author: ALTENBERND, Judge.

text:
    John DOE, M.D., Petitioner, v. DEPARTMENT OF HEALTH, Respondent.
    No. 2D06-1273.
    District Court of Appeal of Florida, Second District.
    Dec. 27, 2006.
    Rehearing Denied Feb. 27, 2007.

      Jon M. Pellett of Barr, Murman, Tonelli, Slother & Sleet, Tampa, for Petitioner.
    Wings S. Benton, Appellate Section Head, Prosecution Services Unit, and M. Rony Francois, M.D., M.S.P.H., Ph.D., Secretary, Department of Health, Tallahassee, for Respondent.
   ALTENBERND, Judge.

John Doe is a physician who is the subject of a disciplinary investigation by the Department of Health. As part of its investigation, the Department issued a subpoena seeking certain limited peer review records regarding Dr. Doe from a hospital where Dr. Doe had staff privileges. Dr. Doe sought to quash the subpoena, arguing the records sought were privileged and could not be provided to the Department. In this petition to review nonfinal agency action, Dr. Doe seeks review of the Department’s order denying his motion to quash the subpoena.

The outcome of this case turns upon the interpretation of seemingly conflicting statutes, • sections 458.331(9) and 458.337(3), Florida Statutes (2005), and sections 395.0193(8) and 766.101(5), Florida Statutes (2005). When read together, however, the statutes can be reconciled to promote the legislative intent behind each statute. Accordingly, we conclude that sections 458.331(9) and 458.337(3) permit the Department to subpoena this information for the purposes of its investigation of Dr. Doe, and that the provisions of sections 395.0193(8) and 766.101(5) do not prohibit the release of the information to the Department. The limited release of information to the Department is vital to Florida’s physician disciplinary process, designed to assure acceptable levels of competence among physicians; it is not the type of public disclosure in a malpractice lawsuit or other civil or administrative claim that sections 395.0193(8) and 766.101(5) are intended to address. Indeed, the release of information to the Department as permitted by section 458.337(3) maintains the broader eonfiden-tial and exempt nature of the information disclosed. It permits a robust and frank disciplinary process by permitting the limited disclosure to the Department, while protecting the participants from the threat of a public disclosure of any information for use in a malpractice or other action against the physician. We thus deny Dr. Doe’s petition.

Dr. Doe resigned his staff privileges at a Florida hospital in May 2005. Pursuant to section 458.337(l)(a), (2), the hospital notified the Department that Dr. Doe had voluntarily surrendered his privileges while under, or to avoid, an investigation relating to his professional competence or conduct. Our limited record does not contain a document from the hospital detailing the basis for its investigation of Dr. Doe. However, when the Department notified Dr. Doe of its investigation, it indicated that the allegations involved a possible violation of sections 456.072(l)(y) and 458.331(l)(s), Florida Statutes (2005).

On October 28, 2005, the Department informed Dr. Doe that it was investigating him based upon the hospital’s report. In connection with the investigation, the Department issued a subpoena to the reporting hospital which requested

a summary of the issues discussed by the Peer Review Committee (Committee) pertaining to [Dr. Doe] that concerns incidents that could constitute a violation of the Medical Practice Act and/or Osteopathic Medicine Practice Act. Identify any patient records reviewed by the Committee by patient name and relevant dates or by patient file number. The identity of the members of the Committee need not be disclosed.

Dr. Doe became aware of the issuance of this subpoena and notified the hospital and the Department that he objected to the hospital releasing these records. He filed a motion to quash the subpoena with the Department, arguing primarily that the documents requested were privileged under sections 395.0193(8) and 766.101(5) and thus could not be released to the Department. The Department denied the motion, and Dr. Doe filed this petition to review the Department’s order. Apparently, the parties have agreed to defer compliance with or enforcement of the subpoena until this court decides this petition.

The Department is entitled to issue subpoenas as part of its investigation in physician disciplinary proceedings pursuant to section 456.071, which provides:

For the purpose of any investigation or proceeding conducted by the department, the department shall have the power to administer oaths, take depositions, make inspections when authorized by statute, issue subpoenas which shall be supported by affidavit, serve subpoenas and other process, and compel the attendance of witnesses and the production of books, papers, documents, and other evidence.

In turn, there are two statutes that specifically contemplate that the Department will have access to peer review documents when conducting an investigation regarding physician discipline. Section 458.337 requires hospitals to notify the Department of adverse disciplinary actions they take against a physician. Section 458.337(3) states:

Any organization taking action as set forth in this section shall, upon department subpoena, provide copies of the records concerning the action to the department. However, those records shall be used solely for the purpose of the department and the [Bjoard [of Medicine] in disciplinary proceedings. The records shall otherwise be confidential and exempt from s. 119.07(1). These records shall not be subject to discovery or introduction into evidence in any administrative or civil action.

Section 458.331 entitled “Grounds for disciplinary action; action by the board and department” sets forth the grounds upon which the Department may discipline a physician. Subsection (9) provides that when the Department is investigating a physician for potential discipline, it must furnish to the physician certain documents:

For purposes of this subsection, such documents include, but are not limited to ... a report of peer review disciplinary action submitted to the department pursuant to s. 395.0193(4) or s. 458.337, providing that the investigations, proceedings, and records relating to such peer review disciplinary action shall continue to retain their privileged status even as to the licensee who is the subject of the investigation, as provided by ss. 395.0193(8) and 458.337(3)....

These statutes specifically contemplate that the Department will have access to the peer review records supporting the hospital’s discipline of a physician, and those documents will form the initial basis for the Department’s investigation of the physician. In turn, those documents will remain “privileged” for all other purposes.

There is no dispute that the information sought by the Department’s subpoena is generally privileged under sections 395.0193(8) and 766.101(5). Section 395.0193(8), which is located in chapter 395 of the Florida Statutes regarding hospital licensing and regulation, and section 766.101(5), which is located in chapter 766 of the Florida Statutes regarding medical malpractice and related matters, both provide that the “investigations, proceedings, and records” of a peer review panel or medical review committee “shall not be subject to discovery or introduction into evidence in any civil or administrative action against a provider of professional health services.” (Emphasis added.) Dr. Doe argues that the Department’s subpoena is an attempt at “discovery” in an “administrative action” and thus these statutes specifically prohibit the disclosure of these records. This argument is supported by the fact that a subpoena is often a tool used to obtain discovery and by language in section 456.073 describing physician disciplinary proceedings in terms suggestive of an “administrative action.” See § 456.073(4) (discussing “a formal complaint” against the physician to be “prosecute[d] ... pursuant to chapter 120”); § 456.073(5) (providing that the complaint is subject to a “formal hearing before an administrative law judge ... pursuant to chapter 120”); § 456.073(7) (permitting “judicial review ... pursuant to s. 120.68”); see also § 458.331 (describing disciplinary action taken against physician under that section as an “administrative action against a physician”).

To read these statutes in the unqualified manner that Dr. Doe suggests, however, would ignore the provisions in sections 458.331(9) and 458.337(3), which clearly envision the Department’s access to some peer review records in physician disciplinary proceedings. This interpretation would also render the statutory disciplinary process unworkable, by denying the Department access to the records that initiated the disciplinary process and that are critical to the Department’s evaluation of the physician’s competency.

When the language of a statute conveys a clear and definite meaning, there is usually no occasion to resort to rules of statutory interpretation and construction. Holly v. Auld, 450 So.2d 217, 219 (Fla.1984). However, a literal interpretation of the language of a statute need not be given when to do so would lead to an unreasonable conclusion. Id. A departure from a literal interpretation of the statute may be merited when there are “cogent reasons” for believing that the letter of the law does not accurately disclose the legislative intent. Id. (citing State ex rel. Hanbury v. Tunnicliffe, 98 Fla. 731, 124 So. 279, 281 (1929)). Further, if a literal interpretation of the language of one statute would lead to an unreasonable conclusion regarding the interpretation of a related statute, the courts are not compelled to assume that the legislature acted unreasonably, especially when doing so would violate the stated legislative intent of one or more statutes. Where possible, courts must give full effect to all statutory provisions and construe related statutory provisions in harmony with one another. Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So.2d 452, 455 (Fla.1992); see also McGhee v. Volusia County, 679 So.2d 729, 730 n. 1 (Fla.1996) (“The doctrine of in pari materia requires the courts to construe related statutes together so that they illuminate each other and are harmonized.”).

The legislative intent of chapter 458 is specifically expressed in section 458.301, which states in pertinent part:

The primary legislative purpose in enacting this chapter is to ensure that every physician practicing in this state meets minimum requirements for safe practice. It is the legislative intent that physicians who fall below minimum competency or who otherwise present a danger to the public shall be prohibited from practicing in this state.

Similarly, the expressed legislative intent of chapter 395, which includes the basic structure for peer review, is to “provide for the protection of public health and safety.” See § 395.001. In contrast, the privilege provided to peer review documents is intended to permit the peer review committee to carry out its function— a function that includes physician discipline — without the chilling effect that potential public disclosure might have on that process. See Cruger v. Love, 599 So.2d 111, 114-15 (Fla.1992).

Given the expressed collective legislative intent — to provide a process of confidential peer review, not chilled by the potential public exposure of information, that will permit the discipline of physicians necessary to protect the public health and safety — the statutes must be read in pari materia to conclude that the Department has access to peer review records under sections 458.331(9) and 458.337(3). As such, the language in sections 395.0193(8) and 766.101(5) that states that these records “shall not be subject to discovery or introduction into evidence in any civil or administrative action against a provider of professional health services” must be read to apply to “any ... administrative action against a provider” other than a physician disciplinary proceeding by the Department. Indeed, this interpretation is supported by section 458.337(3), which specifically provides for the Department’s access to the hospital’s disciplinary records and repeats the same phrase, “These records shall not be subject to discovery or introduction into evidence in any administrative or civil action.”

It is sometimes helpful to remember that statutory interpretation is not a contact sport played between the judiciary and the legislature as members of opposing teams. Statutory interpretation is an important function of the judiciary designed to facilitate the functioning of the legislature and the fulfillment of the laws and policies adopted by the legislature. The judiciary must use a degree of common sense in deciding whether the legislature’s intent is sufficiently clear that the court may imply a qualifying phrase within a statute. If there is any reasonable concern that a reading other than a strict interpretation might not comport with the legislature’s intent, the legislature should generally be required to amend the statute, if that is necessary to fulfill its actual intent.

