author: WARNER, J.

text:
    APPLIED DIGITAL SOLUTIONS, INC., and PDS Acquisition Corp., Petitioners, v. Hark VASA, H & K Vasa Family Limited Partnership, and H & K Vasa Family 2000 Limited Partnership, Respondents.
    No. 4D06-461.
    District Court of Appeal of Florida, Fourth District.
    Sept. 20, 2006.
    Rehearing Denied Dec. 1, 2006.

      Andrew M. Dector of Shapiro, Blasi, Wasserman & Gora, P.A., Boca Raton, and Jeffer, Mangels, Butler & Marmaro LLP, Los Angeles, CA, for petitioners.
    Paul A. Traína and Rahul Ravipudi of Engstrom, Lipscomb & Lack, Los Ange-les, CA, and Michael J. Overbeck of Michael J. Overbeck, P.A., West Palm Beach, for respondents.
   WARNER, J.

Petitioners, defendants below, seek cer-tiorari review of an order of the trial court denying their motion for disqualification of plaintiffs’ counsel because of his receipt of attorney-client privileged documents. We deny the petition because the trial court found that the disclosure was inadvertent, and the individual plaintiff, Hark Vasa (“Vasa”), was effectively the “client” at the time the attorney-client privileged matters were generated, so that he would already have knowledge of their contents.

Petitioner Applied Digital Solutions, Inc., (“Applied”) through its subsidiary, petitioner PDS Acquisition Corporation (“New PDS”), acquired Pacific Decision Sciences Corporation (“Old PDS”) in a merger transaction pursuant to which New PDS acquired all of Old PDS’s “property, rights, privileges, powers and franchises.” Old PDS’s shareholders, including Vasa (who was also president of Old PDS) and his family limited partnerships, received shares of stock in Applied. During the merger Old PDS was represented by a Texas law firm, Gardere & Wynne, L.L.P. (“Gardere Wynne”), and petitioners, Applied and New PDS, were represented by other counsel. The engagement letter between Gardere Wynne and Old PDS specifically provided that the firm did not represent Vasa or the other two major shareholders.

In 2004, Vasa and his family partnerships sued Applied and New PDS for the breach of several terms of the agreements relating to the merger. While the suit was pending in March 2005, more than three years after Vasa had ceased to be associated in any way with Old PDS, Vasa’s attorney, Rahul Ravipudi (“Ravipudi”) of Eng-strom, Lipscomb & Lack, contacted one of Gardere Wynne’s attorneys, Alan Perkins (“Perkins”), to obtain the entire firm file from the merger. Ravipudi told Perkins that he represented Old PDS. Perkins informed Ravipudi he would need direction from the client in writing. In a letter dated March 22, 2005, signed by Vasa as “Former President/CEO of PDSC,” Vasa authorized Perkins to release his entire file to Ravipudi. In accordance with the letter, Gardere Wynne delivered its entire file to Ravipudi, without retaining a copy of what it delivered.

In response to a request to produce, Ravipudi produced several hundred pages of documents, some from Gardere Wynne’s files and some not, and withheld others as privileged. Defendants also scheduled the depositions of Perkins and David Earhart (“Earhart”), the Gardere Wynne attorneys involved in the merger. The day before Perkins’ deposition, Defendants served subpoenas duces tecum on Gardere Wynne to obtain all the firm’s files relating to the merger. In response, Gardere Wynne discovered it had additional documents. Perkins sent Ravipudi the originals, retaining copies, because he understood he was still under the instruction to forward all Gard-ere Wynne’s files to Ravipudi.

Over the next two days, defendants’ counsel deposed Perkins and Earhart, and Ravipudi purported to represent these two attorneys at their depositions. During the deposition, defendants obtained the engagement letter and learned for the first time that Gardere Wynne did not represent Vasa personally in the merger transaction. It also learned that plaintiffs’ counsel had obtained possession of Gard-ere Wynne’s files by representing his association with Old PDS. It demanded return of the doctiments, but Ravipudi initially refused, believing that Vasa was entitled to the documents, as he was the one who had conducted the confidential communications with the Gardere Wynne attorneys regarding the merger.

Defendants moved to disqualify Ravipu-di. They claimed that because Gardere Wynne represented only Old PDS and not Vasa individually, the files of Old PDS, and all privileges pertaining to them, became the property of New PDS after the merger. Thus, Vasa was not entitled to receive any of Old PDS’s privileged documents. Because.Vasa and his attorney affirmatively obtained the Gardere Wynne file, which belonged to Applied and New PDS, through misleading communications, defendants argued that disqualification of Ravipudi was the appropriate remedy. He had received his adversaries’ privileged documents, he was aware they were privileged (some were marked “confidential”), and he had failed to return them or otherwise rectify the unfair tactical advantage he obtained from the disclosure.

Vasa responded, noting that the defendants knew that Ravipudi was obtaining documents from Gardere Wynne and that Ravipudi believed that the documents were in Vasa’s control for discovery purposes, as Vasa was president of Old PDS during the merger transaction. Further, all attorney-client communications between Gardere Wynne and Old PDS were with Vasa. Thus, no unfair advantage had been obtained by Vasa, because he was a party to all privileged communications at the time they were made.

In a four-page order, the trial court granted the motion to the extent of compelling the return of the privileged materials, ordering plaintiffs to return them forthwith, to destroy all copies, and to make no use whatsoever of any of the materials inadvertently 'turned over to plaintiffs in this matter absent further court order. However, in view of the principle that the disqualification of a party’s lawyer in a civil case is an unusual remedy that must be employed only in limited circumstances, the court denied that relief. It determined that any disclosure to plaintiffs’ counsel was due to a mutual mistake of fact as to who Gardere Wynne represented and thus was inadvertent. Moreover, any disclosure likely was not harmful in light of the fact that Vasa was the controlling shareholder of the selling entity and had previous knowledge of any information that might be contained in the Gardere Wynne file anyway. The mere possibility of a tactical advantage could not result in.the drastic remedy of disqualification. From this order defendants petition for relief.

As we most recently said in Alexander v. Tandem Staffing Solutions, Inc., 881 So.2d 607, 608-09 (Fla. 4th DCA 2004):

“Disqualification of a party’s chosen counsel is an extraordinary remedy and should only be resorted to sparingly.” Singer Island, Ltd. v. Budged, Constr. Co., 714 So.2d 651, 652 (Fla. 4th DCA 1998); Vick v. Bailey, 777 So.2d 1005, 1007 (Fla. 2d DCA 2000). Motions for disqualification are generally viewed with skepticism because disqualification of counsel impinges on a party’s right to employ a lawyer of choice, and such motions are often interposed for tactical purposes. See Evans v. Artek Sys. Corp., 715 F.2d 788, 791-92 (2d Cir. 1988); Manning v. Waring, Cox, James, Sklar & Allen, 849 F.2d 222, 224 (6th Cir.1988) (observing that “the ability to deny one’s opponent the services of capable counsel, is a potent weapon”). Confronted with a motion to disqualify, a court must be sensitive to the competing interests of requiring an attorney’s professional conduct and preserving client confidences and, on the other hand, permitting a party to hire the counsel of choice.

The standard of review for orders entered on motions to disqualify counsel is that of an abuse of discretion. See Stewart v. Bee-Dee Neon & Signs, Inc., 751 So.2d 196, 205 (Fla. 1st DCA 2000). While the trial court’s discretion is limited by the applicable legal principles, the appellate court will not substitute its judgment for the trial court’s express or implied findings of fact which are supported by competent substantial evidence. Id. Given these principles, the trial court did not abuse its discretion.

Here, there is competent substantial evidence to support the trial court’s findings that Vasa’s current lawyer and the defendants were both operating under the mistaken belief that Gardere Wynne represented Vasa as well as Old PDS. Because Vasa was the CEO and controlled the majority of shares of Old PDS, this was not an unreasonable assumption. The letter limiting Gardere Wynne’s representation to Old PDS was not discovered until the deposition. The trial court’s conclusion that the disclosure was inadvertent is supported by competent substantial evidence.

Applied and Old PDS contend that even inadvertent disclosure requires disqualification of an attorney who obtains privileged documents, citing General Accident Insurance Co. v. Borg-Warmer Acceptance Corp., 483 So.2d 505, 506 (Fla. 4th DCA 1986); Abamar Housing and Development, Inc. v. Lisa Daly Lady Decor, Inc., 698 So.2d 276 (Fla. 3d DCA 1997) (“Abamar I ”), rev. denied, 704 So.2d 520 (Fla.1997); and Abamar Housing and Development, Inc. v. Lisa Daly Lady Decor, Inc., 724 So.2d 572, 573 (Fla. 3d DCA 1998) (“Abamar II ”), rev. dismissed, 729 So.2d 918 (Fla.1999). In each of those cases, however, the attorney obtained privileged documents that the attorney otherwise would not have known about. Here, unlike those cases, the documents regarding attorney-client privilege were documents regarding exchanges between Gardere Wynne and Vasa, the current plaintiff.

We do not perceive from any of the cited cases a rule of automatic disqualification any time an attorney inadvertently obtains privileged documents. In fact, Abamar II even cautioned that its holding was not to be construed as creating a rule of automatic disqualification for inadvertent disclosure. 724 So.2d at 574 n. 2. General Accident also does not state a rule of automatic disclosure, and our subsequent opinions have noted the unique nature of the factual circumstances in that case. See, e.g., Alexander, 881 So.2d at 611; Kusch v. Ballard, 645 So.2d 1035, 1035 (Fla. 4th DCA 1994) (Glickstein, J„ concurring specially). Instead, in each case, the court must exercise its sound judgment.

