author: PER CURIAM. QUINCE, J., CANADY, C.J.,

text:
    FLORIDA DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Petitioner, v. William HERNANDEZ, Respondent. Florida Department of Highway Safety and Motor Vehicles, Petitioner, v. George McLaughlin, Respondent.
    Nos. SC08-2330, SC08-2394.
    Supreme Court of Florida.
    June 9, 2011.
    As Revised on Denial of Rehearing Nov. 10, 2011.

      Robin F. Lotane, General Counsel, Department of Highway Safety and Motor Vehicles and Douglas D. Sunshine, Assistant General Counsel, Tallahassee, FL, and Heather Rose Cramer, Assistant General Counsel, Lake Worth, FL, for Petitioner.
    Susan Z. Cohen and David M. Robbins, Jacksonville, FL, for Respondent.
    Tony C. Dodds, Lakeland, FL, for Respondent.
    Michael Ufferman, Chair, Florida Association of Criminal Defense Lawyers, Tallahassee, FL, as Amicus Curiae.
   PER CURIAM.

The issue we address is whether an individual’s driver’s license can be suspended by the Florida Department of Highway Safety and Motor Vehicles (DHSMV) under section 322.2615, Florida Statutes (2006), for the refusal to submit to a test of his or her breath-alcohol level where the refusal is not incident to a lawful arrest and, if not, whether the hearing officer has authority to review whether the refusal was incident to a lawful arrest. In the cases under review, Hernandez v. Department of Highway Safety & Motor Vehicles, 995 So.2d 1077 (Fla. 1st DCA 2008), and McLaughlin v. Department of Highway Safety & Motor Vehicles, 2 So.3d 988 (Fla. 2d DCA 2008), the First and Second District Courts of Appeal reached opposite conclusions as to the scope of the hearing officer’s authority to review the suspension. The First District also certified the following questions of great public importance to this Court in Hernandez, 995 So.2d at 1080:

Can the DHSMV suspend a driver’s license for refusal to submit to a breath test, if the refusal is not incident to a lawful arrest? If not, is [a] DHSMV hearing officer required to address the lawfulness of the arrest as part of the review process?

We have jurisdiction based on express and direct conflict and based upon a certified questions of great public importance. See art. V, § 3(b)(3), 3(b)(4), Fla. Const.

Because the certified questions involve two separate but related issues, we rephrase them and answer them separately. The first certified question as rephrased is:

Can the DHSMV suspend a driver’s license under section 322.2615, Florida Statutes, for refusal to submit to a breath test if the refusal is not incident to a lawful arrest?

The second certified question as rephrased is:

Is the issue of whether the refusal was incident to a lawful arrest within the allowable scope of review of a DHSMV hearing officer in a proceeding to determine if sufficient cause exists to sustain the suspension of a driver’s license under section 322.2615, Florida Statutes, for refusal to submit to a breath test?

In order to avoid any possible confusion stemming from the plurality opinion and the separate concurring-in-result-only opinion, we set forth the holdings in this case. A majority of this Court (Justices Pariente, Lewis, Quince, and Perry) agree with the First District in Hernandez, 995 So.2d at 1079, and the Fifth District Court of Appeal in Department of Highway Safety & Motor Vehicles v. Pelham, 979 So.2d 304, 305-08 (Fla. 5th DCA 2008), that a suspension can be predicated upon a refusal to take a breath test, but only if the refusal is incident to a lawful arrest. See per curiam op. at 1076 (“[W]e conclude that the DHSMV cannot suspend a driver’s license under section 322.2615 for refusal to submit to a breath test under section 316.1932 if the refusal is not incident to a lawful arrest.”); Justice Quince’s concurring-in-result-only op. at 1080 (“It is unmistakably clear to me that a person’s privilege to drive on the highways of this State can only be taken away if he refuses a test of his blood alcohol level and that refusal is incident to a lawful arrest.”).

A majority of this Court (Justices Par-iente, Lewis, Quince, and Perry) also agree that the driver cannot be precluded from challenging whether the refusal was incident to a lawful arrest, albeit with different reasoning. Justices Pariente, Lewis, and Perry agree with the reasoning of the First District in Hernandez and the Fifth District in Pelham that the driver whose license is suspended is able to challenge whether the refusal was incident to a lawful arrest in the proceedings before the hearing officer who is reviewing the legality of the suspension. See per curiam op. at 17 (“Because the Legislature has mandated that an individual need only consent to a test under section 316.1932 if the test is administered incident to a lawful arrest and has provided the procedure for challenging a suspension for a refusal, an individual must be able to challenge the legality of the suspension if the refusal was not incident to a lawful arrest. To read the statute otherwise would produce an unreasonable — and unconstitutional — result.”). Justice Quince disagrees with the reasoning of the plurality opinion, but agrees that a driver whose license is suspended for refusing to submit to a test must be able to challenge the lawfulness of the arrest. See Justice Quince’s concurring-in-result-only op. at 1080 (“I cannot concur in the majority’s statutory construction that the hearing officer is statutorily authorized to determine the lawfulness of the arrest. But I acknowledge that there must be a mechanism by which a driver can challenge the lawfulness of the arrest. Without such a method, the statutory scheme would be unconstitutional.”).

Accordingly, a majority of this Court approves the result of the First District’s decision in Hernandez, quashes the Second District’s decision in McLaughlin, answers the first rephrased certified question in the negative, and answers the second rephrased certified question in the affirmative, holding that a driver must be able to challenge whether the refusal was incident to a lawful arrest.

FACTS AND PROCEDURAL HISTORY

In Hernandez, William Hernandez challenged the suspension of his driver’s license for refusal to submit to a breath test, asserting that the request for a breath test was not incident to a lawful arrest. In the hearing to determine if the suspension should be sustained, the DHSMV hearing officer did not consider whether the request that Hernandez submit to a breath test was made incident to a lawful arrest. Hernandez, 995 So.2d at 1078. Accordingly, the DHSMV sustained the suspension of the driver’s license. Upon petition for writ of certiorari to the circuit court, which is the authorized statutory route for review of a decision made by the DHSMV, see § 322.2615(13), Fla. Stat., the circuit court agreed that the legality of the arrest was outside of the scope of consideration for the hearing officer under section 322.2615(7), Florida Statutes (2007). The First District, relying on the reasoning of the Fifth District in Pelham, concluded that section 322.2615(7)(b), Florida Statutes, governing proceedings to review license suspensions must be read together with section 316.1932(l)(a)l.a., Florida Statutes (2007), Florida’s implied consent law, because under the “statutory scheme, the lawfulness of the suspension is central to any determination that there is ‘sufficient cause’ to ‘sustain’ ” the suspension. Hernandez, 995 So.2d at 1079 (quoting Pelham, 979 So.2d at 308).

