text:
    Melissa Ann KING, Appellant, v. BAPTIST HOSPITAL OF MIAMI, INC.; Baptist Hospital of Miami, Inc. d/b/a Baptist Children’s Hospital, Appellees.
    No. 3D11-601.
    District Court of Appeal of Florida, Third District.
    April 11, 2012.
    Rehearing Denied May 18, 2012.

      Gaebe, Mullen, Antonelli & DiMatteo, and Michael A. Mullen, Coral Gables, and Elaine D. Walter, for appellant.
    Falk, Waas, Hernandez, Cortina, Solomon & Bonner, and Scott L. Mendlestein, Coral Gables, for appellees.
    Before CORTIÑAS, EMAS, and FERNANDEZ, JJ.
   FERNANDEZ, J.

Plaintiff Melissa Ann King appeals the trial court’s Order Dismissing defendants Baptist Hospital of Miami, Inc. and Baptist Hospital of Miami, Inc. d/b/a Baptist Children’s Hospital (collectively, Baptist Hospital), rendered final by the trial court’s order denying King’s motion for rehearing. We conclude that section 766.106, Florida Statute’s (2003), notice of intent to initiate litigation sent to Dr. William R. Thompson and Pediatric Surgical Group, PLLC was sufficient under the facts of this ease to impute notice to Baptist Hospital, and therefore reverse.

In May 2008, King sent by certified mail two formal notices pursuant to section 766.106, Florida Statutes (2003), informing Dr. William R. Thompson and Pediatric Surgical Group, PLLC (Pediatric Group) of her intent to initiate litigation for medical malpractice. The notices specified that they were in regard to services rendered by Dr. Thompson and others during King’s treatment at Baptist Hospital, including Pediatric Group’s agents, employees and apparent, agents. The treatment dates included surgical stays on January 19, 2005 through February 3, 2005 and April 6, 2006 through July 8, 2006.

In November 2009, King filed an amended complaint against defendants Pediatric Group, University of Miami d/b/a Miller School of Medicine and University of Miami (collectively, University of Miami), and Baptist Hospital of Miami, Inc. and Baptist Hospital of Miami, Inc. d/b/a Baptist Children’s Hospital (collectively, Baptist Hospital) related to treatment she received at Baptist Hospital from Dr. Thompson. In her amended complaint, King alleged that she complied with all the conditions precedent to the filing of the action as required in section 766.106. She also alleged the following legal relationships:

4. That at all times material hereto, William R. Thompson, M.D., was acting as an employee, agent, representative or apparent agent of PEDIATRIC SURGICAL GROUP, PLLC.
5. That at all times material hereto, William R. Thompson, M.D., was acting as an employee, agent, representative or apparent agent as of UNIVERSITY OF MIAMI.
6. That at all times material hereto, William R. Thompson, M.D., was acting as an employee, agent, representative or apparent agent as of UNIVERSITY OF MIAMI d/b/a MILLER SCHOOL OF MEDICINE.
7. That at all times material hereto, William R. Thompson, M.D., was acting as an employee, agent, representative or apparent agent as of BAPTIST HOSPITAL OF MIAMI, INC.
8. That at all times material hereto, William R. Thompson, M.D., was acting as an employee, agent, representative or apparent agent as of BAPTIST HOSPITAL OF MIAMI, INC. d/b/a BAPTIST CHILDREN’S HOSPITAL.
9. That at all times material hereto, PEDIATRIC SURGICAL GROUP, PLLC, was a limited liability corporation licensed to do and doing business in the Miami-Dade County, Florida.
10. That at all times material hereto, UNIVERSITY OF MIAMI, was a Florida corporation licensed to do and doing business in the Miami-Dade County, Florida.
11. That at all times material hereto, UNIVERSITY OF MIAMI d/b/a MILLER SCHOOL OF MEDICINE, was a Florida corporation licensed to do and doing business in the Miami-Dade County, Florida.
12. That at all times material hereto, BAPTIST HOSPITAL OF MIAMI, INC., was a Florida corporation licensed to do and doing business in the Miami-Dade County, Florida.
13. That at all times material hereto, BAPTIST HOSPITAL OF MIAMI, INC. d/b/a BAPTIST CHILDREN’S HOSPITAL, was a Florida corporation licensed to do and doing business in the Miami-Dade County, Florida.
14. That at all times material hereto the UNIVERSITY OF MIAMI d/b/a MILLER SCHOOL OF MEDICINE and BAPTIST HOSPITAL, INC., were joint venturers to provide pediatric surgeons from the UNIVERSITY OF MIAMI’S School of Medicine, Department of Pediatric Surgery, to BAPTIST HOSPITAL OF MIAMI, INC., and BAPTIST HOSPITAL OF MIAMI, INC. d/b/a BAPTIST CHILDREN’S HOSPITAL, to develop and establish a similar department at Baptist Children’s Hospital.
15. That William R. Thompson, M.D., was one of those pediatric surgeons employed by the UNIVERSITY OF MIAMI d/b/a MILLER SCHOOL OF MEDICINE and contractually provided to BAPTIST HOSPITAL OF MIAMI, INC., BAPTIST HOSPITAL OF MIAMI, INC. d/b/a BAPTIST CHILDREN’S HOSPITAL, as part of the written agreement for establishing a pediatric surgical department at Baptist Children’s Hospital.
16.That the Defendants, UNIVERSITY OF MIAMI d/b/a MILLER SCHOOL OF MEDICINE and BAPTIST HOSPITAL OF MIAMI, INC., and BAPTIST HOSPITAL OF MIAMI, INC. d/b/a BAPTIST CHILDREN’S HOSPITAL, shared in the expenses, benefits, income, promotions and advertising of this joint venture of which THOMPSON, M.D., was a shared employee.

In count I, King sought damages for medical malpractice based upon Dr. Thompson’s care and treatment, alleging that Baptist Hospital, among others, was “vicariously responsible for the negligence of [Dr. Thompson] as a result of him being their employee, their agent, their apparent agent or an employee of their joint venture.” In count II, King alleged that Baptist Hospital and the University of Miami granted staff privileges to Dr. Thompson and Pediatric Group pursuant to a “financial and administrative agreement” (the joint venture agreement). King further alleged that the agreement made the parties contractually intertwined entities vicariously liable for Dr. Thompson’s medical malpractice. Specifically, King alleged that Pediatric Group was formed to facilitate the contractual agreement between Baptist Hospital and the University of Miami to create the department of pediatric surgery at Baptist Hospital resulting in a joint venture between Baptist Hospital and the University of Miami, whereby the entities shared profit, losses, facilities, promotional and advertising benefits and insurance revenue.

Baptist Hospital then moved to dismiss the amended complaint because it had not been directly served a section 766.106 letter of intent, arguing in part that there was no legal relationship between Pediatric Group and Baptist Hospital, thus pre-suit notice could not be imputed to Baptist Hospital pursuant to rule 1.650, Florida Rule of Civil Procedure. Baptist Hospital contended that no legal relationship existed because Pediatric Group was not a party to a contract or agreement between Baptist Hospital and the University of Miami and that the contract on which King relied for her complaint terminated prior to King’s treatment and before the notices were sent. Baptist Hospital made no arguments in regard to the notice served upon Dr. Thompson. In its motion to dismiss, Baptist Hospital admitted that the joint venture agreement was attached to the amended complaint.

At the hearing on the motion to dismiss, Baptist Hospital furthered the same argument and also asserted that the claim of a joint venture had not been properly pled. In response, King argued that Florida Rule of Civil Procedure 1.650(b)(1) permitted her to impute notice upon Dr. Thompson and Pediatric Group to Baptist Hospital and the University of Miami because of legal relationships between Dr. Thompson, Pediatric Group, Baptist Hospital and the University of Miami.

The trial court found that there was no legal relationship between Dr. Thompson, Pediatric Group, and the Baptist Hospital defendants, and granted the motion to dismiss. King moved for rehearing. She argued that the trial court should not have dismissed the complaint as to Baptist Hospital because the trial court’s factual finding that King failed to establish a legal relationship between Dr. Thompson or Pediatric Group and Baptist Hospital upon which presuit notice could be imputed to Baptist Hospital went beyond the four corners of the complaint. King argued that the complaint sufficiently alleged a legal relationship for notice to be imputed to Baptist so as to survive a motion to dismiss. Moreover, she argued, the joint venture agreement discussed at the hearing— and upon which the court relied to make its ruling — conclusively showed a legal relationship between Dr. Thompson, the University of Miami and Baptist Hospital. The court denied the motion for rehearing.

Section 766.106, Florida Statutes (2003) provides, in pertinent part:

(2) Presuit notice.—
(a) After completion of presuit investigation pursuant to s. 766.203(2) and pri- or to filing a complaint for medical negligence, a claimant shall notify each prospective defendant by certified mail, return receipt requested, of intent to initiate litigation for medical negligence. Notice to each prospective defendant must include, if available, a list of all known health care providers seen by the claimant for the injuries complained of subsequent to the alleged act of negligence, all known health care providers during the 2-year period prior to the alleged act of negligence who treated or evaluated the claimant, and copies of all of the medical records relied upon by the expert in signing the affidavit. The requirement of providing the list of known health care providers may not serve as grounds for imposing sanctions for failure to provide presuit discovery.

In addition, Florida Rule of Civil Procedure 1.650(b)(1) provides:

(b) Notice.
(1) Notice of intent to initiate litigation sent by certified mail to and received by any prospective defendant shall operate as notice to the person and any other prospective defendant who bears a legal relationship to the prospective defendant receiving the notice. The notice shall make the recipient a party to the proceeding under this rule.