Under the facts of this case, the court did not abuse its discretion in denying the motion to disqualify Vasa’s counsel. First, the trial court concluded that both sides initially reasonably believed the privilege in Gardere Wynne’s file belonged to Vasa. Second, plaintiffs’ counsel’s retention of the Gardere Wynne file until the trial court decided who had the privilege does not appear to constitute recalcitrance, but protecting his clients’ interests where the question of privilege was not a simple one (such as the inadvertent faxing of a letter from an attorney’s office to opposing counsel, who knew he was not entitled to receive it). Finally, the trial court could take into account whether the party obtaining privileged material actually obtained an unfair advantage, see, e.g., 5500 N. Corp. v. Willis, 729 So.2d 508 (Fla. 5th DCA 1999) (quashing order disqualifying counsel, inter alia finding defense counsel did not obtain such unfair advantage as to justify removal, where information which motel’s attorney learned from plaintiffs investigator revealed nothing inconsistent with plaintiffs complaint). In this case, it could be presumed that Vasa had knowledge of all the documents in the Gardere Wynne files by reason of his being the representative of Old PDS who dealt with the law firm in its representation of Old PDS. Thus, there was not even the suggestion of prejudice.

We reject summarily Old PDS’s additional argument that Ravipudi should be disqualified because of conflict of interest in purporting to represent Gardere Wynne’s attorneys at their deposition. At the time of the deposition, none of the attorneys knew that Gardere Wynne represented only Old PDS, and there is nothing to show that Gardere Wynne’s interests were adverse to Vasa.

For the foregoing reasons, we deny the petition.

STONE and POLEN, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM. MAY, J.,

license: Public Domain

text:
    Betty HANCOCK, as Personal Representative of the Estate of Thomas Hancock, Appellant, v. Jay I. SCHORR, M.D., Appellee.
    No. 4D05-2634.
    District Court of Appeal of Florida, Fourth District.
    Sept. 20, 2006.
    Rehearing Denied Nov. 29, 2006.

      Marjorie Gadarian Graham of Marjorie Gadarian Graham, P.A., Palm Beach Gardens, and F. Shields McManus of Gary, Williams, Parenti, Finney, Lewis, Mc-Manus, Watson & Sperando, P.L., Stuart, for appellant.
    Eugene L. Ciotoli and Hector R. Buigas of Bobo, Ciotoli, Bocchino, Newman & Corsini, P.A., North Palm Beach, for ap-pellee.
   PER CURIAM.

Betty Hancock, as personal representative of the Estate of Thomas Hancock, brought suit against Jay I. Schorr, M.D., for medical malpractice. Following a jury trial, the jury returned a verdict in favor of the plaintiff. However, the trial court subsequently granted the defendant’s motion for directed verdict and the court entered a final judgment in favor of Dr. Schorr. For reasons discussed below, we reverse the final judgment in favor of Dr. Schorr and remand with directions that judgment be entered consistent with the jury’s verdict.

Seventy-two-year-old Thomas Hancock was injured in an automobile accident on January 3, 2002 when his automobile was struck on the side door by a semi tractor-trailer rig. He lost consciousness for approximately one to two minutes and his head was bleeding. Following the accident, he was transported by ambulance to the Longwood Regional Medical Center. The emergency room physician, Dr. Swanson, diagnosed him with a rib fracture, a thoracic sprain/strain, osteolytic lesion, and closed head injury with concussion and loss of consciousness. That same day, Dr. Swanson called Dr. Schorr, Hancock’s primary care physician. They decided to have Mr. Hancock follow up with Dr. Schorr within twenty-four hours, either in office or via a phone call. Dr. Swanson and Dr. Schorr agreed that Mr. Hancock should follow up on an outpatient basis and that admission to the hospital was not necessary at that time, and as a result, Mr. Hancock was sent home.

Mrs. Hancock testified that when her husband was released from the hospital, he was in so much pain that he was hardly able to move or get into the vehicle himself. The following day, January 4, 2002, Mr. Hancock complained of pain and soreness and was too sore to get out of bed and walk around and had to resort to use of the urinal. Mrs. Hancock gave him his prescribed pain medication and muscle relaxant for his complaints. Around 9:00 a.m., Mrs. Hancock called Dr. Schorr’s office and spoke with the receptionist. She gave the receptionist her name, her husband’s name, and explained that Mr. Hancock had been in an automobile accident the day before, was in the emergency room but was sent home, and that she had been advised to call Dr. Schorr. The receptionist advised her, “I will get back to you.” Mrs. Hancock received a call back from the receptionist who informed her that Mr. Hancock was scheduled for an MRI the following week; however, she did not advise Mr. Hancock to come in and see Dr. Schorr, and there was no discussion of a follow-up appointment. Dr. Schorr did not call Mrs. Hancock on January 4, 2002. For the rest of that day, Mr. Hancock continued to complain of soreness and slept a lot, although he was able to eat breakfast, lunch, and dinner and take his medication. The following day, January 5, Mrs. Hancock did not see any improvement. Finally, on January 6, Mrs. Hancock persuaded him to sit up in his chair by the bed and eat lunch, but doing so exhausted him. Around 5:00 p.m., when she came into the bedroom, she saw him at the foot of his bed on his back. She felt a thready pulse and immediately dialed 911. When the paramedics arrived, Mr. Hancock was dead at the scene.

Dr. Mittleman, the doctor who performed the autopsy and one of plaintiffs three experts at trial, concluded that the trauma of the accident and Hancock’s high blood pressure put stress on his heart, resulting in an arrhythmia that caused his death. In addition to the testimony of Dr. Mittleman, the plaintiff presented the testimony of two expert witnesses, Dr. Richardson, a family physician, and Dr. Sellers, a cardiologist who specializes in electro-physiology, a subspecialty of cardiology that entails treating heart rhythm problems. Dr. Richardson’s opinion was that Dr. Schorr deviated from the applicable standard of care because of his failure to order tests or to direct admission to the hospital. Moreover, in Dr. Richardson’s opinion, it was more likely than not that Mr. Hancock would have survived with appropriate treatment.

Dr. Sellers also testified that had Mr. Hancock been treated appropriately in a medical center within the time frame of January 3 to January 4, he would have avoided death. Dr. Sellers estimated that Mr. Hancock would have had at least a 60% chance of surviving if he had been treated in a hospital. Furthermore, if Mr. Hancock had been admitted to the hospital on January 3, 2002, more likely than not, the sudden cardiac arrhythmia would not have occurred. Dr. Sellers based his opinion on the fact that prior to the accident, despite underlying medical problems, including diabetes, hypertension, and some heart problems, Mr. Hancock was healthy and able to function. Dr. Sellers explained that if Mr. Hancock had been admitted to the hospital, all of the problems he had, “if it’s kidney problems, if it’s electrolyte problems, hypoxia, or any of those kinds of things,” would have been discovered and taken care of. For example, if his potassium level was too high, they could have administered Kayexalate, and if it was too low, they could have infused him with potassium to bring it up. If his oxygen level was too low, which could cause an abnormal heart rhythm, they could have administered oxygen. Although he had no lab results concerning Mr. Hancock’s potassium level following the accident, Dr. Sellers concluded that “it is more than likely that it went up or went down to cause his abnormal heart rhythm.” Dr. Sellers further testified that Hancock’s fractured ribs and subcutaneous emphysema required admission to the hospital and without such treatment would have contributed to his death.

Following the trial, the jury returned a verdict finding negligence on the part of Dr. Schorr that was a legal cause of the death of Mr. Hancock. The trial court subsequently entered a final judgment in favor of the plaintiff for the sum of $2,181,954.00. Dr. Schorr filed a timely motion for judgment in accordance with the motion for directed verdict. Following a hearing, the trial court entered an order granting the motion for judgment in accordance with the motion for directed verdict and entered a final judgment in favor of Dr. Schorr. The, court determined that there was sufficient evidence for a jury to determine that Dr. Schorr breached the applicable standard of care by not admitting or at least talking to Mr. Hancock, a seventy-two-year-old man with a history of heart problems who had been in a serious automobile accident, lost consciousness, and suffered at least one fractured rib. However, the court concluded that any finding of causation could only be based on “at least an inference on an inference on an inference” and therefore the plaintiff failed to establish that the defendant’s breach of the standard of care proximately caused the damages claimed.

Mrs. Hancock appeals, arguing that the trial court erred in granting Dr. Schorr’s motion for judgment in accordance with the motion for directed verdict because there was sufficient expert testimony for the jury to determine that Dr. Schorr’s failure to admit her husband to the hospital on January 3, 2002 and not seeing him on January 4, 2002 was the legal cause of his death. We agree.

In reviewing an order granting a judgment notwithstanding the verdict (“JNOV”), an appellate court must view the evidence in a light most favorable to the non-moving party, resolve all conflicts in the evidence in favor of the non-movant, and construe every reasonable conclusion which may be drawn from the evidence in favor of the non-movant. See McQueen v. Jersani, 909 So.2d 491, 492-93 (Fla. 5th DCA 2005). A JNOV is appropriate only in situations where there is no evidence upon which a jury could rely in finding for the non-movant. See id. A jury verdict must be sustained if it is supported by competent substantial evidence. See Richey v. Modular Designs, Inc., 879 So.2d 665, 667 (Fla. 1st DCA 2004). The standard of review on appeal of a trial court’s ruling on a motion for directed verdict is de novo. See Contreras v. U.S. Sec. Ins. Co., 927 So.2d 16, 20 (Fla. 4th DCA 2006).