The Second District in McLaughlin engaged in an opposite statutory analysis regarding the scope of the hearing officer’s authority based on its determination that the plain language of section 322.2615(7)(b) limits the hearing officer’s scope of review to the three specific determinations set forth in the statute, none of which includes consideration of whether the person was placed under lawful arrest. McLaughlin, 2 So.3d at 991-92. The Second District in McLaughlin never specifically addressed whether the DHSMV could suspend a driver’s license for refusal to submit to a breath test if the refusal was not incident to a lawful arrest.

ANALYSIS

Because the two rephrased certified questions present issues of statutory interpretation, our review is de novo. Heart of Adoptions, Inc. v. J.A., 963 So.2d 189, 194 (Fla.2007). “Legislative intent guides statutory analysis, and to discern that intent we must look first to the language of the statute and its plain meaning.” Fla. Dep’t of Children & Family Servs. v. P.E., 14 So.3d 228, 234 (Fla.2009). In this regard, “legislative intent is determined primarily from the text” of the statute. Cont’l Cas. Co. v. Ryan, Inc. E., 974 So.2d 368, 374 (Fla.2008).

As this Court has previously announced:

When the statute is clear and unambiguous, courts will not look behind the statute’s plain language for legislative intent or resort to rules of statutory construction to ascertain intent. In such instance, the statute’s plain and ordinary meaning must control, unless this leads to an unreasonable result or a result clearly contrary to legislative intent.

Koile v. State, 934 So.2d 1226, 1230-31 (Fla.2006) (citation omitted) (quoting Daniels v. Fla. Dep’t of Health, 898 So.2d 61, 64 (Fla.2005)). “However, if the statutory intent is unclear from the plain language of the statute, then ‘we apply rules of statutory construction and explore legislative history to determine legislative intent.’ ” Id. at 1231 (quoting BellSouth Telecomms., Inc. v. Meeks, 863 So.2d 287, 289 (Fla.2003)). Among the basic principles of statutory construction is that statutes relating to the same subject matter must be read together, or in pari materia. Fla. Dep’t of State v. Martin, 916 So.2d 763, 768 (Fla.2005) (“The doctrine of in pari mate-ria is a principle of statutory construction that requires that statutes relating to the same subject or object be construed together to harmonize the statutes and to give effect to the Legislature’s intent.”).

I. Answering the First Rephrased Certifíed Question:

The DHSMV cannot suspend a driver’s license under section 322.2615, Florida Statutes, for refusal to submit to a breath test if the refusal is not incident to a lawful arrest.

Florida law does not require an individual to submit to a breath alcohol-detection test simply because that person possesses a driver’s license. The obligation to submit to breath-alcohol testing emanates from section 316.1932, Florida Statutes (2006), commonly known as the implied consent law. See State v. Miles, 775 So.2d 950, 952 (Fla.2000) (recognizing section 316.1932, Florida Statutes, as part of Florida’s “implied consent law”). The statute provides that any person driving within Florida is deemed to have consented to testing to determine “the alcoholic content of his or her blood or breath if the person is lawfully arrested for any offense allegedly committed while the person was driving or was in actual physical control of a motor vehicle while under the influence of alcoholic beverages.” § 316.1932(l)(a)l.a., Fla. Stat. (emphasis added). The statute further provides that the test “must be incidental to a lawful arrest and administered at the request of a law enforcement officer who has reasonable cause to believe such person was driving or was in actual physical control of the motor vehicle within this state while under the influence of alcoholic beverages.” Id. (emphasis added). Accordingly, the Legislature has authorized the administration of a breath test only if it is incident to a lawful arrest and based on probable cause to believe that the person driving was under the influence of alcoholic beverages. As stated by the Fifth District in Pelham, 979 So.2d at 306, “It necessarily follows that an individual does not violate the Implied Consent Law when he or she refuses to take a test that is not incidental to a lawful arrest.”

Further, under the implied consent law, the person must be advised of the punishment for refusing to submit to a test:

The person shall be told that his or her failure to submit to any lawful test of his or her breath will result in the suspension of the person’s privilege to operate a motor vehicle for a period of 1 year for a first refusal, or for a period of 18 months if the driving privilege of such person has been previously suspended as a result of a refusal to submit to such a test or tests, and shall also be told that if he or she refuses to submit to a lawful test of his or her breath and his or her driving privilege has been previously suspended for a prior refusal to submit to a lawful test of his or her breath, urine, or blood, he or she commits a misdemeanor in addition to any other penalties.

§ 316.1932(l)(a)l.a., Fla. Stat. (emphasis added).

Section 322.2615, Florida Statutes, the statute before us in this case governing the suspension of an individual’s driver’s license and the right to review of such a suspension, authorizes a law enforcement officer, on behalf of the DHSMV, to suspend the driver’s license of any person who refuses to submit to a “lawful” breath test. § 322.2615(l)(b)l.a., Fla. Stat. (emphasis added). Specifically, the statute requires that a notice of suspension be sent to the driver to inform him or her as follows:

The driver refused to submit to a lawful breath, blood, or urine test and his or her driving privilege is suspended for a period of 1 year for a first refusal or for a period of 18 months if his or her driving privilege has been previously suspended as a result of a refusal to submit to such a test....

Id. (emphasis added). Despite using the adjective “lawful” in section 322.2615, nowhere in that section does the Legislature define or provide notice as to what constitutes a lawful breath-alcohol test. The only location in the Florida Statutes where the definition can be found is section 316.1932(l)(a), which provides that a driver is only required to submit to an breath-alcohol test if the driver is (1) operating a motor vehicle within this state and (2) subject to a lawful arrest for (3) an offense allegedly committed while driving or in the actual physical control of a motor vehicle while under the influence of alcoholic beverages. Nowhere else does the Legislature mandate the circumstances under which an individual must submit to a breath-alcohol test or else face suspension of his or her driver’s license under section 322.2615, Florida Statutes, in this context.

The only definition of a lawful breath test under section 322.2615 is found in section 316.1932(l)(a). For that reason, the statutes must be read in pan materia. In other words, section 316.1932 is the only statute that defines the parameters of a lawful breath-alcohol test in section 322.2615. If the statutes are not read in pari materia, then there is no notice as to when citizens are required to submit to the test or else face suspension of their driver’s licenses. Accordingly, we hold that a “lawful test” under section 322.2615, Florida Statutes, is one that is requested incident to a lawful arrest, as specified in section 316.1932, Florida Statutes.