We conclude that pursuant to the statute and the rule, King pled a legal relationship sufficient to survive a motion to dismiss.

In considering a motion to dismiss, the allegations in a complaint should be taken as true without regard to the pleader’s ability to prove them. Winter v. Miami Beach Healthcare Group, Ltd., 917 So.2d 973, 974 (Fla. 3d DCA 2005). The court should look no further than the complaint and its attachments. Golden Gate Homes, LC v. Levey, 59 So.3d 275, 282 (Fla. 3d DCA 2011).

The record here supports King’s position in her amended complaint that she demonstrated a legal relationship under the joint venture agreement between Baptist Hospital and the University of Miami. King alleged in the trial court that Dr. Thompson acted as an employee, agent, representative or apparent agent of Baptist Hospital under the joint venture agreement between the University of Miami and Baptist Hospital. King also alleged that the University of Miami and Baptist Hospital shared in the expenses, benefits, income, promotions, and advertising of the joint venture. The joint venture agreement further indicates that Dr. Thompson was Baptist’s Medical Director for its pediatric surgery program.

A joint venture is a legal relationship. Jackson-Shaw Co. v. Jacksonville Aviation Auth., 8 So.3d 1076, 1089 (Fla.2008). In order to create a joint venture, a contract must contain the following elements: 1) a community of interest in the performance of a common purpose; 2) joint control or right of control; 3) a joint proprietary interest in the subject matter; 4) a right to share in the profits; and 5) a duty to share in any losses which may be sustained. Id.

King’s amended complaint and joint venture agreement contain all of the elements to properly allege a joint venture between Baptist Hospital and the University of Miami in which Dr. Thompson actively participated. The joint venture agreement provided the requisite legal relationship between Baptist Hospital and Dr. Thompson so that notice to him constituted notice to Baptist Hospital. Dr. Thompson performed services and acted as Medical Director for Baptist Hospital’s pediatric surgery program under the agreement. In addition, he was a member of Baptist Children’s Hospital Executive Board from 2004-2009, was a member of the Pediatric Department Advisory Committee for Baptist Children’s Hospital from 2000-2009, and did elective surgery at Baptist Hospital outside the scope of the contract as well. All of this is evidence of a legal relationship, and at a minimum, raises a question of fact for the jury as to whether Dr. Thompson only had staff privileges or was something more. Price v. JFK Med. Ctr., Inc., 595 So.2d 202, 203 (Fla. 4th DCA 1992) (“[T]he relationship between hospital and doctor ... is often unclear and raises a question for the jury.”).

Accordingly, dismissal of the case was premature because presuit notice to Dr. Thompson was sufficient to impute notice upon Baptist Hospital. Under the complaint and the joint venture agreement, King demonstrated a legal relationship between Dr. Thompson and Baptist Hospital. See Kukral v. Mekras, 679 So.2d 278, 285 (Fla.1996).

The Florida Supreme Court stated in Arch Plaza, Inc. v. Perpall, 947 So.2d 476, 478-79 (Fla. 3d DCA 2007), “Florida courts have consistently construed the medical malpractice pre-suit statutory scheme ‘liberally so as not to unduly restrict a Florida citizen’s constitutionally guaranteed access to the courts, while at the same time carrying out the legislative policy of screening out frivolous lawsuits and defenses’.” Id. (quoting Kukral, 679 So.2d at 284).

We thus reverse the trial court’s Order Dismissing Defendants Baptist Hospital of Miami, Inc. and Baptist Hospital of Miami, Inc. d/b/a Baptist Children’s Hospital.

Reversed and remanded for further proceedings.

      . The joint venture between the University of Miami and Baptist Hospital provided pediatric surgeons employed by the University of Miami’s School of Medicine, Department of Pediatric Surgery, to Baptist Hospital in order to develop and establish a similar department at Baptist Children's Hospital. Dr. Thompson was one of the pediatric surgeons contractually provided to Baptist Hospital as a shared employee.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Todd D. MARTIN, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-4092.
    District Court of Appeal of Florida, Fourth District.
    April 11, 2012.
    Todd D. Martin, Moore Haven, pro se.
    No appearance required for appellee.
   PER CURIAM.

We affirm the denial of appellant’s rule 3.800(a) motion which sought additional jail credit. Appellant abandoned several claims which we do not discuss. Hammond v. State, 34 So.3d 58 (Fla. 4th DCA 2010).

Appellant seeks credit in this case for time he spent in prison following his convictions and sentences for various offenses in another county. Appellant committed the offenses in the other county while on probation in this case. Appellant seeks credit from the date a violation of probation warrant had issued in this case. The circuit court determined that appellant was entitled to credit only from the date the warrant was served. The circuit court correctly stated the law. Alphonso v. State, 20 So.3d 959 (Fla. 4th DCA 2009).

We also affirm for an additional reason. Because the sentence following revocation of probation in this case was made consecutive to the sentence appellant was serving in the other case, he was not entitled to have his jail credit for these separate cases pyramided. Ransone v. State, 20 So.3d 445 (Fla. 4th DCA), approved, 48 So.3d 692 (Fla.2010) (applying Daniels v. State, 491 So.2d 543, 545 (Fla.1986)).

Affirmed.

MAY, C.J., POLEN and CONNER, JJ., concur.


text:
    Antonio Demetrius FLOYD, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-1983.
    District Court of Appeal of Florida, First District.
    April 12, 2012.
    Rehearing Denied May 8, 2012.
    Nancy A. Daniels, Public Defender, and Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Therese A. Savona, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Antonio Demetrius Floyd, argues that his combined eighty-year sentence for two counts of armed robbery violates the prohibition against cruel and unusual punishment because it constitutes the functional equivalent of a life sentence without parole for a juvenile convicted of a nonhomicide offense, which was held to be unconstitutional in Graham v. Florida, — U.S.-, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010). Finding merit in Appellant’s argument, we reverse and remand for resen-tencing.

Appellant was seventeen years of age in 1998 when he committed grand theft auto and two counts of armed robbery with a firearm, which, according to the prosecutor’s description during the resentencing hearing, was a pellet gun that was “realistic looking.” The trial court initially sentenced Appellant to life imprisonment on the armed robbery counts. After Graham was issued more than a decade later, the trial court resentenced Appellant to consecutive forty-year sentences on the two armed robbery counts. While his appeal was pending, Appellant filed a motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2), wherein he raised the argument he now raises on appeal. The trial court denied the motion, citing Graham for the proposition that the Eighth Amendment does not require the State to release a juvenile defendant who commits a nonhomicide offense during his or her natural life.

In Graham, the United States Supreme Court addressed the constitutionality of a life without parole sentence for a juvenile who was sixteen when he committed armed burglary with assault or battery and attempted armed robbery. The Court held that the Eighth Amendment forbids a sentence of life without parole for a juvenile offender who commits a nonhomicide offense. 130 S.Ct. at 2030. In doing so, the Court explained that while a state is not required to guarantee eventual freedom to a juvenile offender convicted of a nonhomicide offense, it must give defendants like Graham “some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” Id. It also set forth that while the Eighth Amendment does not foreclose the possibility that juveniles convicted of nonhomi-cide crimes will remain behind bars for life, it does “forbid States from making the judgment at the outset that those offenders never will be fit to reenter society.” Id.

Since Graham was issued, we have reviewed two lengthy term-of-years sentences for juveniles who committed nonho-micide crimes. In Thomas v. State, 78 So.3d 644, 646 (Fla. 1st DCA 2011), we noted that the Graham holding was limited to those juveniles who were sentenced to life without parole for nonhomicide crimes. Although we agreed that, at some point, a term-of-years sentence may become the functional equivalent of a life sentence, we rejected the appellant’s argument that his fifty-year concurrent sentences met that standard because, as found by the trial court, the appellant would be in his late sixties when he was released from prison, if he was required to serve the entirety of his sentence. 78 So.3d at 646. In Gridine v. State, 89 So.3d 909, 2011 WL 6849649 (Fla. 1st DCA 2011), while again noting that, at some point, a term-of-years sentence may become the functional equivalent of a life sentence, we rejected the argument that a seventy-year sentence was unconstitutional.

In this case, we are faced with a situation where Appellant, if he serves the entirety of his sentence, will be ninety-seven when he is released. Even if Appellant received the maximum amount of gain time, the earliest he would be released is at age eighty-five. See § 921.002(l)(e), Fla. Stat. (1998) (providing that parole is not applied to defendants sentenced under the Criminal Punishment Code, that sentences in Florida reflect the length of actual time to be served, shortened only by the application of incentive and meritorious gain time, and that defendants must serve no less than eighty-five percent of their term of imprisonment). This situation does not in any way provide Appellant with a meaningful or realistic opportunity to obtain release, as required by Graham. While the trial court was correct that the Eighth Amendment does not foreclose the possibility that juveniles who commit non-homicide crimes will remain in prison for life, Graham also cautioned that states are foreclosed from making the judgment at the outset that those offenders will never be fit to reenter society. By sentencing Appellant to eighty years in prison, the trial court impermissibly made that judgment.