To prevail in a medical malpractice case, a plaintiff must establish the following: the standard of care owed by the defendant, the defendant’s breach of the standard of care, and that said breach proximately caused the damages claimed. See Gooding v. Univ. Hosp. Bldg. Inc., 445 So.2d 1015, 1018 (Fla.1984). With respect to causation, the Court held that in negligence actions Florida courts follow the “more likely than not” standard of causation and require proof that the negligence probably caused the plaintiffs injury. See id. The Court explained:

On the issue of the fact of causation, as on other issues essential to his cause of action for negligence, the plaintiff, in general, has the burden of proof. He must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a substantial factor in bringing about the result. A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant.

Id.

After reviewing the record in a light most favorable to the plaintiff, it is clear that this case was properly submitted to the jury and that the jury’s verdict is supported by competent substantial evidence. There was evidence, primarily the testimony of Dr. Sellers, upon which the jury could rely in finding that Dr. Schorr was negligent and that his negligence was the proximate cause of Mr. Hancock’s death. Dr. Sellers’s testimony established that Mr. Hancock’s death more likely than not resulted from Dr. Schorr’s failure to admit him to the hospital, meeting the standard set forth in Gooding. Dr. Sellers estimated that Mr. Hancock would have had at least a 60% chance of surviving if he had been treated in a hospital. Moreover, if Mr. Hancock had been admitted to the hospital on January 3, 2002, more likely than not, the sudden cardiac arrhythmia would not have occurred, and it is undisputed that Mr. Hancock’s death resulted from cardiac arrhythmia.

Furthermore, as Dr. Sellers testified, if Mr. Hancock had been admitted to the hospital, tests would have been conducted, and problems could have been taken care of, whether a potassium deficiency or a low oxygen level. Although, as Dr. Schorr argues, Dr. Sellers did not base his opinions on lab results concerning Mr. Hancock’s potassium level following the accident, the lack of any testing is a result of the failure to admit Mr. Hancock to the hospital. Such testing would have been conducted and readily available for diagnosing Mr. Hancock’s medical problems and determining the appropriate treatment. Finally, in addition to Dr. Sellers’s testimony, the plaintiff also presented the testimony of a second expert, Dr. Richardson, who agreed that it was more likely than not that Mr. Hancock would have survived with appropriate treatment.

Therefore, in light of the expert opinions, we conclude that the plaintiff made a prima facie case on the issue of causation, which issue was properly submitted to the jury. For the foregoing reasons, the final judgment for Dr. Schorr entered on his motion for judgment notwithstanding the verdict is reversed, and the jury verdict in favor of the plaintiff is reinstated. The trial court is directed to enter a judgment in favor of the plaintiff based on the jury verdict.

Reversed.

GUNTHER and HAZOURI, JJ., concur.

MAY, J., dissents with opinion.

MAY, J.,

dissenting.

I respectfully dissent. Despite the tragedy that occurred, I believe the law supports the trial court’s order. I would affirm.

As the trial court stated in its order: “The rule is that expert opinion may support a jury verdict, so long as it is grounded in fact, even though it involves a conclusion as to causation, but a verdict should not be based upon speculative and conjectural expert testimony with no basis in evidentiary fact.” Unfortunately for the plaintiff, there was insufficient evidence upon which the plaintiffs expert could rely to render a competent opinion on causation in this case.

Our supreme court established the burden of proof in a medical malpractice case in Gooding v. University Hospital Building, Inc., 445 So.2d 1015 (Fla.1984). “To prevail in a medical malpractice case a plaintiff must establish the following: the standard of care owed by the defendant, the defendant’s breach of the standard of care, and that said breach proximately caused the damages claimed.” Id. at 1018. More specifically, when the issue is the loss of the chance for survival, “[t]he plaintiff must show that the injury more likely than not resulted from the defendant’s negligence in order to establish a jury question on proximate cause. In other words, the plaintiff must show that what was done or failed to be done probably would have affected the outcome.” Id. at 1020.

As articulated by the trial court:

The evidentiary facts in this case are that Mr. Hancock was not admitted. Mr. Hancock should have been admitted. Mr. Hancock died. Dr. Sellers’ opinions/assumptions are that had he been admitted he would have undergone a battery of tests, that specialists would have examined or consulted on the case, that the tests would have revealed that Mr. Hancock’s potassium levels were either too high or too low, or that other problems relating to his kidneys, stress or complications from fractures would have been found and treated; that he would have been kept in the hospital for a sufficient length of time to determine this and that with this, the arrhythmia would have been prevented as, had it occurred, more likely than not he would have died.

The fatal flaw in the plaintiffs proof on causation was that it was based on speculation and a stacking of inferences for there was no factual basis to support the expert’s hypothesis. See Young-Chin v. City of Homestead, 597 So.2d 879, 882 (Fla. 3d DCA 1992) (quoting Nat Harrison Assocs., Inc. v. Byrd, 256 So.2d 50, 53 (Fla. 4th DCA 1971)) (“An opinion derived from facts not in evidence, permitted the expert to express ‘unstated and perhaps unwarranted factual assumptions concerning the event”). As the plaintiffs expert, Dr. Sellers, testified:

Q. For you to say that that is evidence that his potassium was elevated is pure speculation on your part?
A. Yes.

The majority relies upon the expert’s conclusions to reach its result. Unfortunately, those conclusions were not based on facts; they were based on hypothetical explanations with no foundational basis. The trial court acknowledged that the plaintiff had provided sufficient proof of a breach of the standard of care, but when the testimony was reviewed, the proof fell short on the issue of causation. I would affirm the order granting the defendant’s motion for judgment in accordance with the motion for directed verdict.


author: PER CURIAM.

text:
    Alman Hugh GREEN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-939.
    District Court of Appeal of Florida, Third District.
    Sept. 20, 2006.
    Rehearing Denied Nov. 22, 2006.

      Alman Hugh Green, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before GERSTEN, GREEN, and SUAREZ, JJ.
   PER CURIAM.

Affirmed. See Chandler v. Crosby, 916 So.2d 728 (Fla.2005).


text:
    Herbert L. BROOKS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-3964.
    District Court of Appeal of Florida, First District.
    Sept. 27, 2006.
    Rehearing Denied Nov. 13, 2006.
    Herbert L. Brooks, pro se, Petitioner.
    Charlie Crist, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

BARFIELD, VAN NORTWICK, and BROWNING, JJ., concur.


author: STRINGER, Judge.

text:
    John FABING, Personal Representative of the Estate of Lillian Mae Koch, deceased, Appellant, v. Sandra Mae EATON, formerly Sandra Mae Koch, Appellee.
    No. 2D05-4465.
    District Court of Appeal of Florida, Second District.
    Sept. 29, 2006.
    Rehearing Denied Nov. 29, 2006.

      Robert P. Henderson of Simpson, Henderson, Carta & Randolph, Fort Myers, for Appellant.
    V. James Haggart, Cape Coral, for Ap-pellee.
   STRINGER, Judge.

John Fabing, as the personal representative of the Estate of Lillian Koch, appeals from the final judgment entered after a bench trial in this case which pitted a daughter, Sandra Eaton, against her mother, Lillian Koch. He also appeals the denial of his motion for attorney’s fees. Because the trial court’s findings in the final judgment are supported by competent, substantial evidence in the record, we affirm the final judgment without further comment. However, because the trial court applied the incorrect law in denying Fab-ing’s motion for attorney’s fees arising out of a failed mediation agreement, we reverse and remand for further proceedings on that single issue.

The proceedings in the trial court were protracted and bitter. However, before the initial trial date, the parties mediated the case and reached a settlement. The resulting mediation agreement specified how the parties were to divide certain assets. It also provided that the parties’ residence would be appraised by a specific appraiser and that the Estate would then purchase Eaton’s interest in the residence by paying her one-half of the fair market value as determined by the appraiser.

Shortly after the mediation agreement was reached, however, things went awry. The specified appraiser did not perform the appraisal but instead had an associate do so. In addition, the appraisal was prepared assuming that the residence was in “average condition,” when, in fact, the residence was infested with mold and needed extensive repairs. When Fabing learned of these problems with the appraisal, he sought rescission or reformation of the mediation agreement. His motion alleged that “all the parties assumed” that the residence could be repaired and sold; however, subsequent information had come to light that contradicted that assumption. Eaton responded by alleging that Fabing was aware of the condition of the residence when he entered into the agreement and thus there was no mutual mistake as to its condition when the mediation agreement was entered. Fabing later filed a motion seeking to enforce other portions of the mediation agreement while continuing to argue that the portion concerning the residence should not be enforced. Eaton later filed a motion seeking her attorney’s fees and arguing that Fabing had breached the agreement because he had not complied with its terms.

The trial court held hearings on the parties’ various motions concerning the mediation agreement and ultimately found that the mediation agreement was unenforceable because the appraiser made improper assumptions that rendered the appraisal useless, thus frustrating the intent of the agreement. Fabing then moved for an award of attorney’s fees pursuant to the prevailing party attorney’s fee provision in the mediation agreement. In his motion, Fabing argued that Eaton had breached the mediation agreement and that he was the prevailing party on the issue of the enforceability of that agreement. At a subsequent hearing, the trial court specifically found that neither party breached the mediation agreement, but it made no findings as to whether either party was the “prevailing-party.” Instead, the court simply stated that fees were not available to either party because the mediation agreement was void. In this appeal, Fabing contends that he was entitled to an award of his attorney’s fees arising out of the failed mediation agreement because he was the prevailing party in the proceedings relating to that agreement.