For this reason, we conclude that the DHSMV cannot suspend a driver’s license under section 322.2615 for refusal to submit to a breath test under section 316.1932 if the refusal is not incident to a lawful arrest. Thus, we answer the first rephrased certified question in the negative.

II. Answering the Second Rephrased Certified Question and Resolving the Certified Conttict:

The issue of whether the refusal was incident to a lawful arrest is within the allowable scope of review of a DHSMV hearing officer in a proceeding to determine if sufficient cause exists to sustain the suspension of a driver’s license under section 322.2615, Florida Statutes, for refusal to submit to a breath-alcohol test.

This second question is related to the first question and concerns the method of challenging a suspension for refusal to submit to a breath test. After an individual’s driver’s license is suspended under section 322.2615 for refusing to submit to a breath test under section 316.1932, that section entitles the driver to request a formal or informal review of the validity of the suspension. § 322.2615(l)(b)3., Fla. Stat.; see also § 322.2615(4), (6), Fla. Stat. The statute defines what the hearing officer may review in either a formal or informal review hearing:

(7) In a formal review hearing under subsection (6) or an informal review hearing under subsection (4), the hearing officer shall determine by a preponderance of the evidence whether sufficient cause exists to sustain, amend, or invalidate the suspension. The scope of the review shall be limited to the following issues:
(b) If the license was suspended for refusal to submit to a breath, blood, or urine test:
1. Whether the law enforcement officer had probable cause to believe that the person whose license was suspended was driving or in actual physical control of a motor vehicle in this state while under the influence of alcoholic beverages or chemical or controlled substances.
2. Whether the person whose license was suspended refused to submit to any such test after being requested to do so by a law enforcement officer or correctional officer.
3. Whether the person whose license was suspended was told that if he or she refused to submit to such test his or her privilege to operate a motor vehicle would be suspended for a period of 1 year or, in the case of a second or subsequent refusal, for a period of 18 months.

§ 322.2615(7), Fla. Stat.

In the prior version of the statute, the hearing officer’s scope of review included consideration of the additional issue of “[w]hether the person was placed under lawful arrest for a violation of s. 316.193.” § 322.2615(7)(b)(2), Fla. Stat. (2005), amended by ch.2006-290, § 45, Laws of Fla. Because the Legislature deleted this statutory language and made other deletions in the amended statute, the DHSMV contends that the issue of whether a person was placed under a lawful arrest is no longer a consideration in the suspension process.

As noted by the circuit court in McLaughlin, although the Legislature’s removal of the “lawful arrest” requirement from section 322.2615(7) may seem clear, the Legislature left that requirement in the implied consent law. McLaughlin v. Fla. Dep’t of Highway Safety & Motor Vehicles, No. 2007-CA-001672, order at 4 (Fla. 10th Cir.Ct. Sept. 18, 2007) (order denying petition for writ of certiorari) (stating that the Legislature had created an “unnerving quagmire”). We agree with the First and Fifth District Courts of Appeal that section 322.2615 cannot be read in isolation but must be read in concert with section 316.1932, which defines the scope of the driver’s obligation to submit to a breath test. As the Fifth District cogently explained:

Section 322.2615 does not establish any obligation on the part of a driver to take a test upon the request of law enforcement; it only establishes consequences for refusal. Section 316.1932 is what creates and defines the scope of the obligation, and its mandate is certain: the test must be incident to a lawful arrest. These statutes cannot be construed in isolation, therefore, as Peti tioner urges, because they are interdependent. Instead, we must consider them in pari materia. See Ferguson v. State, 377 So.2d 709, 710 (Fla.1979) (basic rule of statutory construction that statutes which relate to the same or to a closely related subject or object are regarded as in pari materia and should be construed together and compared with each other). When we do, the conclusion is inescapable that a suspension may not be predicated on refusal to take a test that is the product of a unlawful arrest.

Pelham, 979 So.2d at 307 (emphasis added).

We further agree with the statutory construction analysis utilized by the Fifth District in construing section 322.2615(7):

Nor have we overlooked the language of subsection 322.2615(7), which purports to “limit” the scope of review to three issues. The first issue, probable cause, is a concept that is often inextricably intertwined with the lawfulness of the detention as it is in this case. The second issue directs the hearing officer to address whether the driver “refused to submit to any such test.” (Emphasis added). § 322.2615(7)(b)2„ Fla. Stat. We construe “any such test” to refer to the “lawful” test that the suspension must be “pursuant to.” The final issue, the provision of notice, relates to the form of notice mandated by the same statute, which too refers to a “lawful” test. Therefore, we do not construe this so-called limitation on the hearing officer’s scope of review to nullify the statute’s directive that the hearing officer “determine ... whether sufficient cause exists to sustain, amend, or invalidate the suspension.” § 322.2615(7), Fla. Stat. (2007). Under the statutory scheme, the lawfulness of the suspension is central to any determination that there is “sufficient cause” to “sustain” it.

Id. at 307-08 (citation omitted).

To fail to read these related statutes together would also have serious constitutional implications. A driver whose license is unlawfully suspended must have a means to challenge that suspension, and the only means by which a driver can challenge the suspension of his or her driver’s license for failure to submit to a breath test is through section 322.2615.

Whether denominated a “right” or a “privilege,” the loss of a driver’s license is most definitely an extreme hardship. In Bell v. Burson, 402 U.S. 535, 539, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971), the United States Supreme Court stated: “Once licenses are issued ... their continued possession may become essential in the pursuit of a livelihood.” In the almost forty years since Bell was decided, driving has become an increasingly important part of American life and a near necessity in obtaining and maintaining employment. The Bell Court explained:

Suspension of issued licenses thus involves state action that adjudicates important interests of the licensees. In such cases the licenses are not to be taken away without that procedural due process required by the Fourteenth Amendment. This is but an application of the general proposition that relevant constitutional restraints limit state power to terminate an entitlement whether the entitlement is denominated a “right” or a “privilege.

Id. (emphasis added) (citations omitted).

With regard to due process rights, in N.C. v. Anderson, 882 So.2d 990, 993 (Fla.2004), this Court stated:

The Fourteenth Amendment to the United States Constitution provides that no state shall “deprive any person of life,
liberty or property, without due process of law.” This same protection is provided in the Florida Constitution. See Art. I, § 9, Fla. Const. “Procedural due process serves as a vehicle to ensure fair treatment through the proper administration of justice where substantive rights are at issue.” Department of Law Enforcement v. Real Property, 588 So.2d 957, 960 (Fla.1991). Procedural due process requires both reasonable notice and a meaningful opportunity to be heard. See id. The notice must be “reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. The notice must be of such nature as reasonably to convey the required information, and it must afford a reasonable time for those interested to make their appearance.” Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950).