In this case, however, we harbor no doubt that our holding, though it implies wording that is not explicit in sections 395.0193(8) and 766.101(5), fulfills the legislative intent and facilitates the implementation of the legislature’s policies as set forth in the statutes regarding peer review and physician discipline as a whole. Indeed, to hold otherwise would effectively result in rendering section 458.337(3), and perhaps the entire disciplinary process upon which peer review is based, meaningless.

The Department was entitled to the peer review records it sought from the hospital. The Department properly denied Dr. Doe’s motion to quash the subpoena. We therefore deny the petition to review nonfinal agency action.

Petition denied.

SALCINES and LaROSE, JJ„ Concur.

      . Dr. Doe's identity is confidential at this stage of the proceedings pursuant to section 456.073(1), Florida Statutes (2006).

      . See Fla. R.App. P. 9.100(c)(3); § 120.68(1), Fla. Stat. (2005).

      . In his petition to this court, Dr. Doe has argued that the complaint filed by the hospital was facially insufficient under section 456.073(1) to permit the Department's investigation, and that the hospital’s complaint was premature under section 458.337(l)(a)(2), (2). These issues were not the subject of the order we now review. Further, we are not convinced that determinations regarding the sufficiency of the hospital's complaint are an appropriate subject for review of nonfinal administrative action. See § 120.68(1) (permitting review of a nonfinal agency action when "review of the final agency decision would not provide an adequate remedy”).

      . We note that in seeking to quash the Department’s subpoena, Dr. Doe also asserted that the Department could not obtain patient records without express authorization from the patient. This issue was not addressed in the Department’s order and has not been the focus of the arguments on appeal. Moreover, the subpoena simply asked the hospital to identify any patient records that the peer review committee reviewed and permitted the hospital to identify those records by a patient number. The subpoena did not request the patients' actual records.

      . The hospital is not a party to these proceedings. However, our record indicates that the hospital has previously opined that the documents requested should be available to the Department under the applicable statutes for use in the disciplinary proceedings against Dr. Doe.

      .Although section 458.337 does not specifically refer to the peer review process, section 395.0193 creates a state-mandated peer review process for hospitals to discipline physicians. Thus it appears that the primary, if not only, method of physician discipline at a hospital would occur through the peer review process.

      . Dr. Doe has argued that our opinion in Bayfront Medical Center, Inc. v. State, Agency for Healthcare Administration, 741 So.2d 1226 (Fla. 2d DCA 1999), supports a finding that these peer review records are not available to the Department. We disagree. In Bayfront, the agency sought peer review records not in a physician disciplinary proceeding, but as part of its role in risk management review as set forth in section 395.0197, Florida Statutes (1997). Thus sections 458.331(9) and 458.337(3) were not implicated in the court’s analysis. Instead, section 395.0197(11) provided the agency access only to the "facility records necessary to carry out the provisions of this section.” Because the statutes provided the agency access to sufficient records prepared specifically for the purpose of risk management review, this court concluded that the risk management review provisions were not intended to abrogate or overcome the peer review privilege provisions. Nothing in Bayfront conflicts with our decision in this case.

      . A review of the legislative history of sections 395.0193(8) and 766.101(5) reveals that prior to 1990 the statutes referred only to "any civil action.” The "or administrative” language was added in 1990. See chs. 90-341, § 17; 90-344, § 9, Laws of Fla. The 1990 enactments themselves, however, provide no explanation as to why the language was added. It is at least possible that the language was related to the 1988 creation of the Florida Birth-Related Neurological Injury Compensation Act, chapter 88-1, Laws of Florida, which created an administrative procedure to resolve a certain type of medical malpractice claim.

      . We note that a court has more power to limit the application of a statute, as we do in this case, than to expand it. Under these circumstances, a court is less likely to interfere with the legislature’s role in establishing public policy because its action guards against statutory overbreadth. See generally William D. Popkin, Materials on Legislation: Political Language and the Political Process 32 (2d ed. 1997).


source: Caselaw Access Project

author: TAYLOR, J.

license: Public Domain

text:
    HABITAT II CONDOMINIUM, INC., a Florida not-for-profit corporation, Appellant, v. Derrick KERR, an individual, and Beverly J. Amie, an individual, Appellees.
    No. 4D06-1071.
    District Court of Appeal of Florida, Fourth District.
    Jan. 3, 2007.

      David A. Kupperman of Katzman & Korr, P.A., Fort Lauderdale, for appellant.
    Yvonne Brown Wright of the Law Offices of Yvonne Brown Wright, Coral Springs, for appellee Derrick Kerr.
    Michael D. Felton of Michael D. Felton, P.A., Coconut Creek, for appellee Beverly J. Amie.
   TAYLOR, J.

Habitat II Condominium, Inc., (the “Association”) appeals an order dismissing its complaint due to its failure to enter into non-binding arbitration of a dispute involving its claimed right of first refusal to a condominium unit. The Association claims that the dispute was not arbitrable under the governing statute because it involved title to a unit. We agree and reverse.

The Association has a right of first refusal, prior to any unit owner selling his or her property, pursuant to Article 15 of the condominium declaration. In the event of a third-party offer on any unit, the owner is required to:

give notice thereof to the Association, which notice shall include the name and address of the proposed purchaser or lessee, terms of the proposed transactions, and such other information as the Association may reasonably require, and such Owner shall offer to sell or lease such Condominium Unit to the Association or its designee on the same terms and conditions as contained in such Outside Offer.

The declaration further provides that “Any purported sale or lease of a Condominium Unit in violation of this section shall be voidable at the election of the Association.”

The Association alleges in its complaint that on or about May 14, 2004, defendant Beverly Amie transferred her condominium unit to defendant Derrick Kerr, for the sum of $38,000, without first furnishing the Association with the proposed Contract for Sale, in violation of Article 15.

The complaint sought an injunction requiring Kerr to transfer the property to the Association on the terms and conditions of his purchase of the property. In the alternative, the Association requested that the court void the transfer from Amie to Kerr and then require Amie to offer the property to the Association on those same terms. The complaint also sought “benefit of bargain” damages in the amount of $35,000. It requested attorney’s fees and costs pursuant to the bylaws.

Defendant Kerr moved to dismiss the action for failure to comply with the arbitration provision of section 718.1255(4), Florida Statutes (2005). In his unsworn memorandum of law, Kerr alleged that he had timely notified the Association’s registered agent of the sale and that the registered agent issued an “estoppel letter” in connection with the transaction. Defendant Amie made similar unsworn allegations in her “answer and affirmative defenses/motion to strike.”

The Association filed a written response claiming that this action involved an issue of “title” to the condominium unit and, hence, was not arbitrable under the arbitration statute. The response did not specifically deny defendants’ claim that the agent was notified, but rather asserted that the issue of notice was a factual issue which could not be decided by a motion to dismiss. The trial court granted the motions to dismiss, without prejudice, “as this matter needs to be arbitrated pursuant to FS 718.1255.”

The granting of a motion to dismiss is reviewed de novo. Regis Ins. Co. v. Miami Mgmt, Inc., 902 So.2d 966, 968 (Fla. 4th DCA 2005). In considering a motion to dismiss for failure to state a cause of action, the court is limited to the four corners of the complaint, the allegations of which must be taken as true. Visible Difference, Inc. v. The Velvet Swing, L.L.C., 862 So.2d 753, 756 (Fla. 4th DCA 2003); Nat’l Ventures, Inc. v. Water Glades 300 Condo. Ass’n, 847 So.2d 1070, 1073 (Fla. 4th DCA 2003). This principle defeats the defendants’ main argument that notice of the sale was given to the Association in accordance with the Declaration; this “fact” does not appear on the face of the complaint.

In section 718.1255, Florida Statutes (2005), the Florida Legislature provided a non-binding arbitration mechanism for resolving most issues which arise between a condominium association and individual unit owners. The arbitrator’s decision in such proceedings becomes binding if the losing party does not file for a trial de novo in circuit court within thirty days. Further, it is admissible in evidence in the event a trial de novo does occur. § 718.1255(4), Fla. Stat. (2005). Though non-binding, such arbitration is a condition precedent to bringing a lawsuit concerning any “dispute” within the scope of the statutory definition of that term. See Neate v. Cypress Club Condo., Inc., 718 So.2d 390, 392 (Fla. 4th DCA 1998).

The primary issue in this appeal is whether this case involves a “dispute” or falls within the following statutory exclusion:

“Dispute” does not include any disagreement that primarily involves: title to any unit or common element; ...

§ 718.1255(1), Fla. Stat. (2005).

The Association cites several arbitration decisions holding that where the Association seeks to void the transfer of a unit to a new owner, the disagreement primarily involves title to the unit, thus making the case non-arbitrable. See Habitat II Condo., Inc. v. Joseph, Arb. Case No.2006-01-3496; Lago Del Rey Condo., Inc. v. Balka, Arb. Case No.2003-07-8514; Five Towns of St. Petersburg No. 303, Inc. v. Blaser, Arb. Case No. 96-0326, 1996 WL 33663898; Altamonte Condo. Ass’n v. City of Altamonte Springs, Fla., Arb. Case No. 96-0209,1996 WL 33664328.

Here, the complaint sought a determination that the transfer of the unit was void because Amie failed to comply with the requirements of the Association’s Declaration of Condominium. The injunction count sought enforcement of the right of first refusal by requiring transfer of the unit to the Association. Thus, this action for injunctive relief and damages based upon an alleged wrongful transfer of title requires a determination as to title. As such, it comes within the “title” exception. See Joseph (“A disagreement as to the transfer of ownership of a unit involves a determination as to title.”). We note that Joseph not only involved this same Association, but also the same right of first refusal provision at issue in this case.

Because the trial court erred in granting the motion to dismiss, we reverse and remand for further proceedings.

Reversed and Remanded.

STEVENSON, C.J., and WARNER, J„ concur.


author:
PER CURIAM.
      ALTENBERND, Judge,

text:
    Edgar MONZON, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-5711.
    District Court of Appeal of Florida, Second District.
    Jan. 5, 2007.
    Rehearing Denied Feb. 20, 2007.
    James Marion Moorman, Public Defender, and Richard P. Albertine, Jr., Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Affirmed.

CASANUEVA and KELLY, JJ„ Concur.

ALTENBERND, J., Concurs with opinion.

ALTENBERND, Judge,

Concurring.

On April 20, 2005, Edgar Monzon was driving to work around 6 a.m. in his truck. He is a carpenter and was employed by Carpenter Constructors of America as a foreman. The truck he was driving was a company truck.

