief, which demonstrated that the appellant took in cash without properly showing it on the books, and retained it in his possession, was circumstantial evidence sufficient to prove theft in the absence of any explanation by the appellant as to what he did with the funds. Appellant’s testimony, however, supported a reasonable hypothesis of innocence. Assuming appellant’s testimony was true, and it was not in dispute, appellant was guilty at most of violating city rules, but not guilty of grand theft. Accordingly, as in Everett, we reverse for a judgment of acquittal.

STONE and HAZOURI, JJ., concur.


text:
    STATE of Florida, Appellant, v. Larry RIDDLE, Appellee.
    Nos. 4D02-3606, 4D02-3787.
    District Court of Appeal of Florida, Fourth District.
    Nov. 26, 2003.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Richard L. Polin, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellee.
   PER CURIAM.

Appellee moved to enforce his plea agreement when the state filed civil commitment proceedings under the Jimmy Ryce Act. The trial court granted relief and ordered appellee’s release from custody. The state appeals, and we reverse on the authority of Krischer v. Faris, 838 So.2d 600 (Fla. 4th DCA 2003) and Murray v. Regier, 27 Fla. L. Weekly S1008, — So.2d —, 2002 WL 31728885 (Fla. Dec. 5, 2002).

WARNER, STEVENSON and GROSS, JJ., concur.


text:
    BOCA DEVELOPERS, INC., Boca Golf View Developers, Inc., Boca Golf View, Ltd., and Boca Marina, Ltd., Appellants, v. FINE DECORATORS, INC., Appellee.
    No. 4D02-4869.
    District Court of Appeal of Florida, Fourth District.
    Nov. 26, 2003.
    Rehearing Denied Jan. 26, 2004.
    John H. Pelzer and Kimberly S. Rogers of Ruden, McClosky, Smith, Schuster & Russell, P.A., Ft. Lauderdale, for appellants.

      Lee Milich of Lee Milich, P.A., Ft. Lauderdale, for appellee.
   KLEIN, J.

Fine Decorators contracted to furnish several new model apartments built by the appellant developers, some of which were on a consignment basis. In this lawsuit Fine claimed that the developers breached the contract and obtained a jury verdict awarding lost profits. We reverse for a new trial because the trial court failed to define “consignment” to the jury and also because the award of lost profits failed to consider overhead.

The contract included two units in Townsend Place and two units in Mizner Grand. It provided that Fine would “provide on consignment all loose furnishing” in Townsend Place, and would “supply one unit on consignment” in Mizner Grand. The developers agreed to purchase the furnishings in the other Mizner unit.

The first Townsend unit was sold with all of the furnishings; however, the second Townsend unit was more difficult to sell and ultimately was sold without all of the furnishings. At that point Fine and the developers were having disagreements, and no furniture was placed in the Mizner units.

Fine brought this lawsuit for breach of contract seeking lost profits on the Townsend unit which was sold unfurnished as well as the two Mizner units which were never furnished and the jury awarded damages for all three units.

The developers presented testimony that consignment meant that Fine would be paid only for that furniture which was sold along with the apartments. Fine, on the other hand, testified that the developers were obligated to purchase the furniture no matter how the apartments were sold. The developers argue that the court should have defined consignment in the jury instructions.

The instruction proposed by the developers was essentially the same as the definition of consignment in Edwards v. Baldwin Piano Co., 79 Fla. 143, 83 So. 915, 918 (1920):

The term has a well-defined legal meaning and signifies * * * to deposit with another to be sold, disposed of or called for * * * to send goods to an agent * * * to be sold, to send or transfer goods to a merchant or factor for sale, * * * term implies an agency and applied in a commercial sense means that the property is committed or intrusted to the consignee for care or sale, and does not by any express or fair implication mean a sale by one or purchase by another.

We conclude that the trial court erred in not defining consignment in the jury instructions, because this omission left the jury with the erroneous impression that consignment, which is not ambiguous, could mean something other than its definition under Edwards. We therefore reverse and remand for a new trial with a proper jury instruction.