(Emphasis added.) Here, the interpretation of the statutes urged by DHSMV would allow the DHSMV to suspend a driver’s license without reasonable notice and no possibility of a meaningful process to review the lawfulness of the suspension.

A reading of section 322.2615 to prohibit review of an unlawful license suspension would lead to an unreasonable result that would render the statutory scheme constitutionally infirm. We have held that “[statutes, as a rule, ‘will not be interpreted so as to yield an absurd result.’ ” State v. Iacovone, 660 So.2d 1371, 1373 (Fla.1995) (quoting Williams v. State, 492 So.2d 1051, 1054 (Fla.1986)). Further, “[t]his Court has an obligation to give a statute a constitutional construction where such a construction is possible.” Tyne v. Time Warner Entm’t Co., 901 So.2d 802, 810 (Fla.2005). We conclude that the only reading of the statute that avoids an unreasonable and unconstitutional result is to construe sections 322.2615 and 322.1932 in pari materia and allow the hearing officer to review whether the test was administered incident to a lawful arrest.

We conclude, as did the First and Fifth Districts, that reading the two statutes together leads to the conclusion that there must be a means for challenging the legality of the suspension when the request for a breath test was not incident to a lawful arrest. Once section 322.2615 and section 316.1932 are read together, it becomes clear that under the statutory scheme, “sufficient cause” to sustain the suspension under section 322.2615(7) and “whether the person whose license was suspended refused to submit to any such test” require that the hearing officer make the determination of whether the test was administered incident to a lawful arrest, as required by section 316.1932, Florida Statutes.

Accordingly, we answer the second rephrased certified question in the affirmative. Because the Legislature has mandated that an individual need only consent to a test under section 316.1932 if the test is administered incident to a lawful arrest and has provided the procedure for challenging a suspension for a refusal, an individual must be able to challenge the legality of the suspension if the refusal was not incident to a lawful arrest. To read the statute otherwise would produce an unreasonable — and unconstitutional — result.

The dissent contends that licensed drivers are chargeable with knowledge of the laws and that the lawfulness of a suspension will be upheld without regard to whether the suspension was incident to a lawful arrest. However, the dissent overlooks the fact that a driver is on notice that he or she must consent to a breath test or else face suspension of his or her driver’s license only if the test is administered incident to a lawful arrest. That is what the Legislature has expressly provided for in section 316.1932. To remove that consideration from the hearing officer’s review would allow illegal suspensions without any possibility of a meaningful process to challenge the legality of the suspension. Under the dissent’s view, an illegal suspension that is contrary to the implied consent statute would be automatically upheld.

The dissent also asserts that our reading of the statute abrogates legislative intent. To the contrary, such a reading is necessary in order to save the legislative scheme from constitutional infirmity and the unreasonable result that while a driver need only submit to a breath test incident to a lawful arrest, the absence of that legislatively imposed requirement cannot be challenged. Under the dissent’s view, police may suspend an individual’s driver’s license on a whim without following the requirements of law set forth by the Legislature.

CONCLUSION

For the foregoing reasons, we answer the first rephrased certified question in the negative and hold that the DHSMV cannot suspend a driver’s license for refusal to submit to a breath test if the refusal is not incident to a lawful arrest. We answer the second rephrased certified question in the affirmative and hold that the issue of whether the refusal was incident to a lawful arrest is within the allowable scope of review of the DHSMV hearing officer. Accordingly, we quash the decision of the Second District in McLaughlin. We approve the decision of the First District in Hernandez and the reasoning of the Fifth District in Pelham.

It is so ordered.

PARIENTE, LEWIS, and PERRY, JJ., concur.

QUINCE, J., concurs in result only with an opinion.

CANADY, C. J., dissents with an opinion, in which POLSTON and LABARGA, JJ., concur.

QUINCE, J.,

concurring in result only.

I concur in the result here because to do otherwise would leave the respondents in the untenable position of having a right with no remedy. It is unmistakably clear to me that a person’s privilege to drive on the highways of this State can only be taken away if he refuses a test of his blood alcohol level and that refusal is incident to a lawful arrest. In other words, a driver’s license cannot lawfully be suspended unless the request to take the test and the refusal are incident to a lawful arrest. In situations, such as the ones before us, where there has been no opportunity to judicially test the lawfulness of the arrest and the hearing officer cannot inquire into that issue, a person’s license will nonetheless be suspended without the critical issue of lawful arrest having ever been determined. Thus, I believe that the driver must have an opportunity to challenge the issue prior to suspension of his license.

However, I cannot concur in the majority’s statutory construction that the hearing officer is statutorily authorized to determine the lawfulness of the arrest. But I acknowledge that there must be a mechanism by which a driver can challenge the lawfulness of the arrest. Without such a method, the statutory scheme would be unconstitutional.

CANADY, C.J.,

dissenting.

I would adopt the reasoning of the Second District in McLaughlin v. Department of Highway Safety & Motor Vehicles, 2 So.3d 988 (Fla. 2d DCA 2008), and accordingly answer the rephrased first certified question in the affirmative and the second rephrased certified question in the negative. The contrary view adopted by a majority of this Court effectively rewrites the text of section 322.2615(7), Florida Statutes (2006), to expand the scope of the hearing officer’s review beyond the ambit unequivocally laid down in the statute.

The other statutory provisions relied upon by the plurality were adopted by the Legislature prior to the adoption of chapter 2006-290, section 45, Laws of Florida, which removed from the hearing officer’s scope of review the issue of whether the license holder “was placed under lawful arrest for a violation of s. 316.193.” “[W]hen two statutes are in conflict, the later promulgated statute should prevail as the last expression of legislative intent.” McKendry v. State, 641 So.2d 45, 46 (Fla.1994).

Section 322.2615(7) expressly limits the issues which may be considered by the hearing officer in a proceeding challenging an administrative suspension. The plurality transgresses the limits set forth in the text by reading back into section 322.2615(7) the provision repealed by the Legislature in 2006 which permitted the hearing officer to consider whether the suspension was incident to a “lawful arrest for a violation of s. 316.193.” A more direct abrogation of legislative intent is hard to imagine.