For some reason, Mr. Monzon was momentarily inattentive to traffic conditions. When a pickup truck in front of his truck slowed and put on its turn signal, Mr. Monzon ran into the back of that truck. A young man was riding without any safety restraint in the bed of the pickup truck. He was thrown from the vehicle and died as a result of this accident.

Under normal circumstances, Mr. Mon-zon would have received a traffic ticket and this matter would have been turned over to the insurance carrier for Carpenter Constructors of America. The matter either would have been settled or would have resulted in a civil suit.

But Mr. Monzon did not have a driver’s license. As a result, he was charged with driving without a license resulting in death. See § 322.34(6)(a), Fla. Stat. (2005). The legislature has designated this offense to be a third-degree felony. Id. Third-degree felonies are generally subject to no more than five years’ imprisonment, see § 775.082(3)(d), Fla. Stat. (2005). The offense itself calls for only twenty-eight points on a sentencing score-sheet. See § 921.0022(3), Fla. Stat. (2005) (classifying driving without a license resulting in death as a “level 5” offense). Mr. Monzon had no prior offenses and thus no other points for offenses on his scoresheet.

Pursuant to section 921.0024(l)(a), Mr. Monzon’s scoresheet also included 120 victim injury points based upon the death that resulted from the accident. This resulted in a sentencing scoresheet that required a lowest permissible prison sentence of ninety months or 7½ years. See § 921.0024(2) (providing in part, “If the lowest permissible sentence under the code exceeds the statutory maximum sentence ... the sentence required by the code must be imposed”). The trial court imposed the ninety-month sentence, but made it clear that it was doing so only because the legislature mandated this sentence.

Mr. Monzon unquestionably was driving without a license, and his negligent driving contributed to the young man’s death. As a result, the jury convicted him of this offense and we have no basis to override that lawful verdict or the sentence required under the applicable statutes.

If Mr. Monzon had lost his license because he was a drunk or a bad driver, I would have no sympathy for him in this case. If he had never bothered to take the test to get the license that Florida offered to him for a nominal price, I would not write this special concurrence.

But Mr. Monzon is an undocumented alien. He came here fifteen years ago from Guatemala. This middle-aged man lived with his wife, who is a United States citizen, and supported her two children as well as his son and family back in Guatemala. He has never been in trouble with the law. Numerous people came to his sentencing hearing to testify without contradiction that he is a responsible and contributing member of his community, albeit not a citizen.

Because he does not have resident alien status, Mr. Monzon cannot lawfully obtain a Florida driver’s license. See § 322.08(2)(c). If he had attempted to apply for a Florida driver’s license in this era of heightened terrorist security, he may have risked deportation. Ironically, because he had no license and risked deportation, he had reason to drive more carefully than other drivers.

Mr. Monzon was employed by a large corporation. His employer provided the vehicle apparently without determining Mr. Monzon’s immigration status or that he had no Florida driver’s license. He went to jail; the corporation went looking for a new foreman.

I do not intend to debate the wisdom of federal immigration policy. Whether the United States government should deport a man like Mr. Monzon is not the issue. Rather, the issue here is the public policies of the state of Florida and whether the Florida Statutes further those policies. Taxpayers will spend in excess of $150,000 to imprison a good carpenter and a good husband. Meanwhile, we will probably need to provide financial support to his wife and family in this state, while his family in Guatemala will also suffer. The Florida Legislature, I suspect inadvertently, has thus decided to spend substantial Florida resources to imprison Mr. Monzon for an act that is simple negligence, aggravated only by his decision years ago to enter this country in violation of federal law.

I do not question that the family of the victim in this case mourns the loss of a good, young man. The same is true for all family members of people who die in automobile accidents. But Florida has never made negligent operation of a motor vehicle resulting in death a crime. To make it a crime merely because the driver is in this country in violation of federal immigration laws establishes a law that seems to me to be unsupported by any Florida public policy that could justify this use of state resources. The legislature ought to consider an amendment that fine-tunes these statutes.

      . He apparently obtained a driver's license at an earlier time in North Carolina, but it has expired. He did not risk attempting to obtain a license in this state when he arrived here.


author: PER CURIAM.

text:
    William G. INMON, Appellant, v. STATE OF FLORIDA, FLORIDA PAROLE COMMISSION, Appellee.
    No. 1D06-1798.
    District Court of Appeal of Florida, First District.
    Jan. 5, 2007.
    Rehearing Denied Feb. 15, 2007.
    William G. Inmon, pro se, Appellant.
    Charlie Crist, Attorney General; Kim Fluharty, General Counsel, and Bradley R. Bischoff, Assistant General Counsel, Florida Parole Commission, Tallahassee, for Appellee.
   PER CURIAM.

This is an appeal from an order denying a petition for writ of mandamus and denying a motion contesting the lien imposed on appellant’s prison account. We affirm without discussion the denial of the petition for writ of mandamus, but reverse the order imposing the lien. See Schmidt v. Crusoe, 878 So.2d 361 (Fla.2003); Banks v. McDonough, 943 So.2d 851 (Fla. 1st DCA 2006).

ALLEN and WOLF, JJ., ERVIN, III, RICHARD W., Senior Judge, concur.


text:
    Robert Edwin REICHMAN, a/k/a, Robert Edward Stillman, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-6058.
    District Court of Appeal of Florida, First District.
    Jan. 8, 2007.
    Rehearing Denied Feb. 15, 2007.
    Robert Edwin Reichman, pro se, Petitioner.
    Charlie Crist, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Fla. R.App. P. 9.141(c)(4)(A).

VAN NORTWICK, PADOVANO, and POLSTON, JJ., concur.


text:
    DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES/DIVISION OF RISK MANAGEMENT, Appellants, v. Maricela ROMANO, Appellee.
    No. 1D06-0452.
    District Court of Appeal of Florida, First District.
    Jan. 9, 2007.
    Rehearing Denied Feb. 16, 2007.
    E. Douglas Spangler, Jr., of Arrick, Peacock, Hodges & Wiener, Tampa, for Appellants.
    Mark N. Tipton, of Daniel L. Hightower, P.A., Ocala, for Appellee.
   PER CURIAM.

Upon consideration of the employer/carrier’s (E/C) response to this court’s order to show cause dated December 4, 2006, the court has determined that the order on appeal is not a reviewable adverse order. See Crown Pontiac, Inc. v. Bell, 547 So.2d 290 (Fla. 2d DCA 1989). If, in the future, claimant files another petition for benefits seeking benefits from the E/C, the E/C may assert their affirmative defense of misrepresentation at that time.

DISMISSED.

WOLF, LEWIS, and THOMAS, JJ., concur.


text:
    Anthony W. BROOM, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-6248.
    District Court of Appeal of Florida, First District.
    Jan. 10, 2007.
    Rehearing Denied Feb. 15, 2007.
    Anthony W. Broom, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of habeas corpus is dismissed as unauthorized. See Baker v. State, 878 So.2d 1236 (Fla.2004).

ALLEN, WEBSTER, and THOMAS, JJ., concur.


author: VILLANTI, Judge.

text:
    Michael GISI, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-136.
    District Court of Appeal of Florida, Second District.
    Jan. 10, 2007.

      Charles E. Lykes, Jr., Clearwater, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Richard M. Fishkin, Assistant Attorney General, Tampa, for Appellee.
   VILLANTI, Judge.

In this appeal, Michael Gisi claims his new sentences: (1) violated this court’s mandate in Gisi v. State, 909 So.2d 531 (Fla. 2d DCA 2005) (Gisi I), (2) violated double jeopardy, (3) were disproportional to sentences in other cases, and (4) failed to give mandatory credit for time served. We disagree but write to explain and to certify a question of great public importance.

Gisi was originally convicted of fourteen counts and was “sentenced to seventy-one years’ imprisonment on each count of counts one through twelve [plus] 17.5 months’ imprisonment on counts thirteen and fourteen.” All sentences were to run concurrently. Gisi /reversed nine of Gisi’s convictions. The remaining five convictions were remanded for resentencing because the sentencing scoresheet erroneously included penetration points instead of contact points. On resentencing, Gisi received three consecutive fifteen-year sentences instead of concurrent seventy-one-year sentences. Gisi was given credit for five years’ time served; the jail credit was specified to apply to only one of the fifteen-year sentences.

First, Gisi claims that his sentences violated Gisi I. In Gisi 7, we imposed no limitations on the trial coürt’s resentencing scheme, except that Gisi was to be sentenced using contact points instead of penetration points. On remand, Gisi was sentenced using contact points. Thus, there is no credence to the assertion that the trial court did not follow our mandate. As noted at oral argument, Gisi’s malaise in this regard relates more to his general assertion that because the original sentences fell near the low end of the guidelines, so too should the new sentences; in other words, the resentencing proceeding should be more of a formality than a “de novo” sentencing hearing. The case law on this issue dictates otherwise. See Wilson v. State, 913 So.2d 1277, 1279 (Fla. 2d DCA 2005) (noting that the defendant may or may not obtain a different sentence upon resentencing based on a corrected scoresheet).

As a corollary to this argument, Gisi claims the new sentences, if not capped at the low end of the guidelines, were vindictive because the resentencing judge was the same as the original sentencing judge and there was no new evidence presented to justify an increased sentence. Therefore, Gisi claims the new sentences were in violation of the principles established in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). The flaw with this argument is that the new sentences were not an increase from the original sentences. Merely restructuring sentences from concurrent to consecutive is not enough to support a claim that sentences were increased. Pearce, at its core, prohibits vindictive sentencing, not an increased sentence, but establishes that the reasons for an increased sentence must affirmatively appear on the record to avoid a presumption of vindictiveness. 395 U.S. at 726, 89 S.Ct. 2072. Indeed, after deciding Pearce, the Court clarified that Pearce’s presumption of vindictiveness does not apply to every increased sentence but applies only where there is a “reasonable likelihood” of actual vindictiveness. See Alabama v. Smith, 490 U.S. 794, 799, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989). Notably, Pearce’s vindictiveness presumption is not implicated at all when the combined years of consecutive new sentences do not exceed the longest original concurrent sentence. Blackshear v. State, 531 So.2d 956, 958 (Fla.1988).

Here, Pearce is not implicated because the new sentences consecutively totaled forty-five years — clearly less than the original seventy-one-year concurrent sentences. Further, the new sentences did not exceed the statutory limit. Gisi acknowledged at oral argument, and the record so corroborates, that absent the application of the Pearce presumption, he did not show vindictiveness by the sentencing judge.