The developers also argue that the trial court erred in allowing Fine to calculate its lost profits without allocating fixed overhead costs to these model apartments. Fine presented testimony that, when it calculates profits on model apartments, it does not include ordinary overhead such as salaries of employees, rent and insurance. Rather, Fine apportions all of this overhead to other decorating jobs for which Fine charges more than it does when furnishing models. Fine admits that these models were decorated by its employees, and that fixed costs such as rent and insurance related to those employees. Fine’s explanation is that, because it does a large volume of business, it reaches a point where taking on additional projects does not increase its fixed costs. It had reached that point when it worked on these models.

Assuming that what Fine says is true, it does not follow that fixed costs should be allocated only to decorating jobs up to a certain point, and not to jobs undertaken thereafter. If Fine decorates 100 units a year, and its fixed costs do not increase after the first fifty, it does not follow that Fine can recover greater lost profits for the seventy-fifth unit than the twenty-fifth unit. Our case law requires that these expenses be allocated across the board.

In Indian River Colony Club, Inc. v. Schopke Construction & Engineering, Inc., 592 So.2d 1185 (Fla. 5th DCA 1992), the court explained:

In order to prove its prospective lost profits, Schopke must show its total costs and expenses necessary to perform the contract and then deduct that sum from the balance owing on the contract price.
In arriving at its deductible expenses and costs to determine lost profits, Schopke must deduct the actual supervisory salary paid or, if no salary is paid, the reasonable value of the supervisory services that would have been attributable to performing the contract. Additionally, Schopke must also deduct any other operating expenses and costs, such as its home office expenses and overhead, which were not reimbursable.

Id. at 1187 (citations omitted).

This court has applied that principle in Fu Sheng Industrial Co. v. T/F Systems, Inc., 690 So.2d 617, 623 (Fla. 4th DCA 1997) (“[Tjrial court should have required an accounting for all costs associated with the selling” of the product for which lost profits were claimed.); Ballard v. Krause, 248 So.2d 233, 234 (Fla. 4th DCA 1971) (“Profit may be established by showing the total cost and expenses of labor, services and materials necessary to perform the contract and then deducting that sum from the contract price.”); Physicians Reference Lab., Inc. v. Daniel Seckinger, M.D. & Assocs., P.A., 501 So.2d 107 (Fla. 3d DCA 1987) (All fixed and variable costs must be deducted from proceeds in determining lost profits).

As support for its argument that it can allocate its fixed overhead entirely to private decorating jobs, thus artificially increasing its profit on model apartments, Fine relies entirely on Knight Energy Services, Inc. v. C.R. International Enterprises, Inc., 616 So.2d 1079, 1080 (Fla. 4th DCA 1993). In Knight, however, “Plaintiff testified unequivocally that there were no deductible costs or expenses necessary to fully perform this contract.” Unlike in Knight, there was no testimony in the present case that the fixed costs, such as salaries of employees, were not involved in furnishing these models. This case is thus distinguishable from Knight.

This is not to say that a party seeking lost profits is precluded from proving that some endeavors are more profitable than others, because, for example, they are less labor intensive. Fine, however, did not have that type of proof. In the absence of such, our case law requires that overhead be deducted.

The developers argue that, because Fine did not properly prove lost profits, they should have been granted a directed verdict. It appears from the record, however, that if the judge had correctly ruled that overhead had to be deducted, Fine would have been able to establish the amount of that overhead. Although Fine may not be able to prove that it would have made a profit under those circumstances, as the evidence shows that furnishing model apartments is done primarily in the hopes of attracting more lucrative business, Fine should be given the opportunity to do so. We therefore reverse and remand for a new trial on all issues.

STONE and HAZOURI, JJ., concur.


text:
    Stewart GREENBERG, Appellant, v. Elaine T. GREENBERG, Appellee.
    Nos. 4D02-3812, 4D02-4506.
    District Court of Appeal of Florida, Fourth District.
    Nov. 26, 2003.
    Rehearing Denied Jan. 26, 2004.
    Amy D. Shield of Amy D. Shield, P.A., Boca Raton and Christiansen & Jacknin, West Palm Beach, for appellant.
    Robert L. Bogen of the Law Offices of Robert L. Bogen, Boca Raton, for appel-lee.
   PER CURIAM.