In analyzing the issue of constitutionality — an issue not addressed in either of the decisions on review — the plurality fails to acknowledge that with the adoption of chapter 2006-290, section 45, Laws of Florida, the Legislature clearly provided that an administrative suspension may not be invalidated on the ground that the license holder had not been “placed under lawful arrest for a violation of s. 316.193.” Contrary to the plurality’s reasoning, the legislative limitation of the grounds for challenging an administrative suspension does not result in authorizing the Department “to suspend a driver’s license without reasonable notice and no possibility of meaningful process to review the lawfulness of the suspension.” Per curiam op. at 1079. Licensed drivers are chargeable with knowledge of the laws promulgated by the Legislature. They are therefore on notice of the limited grounds for challenging an administrative suspension and that the lawfulness of a suspension will be upheld without regard to whether the suspension was incident to a lawful arrest for a violation of section 316.193.

The per curiam and concurring on result only opinions fail to explain why procedural due process precludes the Legislature from restricting the substantive grounds on which an administrative suspension may be invalidated. Neither the respondents, the plurality, nor Justice Quince have provided any basis for concluding that it is unconstitutional for the Legislature to authorize administrative suspension of a license when the license holder has not been subjected to a lawful arrest for a violation of section 316.193.

POLSTON and LABARGA, JJ., concur.

        .Hernandez involved the 2007 version of the statute, and McLaughlin involved the 2006 version. The current 2010 version of section 322.2615, Florida Statutes, is the same as the 2006 and 2007 versions for purposes of this decision. Section 322.2615 was minimally revised in 2007 and 2010. See ch.2010-223, § 35, Laws of Fla.; ch.2010-163, § 6, Laws of Fla.; ch.2007-5, § 45, Laws of Fla. These changes have no bearing on this decision.

      . The Florida Association of Criminal Defense Lawyers filed an amicus brief in support of Respondent McLaughlin in Case No. SC08-2394.

      . These cases were consolidated for oral argument, and we now consolidate the cases for disposition.

      . The current 2010 version of section 316.1932, Florida Statutes, remains unchanged from the 2006 version.

      . There is a separate statute that requires an individual under the age of 21 to submit to a breath test if a law enforcement officer has probable cause to believe that the individual is driving under the influence, which provides for its own separate scheme of license procedures and review by a hearing officer. See § 322.2616, Fla. Stat. (2010). That statute is not before us in this case.

      . We do not address sections 322.63 and 322.64, Florida Statutes (2010) (pertaining to commercial motor vehicles).


source: Caselaw Access Project

author: BENTON, C.J.

license: Public Domain

text:
    CRAIGSIDE, LLC, a Florida Limited Liability Company, Appellant, v. GDC VIEW, LLC, a Florida Limited Liability Company, Appellee.
    No. 1D10-1283.
    District Court of Appeal of Florida, First District.
    July 22, 2011.
    Rehearing Denied Aug. 25, 2011.

      Robert C. Palmer, III of Wade, Palmer & Shoemaker, P.A., Pensacola, and Louis K. Rosenbloum of Louis K. Rosenbloum, P.A., Pensacola, for Appellant.
    Jeffrey L. Burns of Anchors, Smith, Grimsley, P.L., Fort Walton Beach and L. Paul Sirmans of L. Paul Sirmans, P.A., Fort Walton Beach, for Appellee.
   BENTON, C.J.

When Craigside, LLC (Craigside) sued GDC View, LLC (GDC), a developer in Walton County, for the return of moneys paid under a preconstruction contract for the purchase of a condominium, the trial court ruled that GDC had not breached the contract, and entered judgment accordingly. We reverse in part and remand, with directions that the trial court award Craigside interest on $900,000 at the statutory rate, from April 16, 2007, until the date GDC repaid Craigside $900,000, but otherwise affirm the judgment.

On September 2, 2004, Craigside contracted to purchase a waterfront condominium (unit 1950) from GDC for $1,125,000. Craigside paid the entire purchase price before construction began, depositing $225,000 with an escrow agent upon execution of the agreement, and remitting the balance of $900,000 in November of 2004. The contract required GDC “to complete the condominium unit ... within two (2) years of the date of this Agreement but in no event later than May 1, 2007,” allowing extensions only for “delays caused by events which would support a defense based on impossibility of performance for reasons beyond [GDC’s] control.” The contract contained detailed provisions regarding the closing date, and the consequences of any failure to close on time.

On April 16, 2007, Craigside sent GDC’s lawyer a letter, asserting GDC had failed to complete the condominium unit by the deadline, and saying: “Recently a letter was sent out by your office indicating that closing is anticipated on May 1, 2007. This is unacceptable to Craigside LLC. Please consider this letter as notice to your client that Craigside LLC considers GDC View, LLC in breach of the contract and further demands a return of all funds submitted ... with interest.” After GDC refused to accede to this demand, Craig-side filed the complaint that began the present litigation, alleging GDC was in breach because it had failed to complete the condominium unit on time and had refused to return the moneys Craigside had paid, with interest.

At the ensuing bench trial, the main issue was the number of delay days to which GDC was entitled. The trial court ruled that GDC was entitled to at least 258 delay days, and that the unit was timely completed on April 23, 2007, in any event. Trial evidence also showed that GDC had sold the unit to a third party in July of 2008, and had subsequently (on August 26, 2008) returned $900,000 to Craigside, but had declined to refund the $225,000 initial deposit or to pay interest in any amount. Determining that GDC acted in accordance with the agreement when it sold the unit—because, the trial court reasoned, Craigside “fail[ed] to come to the ... closing[ ]”—the trial court concluded that GDC did not breach the agreement, and entered final judgment in favor of GDC on February 9, 2010.

While the parties are entitled to de novo review of the trial court’s rulings with respect to the legal effect of the contract, we are bound by the trial court’s findings of fact in a case, like the present one, where competent, substantial evidence supports the findings. See Zupnik, Haverland, L.L.C. v. Current Builders of Fla., Inc., 7 So.3d 1132, 1134 (Fla. 4th DCA 2009) (“The lower court’s ultimate factual determinations during a non-jury trial may not be disturbed on appeal unless shown to be unsupported by competent and substantial evidence or to constitute an abuse of discretion.” (citation omitted)); Imagine Ins. Co., Ltd. v. State ex rel. Dep’t of Fin. Servs., 999 So.2d 693, 696 (Fla. 1st DCA 2008) (noting that a trial court’s interpretation of a contract is a matter of law subject to de novo review).

Craigside argues that its not showing up for the closing was not a default, because GDC never gave Craigside the required notice of closing date; and that it was GDC who breached by selling the condominium unit to somebody else, without providing Craigside prior notice of termination as required by paragraph 6(A). In its April 16, 2007 letter, however, Craig-side unequivocally informed GDC that Craigside was not going to close on unit 1950. In doing so, Craigside communicated an anticipatory repudiation which breached the agreement.