As an initial matter, we disagree with Eaton’s contention that the issue of attorney’s fees is not properly before this court because the trial court has never “taken evidence” on the issue. It is true that the trial court has never heard evidence concerning whether an award of attorney’s fees is proper under the mediation agreement. However, the trial court entered an order clearly denying attorney’s fees to both parties. That order reads, in part, “Said Mediation Agreement is void in its entirety, and no provision thereof may be enforced by either party against the other.”

Generally, an order denying a motion for attorney’s fees is a final, appeal-able order when that order ends the judicial labor as to that portion of the case. See, e.g., Caufield v. Cantele, 837 So.2d 371, 375 (Fla.2002); Scott v. Women’s Med. Group, P.A., 837 So.2d 577, 577 (Fla. 1st DCA 2003). This is true unless it is clear from the order that the trial court did not intend to end the judicial labor as to that order. Scott, 837 So.2d at 577 (noting that the order denying attorney’s fees was not final and appealable because it denied the motion without prejudice to the appellant revisiting the issue after a final judgment was entered).

Here, the order denying Fabing’s motion for attorney’s fees pursuant to the failed mediation agreement is a final order that ends the judicial labor as to that issue. The trial court did not enter the order without prejudice, nor did the trial court hold that Fabing would be permitted to reargue the merits of the motion at some later point in time. Accordingly, the order denying attorney’s fees is a final order subject to review at this time.

Turning to the merits, we note that the trial court applied the incorrect law when it determined that there could be no award of attorney’s fees simply because the mediation agreement was void. In Katz v. Van Der Noord, 546 So.2d 1047 (Fla.1989), the supreme court held that there is a difference between contracts that never come into existence and contracts that exist but are later found to be unenforceable when determining whether an award of attorney’s fees pursuant to a prevailing party attorney’s fee provision is permissible. In doing so, the court stated:

We agree with Leitman [v. Boone, 439 So.2d 318 (Fla. 3d DCA 1983)] that “[t]he distinction between no contract at all and one that is unenforceable makes all the difference.... ” We hold that when parties enter into a contract and litigation later ensues over that contract, attorney’s fees may be recovered under a prevailing-party attorney’s fee provision contained therein even' though the contract is rescinded or held to be unenforceable. The legal fictions which accompany a judgment of rescission do not change the fact that a contract did exist. It would be unjust to preclude the prevailing party to the dispute over the contract which led to its rescission from recovering the very attorney’s fees which were contemplated by that contract.

Katz, 546 So.2d at 1049 (internal citations omitted). Thus, when a contract is unenforceable because no contract ever existed, a party is not entitled to an award of attorney’s fees pursuant to that contract. Likewise, when a party seeks rescission of a contract based on a mutual mistake, the party seeking rescission is not entitled to an award of attorney’s fees under the rescinded contract in the absence of some evidence of a breach of the contract by the nonprevailing party. Leo v. MacLeod, 752 So.2d 627, 628-29 (Fla. 2d DCA 1999). However, when an existing, enforceable contract containing a prevailing party attorney’s fee provision is rescinded or rendered unenforceable by some subsequent act, the prevailing party may nevertheless be entitled to recover attorney’s fees under the terms of the contract.

Here, the trial court held that Fabing was not entitled to an award of attorney’s fees simply because the mediation agreement was unenforceable. This is an incorrect statement of the law. If the mediation agreement existed but was rendered unenforceable by the acts of a third party, the prevailing party may be entitled to attorney’s fees pursuant to the attorney’s fee provision of the agreement. If, however, there was a mutual mistake in the making of the agreement, then the attorney’s fee provision cannot be enforced.

Because the trial court found that fees were not available because the contract was unenforceable, it never considered the issue of whether there was a mutual mistake in the formation of the agreement, as asserted by Fabing, or whether either party was a “prevailing party” in the dispute concerning the mediation agreement. Accordingly, we reverse and remand for the trial court to reconsider the issue of attorney’s fees in light of the correct law.

Affirmed in part; reversed in part; and remanded for further proceedings.

CASANUEYA and LaROSE, JJ„ Concur.


author: ALTENBERND, Judge.

text:
    Tommy Ray BAKER, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-2446.
    District Court of Appeal of Florida, Second District.
    Sept. 29, 2006.
    Rehearing Denied Nov. 16, 2006.
   ALTENBERND, Judge.

Tommy Ray Baker appeals the trial court’s order denying his motion to correct an illegal sentence, which he filed pursuant to Florida Rule of Criminal Procedure 3.800(a). He argues that his sentence is illegal because he received both a fine and a term of imprisonment as a habitual offender. If Mr. Baker’s fine had been imposed as a matter of discretion under section 775.083, Florida States (2003), his argument would have merit. However, the fine imposed on him was mandatory under section 893.135, Florida Statutes (2003). We hold that it is not illegal for a trial court to impose both habitual offender sentencing and a mandatory fine for a drug-trafficking offense, at least for offenses committed after September 30, 2000.

For events that occurred in November 2003, Mr. Baker pleaded guilty and was convicted in 2004 of several drug charges, including trafficking in less than fourteen grams of hydrocodone pursuant to section 893.135(l)(c)(l)(a). For the trafficking offense, he received a five-year prison sentence as a habitual offender with a mandatory minimum term of imprisonment of three years and a $50,000 fine. He received concurrent sentences on the other offenses. In his rule 3.800(a) motion, he challenged only the imposition of the fine. The written sentence states that the fine was imposed “pursuant to [s]ection 775.083,” but that section gives the trial court discretion to impose a fine of only $10,000 for a first-degree felony. See § 775.083(l)(b). Thus, section 775.083 does not authorize this fine. It is obvious that the sentence contains a scrivener’s error and that the fine was imposed pursuant to section 893.135(l)(c)(l)(a). That statute states that a defendant found guilty of the offense “shall be sentenced to a mandatory minimum term of imprisonment of 3 years, and the defendant shall be ordered to pay a fine of $50,000.”

Section 775.083 is the general law that gives discretion to a trial court to impose a fine in a criminal case. It has long provided that a fine may be imposed “in addition to any punishment described in s. 775.082.” Section 775.082 establishes the general terms of imprisonment for most offenses. Because habitual offender sentencing is imposed pursuant to section 775.084 as an exception to the general penalties in section 775.082, the courts have uniformly held that it is illegal to impose a discretionary fine under section 775.083 in a case in which the rest of the sentence is imposed pursuant to the habitual offender provisions in section 775.084. See King v. State, 681 So.2d 1136 (Fla.1996); Willits v. State, 884 So.2d 73 (Fla. 2d DCA 2004); Webster v. State, 705 So.2d 970 (Fla. 2d DCA 1998).

In Floyd v. State, 739 So.2d 1241 (Fla. 2d DCA 1999), this court appeared to extend the holding in Webster to apply to a fine imposed under the 1991 version of section 893.135(l)(b)(l)(a). On closer examination, that does not seem to be what occurred in Floyd. The fine imposed in Floyd was $10,000. The relevant version of section 893.135 mandated a fine of $50,000. Thus, the fine imposed was actually the $10,000 discretionary fine under section 775.083(l)(b). Accordingly, Floyd is not an extension of Webster but an application of that case to an odd discretionary fine.

It is noteworthy that shortly after Floyd was issued, the First District held that in light of the language of the trafficking statute, a habitual offender sentence could not be imposed for the crime of trafficking. See Wright v. State, 743 So.2d 103 (Fla. 1st DCA 1999). This court followed Wright in Harper v. State, 889 So.2d 899 (Fla. 2d DCA 2004), and Virgil v. State, 884 So.2d 373 (Fla. 2d DCA 2004). The holding in Wright, however, only applied to section 893.135 as amended by chapter 93-406, section 24, Laws of Florida. From January 1, 1994, until September 30, 2000, the drug-trafficking statute required the trial court to impose a sentencing guidelines sentence or later, a criminal punishment code sentence for the lower categories of trafficking. See Sheffield v. State, 875 So.2d 733 (Fla. 2d DCA 2004); Dillard v. State, 820 So.2d 994, 995 n. 1 (Fla. 4th DCA 2002); Stanford v. State, 706 So.2d 900, 902 (Fla. 1st DCA 1998). This apparent glitch in the statute was corrected by the legislature in 2000. See ch. 2000-320, § 4, Laws of Fla. (effective Oct. 1, 2000). These changes do not affect the analysis in Floyd, but they explain why the issue addressed in this case was not addressed in any case involving an offense committed between 1994 and 2000.

Mr. Baker received a lawful five-year term of imprisonment as a habitual offender. Because his fíne was mandatory under the language of section 893.135 and was not a discretionary fine under section 775.083, we conclude that the language in section 775.083, limiting fines under that statute to cases in which sentences are imposed under section 775.082, plays no role in our analysis. This fine was lawfully imposed under section 893.135 in addition to the term of imprisonment imposed under section 775.084. Accordingly, we approve the decision of the trial court.

Affirmed.

STRINGER and VILLANTI, JJ„ Concur.

      . In another appeal of an order denying relief under rule 3.800(a), this court reversed and remanded for further consideration of whether a mandatory fine imposed under section 893.135 violated the holding in Floyd. See McGrow v. State, 922 So.2d 243 (Fla. 2d DCA 2006). Upon further consideration, it appears that the order in McGrow could have been affirmed. Because we did not hold the fine illegal, but merely determined that the issue required further consideration in the trial court, we conclude there is no conflict requiring en banc consideration.