In reaching our decision, we are mindful of those cases, both in Florida and in other states, where the courts have deemed lengthy term-of-years sentences constitutional. See, e.g., Henry v. State, 82 So.3d 1084 (Fla. 5th DCA 2012) (holding that a ninety-year sentence for a juvenile defendant who committed nonhomicide offenses was constitutional); State v. Kasic, 228 Ariz. 228, 265 P.3d 410, 415 (2011) (holding that a combined 139.75-year sentence for a juvenile defendant who committed non-homicide offenses was constitutional); People v. Caballero, 119 Cal.Rptr.3d 920, 926 (Cal.App.Ct.2011) (holding that a 110-year sentence for a juvenile defendant who committed nonhomicide offenses was constitutional). We disagree with those courts, however, that a lengthy term-of-years sentence cannot constitute the functional equivalent of a life sentence without parole. As the California appellate court reasoned in People v. Mendez, 188 Cal.App.4th 47, 114 Cal.Rptr.3d 870, 882-83 (2010), while Graham’s holding was expressly limited to juveniles sentenced to life without the possibility of parole, courts should be guided by the principles set forth in Graham when evaluating a lengthy term-of-years sentence for a juvenile who was convicted of a nonhomicide offense. In holding that the juvenile defendant’s eighty-four-year sentence was unconstitutional, the court found that common sense dictated that a juvenile who is sentenced at the age of eighteen and who is not eligible for parole until after he is expected to die does not have a “meaningful” or, as the Supreme Court also described, “realistic” opportunity of release. 114 Cal.Rptr.3d at 883; see also United States v. Mathurin, No. 09-21075-Cr, 2011 WL 2580775 (S.D.Fla. June 29, 2011) (holding that a 307-year sentence for a juvenile who committed nonhomicide offenses was unconstitutional); People v. J.I.A., 127 Cal.Rptr.3d 141, 149 (CalApp. Ct.2011) (holding that the juvenile’s sentence, which had a minimum period of actual confinement of 56.5 years, was unconstitutional because the defendant would not be eligible for parole until about the time he was expected to die); People v. De Jesus Nunez, 125 Cal.Rptr.3d 616, 617 (Cal.App.Ct.2011) (holding that the juvenile’s sentence, which precluded the possibility of parole for 175 years, was unconstitutional).

In this case, common sense dictates that Appellant’s eighty-year sentence, which, according to the statistics cited by Appellant, is longer than his life expectancy, is the functional equivalent of a life without parole sentence and will not provide him with a meaningful or realistic opportunity to obtain release. We, therefore, reverse Appellant’s forty-year consecutive sentences and remand for resentencing. In doing so, we encourage the Legislature to follow the Supreme Court’s guidance in Graham and to “explore the means and mechanisms for compliance” of its opinion. Until either the Legislature or a higher court addresses the issue, the uncertainty that has arisen in this area of the law since Graham was issued will undoubtedly continue.

REVERSED and REMANDED for re-sentencing.

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


author: MONACO, J.

text:
    Jonathan DIAMENT, Appellant, v. Monica DIAMENT, Appellee.
    No. 5D11-1495.
    District Court of Appeal of Florida, Fifth District.
    April 13, 2012.
    Rehearing Denied May 16, 2012.
    Jonathan Diament, Bushnell, pro se.
    No Appearance for Appellee.
   MONACO, J.

Mr. Diament appeals the March 24, 2011 order adopting the general magistrate’s report dated February 28, 2011, in which the general magistrate recommended that Mr. Diament’s Emergency Petition To Modify Parental Responsibility and Visitation be denied. Mr. Diament contends that he was not allowed to attend the hearing on his petition in violation of his right to due process.

We reverse the trial court’s order and remand for further proceedings to allow Mr. Diament the opportunity to prove that he attempted to attend the relevant hearing by phone, but was prevented from doing so by DOC. In the event that Mr. Diament is successful and a new hearing is granted, the issues should be limited to the issues resolved at the hearing in question. These issues include phone contact between Mr. Diament and child, and modification of visitation based on the fact that Sumter County Correctional Institution is closer to the child’s residence.

LAWSON and COHEN, JJ., concur.


text:
    ORANGE COUNTY SCHOOL BOARD, Appellant, v. Leona RACHMAN and Jonathan Schuman, Appellees.
    No. 5D11-3310.
    District Court of Appeal of Florida, Fifth District.
    April 13, 2012.
    Rehearing and Rehearing En Banc Denied May 9, 2012.
    John C. Palmerini, Associate General Counsel for Orange County School Board, Orlando, for Appellant.
    Tobe M. Lev of Egan, Lev <& Siwica, P.A., Orlando, for Appellees.
   PER CURIAM.

The Orange County School Board (the “Board”) timely appeals a final judgment on the pleadings in favor of teachers Leona Rachman and Jonathan Schuman, plaintiffs below, arguing that the trial court erred in its interpretation and application of section 121.091(9)(b)l.a., Florida Statutes (2010). That statute allows a school district to rehire a retired teacher in the year immediately following his or her retirement on an annual contract. The Board argues that this statute bars it from ever affording Appellees a longer professional service contract pursuant to section 1012.33(3)(a), Florida Statutes (2010). Appellees argue that section 121.091(9)(b)l.a., only applies at the time of their initial rehire (following retirement), such that they can ultimately be awarded a professional services contract if they meet the requirements of section 121.091 (9)(b)l .a. We agree with the trial court’s well-reasoned analysis and conclude that section 121.091(9)(b)l.a. does not preclude Appellees from ultimately securing a professional service contract.

AFFIRMED.

MONACO, LAWSON and EVANDER, JJ., concur.

      . Whereas an annual contract must be renewed every year, a professional service contract is a continuous contract which renews automatically, and can only be terminated for just cause pursuant to section 1012.33, Florida Statutes, or based upon uncorrected performance deficiencies pursuant to section 1012.34, Florida Statutes. We note that section 1012.33(3)(a), Florida Statutes (2010), has been extensively revised so that as of July 1, 2011, a district school board can no longer issue professional service contracts. Ch.2011-1, § 13, Laws of Fla. Appellees, however, assert rights that they contend vested prior to the effective date of section 1012.335, Florida Statutes (2011). The Board concedes in this case that but for its interpretation of section 121.091(9)(b)l.a., Appellees would have been eligible to be considered for professional service contracts.


author: LaROSE, Judge.

text:
    D.F., Appellant, v. STATE of Florida, Appellee.
    No. 2D11-13.
    District Court of Appeal of Florida, Second District.
    April 13, 2012.
    James Marion Moorman, Public Defender, and Richard P. Albertine, Jr., Assistant Public Defender, Bartow, for Appellant.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Diana K. Bock, Assistant Attorney General, Tampa, for Appellee.
   LaROSE, Judge.

In late 2009, fourteen-year-old D.F. pleaded no contest to misdemeanor battery. The trial court placed him on probation for a term not to exceed his nineteenth birthday. Subsequently, in 2010, the trial court found D.F. in violation of condition nine for failing to provide written proof that he had completed his community service hours. The trial court continued D.F.’s probation and added ten additional community service hours to the probation conditions. D.F. appeals. Condition nine required D.F. to complete the service hours by March 31, 2010, and to provide written proof. However, condition nine did not specify a date by which D.F. must provide the documentation. See § 775.021(1), Fla. Stat. (2009) (ambiguities “shall be construed most favorably to the accused”) (rule of lenity). Consequently, we must reverse.

Condition nine of the original disposition order stated as follows:

Community Service: 10 hours to be performed by the child at the rate of 10 hours per month. Written proof shall be provided to the juvenile probation officer, aftercare or conditional release counselor.... Community service hours are to begin by 2/1/10 and be completed by 3/31/10.

D.F. had two months to complete the service hours. His probation, however, could continue beyond that time. We find it interesting that the State did not charge D.F. with a violation of condition four: “The child shall ... carry out all instructions of the ... juvenile probation officer .... ” D.F.’s probation officer testified that D.F. told her on June 22 that he had completed the service hours but could not find the supporting paperwork. She testified that she repeatedly asked D.F. and his mother for the documentation.

The trial court framed its inquiry as to whether D.F. had complied with the written verification requirement of condition nine:

Regardless of whether he did the hours or not. He may have. I can’t find that he didn’t. The probation officer was only able to testify that he said that he did and she was unable to verify it.... Paragraph nine clearly states written proof shall be provided to the juvenile probation officer after care or conditional release counselor. So that’s all I want to focus on. Not whether he did them or didn’t do them, but whether or not he gave written proof to his probation officer. Which her testimony before the Court is that he has not.

In doing so, the trial court conflated conditions four and nine. An alleged violation of condition nine, however, was the basis for the trial court’s decision. Condition nine does not tell D.F. when to submit the documentation.

In Dean v. State, 948 So.2d 1042 (Fla. 2d DCA 2007), we reversed a revocation of probation where the order requiring the defendant to perform 150 community service hours at the rate of five hours per month failed to specify a starting or ending date and there was no evidence of his refusal to perform. Id. at 1043; see Matthews v. State, 943 So.2d 984, 985 (Fla. 2d DCA 2006) (“This court has consistently-held that such a violation will not be deemed willful and substantial if the performance parameters have not been spelled out and sufficient time remains in the probationary period for the probationer to complete the requirement.”); Pollard v. State, 930 So.2d 854, 855 (Fla. 2d DCA 2006) (“[T]he State cannot prove a willful and substantial violation of a condition to complete community service hours, even when the order contains a per-month rate of completion, when the order does not contain a beginning and ending date for completing the hours and when there is sufficient time remaining for the probationer to complete the required hours at the required rate.”) (citing Shipman v. State, 903 So.2d 386, 387 (Fla. 2d DCA 2005)). Here, the probation order specified the date by which D.F. must complete the community service hours; it omitted a deadline for submitting written documentation. Several years remained in D.F.’s probationary period. We cannot conclude that D.F. willfully and substantially violated condition nine under these circumstances.

Reversed.

CASANUEVA and MORRIS, JJ., Concur.