In dealing with anticipatory repudiations the law is clear that a repudiation gives rise to a claim for damages by the nonbreaching party. As stated in Restatement (Second) of Contracts § 253 (1979):
(1) Where an obligor repudiates a duty before he has committed a breach by non-performance and before he has received all of the agreed exchange for it, his repudiation alone gives rise to a claim for damages for total breach.
(2) Where performances are to be exchanged under an exchange of promises, one party’s repudiation of a duty to render performance discharges the other party’s remaining duties to render performance.
Therefore, the nonbreaching party is relieved of its duty to tender performance and has an immediate cause of action against the breaching party. Poinsettia Dairy Products, Inc. v. Wessel Co., 123 Fla. 120, 166 So. 306 (Fla.1936). This alone, however, does not entitle the non-breaching party to damages. Anticipatory repudiation obviates the requirement that the conditions be performed, but not that they be performable.
As stated in the Restatement (Second) of Contracts § 254 (1979):
(1) A party’s duty to pay damages for total breach by repudiation is discharged if it appears after the breach that there would have been a total failure by the injured party to perform his return promise....
... The holder of the duty based upon a condition precedent cannot profit from an anticipatory repudiation of a contract that he would have breached himself. It follows that if performance of the conditions precedent is excused the ability to perform them must still be shown.

Hasp. Mortg. Grp. v. First Prudential Dev. Corp., 411 So.2d 181, 182-83 (Fla.1982). See also Jones v. Warmack, 967 So.2d 400, 402 (Fla. 1st DCA 2007) (“If one party to an agreement has breached the agreement, the other party’s failure to continue with the agreement is not considered a default of the contract.”).

Craigside’s letter terminated the agreement prior to the occurrence of any default by Craigside (which would have entitled GDC to declare a default) at a time when GDC could have performed if Craigside had not breached. GDC had no obligation therefore to give notice that it considered Craigside to be in default. See Picard v. Burroughs, 304 So.2d 455, 456 (Fla. 1st DCA 1974) (“In order to successfully invoke a forfeiture provision in a contract for the sale and purchase of real estate, the party seeking the forfeiture must (in the absence of a specific provision in the contract to the contrary) first prove strict compliance with those provisions of the contract required to be complied with by the party seeking the forfeiture, or else prove that such compliance has been either excused or prevented by the party against whom the forfeiture is sought.”). See also Realty Sec. Corp. v. Johnson, 93 Fla. 46, 111 So. 532, 535 (1927) (“Nor is any notice [of forfeiture] necessary where the vendee has actually abandoned the contract, or has so acted as to create a reasonable belief on the part of the vendor that the vendee has abandoned the contract.”).

If GDC had formally given notice that it was electing under paragraph 6(A) to retain the $225,000 deposit, Craigside could have done nothing to alter that result. By then, Craigside’s anticipatory repudiation put it in breach. “[W]here one party, even before the time for performance of the contract has arrived, renounces it to the other party, the latter may act on the renunciation, [and] treat the contract as broken.” Sullivan v. McMillan, 26 Fla. 543, 8 So. 450, 457 (1890). See also Realty Securities Corp., 111 So. at 535 (“ ‘A formal notice by the vendor may not, perhaps, be always necessary, for it is declared in some decisions, that any act of the vendor, of which the purchaser is, or must, in the nature of things, be informed—showing clearly and unequivocally that the vendor has elected to rescind the agreement, or to treat it as at an end—will operate the same as and take the place of a notice of such intention to the vendee; but the act, in order to produce this effect, must be wholly inconsistent with a continuance of the contract.’ ” (quoting Pomeroy’s Spec. Perf. § 893 (3d Ed.))). “It is unquestionably the law that a vendee may waive the right to such a notice.” Id. (citation omitted).

Craigside, in its complaint filed on May 8, 2007, sought return of all moneys paid under the agreement, with interest. The parties’ agreement provided for a “Deposit” of $225,000 upon execution of the agreement, and for an “Additional Deposit” of $900,000 by October 1, 2004. In the event of a breach, Paragraph 6(A) entitled GDC to retain Craigside’s “deposit” (singular) as liquidated damages. GDC was entitled to retain the $225,000 Craig-side deposited at the time it executed the agreement, but not the $900,000 Craigside later paid. GDC acknowledged as much in returning the $900,000 to Craigside on August 26, 2008.

But GDC never paid Craigside any interest on the $900,000. “ ‘In all cases, either of tort or contract, where the loss is wholly pecuniary, and may be fixed as of a definite time, interest should be allowed as a matter of right, whether the loss is liquidated or unliquidated.... [T]he plaintiff will not be fully compensated unless he receive, not only the value of what he has lost, but receive it as nearly as may be as of the date of his loss.’ ” Bosem v. Musa Holdings, Inc., 46 So.3d 42, 46 (Fla.2010) (quoting William B. Hale, The Law of Damages, § 67 (2d ed.1912)). Craigside was entitled under the agreement, not only to return of the $900,000, but also to interest on that sum.

Craigside was entitled to return of the $900,000 as of the date of GDC’s election to retain the deposit as liquidated damages. While GDC gave no formal notice of its election, GDC was entitled to elect and must be deemed to have elected to retain the $225,000 as liquidated damages on April 16, 2007, the date Craigside repudiated the contract. At no time has GDC sought specific performance or any remedy other than retention of Craigside’s $225,000 deposit as liquidated damages. See 25 Richard A. Lord, Williston on Contracts § 66:112 at 145-47 (4th ed.2002) (“Generally, interest awarded as damages in a contract action runs from the date when the right to recover on the claim became vested or accrued, which is ordinarily the date of the breach or the date when payment was due under the contract.” (footnotes omitted)).

Under accepted principles, interest began running on the $900,000 from the date on which GDC was obligated to return the money. See Am. Linens, Inc. v. Venmall Int’l Grp., 645 So.2d 1059, 1060 (Fla. 3d DCA 1994) (holding that demand for return of deposit was a liquidated contractual claim which became due when the defendant demanded the return of its deposit, and the defendant was entitled to interest on its deposit claim); Chadwick v. Corbin, 476 So.2d 1366, 1368 (Fla. 1st DCA 1985) (“In contract actions, it is proper to allow interest from the date the debt was due rather than from judgment. However, the rule presupposes an exact amount due and a date from which interest can be computed.” (citing Bryan & Sons Corp. v. Klefstad, 265 So.2d 382, 385 (Fla. 4th DCA 1972))); U.S. Home Corp. v. Suncoast Utils., Inc., 454 So.2d 601, 606 (Fla. 2d DCA 1984) (“[Ojnce it is determined a contract debt is due, prejudgment interest may be awarded.” (citing Parker v. Brinson Constr. Co., 78 So.2d 873, 874 (Fla.1955))).