      . Effective October 1, 2000, the legislature added an explicit reference in the drug trafficking statute to both section 775.084 and section 775.083. See ch. 2000-320, § 4, Laws of Fla. However, section 775.083 has never been amended to permit a discretionary fine when a habitual offender sentence is imposed.


text:
    Prophet PAULCIN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-3658.
    District Court of Appeal of Florida, First District.
    Oct. 3, 2006.
    Rehearing Denied Nov. 16, 2006.
    Prophet Paulcin, pro se, Petitioner.
    Charlie Crist, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is the defendant in a criminal case pending in the circuit court and seeks review of certain interlocutory orders. These orders are reviewable on plenary appeal after imposition of judgment and sentence. Accordingly, the petition for writ of certiorari and/or prohibition is denied. See Mingle v. State, 429 So.2d 850 (Fla. 4th DCA 1983).

PETITION DENIED.

ERVIN and POLSTON, JJ., concur; HAWKES, J., concurs in result only.


author: SUAREZ, J.

text:
    CARNIVAL CORPORATION d/b/a Carnival Cruise Lines, Petitioner, v. Barbara MIDDLETON and James Middleton, her husband, Respondents.
    No. 3D06-160.
    District Court of Appeal of Florida, Third District.
    Oct. 4, 2006.
    Rehearing Denied Nov. 16, 2006.

      Mase & Lara and Beverly D. Eisen-stadt, Miami, for petitioner.
    Rick G. Bannon, St. Petersburg, for respondents.
    Before GERSTEN, SUAREZ, and ROTHENBERG, JJ.
   SUAREZ, J.

Carnival Cruise Lines (“Carnival”) appeals a non-final order reinstating a negligence cause of action against Carnival for injuries sustained on January 13, 2003, by passenger, Barbara Middleton, on board the vessel MTV. Victory. We treat the appeal as a petition for writ of prohibition and grant the relief requested.

Based on a forum selection clause in the passenger ticket, which provided for resolution of any dispute in connection or incident to the guest’s cruise to be litigated in the United States District Court for the Southern District of Florida in Miami, the trial judge dismissed the action without prejudice to be re-filed in the Southern District Court. The Middletons then filed suit in the United States District Court for the Southern District of Florida.

Pursuant to Clause 14(a) of the passenger ticket, which provides for a one-year statute of limitations period for personal injury suits, the United States District Judge dismissed the federal action which had been filed by the Middletons on grounds that they had failed to file suit in federal court within the applicable ticket-contract provision of one year for personal injury actions. The state court then reinstated the action. This petition follows.

The Middletons argue that the venue provision in the passenger ticket is unenforceable because (1) the clause is ambiguous and neither reasonably communicates the limitations on the filing of the lawsuit nor provides adequate notice of the restrictions to passengers; and (2) the forum selection clause violates the passengers’ right to a jury trial under the Florida Constitution. See Art. I, § 22, Fla. Const.

1. The federal court’s Order Granting Defendant’s Motion to Dismiss, under appropriate maritime jurisdiction, states that:

As a general rule, conditions or limitations in a contract for passage are valid if the ticket provides adequate notice and reasonably communicates the limitations contained therein. See Carpenter v. Klosters Rederi A/S, 604 F.2d 11, 13 (11th Cir.1987 [5th Cir.1979]); Marek v. Marpan Two, Inc., 817 F.2d 242, 245-46. Title 46 U.S.C.A.App. § 183b(a) permits cruise lines to place a one-year contractual time limit on their passenger’s right to file personal injury suits. Courts will enforce such a limitation if the cruise ticket provided the passenger with reasonably adequate notice that the limit existed and formed part of the passenger contract, [footnote omitted]

The Southern District found that adequate notice was provided in the passenger ticket, and that the ticket reasonably com-munieated the contractual limitations, including that the lawsuit had to have been brought before the Southern District of Florida within one year of the personal injury sustained. As respondents did not file suit in the Southern District of Florida until more than one year after the alleged injury, the action was subject to dismissal under Federal Rule of Civil Procedure 12(b)(6).

The findings by the Southern District which were based on forum selection and limitations grounds were binding upon the lower court under the principles of collateral estoppel. Collateral estoppel is a judicial doctrine which prevents identical parties from relitigating the same issues which already have been decided. See Dep’t of Health & Rehab. Servs. v. B.J.M. 656 So.2d 906 (Fla.1995). The doctrine of collateral estoppel applies where the threshold requirements are met: (1) the issue at stake is identical to the one involved in the prior litigation; (2) the issue was actually litigated in the prior suit; (3) the determination of the issue in the prior litigation was critical and necessary to the determination; and (4) the party against whom the earlier decision is asserted had a full and fair opportunity to litigate the issue in the earlier proceeding. E.g., Baxas Howell Mobley, Inc. v. BP Oil Co., 630 So.2d 207 (Fla. 3d DCA 1993). Because we find that all four threshold requirements have been complied with in the federal litigation, we hold that the issue of the validity of the forum selection clause and the limitations found therein, already decided by the Southern District, are controlling, and the respondents were collaterally estopped from re-litigating them in the circuit court. See Oldsmar v. State, 790 So.2d 1042 (Fla.2001); Dep’t of Health & Rehab. Servs. v. B.J.M., 656 So.2d at 906. Therefore, the lower court was without jurisdiction to entertain the issues already disposed of in federal court.

2. Any other substantive issues on the merits, such as whether the forum selection clause deprived the Middletons of a right to a jury trial because there was not an intelligent and knowing waiver, were properly subject to determination by the federal court including appellate review of the Southern District’s findings. The issue of whether the forum selection clause resulted in the respondents having knowingly waived their right to a jury trial was, admittedly, raised before the federal judge. The Southern District determined only that the forum selection clause was enforceable, dismissed the action and did not address in the order the issue of knowing waiver. “Under the principles of res judicata, a final decree bars a subsequent suit between the same parties based on the same cause of action and is conclusive as to all matters germane thereto that were or could have been raised,” not necessarily actually adjudicated, in the prior proceeding. Gordon v. Gordon, 59 So.2d 40 (Fla.1952). As such, the trial court was without authority to re-instate the action to provide a state forum for the issues that had been raised, that were or were not adjudicated, or properly could have been raised in federal court. Since the forum selection clause and the waiver-of-jury-trial issues were properly subject to federal jurisdiction, they should have been raised in federal court, determined by the federal court and appealed under federal jurisdiction. Res judicata bars the trial court from're-litigating the waiver question of the right to trial by jury.

Moreover, a dismissal based on statute of limitations grounds constitutes an adjudication on the merits for purposes of res judicata. Allie v. Ionata, 503 So.2d 1237, 1242 (Fla.l987)(“Given the construction of Federal Rule 41(b) in the federal courts, and in light of the unambiguous language of our Rule 1.420(b), we are compelled to hold that dismissal based on limitations statutes are. adjudications on the merits for res judicata purposes.”). The trial court was therefore without authority to reinstate this cause of action.

Petition granted.

      .It is agreed by and between the Guest and Carnival that all disputes and matters whatsoever arising under, in connection with or incident to this Contract or the Guest’s cruise, including travel to and from the vessel, shall be litigated, if at all, before the United States District Court of the Southern District of Florida in Miami, or as to those lawsuits to which the Federal Courts of the United States lack subject matter jurisdiction, before a court located in Miami-Dade County, Florida, U.S.A., to the exclusion of the Courts of any other county, state or countiy. [e.s.]

        . Suit to recover on any such claim shall not he maintainable unless filed within one year after the date of the injury, event, illness or death, and unless served on Carnival within 120 days after filing, [e.s.]

      . The state action was filed prior to the expiration of the one-year statute of limitations. The federal action was filed August 27, 2004, more than a year after the alleged injury.

      . The claim is in admiralty to which there is no right to trial by jury in federal court, see 46 U.S.C.A. app. § 183(c) (2006), without consent of the parties. See Fed.R.Civ.P. 39(c).


text:
    Michael BENDE, individually, and Michael Bende, Trustee of the Michael Bende Revocable Trust, Appellants, v. FURR AND COHEN, P.A., Profit Sharing Plan and Lavalle, Brown, Ronan & Soff, P.A., Appellees.
    No. 4D05-885.
    District Court of Appeal of Florida, Fourth District.
    Oct. 4, 2006.
    Michael Bende, Boca Raton, pro se.
    Alan R. Crane of Furr and Cohen, P.A., Boca Raton, for Appellee-Eurr and Cohen, P.A.
   PER CURIAM.

We affirm a summary final judgment of foreclosure and award of fees and costs.

With regard to Appellants’ multiple issues raised on appeal, a review of the record reflects that they have raised several issues here that were not raised in the answer and affirmative defenses, failed to file affidavits or other sworn statements in opposition to Appellees’ motion for summary judgment, and otherwise failed to demonstrate issues of fact.

Appellants’ attempt to argue additional defenses, claimed at the last minute, was properly not considered by the trial court where Appellants had not sought leave of court to amend their pleadings. Sunshine Kitchens, Inc. v. Mallin, 388 So.2d 1260 (Fla. 3d DCA 1980); Fla. R. Civ. P. 1.190(a). Further,' even had the court considered the new issues, which included fraud and duress claims, the con-clusory allegations were unsupported by sworn evidence or allegations of fact. Heitmeyer v. Sasser, 664 So.2d 358, 360 (Fla. 4th DCA 1995)(citing Seinfeld v. Commercial Bank & Trust Co., 405 So.2d 1039 (Fla. 3d DCA 1981)).