      . If a trial court adjudicates a child delinquent, juvenile probation may not exceed the maximum term the court could impose on an adult for the same offense. See § 985.435(5), .455(3), Fla. Stat. (2009). Where, as here, the trial court withholds adjudication of delinquency, see § 985.35(4)(a), it may impose probation until a juvenile's nineteenth birthday. See N.W. v. State, 767 So.2d 446, 450 (Fla.2000); R.F. v. State, 42 So.3d 333, 334-35 (Fla. 2d DCA 2010).


author: CRENSHAW, Judge.

text:
    EMPIRE DEVELOPERS GROUP, LLC; Richard B. Melson; Amy Melson; William L. Slavich; and Brenda Slavich, Appellants, v. LIBERTY BANK; Kenneth D. Goodman, Individually and as Trustee of the Bellini Investment Trust; Empire Builders of Collier County, Inc.; Bellini Development, LLC; Miromar Lakes Master Association, Inc.; Mark T. Bergmann; Unknown Tenant 1; Unknown Tenant 2; Unknown Tenant 3; Unknown Tenant 4; Unknown Tenant 5; Unknown Tenant 6; Unknown Tenant 7; Unknown Tenant 8; Unknown Tenant 9; and All Unknown Parties in Interest, Appellees.
    No. 2D11-1410.
    District Court of Appeal of Florida, Second District.
    April 13, 2012.

      Mark H. Muller of Mark H. Muller, P.A., Naples, for Appellants.
    Theodore R. Walters and Jayne M. Skindzier of Cummings & Lockwood, LLC, Naples, for Appellee Liberty Bank.
    No appearance for remaining Appellees.
   CRENSHAW, Judge.

Empire Developers Group, LLC, Richard B. Melson, Amy Melson, William L. Slavieh, and Brenda Slavich (collectively referred to as Empire) appeal a final deficiency judgment entered against them in favor of Liberty Bank in the amount of $2,657,219.72. Because the deficiency judgment is not supported by competent, substantial evidence as to the fair market value of the property at the time of foreclosure sale, we reverse and remand for further proceedings.

In July 2009, Liberty Bank brought an action against Empire for the foreclosure of nine residential condominium units. A final judgment of foreclosure was entered on December 7, 2009, in the amount of $6,768,895.09 plus interest. A foreclosure sale was held on January 6, 2010, and Liberty Bank was the successful bidder on the units with a bid of $800,100. Thereafter, Liberty Bank filed a motion for deficiency judgment. To mitigate damages, Liberty Bank sold seven of the nine condominium units by the date of the deficiency hearing. In February 2011, following the deficiency hearing, the trial court entered its final deficiency judgment against Empire for $2,657,219.72. This appeal timely followed.

Empire challenges the deficiency amount awarded to Liberty Bank. “[T]he correct formula to calculate a deficiency judgment is the total debt, as secured by the final judgment of foreclosure, minus the fair market value of the property, as determined by the court.” Morgan v. Kelly, 642 So.2d 1117, 1117 (Fla. 3d DCA 1994). “[T]he party seeking a deficiency judgment has the burden of proving that the fair market value of the property foreclosed upon was less than the total mortgage debt owed.” Estepa v. Jordan, 678 So.2d 876, 878 (Fla. 5th DCA 1996) (citing Coral Gables Fed. Sav. & Loan Ass’n v. Whitewater Enters., Inc., 614 So.2d 682 (Fla. 5th DCA 1993)). And “[t]he critical date the fair market value of the real estate must be established for such purpose is the date of the foreclosure sale.” Estepa, 678 So.2d at 878 (emphasis added) (citing Cmty. Bank of Homestead v. Valois, 570 So.2d 300, 301 n. 1 (Fla. 3d DCA 1990)).

In calculating the deficiency, the trial court used two methodologies to determine the fair market value of the nine condominium units. To assess the value of the two unsold units, the trial court relied upon appraisals submitted by Liberty Bank, which assessed the fair market value of the units as of June 13, 2010. And to determine the value of the seven units sold by Liberty Bank, the trial court used the value of the net sales proceeds from each sale.

We conclude that the trial court erred by relying upon these values submitted by Liberty Bank to determine the fair market value of the nine units because no evidence was presented to link the value of the units as of the June 13, 2010, appraisal date or the sale dates with the value of the units at the date of foreclosure sale on January 6, 2010. Instead, at the deficiency hearing, counsel for Liberty Bank conceded that the values submitted were not as of the foreclosure sale date, but argued “that in six months there would not have been much change in the rate.” This conclusory statement, without more, is insufficient to show the value of the units at the date of the foreclosure sale. Because there was no competent, substantial evidence presented as to the fair market value of the property at the time of the foreclosure sale, we reverse the deficiency judgment and remand to the trial court for further proceedings.

We also note that the trial court erred in awarding Liberty Bank interest on the entire debt from the date of the final judgment of foreclosure through the date of the deficiency hearing. See Este-pa, 678 So.2d at 878 (“A secured party is not entitled to statutory interest on the entire foreclosure judgment following the date of the foreclosure sale.”). Accordingly, on remand, “statutory interest may only be awarded against the remaining debt” from the date of the foreclosure sale. Shaw v. Charter Bank, 576 So.2d 907, 909 (Fla. 1st DCA 1991).

Reversed and remanded.

WHATLEY, J„ Concurs.

KHOUZAM, J., Concurs in result only.

      . The sales occurred on different dates ranging from May to November 2010.


text:
    Drew C. HARTLEY, Appellant, v. TIFFT, Romine, Fennimore, Mixon, Blue, and John Does, Appellees.
    No. 1D11-1814.
    District Court of Appeal of Florida, First District.
    April 17, 2012.
    Drew C. Hartley, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Joy A. Stubbs, Assistant Attorney General, Tallahassee, for Appellees.
   PER CURIAM.

Finding appellees’ motion for remand and notice of concession of error to be well-taken, the order dismissing the complaint without prejudice is quashed and the cause is remanded with instructions to allow appellant leave to amend his complaint. If appellant fails to sufficiently allege an amount in controversy to meet the jurisdictional requirements of the circuit court, the complaint should be trans-feiTed to the county court. See Spradley v. Doe, 612 So.2d 722 (Fla. 1st DCA 1993) (holding that an order dismissing a complaint for lack of subject matter jurisdiction to be error and remanding the case for transfer to the county court).

BENTON, C.J., ROWE and MAKAR, JJ., concur.


text:
    J.L., Father of A.L., A Child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D11-3114.
    District Court of Appeal of Florida, Fifth District.
    April 17, 2012.
    Nickole E. Frederick, of Nickole E. Frederick, P.A., Orlando, for Appellant.
    Rosemarie Farrell, of Children’s Legal Services, Orlando, for Appellee.
    Laura E. Lawson, of Guardian ad Litem Program, Tavares, for Appellee.
   PER CURIAM.

J.L., the father, appeals the supplemental order of dependency which found that “the father has contributed to the dependency of the child....” J.L. contends that this is an improper standard to determine dependency in the instant case. We agree.

The proper standard is whether J.L. had “abused, abandoned, or neglected the child ....”§ 39.507(7)(b), Fla. Stat. (2011) (providing that when a child has already been found dependent as to one parent, “the court must determine whether each parent or legal custodian identified in the case abused, abandoned, or neglected the child in a subsequent evidentiary hearing. If the evidentiary hearing is conducted subsequent to the adjudication of the child, the court shall supplement the adjudicatory order ....”); see P.S. v. Dep’t of Children & Families, 4 So.3d 719, 720-21 (Fla. 5th DCA 2009) (“It is significant to observe that while a child can be found dependent if he or she is ‘at substantial risk of imminent abuse, abandonment, or neglect,’ section 39.507(7)(b) only requires a trial judge, who has already adjudicated a child to be dependent, to determine whether each parent has actually abused, abandoned or neglected the child. Thus, in this case, the primary purpose of the evidentia-ry hearing should have been to determine if the father had actually abused or neglected R.S. and B.S. — not whether the children were at substantial risk of imminent abuse or neglect.”) (footnote omitted). But see D.A. v. Dep’t of Children & Family Servs., 84 So.3d 1136 (Fla. 3d DCA 2012) (disagreeing with the holding in P.S. and certifying conflict with P.S.).

Accordingly, because the trial court applied the wrong standard, we reverse the supplemental order under review and remand this case to allow the trial court to reconsider the dependency issue as to J.L. under the proper standard.

REVERSED and REMANDED:

SAWAYA, TORPY and JACOBUS, JJ., concur.

      . Because the child had already been declared dependent as to the mother, the child’s status was not at issue in J.L.’s case. See § 39.507(7)(a), Fla. Stat. (2011) (stating that once a court has jurisdiction over a dependency case, “only one order adjudicating each child in the case dependent shall be entered. This order establishes the legal status of the child for puiposes of proceedings under this chapter and may be based on the conduct of one parent, both parents, or a legal custodian”). Therefore, the trial court properly entered a supplemental order.


text:
    Alfio GENTILE, Petitioner, v. STATE of Florida, Respondent.
    No. 4D12-382.
    District Court of Appeal of Florida, Fourth District.
    April 18, 2012.
    Rehearing Denied May 23, 2012.

      Alfio Gentile, Perry, pro se.
    No appearance required for respondent.
   PER CURIAM.

Alfio Gentile filed a petition for writ of habeas corpus in this court raising a merit-less claim which this court has repeatedly rejected. We dismiss the petition for writ of habeas corpus and impose the sanction of no longer accepting petitioner’s pro se filings.

In 1999, petitioner bludgeoned his wife with a hammer while she lay in bed, inflicting severe injuries to her head and face. The victim was in a coma for several days and required various reconstructive surgeries. A jury convicted petitioner of attempted first-degree murder with a deadly weapon, and the court sentenced him to life in prison. This court affirmed on direct appeal. Gentile v. State, 808 So.2d 225 (Fla. 4th DCA 2002) (table).