Accordingly, we reverse in part and remand with directions that the trial court amend its final judgment to award Craig-side interest on $900,000 at the rate prescribed by section 55.03, Florida Statutes (2010), for the period from April 16, 2007, to August 26, 2008. The judgment is otherwise affirmed.

DAVIS and THOMAS, JJ., concur.

      . The agreement provided, in part:
      4. COMPLETION, CLOSING DATE AND OCCUPANCY.

      B) Closing Date. Closing shall be held on a date and at such place as shall be specified in a written notice given by Developer to Purchaser in the manner hereinafter provided for the giving of notice, provided that such notice shall be given not less than ten (10) days prior to the designated closing date....
      (1) If, upon substantial completion of construction and notice to Purchaser by Developer as provided in this Agreement, Purchaser fails to close in a timely manner, then and in that event, interest shall be payable to Developer in addition to the purchase price.... Should Purchaser fail to close within twenty (20) days after the date of closing specified in the notice given, then the deposit(s) paid by the Purchaser, together with all interest earned on said deposit, may be retained by or for the account of and in full settlement of any claims of Developer, and Developer may contract to sell the unit to another purchaser; whereupon all parties shall be relieved of all obligations under this Agreement; or Developer, at its option, may pursue all default remedies available under the law or under the terms of this Agreement.

      . The agreement provided, in part:
      6. DEFAULT.

      A. By Purchaser. Should Purchaser fail to close this transaction as provided herein, or to perform any of Purchaser’s other obligations hereunder, time being of the essence of this Agreement, Developer may, at Developer’s option, either (i) terminate this Agreement by notice to Purchaser, whereupon Purchaser's deposit (including any interest earned thereon) shall be paid to Developer as liquidated, agreed damages (and not as a penalty) for Purchaser's default, (ii) seek other remedies, if Developer is entitled to such remedies by operation of law, or (iii) seek specific performance of Purchaser’s obligations under this Agreement.
      B. By Developer. Should Developer fail to close this transaction as provided above or to perform any of Developer’s other obligations hereunder, time being of the essence of this Agreement, Purchaser may, at Purchaser’s option, either (i) terminate this Agreement by notice to Developer, whereupon Purchaser’s deposit (including any interest earned thereon) shall be returned to Purchaser, (ii) seek other remedies if Purchaser is entitled to said remedies by operation of law, or (iii) seek specific performance of Developer’s obligations under this Agreement.

      . Craigside asserts that the trial court’s finding that Craigside triggered paragraph 4(B)(1) of the agreement by failing to come to the closing on the condominium unit is not supported by competent, substantial evidence, and we agree: GDC did not provide Craigside with notice specifying a closing date. But, when Craigside informed GDC on April 16, 2007, that it refused to go through with the sale, GDC was no longer under any duty to schedule the closing. See Peachtree Cas. Ins. Co. v. Walden, 759 So.2d 7, 8 (Fla. 5th DCA 2000) (" ‘It is now the generally prevailing rule in both England and the United States that a definite and unconditional repudiation of the contract by a party thereto, communicated to the other, is a breach of the contract, creating an immediate right of action and other legal effects, even though it takes place long before the time prescribed for the promised performance and before conditions specified in the promise have ever occurred.' ” (quoting Arthur Corbin, Corbin on Contracts § 959 (1951))). ”[I]f a trial court reaches the right result, but for the wrong reasons, it will be upheld if there is any basis which would support the judgment in the record.” Dade Cnty. Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 644 (Fla.1999).

      . The record on appeal suggests that Craig-side had actual notice that GDC elected to terminate the agreement and retain the deposit as liquidated damages early on. Brad Berman, vice-president of GDC, testified that he called Brett Person, the managing member of Craigside, sometime after May 1, 2007, and indicated GDC had a potential purchaser for the unit. Mr. Person testified that Mr. Ber-man called him at some point after Craigside had filed the lawsuit and asked that Craig-side's real estate agent stop listing unit 1950. Although a repudiation can be retracted before the injured party changes position in reliance on the repudiation, if the injured party disregards the repudiation and treats the contract as still in force, see 23 Richard A. Lord, Williston on Contracts § 63:57 at 670-71 (4th ed.2002), Craigside does not assert that it desired or attempted to retract its repudiation prior to GDC's sale of the unit.

      . This sum was held under a special "escrow” provision which authorized GDC to make full use of the funds in constructing the condominium property:
      2. ESCROW. ....

      (A) Any deposit payment in excess of 10% of the sales price of a unit which is received prior to completion of construction by the Developer shall be deposited and held in a special escrow account by the Escrow agent and, pursuant to the terms of the Escrow Agreement, the Escrow Agent may, when the construction of improvements has begun, disburse funds for use in the actual construction and development of the condominium property in which the unit which is the subject of this Purchase Agreement is located. No part of such deposit may be used for salaries, commissions, or expenses of salesmen or for advertising purposes.


author: DAMOORGIAN, J.

text:
    Abraham Ben YISRAEL, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-1036.
    District Court of Appeal of Florida, Fourth District.
    July 27, 2011.
    Abraham Ben Yisrael, Okeechobee, pro se.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for ap-pellee.
   ON MOTION FOR REHEARING

DAMOORGIAN, J.

We revisit Abraham Yisrael’s challenge to the denial of his motion to correct sentence because on rehearing the State contends that we “overlooked or misapprehended” the fact that Yisrael was sentenced as a habitual violent felony offender as opposed to a habitual felony offender. In response to our initial order to show cause, the State suggested that the case be remanded to permit the trial court to consider whether the prior convictions were sequential and if so, to attach the appropriate documents. The State did not point to the “violent offender” designation or argue its significance. We issued the opinion upon the State’s suggestion. We now withdraw that opinion.

Through its motion for rehearing, the State directs this court to the Florida Supreme Court’s decision in Yisrael’s case to confirm his designation. Yisrael v. State, 993 So.2d 952 (Fla.2008). Significantly, while the State’s motion for rehearing was pending, the Florida Supreme Court resolved conflict among the districts as to whether the trial court can designate a defendant as a habitual violent felony offender based on prior convictions that were entered on the same day. Ponton v. State, 73 So.3d 70 (Fla.2011). The supreme court noted conflict among the districts, analyzed the controlling statutes, and concluded that “since only one qualifying prior felony is needed for an HVFO adjudication, it does not matter if the conviction for the qualifying prior felony was entered together with, or separate from, convictions for other qualifying felonies, so long as the qualifying felony conviction was adjudicated separately from and prior to the current offense.” Id. at 76-77.