Gisi also argues that the new sentences here are more closely aligned with the holding of Williams v. State, 686 So.2d 615 (Fla. 2d DCA 1996) (holding that new sentences must be reversed when the original sentences were concurrent and the new sentences were consecutive). However, Williams dealt with the reversal of two concurrent life sentences switched at re-sentencing to two consecutive thirty-year sentences (equivalent to sixty years cumulatively) which, without elaborating, this court concluded was a harsher sentence and, hence, presumptively vindictive. 686 So.2d at 616. Here, there is no debate that forty-five years is less than seventy-one years, and thus, Williams is distinguishable.

Gisi’s second claim is that the new sentences violate his double jeopardy rights because the State “was permitted to put its sentencing case on again augmented by references to subsequent legislation regarding the use of the Internet, the residual effects (such as they were) on the victim and the disharmony within the victim’s family.” We reject this contention. On resentencing, both sides are free to argue or present evidence on whatever factors the law permits a trial court to consider before imposing sentence. Moreover, “as a general proposition, double jeopardy does not apply to sentencing hearings.” Lloyd v. State, 844 So.2d 713, 714-15 (Fla. 2d DCA 2003) (Altenbernd, J., concurring).

Gisi’s third claim is that the new sentences were disproportional and violate equal protection but offers no authority supporting this contention. This is a platitude that has no application that we are aware of in nondeath penalty cases, except as it may somehow relate to a downward departure request. Even then, a decision not to depart is generally not reviewable on appeal as it is discretionary with the trial court, provided only that the statutory maximum is not exceeded. Brown v. State, 152 Fla. 853, 13 So.2d 458, 461-62 (1943). Further, although Gisi does not argue that his sentences are cruel and unusual, he does argue that they are disproportional, a somewhat similar concept. We note that his sentences are not “grossly disproportionate” to his crimes, and accordingly, reversal on cruel and unusual punishment grounds is not justified. See Adaway v. State, 902 So.2d 746, 749 (Fla. 2005).

Finally, Gisi claims the trial court was required to give credit for time served on each of the three resentenced counts. He argues that, until he was re-sentenced on December 14, 2005, he served five years on each of his concurrent sentences, and pursuant to section 921.161, Florida Statutes (1997), credit for time served on each count is mandatory. In other words, the total credit Gisi seeks is fifteen years — five years on each of his new consecutive sentences. We cannot adopt this logic because it elevates a legal fiction into a reality that would thwart society’s ability to have its judges fully impose a punishment that the judges believe to be appropriate. Section 921.161 is not applicable to this case because it addresses the requirement for county jail time credit incurred while a defendant awaits sentencing and does not address the application of state prison time served prior to a resentencing. In any event, jail credit against consecutive sentences is mandatory on only one of the consecutive sentences; anything further is discretionary with the sentencing court. See Keene v. State, 500 So.2d 592, 594 n. 2 (Fla. 2d DCA 1986).

Gisi also asserts that case law supports his argument, primarily relying on Drymon v. State, 878 So.2d 438 (Fla. 1st DCA 2004). However, Drymon was a certiorari proceeding dealing with a defendant’s right to receive credit for unforfeited gain time when later resentenced to consecutive terms. Id. Thus, Drymon does not control the outcome here because it does not deal with the issue before us. Rather, we find the logic of Barnishin v. State, 927 So.2d 68 (Fla. 1st DCA 2006), persuasive, even though it deals only with county jail time credit.

If convicted of multiple offenses, the defendant must be given credit only on the first of consecutive sentences. When consecutive sentences are imposed, “the defendant ‘is not entitled to have his jail time credit pyramided by being given credit on each sentence for the full time he spends in jail awaiting disposition.’ ”

Barnishin, 927 So.2d at 71 (quoting Daniels v. State, 491 So.2d 543, 545 (Fla.1986)). However, “[w]hen sentences are imposed concurrently, the defendant receives credit on each sentence for time spent in jail before sentencing.” Id. By way of analogy, because a resentencing hearing imposes a new sentence, the state prison time served becomes tantamount to county jail time served awaiting sentencing. If accorded the same treatment, this jail credit must be given at sentencing, but the issue of whether credit will be given on each consecutive sentence remains the prerogative of the sentencing judge.

Although we find the logic of Bamishin persuasive in this affirmance, Bamishin is factually distinguishable because it did not deal with the issue of prison credit in the context of resentencing. Thus, because there is little case law in this area and none exactly on point to our knowledge and because this concerns a matter of statewide impact upon which trial courts will need future guidance, we certify a question of great public importance for the supreme court to consider providing resolution:

IS A DEFENDANT, ON RESEN-TENCING, ENTITLED TO CREDIT ON EACH NEWLY IMPOSED CONSECUTIVE SENTENCE FOR PRISON TIME ALREADY SERVED ON THE ORIGINAL CONCURRENT SENTENCES?

Affirmed; question certified.

WHATLEY and STRINGER, JJ., concur.

      . Gisi v. State, 848 So.2d 1278, 1280 (Fla. 2d DCA 2003).

      . At that time, Gisi had already served the entirety of the two remaining 17.5-month sentences and was given time served on those two counts.

      . At that time, section 775.081(1), Florida Statutes (1991), provided for parole eligibility after serving twenty-five years on a life sentence.


text:
    Malcolm HOSWELL, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-4222.
    District Court of Appeal of Florida, Fourth District.
    Jan. 17, 2007.
    Rehearing Denied March 9, 2007.
    Malcolm Hoswell, Blountstown, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Malcolm Hoswell appeals the summary denial of his Florida Rule of Criminal Procedure 3.850 motion which the trial court consolidated and denied along with a rule 3.800(a) motion. In all, the motions raised twenty-eight claims in more than 181 pages of written text. We have carefully reviewed all of appellant’s claims and find that only one is legally sufficient and not conclusively refuted by the record.

Appellant claimed that counsel failed to inform him before trial that he could be subjected to enhanced sentencing as a habitual offender if convicted. The record reflects that the state did not serve a notice of intent to seek enhanced penalties until after the completion of the guilt phase of the jury trial but before sentencing. Appellant alleged in his sworn motion that he would have accepted a 55-month plea offer, which was made by the state before trial, if counsel had advised him correctly about the maximum penalty he faced. Appellant was ultimately sentenced as a habitual violent felony offender. In its response, the state below did not address this argument and did not attach record evidence to refute the claim.

Appellant’s claim was legally sufficient. See Cottle v. State, 733 So.2d 963 (Fla.1999); Garcia v. State, 736 So.2d 89 (Fla. 4th DCA 1999); Gonzales v. State, 691 So.2d 602 (Fla. 4th DCA 1997). The claim was not conclusively refuted by record attachments and we, therefore, reverse and remand for an evidentiary hearing on this claim only. To establish an entitlement to relief, appellant is subject to a “strict standard of proof’ and must prove that “ ‘counsel failed to [adequately] communicate a plea offer ..., that had he been correctly advised he would have accepted the plea offer, and that his acceptance of the state’s plea offer would have resulted in a lesser sentence.’ ” Cottle, 733 So.2d at 969 (quoting Young v. State, 608 So.2d 111, 113 (Fla. 5th DCA 1992)).

As to appellant’s claims regarding the listing of aggravated battery on a law enforcement officer (LEO) as a lesser offense of attempted second degree murder, we affirm based on Sanders v. State, 944 So.2d 203 (Fla.2006). The aggravated battery on a LEO was properly listed as a lesser-included offense, and the fact that this offense could result in the same penalty as the charged offense does not constitute fundamental error. Id. None of appellant’s sundry claims, which revolve around this issue, have any merit. Although a special verdict form was not used, the jury’s verdict reflects a clear finding that appellant committed every element of aggravated assault on a LEO permitting reclassification under section 784.07(2)(c), Florida Statutes. See State v. Iseley, 944 So.2d 227 (Fla.2006).

SHAHOOD, GROSS and MAY, JJ„ concur.


author: GRIFFIN, J.

text:
    Jeanne MORRIS and Chuck Pate, Appellant, v. Arthur J. OSTEEN, etc. et al., Appellee.
    No. 5D06-871.
    District Court of Appeal of Florida, Fifth District.
    Jan. 19, 2007.
    Rehearing Granted in Part and Denied in Part Feb. 19, 2007.

      Jonathan M. Smith, and Michael Bowlus of Ford, Bowlus, Duss, Morgan, Kenney, Safer & Hampton, P.A., Jacksonville, for Appellant.
    William A. Post, Dunnellon, for Appel-lee.
   GRIFFIN, J.

Jeanne Morris and Chuck Pate [“Morris and Pate”] appeal the trial court’s order granting Appellees’, Neil T. and Lisa M. Barzano [“Barzanos”], summary final judgment on their claim for ejectment, foreclosure and reasonable rental value. We reverse.

This case is about rights to a single piece of property, initially owned by Ronald and Carla Gagliano [“Gaglianos”]. The Gaglianos mortgaged the property to Arthur Osteen. The Gaglianos later defaulted on the mortgage and, on January 15, 2004, Osteen obtained a Final Judgment of Foreclosure. The foreclosure judgment ordered the court clerk to sell the property by public sale, but the Gaglianos were in Chapter 13 bankruptcy proceedings. The automatic stay associated with that proceeding apparently interfered with a sale on the scheduled date.

On May 17, 2004, with the approval of the bankruptcy court, the Gaglianos entered into an agreement to lease a portion of the property to Morris and Pate. The lease was for a two-year term and included an option for Morris to purchase the property for $275,000. Morris and Pate made improvements to the property and operated a restaurant and lounge on the premises.

On July 8, 2004, Osteen assigned the mortgage he had against the Gaglianos’ property to the Barzanos for value. The Gaglianos’ bankruptcy action was later dismissed, and the Barzanos renewed the foreclosure action against the property. On June 22, 2005, the circuit court issued an Amended Final Judgment of Foreclosure. According to this amended judgment, the Barzanos were due $282,500.25, plus interest. If that amount were not paid, along with interest and all costs accruing after the judgment, the clerk of the court was to sell the land on July 21, 2005, by public sale, and the proceeds applied to satisfy the Barzanos’ foreclosure judgment against the Gaglianos. As is typical, the foreclosure judgment recited:

6. At the conclusion of the public sale, upon the filing of the certificate of sale, defendant and all persons claiming under or against defendant since the filing of the notice of lis pendens shall be foreclosed of all estate or claim in the property and the purchaser at the sale shall be let into possession of the property.