We find no error as to all issues except one. It was error to require the husband to maintain a life insurance policy in the amount of $500,000, when such relief was not properly requested by the wife or tried by the parties. On remand, the trial court shall file an amended final judgment deleting the insurance requirement. In all other respects the judgment is affirmed.

FARMER, C.J., GUNTHER, J., and KRATHEN, DAVID H., Associate Judge, concur.


text:
    94th AERO SQUADRON OF MIAMI, INC. and Manuel E. Sanchez, Appellants, v. Arturo COLON, Appellee.
    No. 3D03-2662.
    District Court of Appeal of Florida, Third District.
    Nov. 26, 2003.
    Rehearing Denied Jan. 9, 2004.
    Restani, McAllister & Cassetty, P.A. and David R. Cassetty, Coral Gables; Catri, Holton, Kessler, Kessler & Tuzzio, P.A. and Gerard A. Tuzzio (Ft. Lauderdale), for appellant.
    Roy D. Wasson, Timothy Carl Blake, for appellee.
    Before SCHWARTZ, C.J., and GREEN and WELLS, JJ.
   PER CURIAM.

This is an appeal by 94th Aero Squadron of Miami, Inc. and Manuel Sanchez, defendants below, for review of a non-final order denying their motion for summary judgment on the issue of workers compensation immunity. Because the trial court found that there were triable issues of fact regarding worker’s compensation immunity and that the defendants were therefore not precluded from presenting a worker’s compensation immunity defense, this case is not appealable under Fla. R.App. P. 9.130(a)(3)(C)(v). See Hastings v. Hemming, 694 So.2d 718, 720 (Fla.1997)(“Non-final orders denying summary judgment on a claim of workers’ compensation immunity are not appealable unless the trial court order specifically states that, as a matter of law, such a defense is not available to a party.”).

We therefore treat this as a petition for issuance of a writ of certiorari and deny the same. See Martin-Johnson, Inc. v. Savage, 509 So.2d 1097, 1099 (Fla.1987)(holding that for non-final order to be reviewable by petition for certiorari, it must depart from essential requirements of law, causing material injury to petitioner throughout remainder of proceedings below, effectively leaving no adequate remedy on appeal).

Petition for issuance of writ of certiorari is denied.


text:
    Michael McCALL, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-1225.
    District Court of Appeal of Florida, Second District.
    Dec. 3, 2003.
    Rehearing Denied Jan. 8, 2004.
   DAVIS, Judge.

Michael McCall challenges the summary denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). On March 27, 1996, McCall was found guilty by a jury of burglary of a dwelling and resisting arrest without violence. On October 10, 1996, the trial court determined that McCall met the habitual felony offender criteria and imposed a habitual felony offender sentence of fifteen years in prison followed by fifteen years of probation.

McCall subsequently filed a motion to correct illegal sentence in which he claimed that his habitual felony offender sentence was illegal because he lacked the necessary predicate offenses for such a sentence. To establish McCall as a habitual felony offender, the State relied on prior convictions in case numbers 91-2765, 91-3206, and 91-3236. The record shows that McCall was placed on probation in case number 91-2765 on September 16, 1991. McCall was convicted in case numbers 91-3206 and 91-3236 on May 6, 1992. On that same day, the court found McCall in violation of probation in case number 91-2765.

In his motion, McCall claimed that he was sentenced in case number 91-2765 for the first time after the finding of a violation of probation. Thus the sentences for the predicate convictions used to classify McCall as a habitual felony offender were entered on the same day, and his habitual sentence violated the sequential convictions requirement of section 775.084(5), Florida Statutes (2002). McCall’s claim is based on the assertion that probation is not a sentence for purposes of section 775.084. See Richardson v. State, 28 Fla. L. Weekly D1716, — So.2d -, 2003 WL 21697171 (Fla. 4th DCA July 23, 2003). We disagree.

When it enacted the habitual felony offender statute, the legislature intended that once a defendant had twice been convicted with sanctions the third conviction would be enhanced. We find that a sentence, as referred to in section 775.084, includes the sanction of probation. Therefore, we affirm the order of the trial court and, accordingly, certify conflict with Richardson, — So.2d -, 28 Fla. L. Weekly D1716.