In numerous postconviction motions and petitions, petitioner has repeatedly raised the same meritless claim, that his offense should not have been reclassified from a first-degree felony to a life felony pursuant to section 775.087(1), Florida Statutes, because the jury allegedly did not specifically find that he used a deadly weapon. This meritless claim has been repeatedly rejected. Gentile v. State, 950 So.2d 1251 (Fla. 4th DCA 2007) (table); Gentile v. State, 965 So.2d 143 (Fla. 4th DCA 2007) (table); Gentile v. State, 7 So.3d 1114 (Fla. 4th DCA 2009) (table); Gentile v. State, No. 4D09-934 (Fla. 4th DCA Apr. 9, 2009) (petition for writ of habeas corpus denied).

Most recently, petitioner again raised the same issue in another habeas corpus petition filed in this court in case number 4D09-5034. This court issued an order to show cause why sanctions should not be imposed in that case. See State v. Spencer, 751 So.2d 47 (Fla.1999); Fla. R.Crim. P. 3.850(m). Following petitioner’s response, this court declined to impose sane-tions but explained to petitioner that his claim lacked merit. This court cautioned him that sanctions would be imposed if he continued to raise this claim. Gentile v. State, No. 4D09-5034 (Fla. 4th DCA Feb. 9, 2010) (February 9, 2010 order).

In the instant case, petitioner has yet again raised the same claim. This court issued an order to show cause pursuant to Spencer and Rule 3.850(m). In response, petitioner maintains that his claim has merit because the jury on the verdict form did not specifically find that a deadly weapon was used.

The jury convicted petitioner on a verdict form which reads: “Guilty of ATTEMPTED FIRST DEGREE MURDER, as charged in the information.” The information charged: “ATTEMPTED FIRST DEGREE MURDER WITH A DEADLY WEAPON.” The information alleged that petitioner attempted “to commit First Degree Murder with a Deadly Weapon” by striking the victim about the head with a hammer and/or blunt object. The information alleged that petitioner carried, displayed, used, threatened to use, or attempted to use “a hammer and/or blunt object” and cited the deadly weapon reclassification statute, section 775.087(1), Florida Statutes.

Petitioner maintains that the reclassification of section 775.087(1) should not have been applied because of the lack of a specific jury finding on the verdict form that he used a deadly weapon. He relies on State v. Tripp, 642 So.2d 728, 730 (Fla.1994), and State v. Overfelt, 457 So.2d 1385 (Fla.1984). However, the Florida Supreme Court has clarified that, although a specific finding in an interrogatory on the verdict form is preferable, what Overfelt ultimately requires is a “clear jury finding.” State v. Iseley, 944 So.2d 227, 231 (Fla.2006); Tucker v. State, 726 So.2d 768, 771 (Fla.1999); State v. Hargrove, 694 So.2d 729, 731 (Fla.1997).

[A]ll that is required for the application of a reclassification or enhancement statute to an offense is a clear jury finding of the facts necessary to the reclassification or enhancement “either by (1) a specific question or special verdict form (which is the better practice), or (2) the inclusion of a reference to [the fact necessary for reclassification] in identifying the specific crime for which the defendant is found guilty.”

Sanders v. State, 944 So.2d 203, 207 n. 2 (Fla.2006) (quoting Iseley, 944 So.2d at 231).

In convicting petitioner as charged in the information, which specifically charged use of a deadly weapon and a violation of section 775.087(1), the jury clearly found that he used a deadly weapon. The offense was properly reclassified under the circumstances of this case. See Johnson v. State, 720 So.2d 232, 237 (Fla.1998). To be sure, petitioner acted alone and no possibility exists that the jury convicted him under an accomplice liability theory; the jury could not have found that someone other than petitioner himself personally carried or used the deadly weapon. Further, the only manner in which petitioner was alleged to have attempted to murder the victim was through the use of a deadly weapon. The “as charged” verdict unambiguously reflects the jury’s finding that a deadly weapon was used and is sufficient to support the reclassification. See, e.g., Amos v. State, 833 So.2d 841, 842-43 (Fla. 4th DCA 2002); Hunter v. State, 828 So.2d 1038, 1039 (Fla. 1st DCA 2002); Whitehead v. State, 446 So.2d 194, 197 (Fla. 4th DCA 1984). See also Maglio v. State, 918 So.2d 369, 376 (Fla. 4th DCA 2005).

Petitioner also contends that the reclassification violates Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). As previously explained to petitioner, any error in the jury’s failure to make a more specific finding is clearly harmless because of the overwhelming evidence that he used a deadly weapon. Galindez v. State, 955 So.2d 517 (Fla.2007) (applying Washington v. Recuenco, 548 U.S. 212, 126 S.Ct. 2546, 165 L.Ed.2d 466 (2006)). In Galindez, the Florida Supreme Court recognized that the suggestion in pre-Apprendi cases (like Overfelt and Tripp) that this type of error could not be harmless was superseded by Recuenco. Galindez, 955 So.2d at 523.

Petitioner’s unrelenting repetition of this meritless claim in successive post-conviction motions, and in various appeals and petitions filed in this court, is an abuse of procedure. The petition for writ of habeas corpus is dismissed. Baker v. State, 878 So.2d 1236, 1243-44 (Fla.2004); Fla. R.Crim. P. 3.850(0.

The Florida Supreme Court has repeatedly emphasized the need “for court-imposed sanctions to preserve every citizen’s right to access to courts.” Hastings v. State, 79 So.3d 739, 742 (Fla.2011); Johnson v. Rundle, 59 So.3d 1080, 1082 (Fla.2011); Steele v. State, 14 So.3d 221, 223 (Fla.2009); Peterson v. State, 817 So.2d 838, 840 (Fla.2002). Similarly, this court has cautioned that abuse of writ of habeas corpus and postconviction relief procedures damages the remedy. McCutcheon v. State, 44 So.3d 156, 161 (Fla. 4th DCA 2010).

We conclude that appellant has not excused his abusive and repetitive filing. We direct the clerk of this court to no longer accept filings from petitioner relating to this criminal case unless they are signed by a member of The Florida Bar in good standing.

Petition dismissed and sanctions imposed.

MAY, C.J., TAYLOR and LEVINE, JJ„ concur.


author: GROSS, J.

text:
    DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee for First Franklin Mortgage Loan Trust 2006-FF7, Mortgage Pass-Through Certificates, Series 2006-FF7, Appellant, v. Ezra CLARKE a/k/a Ezra C. Clarke, Carol M. Clarke, and Sunset Lakes Master Association, Inc., and any unknown heirs, devisees, grantees, creditors, and other unknown persons or unknown spouses claiming by, through, and under any of the above-named defendants, Appellees.
    No. 4D10-3156.
    District Court of Appeal of Florida, Fourth District.
    April 18, 2012.

      Thomasina F. Moore and Dennis W. Moore of Butler & Hosch, P.A., Orlando, for appellant.
    Peter Ticktin, Jessica Ticktin, Josh Bleil, Megan Carraher, and Cody Pfleuger of The Ticktin Law Group, P.A., Deerfield Beach, for appellees.
   GROSS, J.

At a trial in a mortgage foreclosure case, the plaintiff did not introduce the original note into evidence. The original note had been filed with the clerk of court and was in the court file in preparation for an earlier scheduled summary judgment hearing. With this explanation, the trial judge admitted a copy of the note in evidence without a best evidence rule objection from the defendants. Later, the trial judge granted the defendants’ motion for dismissal for the plaintiffs failure to offer the original note and mortgage in evidence at the trial. We reverse because the plaintiff satisfied the requirements of the best evidence rule and Florida case law by having surrendered the original note to the court file prior to the time it offered the copy in evidence at trial.

Deutsche Bank National Trust Company sued Ezra and Carol Clarke to foreclose a mortgage on real property. Copies of the original promissory note, mortgage, and assignment were attached to the complaint. Later, the Bank filed the original promissory note, mortgage, and assignment in the court file of this case in anticipation of a motion for summary judgment.

After significant pretrial activity, the case went to trial. The Bank’s only witness at trial was a loan servicing specialist. Through the witness, the Bank attempted to move copies of the promissory note, mortgage, and assignment into evidence. The defendants objected on the ground that the witness was not a records custodian for purposes of the business records exception to the hearsay rule. See § 90.803(6), Fla. Stat. (2010).

The trial court reviewed the documents and asked, “For what purpose are you admitting these? Do you have the original documents?” The Bank’s attorney responded, “The originals have been filed with the Court, Your Honor.” Admitting the copies into evidence, the court remarked, “I have no problem admitting those.”

After the Bank rested its case-in-chief, the defendants moved for involuntary dismissal under Florida Rule of Civil Procedure 1.420(b). They argued the Bank had not established a prim a facie case, as it had not provided any evidence that it was the owner and holder of the note. The Bank responded, “At this time, Your Hon- or, we’ve presented the note and we’ve presented the mortgage and the assignment of such. We believe that the documents have spoken for themselves in essence.” The trial court deferred ruling on the motion for involuntary dismissal.

At the close of all the evidence, the defendants renewed their motion for involuntary dismissal but added additional grounds; they argued that the Bank failed to establish a prima facie case because “[t]hey haven’t filed the original note as evidence in this case. They haven’t presented the original mortgage as evidence in this case. So, from a very basis [sic] threshold the Plaintiff has not proven their case in chief.” This was the first time at trial that the defendants expressed a concern that copies of the original documents, and not the originals, were marked as evidence. In its rebuttal argument, the Bank explained that it had not offered the original documents as evidence because they had already filed them in the court file in this case.