On July 14, 2005, the circuit court granted Morris and Pate’s motion to intervene in the foreclosure proceedings to protect their interests under the lease. Then, before the date of the scheduled sale, the Gaglianos and the Barzanos entered into an agreement for a deed in lieu of foreclosure, whereby the Barzanos agreed to release the Gaglianos from any personal liability under the foreclosure judgment in exchange for a quitclaim deed to the property. Title was conveyed to the Barzanos on about July 7, 2005. At the Barzanos’ request, the court subsequently cancelled the foreclosure sale.

On August 4, 2005, the Barzanos filed an action for ejectment and foreclosure against Morris and Pate. Morris and Pate admitted that their leasehold interest was subject to the January 15, 2004, foreclosure judgment. However, Morris and Pate contend that their rights under the lease are valid as against the Barzanos’ ejectment claim because that claim is based on the Barzanos’ title and not on their foreclosure judgment. Morris filed an .affidavit stating that she made proper rent payments to the Gaglianos or their bankruptcy trustee throughout the term of the lease, up until the time that the Gaglia-nos transferred over their rights in the property to the Barzanos. Morris asserted that she tendered rent to the Barzanos and honored all other terms of the lease agreement and exercised her option to purchase under it, but the Barzanos have refused to honor the agreement.

On November 21, 2005, the Barzanos filed a motion for summary judgment on the ejectment claim, and later filed a motion to determine and award reasonable rental value to the Barzanos for Morris and Pate’s use of the property. The trial court subsequently issued a summary judgment granting ejectment and reasonable rental value, ruling that the lease was not binding on the Barzanos.

In deciding in favor of the Barzanos, the trial court made several findings. In pertinent part, the court said:

The original Judgment of Foreclosure, entered January 15, 2004, which foreclosed the mortgage encumbering the real property subject to this dispute, was prior in time to the lease with option asserted by Intervenors which was dated May 4, 2004. The lease with option was given by Gagliano while he was the foreclosure judgment debtor and the debtor in his bankruptcy proceeding. As determined by this court in its November 7, 2005 order, the lease with option could not grant any right to occupancy, use or ownership greater than Gagliano’s equity of redemption. By executing the July 7, 2005 deed, Mr. and Mrs. Gagliano deeded all their, right, title, interest in the subject property to the Barzano’s. [sic]
The lease with option was subject to the operation of 695.01 F.S. because it was given for a term of two years, but it was not recorded at the time the Barzano’s obtained the deed from the Gagliano’s. The Barzano’s [sic] as assignees from Osteen, stood in Osteen’s shoes as creditors of the Gagliano’s [sic], with a valid lien on the subject property.

Thus, the trial court appears to have concluded that, subsequent to foreclosure judgment, the Gaglianos could not have conveyed a lease superior to the Barzanos’ rights in the property. Alternatively, the court appears to have reasoned that the Barzanos subsequent quitclaim title took priority over the lease under section 696.01, because the lease was not recorded. After making the above findings, the court concluded that the Barzanos were entitled to immediate possession of the property. We disagree and reverse.

On appeal, Morris and Pate argue that the Gaglianos did have the power to convey a valid lease. Also, because the Barzanos’ ejectment claim is based upon the title they received through the quitclaim deed and because the Barzanos had actual notice of Morris and Pate’s lease when they accepted the quitclaim deed, their title is subject to that lease.

The Barzanos contend that “the lease and the option rights claimed by [Morris and Pate]” have always been “subject to the pre-existing rights of the [Barzanos] as owners of the Osteen mortgage and as judgment creditors.” They urge that because the lease is subject to the Barzanos’ foreclosure judgment, it is also subject to the Barzanos’ title under the quitclaim deed. They rely on section 695.01(1), Florida Statutes, to support their contention that their rights as judgment creditors defeat Morris and Pate’s rights under the lease.

In Florida, a mortgage is simply a lien on the property to which it relates, and not “a conveyance of the legal title or of the right of possession.” § 697.02, Fla. Stat. (2005). To enforce the mortgage lien, the mortgagee must file a foreclosure suit and obtain a judgment of foreclosure. Bowman v. Saltsman, 736 So.2d 144, 146 (Fla. 5th DCA 1999). Upon obtaining a foreclosure judgment, the mortgagee is “entitled to have the property sold and the proceeds applied against the foreclosure judgment.” Bankers Trust Co. v. Edwards, 849 So.2d 1160, 1162 (Fla. 1st DCA 2003); see also Cain & Bultman, Inc. v. Miss Sam, Inc., 409 So.2d 114, 118 (Fla. 5th DCA 1982). In the foreclosure process, the mortgagee only acquires rights of possession and title in the mortgaged property if there has been “default, court foreclosure, and sale to the mortgagee and transfer of title to him according to law.” Martyn v. First Fed. Sav. & Loan Ass’n, 257 So.2d 576, 580 (Fla. 4th DCA 1971).

During the foreclosure process, the mortgagor retains a right of redemption. The right of redemption is a common law and statutory right incident to every mortgage. Quinn Plumbing Co. v. New Miami Shores Corp., 100 Fla. 413, 129 So. 690, 692 (1930); § 45.0315, Fla. Stat. (2005). The right of redemption may be exercised by the “mortgagor or the holder of any subordinate interest,” including lessees. § 45.0315, Fla. Stat. (2005); Dundee Naval Stores Co. v. McDowell, 65 Fla. 15, 61 So. 108, 112 (1913); Burns v. Bankamerica Nat’l Trust Co., 719 So.2d 999, 1001 (Fla. 5th DCA 1998); Riley v. Grissett, 556 So.2d 473, 475 (Fla. 1st DCA 1990). As explained in Florida Real PROPERTY Litigation,

[t]he phrase “right of redemption” has a twofold meaning. When used with respect to a mortgagor, it refers to the right of a mortgagor, before being foreclosed from that right, to satisfy the mortgage indebtedness and thus clear the property from the encumbrance of the mortgage. When used with reference to a junior lienor, it refers to the right of the junior lienor, before being foreclosed from it, to satisfy a prior mortgage by payment of the debt secured by such prior mortgage, thereby becoming equitably subrogated to all rights of the prior mortgagee.

ANTONIO MARTINEZ, JR., GEOFFREY L. TRAVIS, AND BRAD REDLEIN, FLORIDA REAL PROPERTY LITIGATION § 5.47 (4th ed.2005). The right to redeem the property terminates when the certificate of sale is filed by the clerk or at the time specified in the foreclosure judgment, whichever is later. § 45.0315, Fla. Stat. (2005).

While the law clearly defines when the mortgagor’s right of redemption ends, it is less clear how the mortgagor’s other ownership rights in the property are affected by foreclosure. It appears that, under Florida law, the mortgagor’s rights of ownership, including the right of alienation, continues as long as the mortgagor’s right of redemption exists. In John Stepp, Inc. v. First Federal Savings & Loan Ass’n, 379 So.2d 384 (Fla. 4th DCA 1980), the mortgagor defaulted on his mortgage and a foreclosure judgment was entered in favor of the mortgagee. After the foreclosure sale, the mortgagor transferred legal title of the property to the appellant by warranty deed. The appellant then paid into the court registry the amount required to redeem the property. The transfer of the deed and the payment of the redemption amount occurred prior to the time redemption rights were cut off. The issue on appeal was whether or not the appellant had the right to exercise the equity of redemption. The Fourth District court said that “the law favors redemption by anyone who has an interest in the mortgaged premises who would be a loser by foreclosure.” Id. at 386. The court then held that since the “appellant held legal title, it was no stranger to the property” and directed the trial court to grant the motion for redemption in favor of appellant. Essential to the Fourth District court’s holding is the conclusion that the mortgagor retained the right to transfer valid title of the property until some time after the foreclosure judgment and sale.

Applied to this case, the analysis of John Stepp tells us that the Gaglianos could convey a lease to Morris and Pate. The lease was subject to elimination upon sale in foreclosure, but no sale ever took place. It is often the case that a mortgagee is willing to accept the deed to the mortgaged property in exchange for not foreclosing against the mortgagor in circuit court. These “deed in lieu of foreclosure” transactions allow the mortgagor to escape the possibility of a deficiency judgment. The problem facing the mortgagee in these transactions is that the title may be encumbered by interests other than their own. As explained in FloRida Real PROPERTY Litigation § 5.61:

the mortgagee’s attorney must examine the abstract since the date of the mortgage to determine whether there are any junior encumbrances. If so, they will have to be satisfied. If it is not possible to get them satisfied, the mortgagee will have no choice but to foreclose to acquire a clear title.

Parties can agree to preserve the mortgagee’s lien and thus prevent it from merging with the acquired title. Thomas E. Baynes, Jr., Florida Mortgages § 8-2 (1999). Preserving the lien would preserve the mortgagee’s priority with respect to junior encumbrances.

Generally, competing interests in land have priority in the order in which they are created. Cain & Bultman, Inc., 409 So.2d at 117. The important caveat to this rule is that those acquiring rights later will have priority if they took without “notice of the first created rights.” F.J. Holmes Equip., Inc. v. Babcock Bldg. Supply, Inc., 553 So.2d 748, 750 (Fla. 5th DCA 1989). In pertinent part, Florida’s recording statute states:

(1) No conveyance, transfer, or mortgage of real property, or of any interest therein, nor any lease for a term of 1 year or longer, shall be good and effectual in law or equity against creditors or subsequent purchasers for a valuable consideration and without notice, unless the same be recorded according to law
(2) Grantees by quitclaim, heretofore or hereafter made, shall be deemed and held to be bona fide purchasers without notice within the meaning of the recording acts.

§ 695.01, Fla. Stat. (2005). Thus, “successors to legal title take title subject to those equitable interests of which they have notice.” Kroitzsch v. Steele, 768 So.2d 514, 517 (Fla. 2d DCA 2000). Forms of notice include possession, actual notice, and constructive notice of publicly recorded matters. Cain & Bultman, Inc., 409 So.2d at 117. In particular, with regard to possession, the Second District court has said that “[ajctual possession ... when open, visible, and exclusive, will put upon inquiry those acquiring any title to or a lien upon the land so occupied to ascertain the nature of the rights the occupants really have in the premises.” Kroitzsch, 768 So.2d at 517. In this case, it is abundantly clear that, at the time they took the quitclaim deed, the buyers were aware of the Morris and Pate lease. Apart from Morris and Pate’s operation of a business on the property, the existence of the lease had been the basis for the Morris/Pate motion to intervene filed and served in this case, and the consequent order allowing intervention.