Affirmed; conflict certified.

ALTENBERND, C.J., and SILBERMAN, J., Concur.


author: STONE, J.

text:
    Tilbert BAYNHAM a/k/a Robert L. Rice, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-3398.
    District Court of Appeal of Florida, Fourth District.
    Dec. 3, 2003.
    Patrick C. Rastatter of Glass & Rastat-ter, P.A., Fort Lauderdale, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   STONE, J.

We reverse Baynham’s conviction for carjacking. It was error to deny Bayn-ham’s request for a jury instruction on robbery as a lesser-included offense of carjacking. The taking of a motor vehicle was charged in the information and the only evidence of a taking related to the motor vehicle.

In Fryer v. State, 732 So.2d 30, 32 (Fla. 5th DCA 1999), the court recognized that robbery is a necessarily included offense of carjacking, stating:

No case appears to have decided whether robbery or grand theft auto are necessarily or permissive lesser-included offenses of carjacking. Given the profusion of new offenses and the complexities of sentencing, this is a task increasingly given to the courts to untangle. Although the general rules regarding necessarily and permissive lesser-included offenses are well established, their application has become a challenge.
We conclude that robbery, a second-degree felony, is a necessarily lesser-included offense of carjacking. The elements of the two offenses are identical, except that robbery involves the taking of “money or other property which may be the subject of larceny,” while carjacking is limited to the taking of a motor vehicle. Although robbery is a broader offense than carjacking, in that it involves “money or other property,” while carjacking is limited to motor vehicle robbery, the offense of robbery still appears to be “subsumed” within the more limited offense of carjacking, in that every carjacking is also a robbery, albeit a specialized form of robbery.

(Footnote omitted).

The state requests that we reject the Fryer holding because a necessarily lesser-included offense is generally one which is subsumed within the greater offense, i.e., a person cannot commit the greater offense without also committing the necessarily lesser-included offense. See State v. Wimberly, 498 So.2d 929 (Fla.1986). The state urges that carjacking is limited to a motor vehicle while robbery is a broader offense than carjacking, in that it involves “money or other property.”

In Miller v. State, — So.2d -, 2003 WL 21766500, 28 Fla. L. Weekly D1799 (Fla. 2d DCA Aug.1, 2003), the court reversed Miller’s attempted carjacking conviction holding the trial court erred in denying his request for a jury instruction on attempted robbery as a necessarily lesser-included offense, stating:

Necessarily lesser included offenses are those where “the burden of proof of the major crime cannot be discharged, without proving the lesser crime as an essential link in the chain of evidence.”.... Robbery is a necessarily included offense of carjacking. Fryer v. State, 732 So.2d 30 (Fla. 5th DCA 1999). The supreme court has recognized that “[t]he language of the carjacking statute mirrors the language of the robbery statute with one exception-carjacking pertains only to motor vehicles whereas robbery pertains to all property.” Cruller v. State, 808 So.2d 201, 204 (Fla.2002). As the Fifth District noted, “every carjacking is also a robbery.” Fryer, 732 So.2d at 32.
Failure to instruct on an offense only one step removed from the conviction is per se reversible error. Cox v. State, 618 So.2d 291 (Fla. 2d DCA 1993).... Because attempted robbery is only one step removed from attempted carjacking, the trial court’s failure to instruct the jury on attempted robbery is per se reversible error. See State v. Abreau, 363 So.2d 1063, 1064 (Fla.1978).

(Footnote omitted).

The state’s argument that, because the carjacking offense is a more specific offense than robbery it should not be a lesser-included offense, appears to have been rejected by the supreme court in Cruller v. State, 808 So.2d 201, 204 (Fla. 2002), in which the supreme court explained that:

When the Legislature enacted the carjacking statute, it carved out a particular type of robbery — the forceful taking of a motor vehicle — and made it an enhanced crime (unarmed robbery is a second-degree felony compared to unarmed carjacking which is a first-degree felony).

We have also considered the identification issue raised on appeal and find no reversible error or abuse of discretion. Therefore, applying Fryer and Miller, with which we agree, we reverse the judgment and sentence and remand for a new trial.