Appellants, for the same reasons, failed to rebut Appellees’ sworn proofs of execution of the note and mortgage (executed in settlement of litigation) and failure to pay. Holl v. Talcott, 191 So.2d 40, 45 (Fla.1966). We further conclude that the allegations raised in Appellants’ brief do not support legal defenses of fraud and undue influence and that Appellants have failed to demonstrate an abuse of discretion in denying a continuance requested at the summary judgment hearing. Additionally, Appellants’ claims of invalid service of process are refuted by the record and their claims of homestead exemption, raised on appeal, even if properly pled, would have failed as a matter of law.

As did the trial court, we conclude that no material issues of fact are present and summary judgment is proper.

STEVENSON, C.J., STONE, J., and BATEMAN, THOMAS H., Ill, Associate Judge, concur.


text:
    ECKERT REALTY CORP., a Florida corporation, EDE Properties, Inc., a Florida corporation, Edward Eckert, an individual, Appellants, v. Bernhard ECKERT, Appellee.
    No. 4D05-3824.
    District Court of Appeal of Florida, Fourth District.
    Oct. 11, 2006.
    Rehearing Denied Nov. 29, 2006.
    See also 872 So.2d 385.

      Robert L. Sader of Sader & LeMaire, P.A., Fort Lauderdale, for appellants.
    Joseph Heimovics of Graner Root & Heimovics, P.A., Boca Raton, for appellee.
   WARNER, J.

In this business dispute between a father and a son, the son appeals the trial court’s order awarding the father interest on two mortgage loans from the father to his son. The son claims that the father’s refusal to give him an estoppel letter, which was the subject of a prior successful suit against the father, should bar the father from collecting the interest due. The trial court held that the son was barred by res judicata from raising his defenses to the father’s collection of interest. We reverse the award of default interest on the first loan, because the father was not entitled to interest at the default rate, as he never called the note due and payable. Therefore, the son’s assertion of this affirmative defense is not barred by the prior suit. We affirm the award of interest on the second mortgage.

Appellant, Edward Eckert, and his company (collectively referred to as Edward) borrowed more than $800,000 from his father, Bernhard, in two loans. The first was in the amount of $540,000 and secured by a mortgage on property in Coconut Creek. The note provided that interest only would be payable monthly until 2004, when the entire principal would come due and payable. Default interest payments would bear interest at 18%. The mortgage included a non-waiver provision that “failure by the Mortgagee to exercise any of the rights or options herein provided shall not constitute a waiver of any rights or options under said note or this mortgage accrued or thereafter accruing.”

The second note for $341,900 was also secured by a mortgage on the same property and other property. This mortgage was prepared in conjunction with a bankruptcy order whose terms were incorporated into the mortgage. That order provided for payment of the entire balance one year from the date of the order, or on or before August 19, 1999, and if the balance was not paid, the principal would bear interest at the rate of 10% from that date. This mortgage, too, included a non-waiver provision.

Edward and his company made interest payments to his father on the first mortgage for a while, the last of those payments being made in October 1999. No payments were ever made on the second mortgage.

Edward entered into a contract to sell the mortgaged property in February 2000 and requested an estoppel letter on the mortgages from Bernhard in May 2000. Bernhard refused to cooperate, requiring Edward to file suit to obtain the estoppel information and for damages for Bern-hard’s failure to provide it. In August 2000, the court entered an order requiring Bernhard to provide the estoppel information, but Bernhard failed to do so. In the meantime, because the contract could not close without the estoppel information, the buyer terminated the contract.

The case came to trial in January 2002, and the court awarded $336,616.16 in damages to Edward as a result of Bernhard’s failure to provide the estoppel information. The judgment also reserved jurisdiction to award additional future damages. Edward managed to collect approximately $350,000 in full satisfaction of the judgment.

Edward subsequently attempted to obtain refinancing of the property in August 2002. In connection with this, he faxed a new request to Bernhard for the payoff information on the loans. Again, Bern-hard failed to comply, and Edward filed a motion to compel in the prior lawsuit. Through counsel, Bernhard finally provided estoppel information in December 2002. This included default interest on the first mortgage loan from the date of the last interest payment as well as interest at 10% on the second mortgage from its due date. Although Edward disputed the interest and was seeking it as damages, he was able to close on his refinancing, pay Bern-hard the principal owed, and escrow the remaining monies until the dispute over interest was resolved.

In the meantime, Edward filed a motion seeking the award of additional damages in the lawsuit claiming additional damages of mortgage payments and legal costs and fees to settle a suit filed by the buyer who terminated the sales agreement. The trial court denied additional damages, and this court affirmed, concluding that the trial court lacked jurisdiction to award additional damages in the case once the judgment had been satisfied in full. See EDE Properties, Inc. v. Eckert, 872 So.2d 385 (Fla. 4th DGA 2004).

To resolve the interest dispute and obtain the escrowed funds, Bernhard filed a complaint for declaratory relief against Edward, asserting that he was entitled to the escrowed proceeds because he was due the interest on the two mortgages. Edward filed an answer asserting various affirmative defenses, including that Bern-hard’s claim to interest was barred, in whole or in part, by his failure to declare the notes in default under the terms of the notes. Edward also filed a counterclaim for declaratory relief and damages, asserting that he was entitled to the funds because of Bernhard’s misconduct in failing to provide estoppel information.

At trial the parties stipulated to the facts, so the court ruled as a matter of law. The court found that Edward’s obligation to pay on the mortgages was separate and independent from Bernhard’s obligation to provide estoppel information to Edward pursuant to section 701.04, Florida Statutes. Edward’s obligation to make the payments on the notes and mortgages was not “discharged, diminished, or extinguished” by Bernhard’s failure to provide estoppel information. The court rejected Edward’s claim that -Bernhard was required to bring a compulsory counterclaim to collect default interest in the first case. Edward, on the other hand, was barred by res judicata from claiming additional damages for Bernhard’s failure to provide the estoppel information as the damage claims could have been brought in the original suit. The court declared that Bernhard was entitled to interest at the rate of 18% from the date of the last interest payment in 1999 through the date of the refinancing in March 2003. Likewise, the court declared that interest on the second mortgage at 10% was due from August 1999 when the mortgage debt came due until the March 2003 refinancing. From this ruling Edward appeals.

Because the trial court decided this case on issues of law with a stipulated record, our review of the trial court’s ruling is de novo. See, e.g., Global Travel Mktg., Inc. v. Shea, 908 So.2d 392 (Fla.2005); Direct Gen. Ins. Co. v. Morris, 884 So.2d 1077 (Fla. 1st DCA 2004).

We agree with the trial court that Edward’s obligation to pay the contractual interest on the notes was independent of Bernhard’s statutory obligation to provide payoff information. Edward was contractually obligated to make monthly interest payments on the notes, which he failed to do after October 1999. As the trial court noted, the fact that Bernhard failed to provide the estoppel letter did not discharge Edward’s obligations under the notes. Therefore, interest continued to be due even after the entry of the original final judgment, and Edward was obligated to pay it. Bernhard was entitled to the interest until the notes were paid.

Edward sued for his damages associated with Bernhard’s failure to provide the mortgage estoppel letter in 2000. Having sued and recovered damages for Bernhard’s failure to provide the estoppel information, Edward is barred from asserting a claim for additional damages for that same wrong in this suit. However, we think it is more appropriately based upon the rule against splitting causes of action. In Tyson v. Viacom, Inc., 890 So.2d 1205, 1210-11 (Fla. 4th DCA 2005), we said:

The rule against splitting causes of action is “an aspect of the doctrine of res judicata.” Froman [v. Kirland, 753 So.2d 114, 116] (citing Alvarez v. Nestor Salesco, Inc., 695 So.2d 941 (Fla. 4th DCA 1997)). The rule provides that: “[A]s a general rule the law mandatorily requires that all damages sustained or accruing to one as a result of a single wrongful act must be claimed and recovered in one action or not at all.” Id.

Edward already collected $350,000 in damages for Bernhard’s failure to provide the estoppel letter. If he claimed that interest payments then due and owing were also a component of his damages, he should have recovered them in the prior suit.

Bernhard, on the other hand, was not required to bring his claim for interest as a compulsory counterclaim. The note payments were not the subject in controversy. See Fla. R. Civ. P. 1.170(a). Edward admitted his obligation to pay on the notes, hence the need for an estoppel letter. Thus, Bernhard’s claim to interest was not a compulsory counterclaim.

However, neither res judicata nor the rule against splitting causes of action bars the consideration of Edward’s affirmative defense that Bernhard’s claim is barred, in whole or in part, by his failure to declare either note in default. The principal amount of the first note was not due until 2004. The first mortgage and note each provided that upon default in the payment of interest or principal, the whole sum would become due and payable at the option of the holder. The note called for default interest to be payable from the “due date.” Thus, a declaration of default was necessary to trigger the obligation to pay interest at the default rate. See Haddock v. Marlin, 458 So.2d 848 (Fla. 5th DCA 1984) (where mortgage provided that holder had the option to accelerate upon default, interest at the default rate would be due only from the date of acceleration). Otherwise, the note was not due and could not be calculated at the default rate.

The grounds for this affirmative defense of failure to declare a default did not arise until Bernhard actually made a claim for interest at the default rate. Therefore, the prior suit in no way affected Edward’s right to defend against Bernhard’s claim for interest at the default rate.