Two weeks after the trial concluded, the trial court granted the motion for involuntary dismissal because the original note and mortgage had not been admitted in evidence. The court entered a final judgment for the defendants.

When an appellate court reviews the grant of a motion for involuntary dismissal, it must view the evidence and all inferences of fact in a light most favorable to the nonmoving party, and can affirm a directed verdict only where no proper view of the evidence could sustain a verdict in favor of the nonmoving party. See Brundage v. Bank of Am., 996 So.2d 877, 881 (Fla. 4th DCA 2008). The appellate court’s review of a ruling on a motion for involuntary dismissal is de novo. Id.

The Requirement to Produce the Original Note at Trial

This case turns on the application of section 90.953, Florida Statutes (2010). Popularly known as the best evidence rule, section 90.953 states the general rule that “[a] duplicate is admissible to the same extent as an original,” but lists three exceptions to the rule. The exception that is relevant here is contained in section 90.953(1), which states, inter alia, that a duplicate is not admissible to the same extent as the original when “[t]he document or writing is a negotiable instrument as defined in s. 673.1041.” § 90.953(1). A promissory note is a negotiable instrument. See Mason v. Rubin, 727 So.2d 283, 284 (Fla. 4th DCA 1999). Therefore, a party who seeks to foreclose on a mortgage must produce the original note.

Professor Ehrhardt explains the reason for this section 90.953(1) exception:

The drafters of the [Evidence] Code excluded duplicates of these documents from the general rule of admissibility because the possessor of the documents is the owner of the obligation that they represent and is the party who may bring a cause of action based on the document. Therefore, the person who possesses the duplicate may not possess the cause of action. For example, suppose A makes a photocopy copy of a promissory note and subsequently negotiates the original to B. Under section 90.953(1), A — the transferor — is not able to sue on the photocopy copy of the promissory note.

Charles W. Ehrhardt, Florida Evidence § 953.1 (2011 ed.) (footnote omitted). This court has recognized that possession of the original note is a significant fact in deciding whether the possessor is entitled to enforce its terms. See Riggs v. Aurora Loan Servs., LLC, 36 So.3d 932, 933 (Fla. 4th DCA 2010). Another reason for the section 90.953(1) exception is “that it protects the defendant against the possible negotiation of the note to a bona fide purchaser for value.” Am. Fin. Corp. v. Webb, 1 Conn.Cir.Ct. 230, 23 Conn.Supp. 346, 183 A.2d 294, 295 (1962); see Lowery v. State, 402 So.2d 1287, 1289 (Fla. 5th DCA 1981).

We disagree with the trial court’s conclusion that a mortgage falls under the section 90.953(1) exception so that the plaintiff was required to offer the original mortgage at trial. A mortgage is not a “negotiable instrument,” a “security,” “or any other writing that evidences a right to the payment of money.” § 90.953(1), Fla. Stat. (2010). “[A] [mjortgage is but an incident to the debt, the payment of which it secures, and its ownership follows the assignment of the debt.” Johns v. Gillian, 134 Fla. 575, 184 So. 140, 143 (1938).

This was the conclusion of Perry v. Fairbanks Capital Corp., 888 So.2d 725 (Fla. 5th DCA 2004). There, the plaintiff filed the original note, but not the original mortgage. Id. at 726. On appeal from the final judgment of foreclosure, the defendants argued that the plaintiff should have also been required to produce and file the original mortgage. Id. The fifth district rejected this argument and wrote that “the original document that is generally required to be filed with the court in a mortgage foreclosure proceeding is the promissory note, not the mortgage.” Id. A note is a negotiable instrument covered by the best evidence rule, so the original must be produced or reestablished to take it out of the stream of commerce. Id. at 727. A mortgage is a mere incident to a note, not the negotiable instrument itself, so it “may thus be proved by using a properly authenticated duplicate.” Id. at 727. The fifth district concluded that because the original note was filed, the trial court properly considered the duplicate of the mortgage. Id.

The reasoning in Perry, hewing closely to the language of section 90.953, is persuasive. Perry appears to conflict with language in Fair v. Kaufman, 647 So.2d 167, 168 (Fla. 2d DCA 1994). There the second district made this statement of law:

In order to prevail in a suit on a note and mortgage, the original note and mortgage must be introduced into evidence or a satisfactory reason must be given for failure to do so.

As authority for this declaration, the second district cited Downing v. First National Bank of Lake City, 81 So.2d 486 (Fla.1955). However, Downing requires production of only the original note prior to the entry of a decree of foreclosure, not the mortgage. Id. at 488 Neither Downing nor the cases it cited required production of the mortgage in addition to the note; indeed, the cases contain language observing that the mortgage itself is a mere incident to the note. This court has read Downing and the best evidence rule consistently with the way the fifth district applied the two authorities in Pen~y. In State Street Bank & Trust Co. v. Lord, 851 So.2d 790 (Fla. 4th DCA 2003), we relied on the two cases to write: “To maintain a mortgage foreclosure, the plaintiff must either present the original promissory note or give a satisfactory explanation for its failure to do so.” We regard the reference to a mortgage in the portion of Kaufman cited above as dicta, in light of the authorities cited to support the statement.

In this case, when the Bank offered the copy of the note at trial, the defendants’ objection was that the document was hearsay, not that it violated the best evidence rule. It was the trial judge who inquired about the original document. The Bank explained that the original note had been filed in the court file and the trial judge admitted the copy of the note in evidence. There is no dispute that the copy precisely reflects the original. The Bank’s explanation for not offering the original in evidence was that it had already surrendered the note to the court file. We explained the concept of surrender in Johnston v. Hudlett:

[I]n the case of original mortgages and promissory notes, they are not merely exhibits but instruments which must be surrendered prior to the issu-anee of a judgment. The judgment takes the place of the promissory note. Surrendering the note is essential so that it cannot thereafter be negotiated. See Perry v. Fairbanks Capital Corp., 888 So.2d 725, 726 (Fla. 5th DCA 2004). The judgment cancels the note.

32 So.3d 700, 704 (Fla. 4th DCA 2010). Stated differently, surrender removes a note from the stream of commerce, preventing someone else from trying to enforce it against the defendant a second time. The trial judge’s ruling was tantamount to taking judicial notice that the note had been surrendered to the court file and that the rationale underlying the best evidence rule was satisfied. It has long been the law in Florida that a plaintiff in a mortgage foreclosure must produce the original of the note or “make a satisfactory explanation for failure to do so.” Downing, 81 So.2d at 488; see also State Street Bank & Trust, 851 So.2d at 791; Pastore-Borroto Devel., Inc. v. Marevista Apartments, M.B., Inc., 596 So.2d 526 (Fla. 3d DCA 1992). Especially where there is not a dispute that the copy of a note is an exact duplicate of the original, surrender of the note to the court file is one such “satisfactory explanation” for failing to produce the original at trial. The policies underlying the requirement for the original note in section 90.953(1) have been satisfied. Certainly, had the defendants timely objected, a short break in the trial could have produced the court file with the original note for marking as an evidentiary exhibit. How that exercise would have improved the administration of justice is unclear.

In Kaufman, the second district required that the original note and mortgage be “introduced into evidence” at trial and rejected the argument that the law was satisfied by the prior “introduction of such documents at a summary judgment proceeding.” 647 So.2d at 168. That case is distinguishable because it does not indicate that documents were surrendered to the court file and remained there at the time of trial. It appears that the documents were not surrendered because the second district indicated that “[o]n remand the trial court may again enter a final judgment of foreclosure upon presentation of the original note and mortgage.” Id. As authority for this remedy, Fair cited two cases where there was no indication that the note had been surrendered. It would make no common or legal sense to reverse and send the case back to the circuit court merely for the trial judge to affix an evidence stamp on documents already in the court file and then reissue the same final judgment. The law is not a set of rules designed to trap the unwary without any anchor in logic or fairness.

We therefore reverse the final judgment granting the motion for dismissal and remand to the circuit court to consider the case on the merits. It appears that the court focused on the failure to introduce the original note at trial and did not rule on the merits of the foreclosure or the defenses raised. If the court cannot reach the merits based on a transcript of the trial, it should grant a new trial.

MAY, C.J., and DAMOORGIAN, J., concur.

      . We note that the defendants called their motion a motion for directed verdict. Typically, in a non-jury action, this motion is called a motion for dismissal. See e.g., Traw-ick, Fla. Prac. & Proc. § 22-13 (1998 ed.).

      . See Downing, 81 So.2d at 488 (in a mortgage foreclosure case, "It was incumbent on appellee to produce the original $4,000 note or to make a satisfactory explanation for failure to do so.”); Johns Supply Co. v. McNeeley, 125 Fla. 306, 169 So. 732, 734 (Fla.1936) (“We are cognizant of the fact that it has often been held that the master's report should show the production of the original note in cases where suit is on a note.” (citations omitted)); Lenfesty v. Coe, 34 Fla. 363, 16 So. 277, 278 (Fla. 1894) (”[W]here a personal obligation, such as a note or bond, aside from the mortgage, has been given by the debtor, it must be produced at the hearing, or its absence properly accounted for.”).

      . Pastore-Borroto Development, Inc. v. Marevista Apartments, 596 So.2d 526 (Fla. 3d DCA 1992), and Figueredo v. Bank Espirito Santo, 537 So.2d 1113 (Fla. 3d DCA 1989).


author: CIKLIN, J.

text:
    FLAGSTAR BANK, F.S.B., Appellant, v. Darcy Caravalho CLEVELAND a/k/a Darcy L. Caravalho; Unknown Spouse of Darcy Caravalho Cleveland a/k/a Darcy L. Caravalho; Riverside National Bank of Florida; Unknown Tenant # 1; and Unknown Tenant # 2, Appellees.
    No. 4D10-4194.
    District Court of Appeal of Florida, Fourth District.
    April 18, 2012.