We agree that the Barzanos’ rights under the foreclosure judgment are distinct from their rights as titleholders. As judgment creditors, the Barzanos have no right of possession or title in the property; only “to have the property sold and the proceeds applied against the foreclosure judgment.” Bankers Trust Co., 849 So.2d at 1162. Because no foreclosure sale ever took place, the Gaglianos’ right to convey a leasehold interest in their property was never cut off. The rights the Barzanos acquired under the subsequent quitclaim deed were subject to the lease. In concluding otherwise, the trial court erred. This being so, the summary final judgment is reversed in its entirety and remanded for further proceedings consistent with this opinion.

REVERSED and REMANDED.

PLEUS, C.J., and ORFINGER, J., concur.

      . "[I]t is well established that a quitclaim deed only conveys such title or interest as possessed by the grantor at the time of the making of the deed ... and 'one who accepts a quitclaim deed is conclusively presumed to have agreed to take the title subject to all risks as to defects and incumbrances [sic].' ” Florida E. Coast Ry. v. Patterson, 593 So.2d 575, 577 (Fla. 3d DCA 1992) (quoting St. Clair v. City Bank & Trust Co., 175 So.2d 791, 792 (Fla. 2d DCA 1965)) (citations omitted).

      . Section 45.0315, Florida Statutes (2005) provides:
      At any time before the later of the filing of a certificate of sale by the clerk of the court or the time specified in the judgment, order, or decree of foreclosure, the mortgagor or the holder of any subordinate interest may cure the mortgagor's indebtedness and prevent a foreclosure sale by paying the amount of moneys specified in the judgment, order, or decree of foreclosure, or if no judgment, order, or decree of foreclosure has been rendered, by tendering the performance due under the security agreement, including any amounts due because of the exercise of a right to accelerate, plus the reasonable expenses of proceeding to foreclosure incurred to the time of tender, including reasonable attorney’s fees of the creditor. Otherwise, there is no right of redemption.

      . The redemption provision was amended in 1993. Before the amendment, the redemption rights of junior lienors ended when the final judgment of foreclosure was entered, and the redemption rights of the mortgagor ended when the clerk issued the certificate of title. Now, the redemption rights of all parties are cut off at the filing of the certificate of sale. Florida Real Property Litigation § 5.141.

      . At the time John Stepp was decided, the state of the law was such that the mortgagor's right of redemption did not terminate until the sale was confirmed by the court, or if no objection, until the certificate of title was issued. John Stepp, 379 So.2d at 386.


author: PER CURIAM. CANADY, Judge,

text:
    L.R., Appellant, v. STATE of Florida, Appellee.
    No. 2D05-5505.
    District Court of Appeal of Florida, Second District.
    Jan. 19, 2007.

      James Marion Moorman, Public Defender, and Timothy J. Ferreri, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Richard M. Fishkin, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

L.R., a sixteen-year-old public high school student, appeals her adjudication of delinquency based on a finding that she battered a law enforcement officer in violation of sections 784.07 and 784.03, Florida Statutes (2003). She also contends that the trial court erred in committing her to a residential facility despite the recommendation of the Department of Juvenile Justice (DJJ) that adjudication be withheld and that she be put on indefinite probation. We affirm the adjudication of delinquency but reverse the commitment, concluding that the trial court’s reasons for disregarding the DJJ’s recommendation are insufficient.

The charge of battery on a law enforcement officer was based on events surrounding an altercation at L.R.’s high school during the school day. While classes were in session, L.R. was part of a loud disturbance in the hallway of the school that the school resource officer, a uniformed policeman, was attempting to quell. When the officer tried to calm her and lead her away to his office for further investigation, she claimed he was harassing her, cursed at him, and kicked and hit him in the chest. L.R. contends that this charge should have been dismissed upon her motion because the State failed to present a prima facie case that the officer was in the lawful execution of his legal duty when he tried to lead her away, which caused her to resist.

L.R. correctly contends that an element of the offense for which she was charged is that the officer be in the lawful execution of a legal duty. See Tillman v. State, 934 So.2d 1263, 1270 (Fla.2006) (noting that “because the Legislature has placed the element of lawful execution of a legal duty in both sections 784.07(2) and 843.01, proof that the officer was acting lawfully is necessary in a prosecution for crimes committed under either statute that occur outside an arrest scenario”). The facts adduced at the adjudicatory hearing provided substantial, competent evidence that the school resource officer was acting both lawfully and in accordance with a legal duty. A school is a place of learning and it is within an officer’s legal duty, as here, to quell a disturbance. The record establishes that the officer was using appropriate force to carry out his duties when L.R. began unlawfully to batter him. The trial court correctly denied the motion for discharge on this ground.

The trial court was not, however, correct in disregarding the DJJ’s recommendation that L.R. be placed on probation. In committing L.R. to a residential facility, the court failed to state a sufficient reason to justify its departure. Before adjudicating L.R., the trial court expressed displeasure at the evidence it had heard, saying L.R.’s behavior was “atrocious” and that she was basically a “snotty sixteen-year-old kid,” who was disrespectful to the school, the students, the principal, and the officer. The court further stated that it would not tolerate such behavior, so it was going to impose a little “tough love” and commit her. Defense counsel argued in favor of imposing probation as recommended, noting that L.R. was now employed, had an infant to care for, and had no disciplinary problems in her new school, but the trial court disregarded those considerations:

That’s all great, but you know what, ... if you’re old enough to do that crime and do that to a police officer and act disrespectful, you didn’t have to come in here and blame the cop. You know, had you stood up earlier, maybe, at some point between the day it happened and today and said, “I made a mistake”; “I was upset that day”; “My stomach was hurting,” whatever — you know, that’s one thing, but to come in here and basically — you know what your defense was? It didn’t happen or the cop was a bigger guy than I am. That’s what your defense was. All right? So, I’ve heard enough.

We empathize with the trial court and share its view of L.R.’s attitude and behavior. The evidence presented clearly shows that her behavior was improper and disrespectful. However, the law does not recognize this as a justifiable basis to disregard the DJJ’s recommendation.

Section 985.23(3)(c), Fla. Stat. (2003), permits a court to place a juvenile in a restrictiveness level different from the one the DJJ recommends as long as the court states either in writing or on the record the reasons for disregarding that recommendation. See K.M.T. v. State, 695 So.2d 1309, 1310 (Fla. 2d DCA 1997). In addition to articulating its findings on the record, we require the trial court to indicate how its chosen restrictiveness level relates to the needs of the child. X.W. v. State, 903 So.2d 318, 320 (Fla. 2d DCA 2005) (quoting A.J.V. v. State, 842 So.2d 1027, 1029 (Fla. 2d DCA 2003), which quotes P.R. v. State, 782 So.2d 911, 913 (Fla. 5th DCA 2001), for the proposition that “ ‘reference [must be made to] the characteristics of the restrictiveness level vis-a-vis the needs of the child’ ”). Two sister courts also follow this rule. See A.G. v. State, 737 So.2d 1244, 1247 (Fla. 5th DCA 1999) (holding that the reasons for disregarding the recommended level must additionally “reference the characteristics of the restrictiveness level vis-a-vis the needs of the child”); A.C.N. v. State, 727 So.2d 868, 370 (Fla. 1st DCA 1999) (agreeing that “ ‘the reason[s] must have reference to the characteristics of the restrictiveness level vis-a-vis the needs of the child’”) (quoting J.L.O. v. State, 721 So.2d 440, 443 (Fla. 5th DCA 1998) (Griffin, C.J., dissenting) (alternation in original)).

In committing L.R. to a residential facility instead of placing her on probation, the trial court failed to indicate how the restrictiveness level related to L.R.’s needs or how the nature of her offense required such commitment. Accordingly, we affirm the adjudication of delinquency, reverse the trial court’s disposition, and remand for a new disposition hearing.

CASANUEVA and KELLY, JJ„ Concur.

CANADY, J., Concurs specially with opinion.

CANADY, Judge,

Concurring specially.

I concur in both the decision to affirm the adjudication of delinquency and the decision to reverse the disposition.

In applying section gSS^^Xc), this court has in prior cases followed the rule that a trial court’s rationale for disregarding the restrictiveness level recommended by DJJ must “ ‘reference the characteristics of the restrictiveness level vis-a-vis the needs of the child.’ ” A.J.V., 842 So.2d at 1029 (quoting P.R., 782 So.2d at 913); see also M.S. v. State, 927 So.2d 1044 (Fla. 2d DCA 2006); J.A.R. v. State, 923 So.2d 604 (Fla. 2d DCA 2006); X.W., 903 So.2d 318. Under the reasoning of these cases, the justification for disregarding the recommended restrictiveness level cannot be based merely on the trial court’s pronouncement that more severe punishment is warranted. Based on these precedents requiring that “[t]he focus of the disposition ... be on the child’s needs,” X.W., 903 So.2d at 320, I concur in the decision to reverse the disposition.

      . The statutory provisions governing disposition hearings in delinquency cases are now found in section 985.433, Florida Statutes (2006).


author: LAWSON, J.

text:
    LIFE CARE CENTERS OF AMERICA, etc., et al., Petitioner, v. Ellen Marlene REESE, Respondent.
    No. 5D06-2358.
    District Court of Appeal of Florida, Fifth District.
    Jan. 19, 2007.

      Rebecca B. Watford of The Watford Law Firm, Miami, and Fann & Petruceelli, P.A., Tampa, for Petitioner.
    Douglas R. Beam of Douglas R. Beam, P.A., Melbourne, for Respondent.
   LAWSON, J.

Life Care Centers of America, Inc., of Tennessee, d/b/a Life Care Center of America, Inc., d/b/a Life Care Center of Melbourne, Melwood Nursing Center, L.L.C., d/b/a Life Care Center of Melbourne, and Nancy Goldrick, (“Petitioners”), seek certiorari review of a discovery order in which the trial court compelled them to produce documents and to prepare and produce a privilege log with respect to all documents requested in 195 overly-broad production requests, without first ruling on Petitioners’ general objections as to the scope of the discovery sought. We find that the challenged order constitutes a departure from the essential requirements of the law causing irreparable injury to Petitioners, and grant the writ.