KLEIN and HAZOURI, JJ., concur.


author: WARNER, J.

text:
    DEPARTMENT OF REVENUE, o/b/o Belinda Cuevas, Appellant, v. Alexander CUEVAS, Appellee.
    No. 4D02-3710.
    District Court of Appeal of Florida, Fourth District.
    Dec. 3, 2003.
    Charles J. Crist, Jr., Attorney General, and William H. Branch, Assistant Attorney General, Tallahassee, for appellant.
    No brief filed on behalf of appellee.
   WARNER, J.

The Department of Revenue (“Department”) appeals an order dismissing the registration of an out-of-state child support order. The trial court sua sponte dismissed the action because the Department did not serve the respondent father within the time allowed under Florida Rule of Civil Procedure 1.070 and Family Law Rule of Procedure 12.070. Because the notice provision of the Uniform Interstate Family Support Act (“UIFSA”) requires the registering tribunal to provide notice to the respondent, we hold that the court erred in dismissing the cause for the Department’s failure to serve timely notice.

Sections 88.6011-.6141, Florida Statutes (2002), provide for the procedure to register and enforce a support order or income-withholding order from another state. These are the statutes under which the registration in this case was attempted.

Section 88.6021 requires an initiating state to transmit copies of the order sought to be enforced together with a sworn affidavit containing information regarding the obligor. Upon receipt of the information, the “registering tribunal shall cause the order to be filed as a foreign judgment.” § 88.6021(2), Fla. Stat. (2002). A “tribunal” is defined as “a court, administrative agency, or quasi-judicial entity authorized to establish, enforce, or modify support orders or to determine parentage.” § 88.1011(22), Fla. Stat. (2002). An order is registered when it is filed in the registering tribunal of this state. § 88.6031(1), Fla. Stat. (2002).

Once the support or income deduction order is registered, “the registering tribunal shall notify the nonregistering party.” § 88.6051(1), Fla. Stat. (2002) (emphasis added). The notice must inform the party that the order has been registered, that it is enforceable as a registered order in this state, and that the nonregistering party has twenty days from the date of mailing the notice or personal service to request a hearing contesting the validity or enforcement of the registered order. See § 88.6051(2)(a) & (b). Failure to timely contest the order will result in its confirmation and enforcement for the arrearage amount contained therein. See § 88.6051(2)(c). “Confirmation of a registered order, whether by operation of law or after notice and hearing, precludes further contest of the order with respect to any matter that could have been asserted at the time of registration.” § 88.6081, Fla. Stat. (2002).

In this case, the Superior Court of Mid-dlesex County, New Jersey, sent a support judgment and the appropriate affidavits to the circuit court for Broward County to register the judgment pursuant to UIFSA. The clerk then sent a notice of registration to the respondent father, the nonregister-ing party, pursuant to section 88.6051(1). The notice was sent by certified mail and was returned as unclaimed. Five months later the court sua sponte filed its “motion to dismiss initial action,” because service of process had not been made within 120 days of the initial pleading. The respondent appeared at the hearing set by the court and advised it of his current mailing address. A month later, the court served a second “motion to dismiss,” again setting a hearing to dismiss the case for failure to serve the respondent. The “motion” noted that while respondent was in court, he was not served, nor was a certificate of mailing filed. At the hearing on the second motion the court entered a final order dismissing the case for failure to serve the respondent within 120 days of the filing of the initial pleading, pursuant to Family Law Rule of Procedure 12.070.

The court erred in “dismissing” the registered order, because registration is complete upon filing the order. See § 88.6031(1). Notice pursuant to section 88.6051 does not affect registration but is required to cut off the responding party’s right to contest the validity of the order or its enforcement. Moreover, the notice is required to be sent by the registering tribunal. Therefore, it was the obligation of the court, not the Department, to assure that notice was properly sent. The court should have directed the clerk to re-serve the notice on the respondent in such manner as would be acceptable to the court or, if the clerk had already mailed the notice to the respondent, to file a certificate of mailing in the court file. The court should not have dismissed the registration of the support order, when it was the entity responsible for ensuring compliance with the statute.

Reversed for reinstatement of the order.

GUNTHER and MAY, JJ., concur.