      Debra Rescigno and Areeb Naseer of Robertson, Anschutz & Schneid, P.L., Boca Raton, for appellant.
    Matthew F. Lupardo of Matthew F. Lu-pardo, P.A., Royal Palm Beach, for appel-lee Darcy Caravalho Cleveland a/k/a Darcy L. Caravalho.
   CIKLIN, J.

Flagstar Bank, F.S.B. (“Flagstar”) appeals the trial court’s order setting aside a foreclosure sale and final judgment of foreclosure. We reverse because the trial court was without jurisdiction to rule on the mortgagor’s motion which attempted to relitigate matters which a predecessor judge had already decided four months earlier.

On December 2, 2008, Flagstar filed a complaint against Darcy Caravalho Cleveland a/k/a Darcy L. Caravalho (“Caraval-ho”), seeking foreclosure of a residential mortgage and reestablishment of a lost note. Caravalho did not file an answer or other responsive pleading.

On December 31, 2008, Flagstar filed a motion for summary final judgment of foreclosure and scheduled the motion to be heard on August 24, 2009. Flagstar subsequently cancelled the summary judgment hearing due to Caravalho’s filing of a “Suggestion of Bankruptcy” on July 20, 2009. After confirming that Caravalho’s bankruptcy case had been dismissed, Flagstar re-set the hearing on its summary judgment motion for March 15, 2010. Following a hearing on the rescheduled date, the trial court entered a final summary judgment of foreclosure and set the foreclosure sale for April 20, 2010.

Four days before the sale, Caravalho, who was then represented by counsel, filed a thirty-four-page motion entitled “Emergency Verified Motion to Set Aside Summary Judgment and Cancel Sale Date of April 20, 2010.” The motion was denied on April 20, 2010, but not before Flagstar had already cancelled the sale set for that date. Caravalho did not appeal the trial court’s denial of her motion. The foreclosure sale was rescheduled for August 26, 2010.

On August 13, 2010, Caravalho filed a motion that she titled, “Motion to Dismiss.” This motion, aside from its title, was practically identical to the emergency motion to set aside the summary judgment of foreclosure that Caravalho had filed four months earlier and which was denied by the trial court on April 20, 2010. At this time, the judge who denied the virtually identical motion four months earlier no longer presided over the case. On August 17, 2010, the successor judge entered an order granting Caravalho’s motion to dismiss without prejudice and giving Flagstar twenty days to file an amended complaint.

It is unclear from the record as to why, but the foreclosure sale proceeded as scheduled on August 26, 2010 despite the successor judge’s granting of the motion to dismiss. On September 14, 2010, the trial court entered an “Order Setting Aside Foreclosure Sale and Setting Aside Final Judgment of Foreclosure,” stating it was doing so because Flagstar had “moved forward with the sale in spite of’ the trial court’s previous order dismissing the foreclosure complaint. On September 21, 2010, the trial court granted a motion made by Caravalho for injunctive relief, prohibiting Flagstar and any of its employees from entering the property. Flagstar filed a timely notice of appeal and this appeal follows.

Caravalho’s August 13, 2010 motion, notwithstanding its misleading caption, was nothing more than an attempt to relitigate matters which the trial court had already decided four months earlier. This court has long held, however, that “[a] trial court is without jurisdiction to entertain a second motion for relief from judgment which attempts to relitigate matters settled by a prior order denying relief.” Steeprow Enters., Inc. v. Lennar Homes, Inc., 590 So.2d 21, 23 (Fla. 4th DCA 1991) (quoting Atlas v. City of Pembroke Pines, 441 So.2d 652, 652 (Fla. 4th DCA 1983)).

Thus, the trial court erred in granting Caravalho’s August 13, 2010 motion because that motion attempted to relitigate matters which were settled by the April order denying relief. Accordingly, we reverse the trial court’s order setting aside the foreclosure sale and final summary judgment of foreclosure, and the subsequent order granting Caravalho’s motion for injunctive relief. On remand, the trial court is instructed to vacate its August 17, 2010 order purporting to grant Caravalho’s motion to dismiss, enter orders denying Caravalho’s motions, reinstate the final judgment of foreclosure, reinstate the certificate of sale, and finally issue a certificate of title in favor of Flagstar.

Reversed and remanded with instructions.

GERBER and LEVINE, JJ„ concur.

      . We also note that even if Caravalho’s August 13, 2010 motion had not been a successive motion, it would have been an abuse of discretion to set aside the final judgment of foreclosure and foreclosure sale based upon the allegations raised in her motion. Caraval-ho argued that the foreclosure judgment should be set aside because Flagstar had not established that it was the owner and holder of the note and mortgage at the time it originally filed its foreclosure complaint, and therefore, did not have standing to institute this foreclosure action. Caravalho, however, never raised this as an affirmative defense, and as such waived this defense. See Phadael v. Deutsche Bank Trust Co. Ams., 83 So.3d 893 (Fla. 4th DCA 2012). Caravalho’s remaining arguments should have been raised in a direct appeal from the final summary judgment of foreclosure and not in a motion to set aside that judgment. See id. ("A ... motion [to set aside a judgment] is not a substitute for rehearing or an appeal.”).


text:
    Tahereh KHODAM, Appellant, v. ESCONDIDO HOMEOWNER’S ASSOCIATION, INC., Appellee.
    Nos. 4D10-4851, 4D11-708.
    District Court of Appeal of Florida, Fourth District.
    April 18, 2012.
    Rehearing Denied May 23, 2012.

      Mark Perlman of Mark Perlman, P.A., Hallandale Beach, for appellant.
    Joseph L. Thillman of Gerstin & Associates, Boca Raton, for appellee.
   PER CURIAM.

The issue presented in these consolidated appeals and cross-appeal is whether either party prevailed for purposes of an award of attorney’s fees when a jury determined that appellee breached a contract but awarded appellant no damages. We find that the trial court erred in determining that neither party prevailed for purposes of awarding attorney’s fees and in determining that appellee prevailed for purposes of awarding costs. We find that appellant was the prevailing party for purposes of both attorney’s fees and costs and reverse.

The party who prevails “on the significant issues in the litigation is the ... prevailing party for attorney’s fees.” Moritz v. Hoyt Enters., Inc., 604 So.2d 807, 810 (Fla.1992). Absent compelling circumstances, “we have maintained that ‘[i]n a breach of contract action, one party must prevail.’ ” Animal Wrappers & Doggie Wrappers, Inc. v. Courtyard Distrib. Ctr., Inc., 73 So.3d 354, 356 (Fla. 4th DCA 2011) (citation omitted). In the present case, only appellant’s breach of contract claim was submitted to the jury. The jury found that appellee breached its declaration of covenants with appellant, though it awarded appellant “$0.” Despite the absence of damages, the finding that appellee breached the contract made appellant the prevailing party on the litigation’s significant issues. Green Cos., Inc. v. Kendall Racquetball Inv., Ltd., 658 So.2d 1119, 1121 (Fla. 3d DCA 1995). Court costs under section 57.041, Florida Statutes, are also “governed by the ‘prevailing party’ standard.” Wyatt v. Milner Document Prods., Inc., 932 So.2d 487, 490 (Fla. 4th DCA 2006), abrogated on other grounds by Westgate Miami Beach, LTD. v. Newport Operating Corp., 55 So.3d 567 (Fla.2010). Appellant is therefore the prevailing party for purposes of an award of costs as well. See Sunshine Bottling Co. v. Tropicana Prods., Inc., 757 So.2d 1231, 1233 (Fla. 3d DCA 2000). As a result, we reverse and remand for the trial court to determine appellant’s reasonable attorney’s fees and costs.

Reversed and remanded.

POLEN, HAZOURI and LEVINE, JJ., concur.


text:
    Dale JOHNSON, Appellant, v. FAIRCONDO INC., a Condominium Association, Appellee.
    No. 4D09-4992.
    District Court of Appeal of Florida, Fourth District.
    April 18, 2012.
    Rehearing Denied May 23, 2012.
    Ronald E. D’Anna of McClosky, D’Anna & Dieterle, LLP, Boca Raton, for appellant.
    Robert B. Burr and Scott C. Gherman of St. John, Core & Lemme, P.A., West Palm Beach, for appellee.
   PER CURIAM.

This court sua sponte dismisses this appeal. See Palm Hill Villas Homeowners Ass’n v. Rose-Green, 855 So.2d 83, 84 (Fla. 4th DCA 2003).

MAY, C.J., DAMOORGIAN and GERBER, JJ., concur.


text:
    William F. PIRATOVA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-439.
    District Court of Appeal of Florida, Third District.
    April 18, 2012.
    William F. Piratova, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before WELLS, C.J., and SHEPHERD and ROTHENBERG, JJ.
   PER CURIAM.

Affirmed. See Little v. State, 77 So.3d 722, 722-23 (Fla. 3d DCA 2011) (holding that “section 893.13, as amended by section 893.101, Florida Statutes (2002), is constitutional”; rejecting Shelton v. Secretary, Department of Corrections, 802 F.Supp.2d 1289, 1308 (M.D.Fla.2011), in which federal court held that section 893.13, Florida Statutes (2004), “violates the due process clause and that the statute is unconstitutional on its face”); Ortega v. State, 76 So.3d 346 (Fla. 3d DCA 2011); see also State v. Adkins, 71 So.3d 184 (Fla. 2d DCA 2011), review granted, 71 So.3d 117 (Fla.2011).


text:
    Aida CAPOTE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-696.
    District Court of Appeal of Florida, Third District.
    April 18, 2012.
    Aida Capote, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before CORTIÑAS, LAGOA and SALTER, JJ.
   PER CURIAM.