In the action below, Ellen Marlene Reese, (“Respondent”), seeks damages for injuries she allegedly sustained from a fall while in Petitioners’ care (for ten days) in 2002. Respondent brought suit on November 10, 2005, and immediately served each defendant with a comprehensive set of requests to produce documents, consisting of 65 separate requests to each defendant. A cursory review of the requests reveals that they all are expansive in nature and seek documentation unlimited by any time frame. Respondent requests, for example, all “incident, occurrence, and/or accident reports” from all facilities operated by Life Care Center of America, Inc., nationwide; all “payroll analysis reports, key management indicators, staff productivity reports, labor distribution reports and/or similar reports” for Life Care Center of Melbourne; “all documents generated related to the corporate supervision or oversight of Life Care Center of Melbourne budget expenditures for labor and supplies;” all “employee work schedules, employee sign-in sheets (including Medicare), and time cards and/or time sheets showing the identity, number (quantity), and classification (e.g., RN, LPN, nurse aide, and so on) of any nursing personnel (including nurses, nurses aides, medication aides, orderlies, and so on) for Life Care Center of Melbourne;” and all “records of complaints from staff at Life Care Center of Melbourne.” These are just a few of the expansive requests that are in no way limited by subject matter, scope, or time. In addition, Respondent seeks the production of all-encompassing and confidential financial information that has no apparent relevance to the negligence cause of action alleged, as well as individual employee personnel files and other documents that would contain personal and medical information relating to other patients.

Petitioners timely served responses to all requests. As part of their responses, they produced certain documents (including those relating to the care of Respondent) and asserted what appeared to be appropriate objections based upon the overbreadth of certain requests that are not limited by either time or scope. In addition, they raised various confidentiality objections, including attorney-client privilege, work product, and objections relating to third party privacy rights. Without ever considering Petitioners’ facially appropriate overbreadth objections, the trial court entered an order denying Petitioners’ motion for protective order, requiring Petitioners to produce privilege logs within twenty days, and stating that the court would reserve as to “other remedies” until after Petitioners provided their privilege logs for the court’s review. Although this language suggests that the court intended to defer ruling on the overbreadth objections until after Petitioners prepared and served their privilege logs, the order also expressly granted Respondent’s motion to compel production of all documents within twenty days and denied Petitioners’ motion for extension of time to provide the responsive documents. Petitioners challenged the order with its petition for cer-tiorari, but also partially complied by providing additional documents and serving a partial privilege log relating to documents from 2002 only (the year of Respondent’s ten-day stay at the Melbourne facility). This log is 226 pages long.

As we recently reiterated, “ ‘litigants are not entitled to carte blanche discovery of irrelevant material.’ ” Tanchel v. Shoemaker, 928 So.2d 440, 442 (Fla. 5th DCA 2006) (quoting Residence Inn by Marriott v. Cecile Resort, Ltd., 822 So.2d 548, 550 (Fla. 5th DCA 2002)). Although certiorari is not available to remedy every erroneous discovery order, it is an appropriate remedy for discovery orders that depart from the essential requirements of the law by requiring patently overbroad discovery so extensive that compliance with the order will cause material injury to the affected party throughout the remainder of the proceeding, effectively leaving no adequate remedy on appeal. Devereux Florida Treatment Network, Inc. v. McIntosh, 940 So.2d 1202, 1205-1206 (Fla. 5th DCA 2006); Tanchel, 928 So.2d at 442; Wooten, Honeywell & Kest, P.A. v. Posner, 556 So.2d 1245, 1246 (Fla. 5th DCA 1990). This is clearly the case here.

Additionally, to the extent that the trial court intended to defer ruling on the overbreadth objections until after production of the privilege logs, this was also erroneous. As recently explained in Gosman v. Luzinski, 937 So.2d 293, 296 (Fla. 4th DCA 2006):

A party is required to file a log only if the information is “otherwise discoverable.” Where a party claims that the production of documents is burdensome and harassing, such as was done here, the scope of discovery is at issue. Until the court rules on the request, the party responding to the discovery does not know what will fall into the category of discoverable documents. If the party is correct in her assertion that the documents requested are burdensome to produce, why should she still go through all the requested documents to determine which ones are privileged, even though none of them may be required to be produced because the request is burdensome? (footnote omitted).

The trial court was required to address the discoverability of the requested documents before ordering Petitioners to review them all for privileged material. Id. It is obvious from our review of the privilege log prepared for documents from 2002 only that requiring Petitioners to duplicate this effort for each year that records exist would be so burdensome that the order to do so constituted a departure from the essential requirements of the law causing irreparable injury.

In so ruling, we note that we are not unsympathetic to the challenge that trial courts face when confronted with what appear to be unlimited discovery disputes, each requiring an inordinate amount of judicial time and effort to resolve. For this reason, we remind Respondent’s counsel of his ethical obligation to refrain from making frivolous discovery requests. See Rule 4-3.4(d), Rules of Professional Conduct. Some of the requests propounded in this case are so patently overbroad that they are clearly frivolous. We similarly remind Petitioners’ counsel of her professional obligation, set forth in the same rule of professional conduct, to comply with all legally proper discovery requests. Id. The parties should fulfill their respective ethical obligations by meeting and working together to reasonably narrow the disputed issues before bringing future discovery matters to the trial court for resolution. This should be the practice of all counsel, in all cases.

For the reasons discussed above, the petition for writ of certiorari is granted, and the challenged order is quashed.

PETITION GRANTED; ORDER QUASHED.

ORFINGER and TORPY, JJ., concur.

      . The corporate defendants operate a skilled nursing facility in Brevard County, Florida. The individual defendant is an employee of one of the corporations. Respondent resided at the facility from November 31, 2002, until December 9, 2002. She alleges that she had a history of falling, known to Petitioners, and was negligently left unattended in the bathroom. She further alleges that she sustained a head injury as a result of the fall. The extent of the injuries is unclear from the complaint. Respondent simply alleges that her damages exceed $15,000.

      . Petitioners also objected to this request as being vague and ambiguous, which appears to be an appropriate objection, as well.

      . Although the responses were not served within the initial forty-five day deadline set forth in Florida Rule of Civil Procedure 1.350(b), Petitioners timely sought and received an extension of time to respond and responded within the extension period.

      .Although a hearing was held on the pending motions, the court did not entertain argument on, nor individually consider, any of the discovery requests or objections at the hearing.


text:
    SUNTRUST BANK, etc., Appellant, v. DEPARTMENT OF REVENUE, Appellee.
    No. 5D06-190.
    District Court of Appeal of Florida, Fifth District.
    Jan. 23, 2007.
    Rehearing Denied Feb. 23, 2007.

      Peter 0. Larsen, David E. Otero, and R. Raye Cnrry, of Akerman Senterfitt, Jacksonville, for Appellant.
    Bill McCollum, Attorney General, and Jarrell L. Murchison, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Dept. of Revenue v. Bank of America, N.A., 752 So.2d 637 (Fla. 1st DCA 2000).

THOMPSON, ORFINGER and TORPY, JJ., concur.


text:
    Bayardo CHAMORRO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-2723.
    District Court of Appeal of Florida, Third District.
    Jan. 24, 2007.
    Rehearing Denied Feb. 28, 2007.
    Bayardo Chamorro, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before GERSTEN, GREEN, and FLETCHER, JJ.
   PER CURIAM.

Affirmed. See Janowski v. State, 910 So.2d 309 (Fla. 4th DCA 2005).


author: FARMER, J.

text:
    AEACUS REAL ESTATE LIMITED PARTNERSHIP, Appellant, v. 5TH AVENUE REAL ESTATE DEVELOPMENT, INC.; Willis Hale; and Real Estate Depot, Inc., Appellees.
    No. 4D05-3599.
    District Court of Appeal of Florida, Fourth District.
    Jan. 24, 2007.
    See also 876 So.2d 1220.

      Barbara J. Compiani and Jane Kreus-ler-Walsh of Kreusler-Walsh, Compiani & Vargas, P.A., West Palm Beach, and Norman L. Schroeder, II, of Norman L. Schroeder, II, P.A., Lake Worth, for appellant.
    James S. Telepman of Cohen Norris Scherer Weinberger & Wolmer, North Palm Beach, for 5th Avenue Real Estate Development and Willis Hale.
    Charles Wender, Boca Raton, for Real Estate Depot.
   FARMER, J.

This case now returns to us after our remand on the prior appeal. 5th Avenue, Real Estate Development, Inc. v. Aeacus Real Estate Ltd. P’ship, 876 So.2d 1220 (Fla. 4th DCA 2004). There we reviewed a summary judgment of foreclosure resulting after a settlement agreement. We reversed the judgment as premature, concluding that the record did not show conclusively that the mortgagee had given the 30 days notice of the application for judgment required by the settlement agreement.

On remand, the trial judge found after a hearing that such notice as had been given before the first appeal did not conform to the settlement agreement. As a result of that determination, the mortgagee restarted the foreclosure proceedings with a new complaint. It sought a judgment based on the settlement agreement’s provision specifying the principal amounts due, along with accrued interest at the agreed rate through the date of entry of a summary judgment. To comply with the notice provision, the mortgagee requested that the court enter an order allowing debtors one final period of 30 days to cure the defaults before the entry of judgment. The debtors resisted, asking that the trial court instead enter judgment that any foreclosure was now barred by res judicata — that the trial court’s finding on remand that notice had not been properly given barred any future foreclosure and money judgment on the underlying personal guarantees. The trial court agreed and entered such a judgment for the debtors. We now reverse and remand for the entry of a final judgment of foreclosure as well as a money judgment on the personal guarantees.

The debtors misread the legal effect of the trial court’s determination after remand that the notice provision had not been satisfied when the initial summary judgment was granted and appealed. Nothing in that settlement agreement or in our opinion suggests — much less clearly states — that the mortgagee had only that single attempt to comply with the notice provision of the settlement agreement. Indeed, the clear meaning and purpose of the notice provision was to give the defaulting debtors just one concluding opportunity to cure their admitted defaults under the notes and mortgages. The latest attempt to foreclose the mortgage, filed February 2005, contained a recitation of notice that was more than sufficient to comply ■with the settlement agreement. Truth be told, what was conceived by their agreement as one final chance to pay has now lengthened into 18 months more of nonpayment (not to mention the period from the execution of the settlement agreement itself). In spite of having had more than 3 years to correct defaults already old when the original foreclosure was filed, the record fails to disclose that debtors have ever made any tender of the payment required by the mortgage and settlement.

Under these circumstances, it would be quite inappropriate to apply res judicata here. Nothing in our prior opinion explicitly barred the mortgagee from giving a fresh 30-day notice and, if no cure followed timely, then seeking a foreclosure and judgment. Indeed it is a fair implication of our opinion that, upon giving such notice anew, the mortgagee would be entitled to a foreclosure judgment. As this was in fact our actual intent, it would be profoundly unfair to hold that only the original failed attempt at giving notice was tolerated by the settlement agreement and, it having failed, the mortgagee is forever barred from resorting to its security for the debt.