The parties stipulated that Bern-hard did not make a demand for payment of default interest prior to December 2002. Under the terms of the note, interest at the default rate of 18% did not accrue prior to that date. Therefore, we reverse and remand with directions to recalculate interest owed on the first note at the interest rate of 7.25% as contained in the note until the date of the letter of acceleration and only thereafter at the rate of 18% until the same was paid.

As to the second note, it bore interest at the contract rate for its entire term, because the note did not provide for a default rate of interest. Therefore, the trial court did not err in its calculation of interest on this note.

We affirm as to the remaining issues raised. Edward claimed attorney’s fees in this action pursuant to section 701.04. However, this action was not a claim based upon that provision. The remaining issue was not preserved, nor was it tried by implied consent.

Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.

GROSS AND HAZOURI, JJ., concur.


text:
    Phillip BUTLER, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-1642.
    District Court of Appeal of Florida, Third District.
    Oct. 11, 2006.
    Rehearing Denied Nov. 14, 2006.
    Phillip Butler, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before FLETCHER and SHEPHERD, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Sheffield v. State, 903 So.2d 1009, 1011 (Fla. 4th DCA 2005)(“ ‘a trial court must either state its rationale in its decision or attach those specific parts of the record that refute each claim presented in the motion’ ” (quoting Anderson v. State, 627 So.2d 1170, 1171 (Fla.1993)))(emphasis added).


text:
    James BOOKER, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-1966.
    District Court of Appeal of Florida, Third District.
    Oct. 11, 2006.
    Rehearing Denied Nov. 14, 2006.
    James Booker, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before GERSTEN, GREEN, and RAMIREZ, JJ.
   PER CURIAM.

Affirmed. See State v. Matthews, 891 So.2d 479 (Fla.2004).


text:
    STATE of Florida, DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Petitioner, v. Philip Larry MAGGERT, Respondent.
    No. 1D06-1081.
    District Court of Appeal of Florida, First District.
    Oct. 11, 2006.
    Rehearing Denied Nov. 15, 2006.
    Judson M. Chapman, Department of Highway Safety and Motor Vehicles General Counsel, and Enoch J. Whitney, contract counsel, Tallahassee, for Petitioner.
    Susan Z. Cohen, Epstein & Robbins P.A., Jacksonville, for Respondent.
   PER CURIAM.

The petition for writ of certiorari is GRANTED, and the final order QUASHED. See Dep’t of Highway Safety & Motor Vehicles v. Utley, 930 So.2d 698 (Fla. 1st DCA 2006) (Hawkes, J., concurring). The arrest report indicates that Officer D. Fucci of the Jacksonville Sheriffs Office was flagged down by a motorist while the officer was conducting stationary speed enforcement. The motorist proceeded to advise Officer Fucci that he had observed a green Honda mini-van eastbound on Baymeadows Road. According to the motorist, the van was weaving in and out of its lane and the driver appeared to be impaired. Officer Fucci then observed the van weaving in and out of its lane until it stopped at a traffic light. At this point, Officer Fucci requested that Officer I.G. Owens stop the vehicle. The driver of the green Honda mini-van was determined to be respondent. Respondent was arrested for driving under the influence of alcohol.

Under the facts of this case, objective evidence established probable cause to believe that respondent was impaired while he was operating his motor vehicle. Accordingly, the absence of a statement in the arrest report, indicating that Officer Fucci initiated the stop for suspicion of impairment, does not operate to negate the objective existence of probable cause. See Whren v. United States, 517 U.S. 806, 813, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996).

ALLEN, BENTON, and HAWKES, JJ., concur.


author: LAGOA, J.

text:
    Carlos INFANTES, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-1795.
    District Court of Appeal of Florida, Third District.
    Oct. 11, 2006.
    Rehearing Denied Nov. 30, 2006.

      Bennett H. Brummer, Public Defender, and Billie Jan Goldstein, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Michael E. Hantman, Assistant Attorney General, for appellee.
    Before COPE, C.J., and FLETCHER and LAGOA, JJ.
   LAGOA, J.

The defendant, Carlos Manuel Infantes, appeals his judgment and requests a new trial. We affirm the judgment of the trial court and find that no new trial is warranted.

Defendant was charged by information with petit theft (Count 1) and burglary (Count 2). The jury found the defendant not guilty as to Count 1 and on Count 2 found the defendant guilty as to a lesser included offense of burglary of an unoccupied structure.

On appeal, the defendant raises two issues. First, the defendant argues that the trial court abused its discretion by allowing the State to ask hypothetical questions during voir dire, which permitted the State to pre-try the case. The defendant also argues that the trial court abused its discretion in failing to read back the testimony of a witness after receiving a request from the jury during deliberations.

With respect to the first issue raised, the record demonstrates that the State, in discussing the definition of burglary, posed various hypothetical scenarios involving the prosecutor visiting the White House and while on a -White House tour taking a pen off the President’s desk. The record also shows that the defendant did not object to the State’s use of hypothetical questions, and in fact, the defendant used one of the same hypothetical scenarios during his own voir dire. Accordingly, as this issue was not preserved below, it cannot now be considered by this Court. See Archer v. State, 613 So.2d 446, 448 (Fla.1993) (“For an issue to be preserved for appeal, ... it ‘must be presented to the lower court and the specific legal argument or ground to be argued on appeal must be part of that presentation if it is to be considered preserved).’ ” (quoting Tillman v. State, 471 So.2d 32, 35 (Fla.1985)).

Moreover, even if this issue had been preserved, the State’s hypothetical questions during voir dire were proper as they were designed to determine whether the jurors could correctly apply the law. As this Court recently opined in Williams v. State, 931 So.2d 999 (Fla. 3d DCA 2006):

While it is certainly well settled that attorneys “may not have jurors indicate, in advance, what their decision will be under a certain state of evidence or upon a certain state of facts,” Franqui v. State, 699 So.2d 1312, 1322 n. 5 (Fla. 1997), the State’s hypotheticals in this case did not attempt to elicit any such responses. Rather, the State’s questions were geared towards eliciting whether the jurors would find reasonable doubt based upon an extreme set of unrelated hypothetical facts or sympathy. The jurors were not presented with the facts of this case, nor asked to offer their decisions during voir dire. These hypotheticals, designed to determine whether the jurors could correctly apply the law, are permissible.... Thus, the court did not abuse its discretion in permitting this line of questioning.

Id. at 1000 (citations omitted). “The scope of voir dire questioning rests in the sound discretion of the court and will not be interfered with unless that discretion is clearly abused.” Jackson v. State, 881 So.2d 711, 713-714 (Fla. 8d DCA 2004). In this case, the trial court did not abuse its discretion in allowing the State’s use of hypothetical questions.

The defendant also argues that the trial court abused its discretion in failing to read back the testimony of a witness after receiving a request from the jury during deliberations. After receiving the note, the record demonstrates that the trial court ordered the jury to return to the courtroom and then instructed them as follows:

THE COURT: Ladies and gentlemen, I have your note here that says can we have the testimony of the first officer regarding his going into the store and lifting the tarp and finding the defendant. Our answer to that. You have to relying[sic] on your own collective memory. I cannot offer any other information to you. Thank you very much. I wish I can give you more. But that is all I can give you. Thank you.

Under Florida Rule of Criminal Procedure 3.410, the trial court has wide latitude in the area of reading testimony to the jury. Indeed, “[a] trial court need only answer questions of law, not of fact, when asked by a jury and has wide discretion in deciding whether to have testimony reread.” Coleman v. State, 610 So.2d 1283, 1286 (Fla.1992)(no abuse of discretion found in refusing to reread testimony of witness and instructing jury to rely on collective memory of the evidence). We find no abuse of discretion in the trial court’s refusal to reread the first officer’s testimony and instructing the jury to rely on its collective memory. Moreover, it should be noted that the defendant did not object to this instruction.

As the trial court did not abuse its discretion on the two appellate issues raised, we find that a new trial is not warranted and affirm the judgment of the trial court.

Affirmed.

      . During jury deliberations, the jurors sent the following written note to the trial court:
      Can we hear the testimony of the first officer regarding his going into the tire store and lift [sic] the tarp and finding the defendant?


author: COPE, C.J.

text:
    Frank J. RICHARDSON, deceased, and Lessie Richardson, Appellants, v. CHASE MANHATTAN BANK, Appellee.
    No. 3D04-2199.
    District Court of Appeal of Florida, Third District.
    Oct. 18, 2006.
    Henrietta Jo Pace, Miami, for appellant.
    Stern & McSurdy and Forrest G. McSurdy, for appellee.
    Before COPE, C.J., and SHEPHERD and ROTHENBERG, JJ.
   COPE, C.J.

Lessie Richardson, for herself and as personal representative of Frank Richardson (the “Richardsons”), appeals the denial of her objections to a foreclosure sale. We reverse for further proceedings.

Chase Manhattan Bank (the “Bank”) filed a foreclosure action against the Rich-ardsons in May 2000. The face amount of the mortgage was $76,000. Final judgment was entered on July 13, 2000.

There was a complicated course of proceedings in the United States Bankruptcy Court. Frank Richardson filed a bankruptcy proceeding under chapter 7. The Bank obtained relief from the bankruptcy stay. Mr. Richardson converted the chapter 7 bankruptcy to a chapter 13 bankruptcy proceeding. Mr. Richardson made payments to the Bank under chapter 13 and the Bank accepted the payments.