Aida Capote appeals from an order denying her motion for reduction of sentence pursuant to Florida Rule of Criminal Procedure 3.800(c). Because an order denying a Rule 3.800(c) motion is not an appeal-able order, we dismiss the appeal for lack of jurisdiction. See Lee v. State, 56 So.3d 113 (Fla. 3d DCA 2011); Herrera v. State, 40 So.3d 882 (Fla. 3d DCA 2010).

Appeal dismissed.


text:
    Richard WOLFBERG, Appellant, v. Jeannie McBride WALLA, Appellee.
    No. 4D11-2848.
    District Court of Appeal of Florida, Fourth District.
    April 18, 2012.
    Rehearing Denied May 23, 2012.
    Richard Wolfberg, Orlando, pro se.
    Jeremy P. Leathe of Dunwody White & Landon, P.A., Coral Gables, for appellee.
   PER CURIAM.

Affirmed. See Cates v. Fricker, 529 So.2d 1253 (Fla. 2d DCA 1988).

WARNER, STEVENSON and GROSS, JJ., concur.


author: WELLS, Chief Judge.

text:
    Jorge Luis GONZALEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-541.
    District Court of Appeal of Florida, Third District.
    April 18, 2012.

      Jorge Luis Gonzalez, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before WELLS, C.J., and SHEPHERD and ROTHENBERG, JJ.
   WELLS, Chief Judge.

Affirmed. See Smith v. State, 79 So.3d 127 (Fla. 3d DCA 2012); Little v. State, 77 So.3d 722 (Fla. 3d DCA 2011); Adams v. State, 76 So.3d 367 (Fla. 3d DCA 2011) (holding that section 893.13, as amended by section 893.101, Florida Statutes (2002), is constitutional); see also Flagg v. State, 74 So.3d 138, 141 (Fla. 1st DCA 2011) (citing State v. Adkins, 71 So.3d 184 (Fla. 2d DCA 2011) [review granted, 71 So.3d 117 (Fla.2011) ], and acknowledging “the uncertainty caused by Shelton [v. Secretary, Department of Corrections, 802 F.Supp.2d 1289 (M.D.Fla.2011) ]” but reaffirming its view that section 893.13 is constitutional).


text:
    Leon RIFE As Personal Representative of the Estate of Joel L. Rife, Appellant, v. A.W.A. CONTRACTING CO., INC., Appellee.
    No. 1D11-4340.
    District Court of Appeal of Florida, First District.
    April 20, 2012.
    Scott B. Parks, Jacksonville Beach, for Appellant.

      Kristen M. Van Der Linde, Kansas R. Gooden, and Billy Joe Taylor of Boyd & Jennerette, P.A., Jacksonville, for Appel-lee.
   PER CURIAM.

In this interlocutory appeal, the appellant, Leon Rife (Rife), argues that the trial court for the Fourth Judicial Circuit in and for Duval County abused its discretion in granting a motion to transfer venue filed by the appellee, A.W.A. Contracting Company, Inc. (AWA). We affirm the trial court’s order.

Rife, as personal representative of the Estate of Joel Rife (the decedent), filed a wrongful death complaint in Duval County against AWA. AWA subsequently filed a motion to transfer venue pursuant to section 47.122, Florida Statutes (2010). AWA ai'gued that the action should be transferred to Putnam County because the incident occurred in Putnam County, Rife, the decedent, and all potential statutory survivors resided in Putnam County, and the majority of the potential witnesses were also located in Putnam County. In support of its motion, AWA attached the Petition for Administration from the Putnam County probate case. After conducting two hearings on the motion, the trial court granted AWA’s motion and ordered that the action be transferred to Putnam County.

Rife simultaneously filed interlocutory appeals of the order in both this Court and the Fifth District Court of Appeal (DCA). AWA moved to dismiss the appeal in the Fifth DCA, arguing that jurisdiction was proper in this Court as the appellate court with jurisdiction over Du-val County. Rife responded, arguing that jurisdiction was proper in the Fifth DCA under Hernandez v. State, 64 So.3d 1175 (Fla.2011), because the transfer had already been effected and jurisdiction vested in Putnam County by the time the notice of appeal was filed.

Hernandez involved a question of appellate jurisdiction wherein the defendant was indicted for first-degree murder and attempted first-degree murder in the Eleventh Judicial Circuit in and for Miami-Dade County, was tried in the Ninth Judicial Circuit in and for Orange County, and was sentenced in the Eleventh Judicial Circuit. Id. at 1176. The defendant filed a notice of appeal in the Eleventh Judicial Circuit seeking review of his judgment and sentence in the Third DCA. Id. Later, the defendant filed a motion with the Third DCA requesting that his appeal be transferred to the Fifth DCA because his trial was conducted in Orange County. Id. at 1177. The Third DCA denied the motion concluding that venue was transferred back to Miami-Dade and the case was concluded in Miami-Dade; therefore, review of the judgment and sentence was properly before the Third DCA. Id.

On appeal, the Supreme Court held that, despite the fact the defendant was tried and convicted in the Ninth Judicial Circuit, the case was transferred back to the Eleventh Judicial Circuit immediately. Id. at 1180.

Once that order was issued and the court file was received by the clerk of the Eleventh Circuit, the Ninth Circuit was divested of authority to take any action at the trial level. Likewise, the Fifth District was divested of appellate jurisdiction, which thereafter rested with the Third District for all subsequent matters in the case.

Id.

In reaching this conclusion, the Supreme Court stated:

Although [Vasilinda v. Lozano, 631 So.2d 1082 (Fla.1994),] concerned an initial transfer of venue, while the instant case concerns a transfer of venue back to the court of original jurisdiction, we conclude that the principles we set out in Vasilinda should continue to apply if and when a case is returned to the originating court. Thus, in determining appellate jurisdiction, the relevant issue is not where the defendant was tried and convicted, but rather whether the transfer of venue was complete at the time the notice of appeal was filed.

Hernandez, 64 So.3d at 1180.

Hernandez articulated the principles set out in Vasilinda as follows:

First, regarding the actual moment a transfer of venue from one trial court to another takes effect, we held:
Changes of venue in criminal cases do not become effective until the court file has been received in the transferee court. Changes of venue in civil cases do not become effective until the court file has been received in the transferee court and costs and service charges required by section 47.191, Florida Statutes (1991), and Florida Rule of Civil Procedure 1.060 which are applicable to the case are paid.

Vasilinda, 631 So.2d at 1087. FN2

FN2. In Cottingham v. State, 672 So.2d 28 (Fla.1996), we clarified that in determining when a transfer of venue has been effected in a civil case, costs and service charges are considered paid on the date they are received by the transferee court.

Second, regarding the moment the jurisdiction of the appellate court should be determined, we stated:

Appellate jurisdiction is determined at the time the notice of appeal or petition for extraordinary writ is filed. If the change of venue has not yet become effective when the notice or petition is filed, appellate jurisdiction lies in the district court of appeal which serves as the appellate court for the transferor court. That district court of appeal shall retain jurisdiction of the matter before it even though the change of venue is later effected. Once the change of venue has become effective, appellate jurisdiction shall be in the district court of appeal which serves as the district court of appeal for the transferee court, even if the challenged order was entered before the change of venue. Of course, the time for filing appeals and petitions for certiorari shall run from the date of the challenged order.
Vasilinda, 631 So.2d at 1087 (footnote omitted).
We also noted that “even if the order changing venue itself is challenged, appellate jurisdiction will depend upon whether the change has been effected when the notice of appeal is filed.” Id. at 1087 n. 4.

Hernandez, 64 So.3d at 1179 (quoting Va-silinda, 631 So.2d at 1087).

We find that Hernandez is not applicable to the instant case. In 2000, Florida Rule of Appellate Procedure 9.040 was amended to clarify the procedure announced in Vasilinda. See Amendments to the Fla. Rules of Appellate Procedure, 780 So.2d 834 (Fla.2000). Rule 9.040(b)(2) provides, in part:

(2) After a lower tribunal renders an order transferring venue, the appropriate court to review otherwise reviewable non-final orders is as follows:
(A) After rendition of an order transferring venue, the appropriate court to review the non-final venue order, all other reviewable non-final orders rendered prior to or simultaneously with the venue order, any order staying, vacating, or modifying the transfer of venue order, or an order dismissing a cause for failure to pay venue transfer fees, is the court that would review non-final orders in the cause, had venue not been transferred.

(Emphasis added.)

As the appellate court with jurisdiction over the Fourth Judicial Circuit in and for Duval County, we have jurisdiction over the interlocutory appeal of the order transferring venue. See id.

An order transferring venue pursuant to section 47.122 is reviewed for abuse of discretion. See Hu v. Crockett, 426 So.2d 1275 (Fla. 1st DCA 1983). Here, the parties agree that venue is proper in either Duval County, where AWA maintains a place of business, or Putnam County, where the cause of action accrued. See § 47.051, Fla. Stat. (2010). Despite Rife’s arguments to the contrary, the record contains competent, substantial evidence to support the trial court’s order transferring venue to Putnam County as the more convenient forum. Accordingly, we find no abuse of discretion.

AFFIRMED.

THOMAS, ROBERTS, and MARSTILLER, JJ., concur.

      . The Fifth DCA denied the motion to dismiss.