Res judicata is an equitable doctrine, not to be invoked where it will inflict pernicious results. See State v. McBride, 848 So.2d 287, 291 (Fla.2003) (res judicata will not be invoked where it would defeat the ends of justice); deCancino v. Eastern Airlines Inc., 283 So.2d 97, 98 (Fla.1973) (same). In Universal Construction Co. v. City of Fort Lauderdale, 68 So.2d 366 (Fla.1953), the court made clear that:

“when a choice must be made we apprehend that the State, as well as the courts, is more interested in the fair and proper administration of justice than in rigidly applying a fiction of the law designed to terminate litigation.”

68 So.2d at 369. Foreclosures of mortgag-r es are done in equity. As the court strove to emphasize in Universal Construction, the dominant equity is that it is not fair or just that these debtors should be so enriched at appellant’s expense. Id. Nor, for that matter, should the mortgagee be any longer delayed.

On remand this time no further notice need be required, for the one contemplated by the settlement agreement has been given to a long fare-thee-well. The trial court will understandably want to afford a hearing to the parties to calculate the various sums necessarily included in any judgment of foreclosure.

Reversed for consistent proceedings.

GUNTHER, J., and DAMOORGIAN, DORIAN, Associate Judge, concur.


author: MAY, J.

text:
    Theodore LOWE, Appellant, v. Terri Ann LOWE, Appellee.
    No. 4D06-1408.
    District Court of Appeal of Florida, Fourth District.
    Jan. 24, 2007.

      Franz E. Springmann, Sr. of Galyon & Associates, Seviervelle, TN, for appellant.
    Terri Ann Lowe, Fort Lauderdale, pro se.
   MAY, J.

The. former husband appeals an order in post-dissolution proceedings ratifying the General Magistrate’s Report and Recommendation to issue a civil contempt order, place an equitable lien on real property, and order the sale of that property. The former husband argues the court erred in failing to determine his present ability to pay the purge amount set in the contempt order, miscalculated the alimony arrearag-es, and improperly placed an equitable lien on the real property. We' agree in part and reverse.

The dissolution of marriage took place in 1993. In 1997, the former wife obtained and recorded a judgment against the former husband in the amount of $113,804 for herself and $40,637 for her attorneys. The former husband subsequently sold his home on Camale Drive and, with his new wife, purchased property on Burtonwood Drive. Nevertheless, the judgment remained unpaid because of homestead and the lack of an order for the sale of the property. At a subsequent hearing, both parties stipulated that the former husband was $192,781 in arrears on his alimony payments.

On January 9, 2006, the former -wife served the former husband with a notice of hearing for January 24, 2006, on her verified motion for civil contempt, third motion to sell the home and appoint a receiver, and motion for an order to show cause. The week before the hearing, the court granted the former husband’s attorney’s motion to withdraw as the attorney could neither locate nor contact the former husband. Needless to say, the former husband failed to attend the January 24th hearing. The magistrate found that proper notice was given and that the former husband had voluntarily absented himself from the court’s jurisdiction by failing to keep in touch with his attorney.

At the hearing, the former wife’s expert testified to the chain of title of the Camale Drive and Burtonwood Drive properties and rendered an opinion on the $160,000 capital gain the former husband received from the sale of the Camale Drive property. The former wife and her sister also testified.

The magistrate granted the former wife’s ore terms motion to include the $113,804 judgment in the total amount of alimony arrearages, making the total ar-rearages equal $306,585 (the previously stipulated amount of $192,781, plus the $113,804 final judgment). The magistrate recommended the former husband be held in civil contempt for “having engaged in reprehensible conduct that consisted of a continuing scheme and pattern to affirmatively defraud Former Wife by improperly interfering with Former Wife’s ability to recover alimony and past due alimony from Former Husband.” The magistrate recommended that the court impose an equitable lien on and order the former husband to sell the Burtonwood Drive home. The magistrate also found that homestead protections did not prohibit the imposition of the lien. Gepfrich v. Gepfrich, 582 So.2d 743 (Fla. 4th DCA 1991); Robles v. Robles, 860 So.2d 1014 (Fla. 3d DCA 2003).

The report also directed the Clerk of the Court

to issue a writ of bodily attachment and such other process as may be required to cause the physical attachment of the body of Respondent/Former Husband, THEODORE LOWE, and to secure him into custody for a period of confinement for 179 days or until he purges himself of his civil contempt by depositing the sum of $165,730 plus court costs with the Clerk of this Court, representing $160,000 toward his alimony arrearage and $5,730 toward attorney’s fees and costs.

The trial court ratified and approved the magistrate’s report on February 27, 2006.

The former husband argues the trial court abused its discretion when it set the purge amount of $165,730, plus court costs, without testimony concerning his present ability to pay. He suggests that the trial court should have set a reasonable purge amount, but he neither suggests a reasonable amount nor explains his absence from the hearing. We find no abuse of discretion in the purge amount set by the court. The former wife’s expert testified to $160,000 in capital gains the former husband received from the sale of the Ca-male Drive home. The purge amount included only $5,730 more toward attorney’s fees. See Bowen v. Bowen, 471 So.2d 1274, 1276, 1279 (Fla.1985) (no error in including $50 court costs in purge amount). This is “a reasonable purge amount based on the individual circumstances” of these parties. See Fla. Fam. L.R.P. 12.615(c)(2)(B).

The former husband next contends the trial court miscalculated his total arrearag-es. We disagree. The total amount included the $113,804 reduced to judgment and the stipulated amount of $197,781. If the former husband is somehow implying that the $113,804 is included in the $197,781, he has failed to make that argument and further failed to provide this court with any record to support that claim. The transcript from the hearing indicates the magistrate added the amount shown due by support enforcement records to the existing judgment to reach the total. We are unable to discern any error in that calculation. We do note, however, that the magistrate used the term “exclusive” of the arrearages reduced to final judgment and it should be “inclusive” of that amount. That scrivener’s error can be corrected upon remand.

Lastly, the former husband argues that because the Burtonwood Drive home is titled in both his name and that of his present wife, the trial court erred in imposing an equitable lien and forced sale when the present wife was not made a party to these proceedings. We agree.

In personam jurisdiction is a pure question of law subject to de novo review. Partridge v. Partridge, 940 So.2d 611, 612 (Fla. 4th DCA 2006). Here, the present wife was neither a party to the post-dissolution proceeding nor served with notice of the motion and hearing. The court lacked jurisdiction over the present wife to impose the lien and sale of the jointly-held property. Id.

We therefore reverse that part of the trial court’s order imposing the lien and ordering the sale of the Burtonwood property, and remand the case for correction of the scrivener’s error. The case is affirmed in all other respects.

Reversed in part and Affirmed in part.

KLEIN and HAZOURI, JJ., concur.

      . We note, however, that the court's order failed to provide for the requisite hearing on present ability to pay to be conducted within forty-eight hours of execution of the writ, an argument not made by the former husband. See Fla. Fam. L.R.P. 12.615(c)(2)(B).


text:
    Phillip Gene ADLINGTON, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-3123.
    District Court of Appeal of Florida, Fourth District.
    Jan. 24, 2007.
    Rehearing Denied March 5, 2007.
    See also 931 So.2d 1040.

      Phillip Gene Adlington, Indiantown, pro se.
    No appearance required for appellee.
   PER CURIAM.

Phillip Gene Adlington appeals a trial court order summarily denying his latest motion for post-conviction relief and three orders preceding it. We affirm the trial court’s order summarily denying his motion because it raised the same challenge the trial court had previously rejected and this Court affirmed in Adlington v. State, 931 So.2d 1040 (Fla. 4th DCA 2006), regarding voluntariness of his plea relating to his medical treatment. In Adlington, this Court affirmed the summary denial of the claim of involuntary plea relating to promises of medical treatments, among other claims, but reversed and remanded only for the claim of involuntary plea relating to the length of the sentence and its possible reduction if he returned from furlough on time. Appellant is barred from further relief on the claim of involuntary plea relating to promises of medical treatments by the doctrine of “law of the case.” McBride v. State, 884 So.2d 476 (Fla. 4th DCA 2004).

On the record on appeal and brief filed, appellant has failed to show that the trial court has ruled on the claim returned to the trial court for further consideration in Adlington. For that reason, we dismiss as premature his attempts to appeal the three trial court orders which denied his requests for counsel, an interpreter, and transport on remand. Appellant can challenge them once the trial court has ruled on remand.

Appellant also intends to appeal a separate and apparently unrelated trial court order which denied his motion for a free copy of the charging documents filed against him in connection with his application for executive clemency. We dismiss his challenge to that order, as it has no connection to the post-conviction proceedings being appealed herein, but without prejudice to his right to seek mandamus relief in the circuit court against the clerk of the circuit court if appropriate, for failure to comply with its ministerial duties under Section 940.04, Fla. Stat. Williams v. Circuit Court, 18th Jud. Cir., 862 So.2d 887 (Fla. 5th DCA 2003). A final order by the circuit court would then be appealable to this Court. See, e.g. Clayton v. State, 849 So.2d 461 (Fla. 2d DCA 2003).

Affirmed in Part, Dismissed in Part.

GUNTHER, KLEIN and TAYLOR, JJ., concur.


text:
    Ricky N. BAGLEY, Appellant, v. Brenda K. BAGLEY, Appellee.
    No. 1D06-0122.
    District Court of Appeal of Florida, First District.
    Jan. 25, 2007.
    Robert J. Slama and Amber J. Hines of Robert J. Slama, P.A., Jacksonville, for Appellant.
    Moses Meide, Jr., Michael J. Korn and Tonya H. Walker of Korn & Zehmer, P.A., Jacksonville, for Appellee.
   PER CURIAM.

The appellant challenges an order denying a petition for modification of his alimony obligation. The appellant sought modification pursuant to section 61.14(l)(b), Florida Statutes, and he contends that because it was shown that the appellee was in a “supportive relationship” the court should not have considered the appellee’s financial need in deciding whether to modify the alimony. However, while section 61.14(l)(b)2 catalogs a nonexclusive listing of other factors for the court’s consideration, the financial circumstances remain pertinent and the court was entitled to consider the appellee’s financial need. See Donoff v. Donoff, 940 So.2d 1221 (Fla. 4th DCA 2006); § 61.08(2), Fla. Stat.

The appealed order is affirmed.

ALLEN and WOLF, JJ., and ERVIN, III, RICHARD W., Senior Judge, concur.