Mr. Richardson passed away in June 2001. Mr. Richardson’s chapter 13 proceeding was dismissed and the estate attempted unsuccessfully to reinstate it. Ms. Richardson then filed her own chapter 13 proceeding. Ultimately that chapter 13 proceeding was dismissed with prejudice by the Bankruptcy Court after Ms. Richardson failed to attend a required creditors meeting.

The trial court resumed jurisdiction and entered an amended judgment in favor of the lender for $123,265. In March 2004 the trial court entered an order rescheduling the foreclosure sale, which had been scheduled and canceled several times previously. The certificate of service on the order reflects that separate copies of the rescheduling order were mailed to Mr. Richardson (who was by then deceased), Ms. Richardson, and the Richardsons’ counsel who had appeared in the foreclosure action on behalf of Mr. Richardson and Ms. Richardson as personal representative. The sale took place in April 2004. The Bank was the successful bidder.

Eight days after the sale Ms. Richardson served an objection to sale and a verified motion to set aside the sale of the property (“objection and motion”). The objection and motion stated that she had received no notice of the rescheduled sale:

COMES NOW, LESSIE RICHARDSON, Widow and Personal Representative of the Estate of Frank Richardson by and through the undersigned counsel and files this Verified Motion to Set Aside Sale of the Property, and as good grounds would state:
1.The sale of the property on April 28, 2004, was an unlawful taking without due process in violation of the 14th Amendment of the United States Constitution.
2. On March 30, 2004, this Honorable Court granted Plaintiffs Motion to Reschedule Foreclosure Sale.
3. Plaintiff failed to notify LESSIE RICHARDSON or the Estate of Frank Richardson of the impending sale scheduled April 28, 2004.
4. The property was sold without the notice to LESSIE RICHARDSON or the Estate of Frank Richardson.
5. LESSIE RICHARDSON has resided on the property with her family since 1987. At times, Mrs. Richardson has received mail addressed to other people who live on a different street with the same house number. Likewise, neighbors [have] brought mail to Mrs. Richardson’s home.
6. On June 19, 2001, FRANK RICHARDSON died. His survivors include Mrs. Richardson, and two minor children.
7. At the time of Mr. Richardson’s demise, he was a Debtor in Chapter 13 of the United States Bankruptcy Court. (In Re: Frank Richardson, Case No. 00-16239).
8. In Re: Frank Richardson, Plan payments were made by LESSIE RICHARDSON. She paid the plan payments to the Chapter 13 Trustee. She paid Chase Manhattan $22,631.96 as Regular Mortgage Payments and $4,694.54 as Mortgage Arrears Payment. In this Bankruptcy case, a total of $27,326.90 was paid to Chase Manhattan. (See Exhibit A)
9. Thereafter, the Bankruptcy Court dismissed In Re: Frank Richardson, and allowed LESSIE RICHARDSON to file In Re: The Estate of Frank Richardson, Case No. 03-50709 RBR.
10. In Re: Estate of Frank Richardson, LESSIE RICHARDSON paid the Trustee $6,000 as regular payments and arrearage. (See Exhibit B). Thereafter, In Re: Estate of Frank Richardson was dismissed.
11. In Re: Lessie Richardson, Case No. 0350919 PGH LESSIE RICHARDSON paid the Trustee $4,518.00. (See Exhibit C)
12. Mrs. Richardson desires to save her homestead.
WHEREFORE, LESSIE RICHARDSON, prays the Court will Sustain her Objection to the Sale and Grant her Motion to Set Aside the Sale of the Property.

(Emphasis in original; exhibits omitted).

The trial court conducted a non-eviden-tiary hearing on the objection and motion. The trial court denied relief and Ms. Richardson has appealed.

We first consider the claim of Ms. Richardson in her individual capacity that she did not receive notice of the sale. At the outset of the foreclosure case, Ms. Richardson was named as a defendant and filed a pro se answer. Ms. Richardson was listed on the service list used by the court and parties. Through and including the time of sale Ms. Richardson was not represented by counsel in her individual capacity. Therefore notice of the sale should have been sent to her. The record shows that such notice was mailed to Ms. Richardson.

However, Ms. Richardson’s objection and motion state that she did not receive notice of the rescheduled sale. The objection and motion “ ‘constituted some evidence that the subject order was not received in the mail.... It therefore became a question of fact as to whether plaintiff[] had received the subject order in the mail. [ ]’ ... In other words, the denial of receipt does not automatically overcome the presumption but instead creates a question of fact which must be resolved by the trial court.” Scutieri v. Miller, 584 So.2d 15, 16 (Fla. 3d DCA 1991) (citation omitted). See also World On Wheels of Miami, Iric. v. International Auto Motors, Inc., 569 So.2d 836, 837 n. 1 (Fla. 3d DCA 1990).

The parties appear to assume that if Ms. Richardson did not receive notice then the court must automatically set aside the sale. That assumption is not correct. See Bennett v. Ward, 667 So.2d 378, 381 (Fla. 1st DCA 1995) (stating that equitable principles govern whether to set aside a judicial sale); see also Cleveland Mortgage and Investment Co. v. Gage, 144 Fla. 758, 198 So. 677, 678-79 (1940); Cicoria v. Gazi, 901 So.2d 282, 287-88 (Fla. 5th DCA 2005).

On remand Ms. Richardson bears the burden to establish at the evidentiary hearing that she did not receive notice of the rescheduled sale and must also show what harm, if any, she suffered by reason of not being notified of the sale. Whether the trial court should grant relief is addressed to its equitable discretion.

In the trial court the Bank argued that it was not required to serve Ms. Richardson because. counsel had appeared in the case on her behalf. The Bank contends that service on counsel was all that was required. See Fla. R. Civ. P. 1.080(b). We find no indication in the record that counsel had appeared for Ms. Richardson individually so the Bank’s argument is misplaced.

The analysis differs with regard to Mr. Richardson and his estate. At the outset of the foreclosure case Mr. Richardson was named as a defendant and filed a pro se answer. After Mr. Richardson filed for bankruptcy protection, bankruptcy counsel appeared in the foreclosure action by filing a suggestion of bankruptcy. As we interpret the transcript of the hearing below, bankruptcy counsel appeared in the foreclosure case for the limited purpose of filing the suggestion of bankruptcy and did not undertake to defend Mr. Richardson in the foreclosure proceeding. The service list identifies counsel as bankruptcy counsel. For present purposes we assume that bankruptcy counsel was not representing Mr. Richardson in the foreclosure case and that service of pleadings on Mr. Richardson continued to be required.

After Mr. Richardson passed away, bankruptcy counsel filed a motion to substitute Ms. Richardson as personal representative in place of Mr. Richardson. The motion requested a stay of the foreclosure action in hopes that Ms. Richardson would receive a settlement that would allow her to pay off the mortgage. By these motions counsel had begun actively representing and defending Ms. Richardson as personal representative in the foreclosure action.

The Bank argues that once counsel had appeared in the foreclosure action, service of pleadings and orders was sufficient if served on counsel. See id. The Bank’s position is that since the rescheduling order was mailed to counsel at her address of record, this amounted to service on Ms. Richardson as personal representative.

At the hearing below, counsel stated that she, too, did not receive notice. She said that her office had moved and that her office address was no longer the address reflected in the court file. The Bank contended, and we agree, that upon relocating her office it was the responsibility of counsel to file a notice of change of address in the court file so that the parties and the court could update their service list.

Counsel argues that she did, in fact, let the Bank know her correct address in two separate ways. First, counsel points out that her new address was reflected on the motion for stay she filed on behalf of Ms. Richardson as personal representative. However, we note that the local practice is for counsel to file a document clearly entitled “Notice of Change of Address,” or the equivalent, so as to alert the court and counsel that there is an address change. Merely stating the new address under counsel’s signature line, without doing something to call the attention of the court and counsel to the change of address, is insufficient.

Counsel also argues that the Bank was aware of this change because in the bankruptcy proceeding, the Bank was serving her with papers at her new office address. Again, we note that the custom is to file a notice of change of address in each active litigation file. The fact that the Bank had received notice of counsel’s change of address in the bankruptcy proceeding would not automatically alert the Bank that a change of address was needed in the separately pending foreclosure case. We conclude that the Bank was entitled to rely on counsel’s address of record in the foreclosure litigation.

However, the fact that counsel made an error does not end the inquiry. It appears that in foreclosure cases there are circumstances in which relief from a foreclosure sale will be granted, even if the complaining party was responsible for the mistake, where there is a grossly inadequate sale price. See Wells Fargo Financial System Florida, Inc. v. GRP Financial Services Corp., 890 So.2d 383, 384 (Fla. 2d DCA 2004).

Because we are remanding for further proceedings as to Ms. Richardson individually, on remand Ms. Richardson as personal representative may also make a showing regarding how, if at all, she was harmed and whether the circumstances of this case are such that equity requires the sale to be set aside as to Ms. Richardson as personal representative.

Upon the issuance of our mandate Ms. Richardson and her counsel will have thirty days to file an amended objection and motion which is either verified or supported by affidavit. If Ms. Richardson fails to file within the allotted time then the objection and motion may be summarily denied.

For the stated reasons, the order now before us is reversed and remanded for further proceedings consistent herewith.

      . Frank Richardson was one of the originally named defendants in the foreclosure action, but he died in June 2001. Lessie Richardson, his widow, is the personal representative of his estate.

      . The notice to Ms. Richardson was addressed to her as Mrs. Daily, which was her name prior to marrying Mr. Richardson.