In light of Ponton, we grant the State’s motion for rehearing and withdraw this court’s opinion dated May 4, 2011. Based upon the foregoing, we affirm the order on review.

Affirmed.

WARNER and LEVINE, JJ., concur.


author: PER CURIAM.

text:
    John Allen HILL, Appellant, v. Lucinda McCoy HILL, Appellee.
    No. 3D09-590.
    District Court of Appeal of Florida, Third District.
    July 27, 2011.
    Rehearing Denied Sept. 21, 2011.
    Flora Jackson-Holmes, for appellant.
    Michael J. Alman (Fort Lauderdale), for appellee.
    Before RAMIREZ, CORTINAS and ROTHENBERG, JJ.
   ON MOTION FOR REHEARING

PER CURIAM.

The Opinion filed in this cause, on March 2, 2011, is hereby withdrawn and this Opinion is substituted in its stead.

Affirmed. See Epicor Software Corp. v. Coopers & Clarke, Inc., 928 So.2d 1249 (Fla. 3d DCA 2006).


text:
    Michael S. BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-2279.
    District Court of Appeal of Florida, First District.
    Aug. 2, 2011.
    Rehearing Denied Sept. 23, 2011.
    Michael S. Brown, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Giselle D. Lylen, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED.

HAWKES, CLARK, and SWANSON, JJ., concur.


author: CONNER, J.

text:
    Judith COMSTOCK, Appellant, v. Randy COMSTOCK, Appellee.
    No. 4D11-211.
    District Court of Appeal of Florida, Fourth District.
    Aug. 10, 2011.
    Rehearing Denied Sept. 23, 2011.

      Judith Comstock, Fort Pierce, pro se.
    No appearance for appellee.
   CONNER, J.

Judith Comstock (“Former Wife”) appeals a post final judgment order entered on enforcement proceedings by the trial court after objections were made to an underlying recommended order from a magistrate. Former Wife argues that the trial court erred by entering an order enforcing a February 2, 2007, mediation agreement (“2007 mediation agreement”) which was entered into after the final judgment dissolving the marriage but never approved by the trial court. The problem presented by this appeal is that the trial court’s order remanded a significant portion of the enforcement proceeding to the magistrate for further evidentiary determinations. While we affirm the trial court’s decision concerning equitable distribution, debts, and property agreements, we dismiss Former Wife’s appeal as to matters remanded to the magistrate for further evidentiary determinations, because we lack jurisdiction.

Former Wife is incorrect that the portions of the 2007 mediation agreement pertaining to equitable distribution, debts, and property agreements are unenforceable because an order approving the agreement was never entered. “A stipulation properly entered into and relating to a matter upon which it is appropriate to stipulate is binding upon the parties and upon the Court.” Yeakle v. Yeakle, 12 So.3d 884, 885-86 (Fla. 4th DCA 2009) (citations and internal quotation marks omitted); see Dorta v. Dorta, 626 So.2d 312, 313 (Fla. 4th DCA 1993) (recognizing that property rights in post-dissolution marriage proceeding are enforceable under contract law). Therefore, we affirm the trial court’s rulings on the enforcement matters pertaining to equitable distribution, debts, and property agreements.

Former Wife is correct that the 2007 mediation agreement is nonbinding and unenforceable as to child custody and child support issues until the trial court enters an order approving the agreement as being in the best interests of the children. Feliciano v. Feliciano, 674 So.2d 937 (Fla. 4th DCA 1996). The trial court correctly determined that the magistrate’s recommendations to enforce the agreement as to child support issues were improper, because the 2007 mediation agreement provisions concerning the children had never been determined to be in the best interests of the children. The trial court properly directed the magistrate to conduct further hearings to determine if the 2007 mediation agreement should be approved as being in the best interests of the children. Those portions of the trial court’s order are nonfinal and nonap-pealable. Accordingly, we do not have jurisdiction to entertain an appeal of the trial court’s order regarding child custody and child support issues, and the appeal is dismissed as to only those issues. Fla. R. App. P. 9.030(b)(1)(B); Fla. R. App. P. 9.130(a)(3).

Affirmed in Part; Dismissed in Part.

HAZOURI and GERBER, JJ„ concur.


text:
    Ashonda CLAXTON, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION and American Airlines, Inc., Appellee.
    No. 1D11-3179.
    District Court of Appeal of Florida, First District.
    Aug. 24, 2011.
    Ashonda Claxton, pro se, Appellant.
    A. Robert Whaley, General Counsel, Tallahassee, for Appellee Florida Unemployment Appeals Commission, Tallahassee.
   PER CURIAM.

DISMISSED. Durando v. Palm Beach County, 719 So.2d 1258 (Fla. 1st DCA 1998).

DAVIS, PADOVANO, and LEWIS, JJ., concur.


text:
    Danny O. DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-2382.
    District Court of Appeal of Florida, First District.
    Aug. 31, 2011.
    Rehearing Denied Nov. 22, 2011.

      Danny 0. Davis, pro se; Nancy A. Daniels, Public Defender, and M. Gene Stephens, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, Trisha Meggs Pate, Bureau Chief, for Appellee.
   PER CURIAM.

Danny O. Davis, Appellant, seeks review of his convictions and sentences for two counts of sexual battery and one count each of burglary of a dwelling with an assault or battery and home-invasion robbery. His counsel filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Following consideration of Appellant’s pro se brief and our independent review of the record, we directed Appellant’s counsel to provide supplemental briefing on whether Appellant’s dual convictions and sentences for burglary with an assault or battery and home-invasion robbery constitute double jeopardy. Appellant’s counsel now argues for reversal on this basis, and the State properly concedes error on this point. Accordingly, we reverse in part, affirm in part, and remand for vacation of the conviction and sentence for home-invasion robbery.

Both of the offenses at issue were committed in the same criminal episode and stemmed from a single uninvited entry into the victim’s home. Based on the constitutional prohibition against double jeopardy and section 775.021(4), Florida Statutes (2009), a defendant may not be convicted of and sentenced for two offenses that occur in the same criminal episode unless each offense contains an element the other does not. Gaber v. State, 684 So.2d 189, 191 (Fla.1996). This analysis focuses on the elements of the crime “without regard to the accusatory pleading or the proof adduced at trial.” § 775.021(4); Gaber, 684 So.2d at 190. Burglary of a dwelling with an assault or battery is subsumed by home-invasion robbery, such that convictions of both offenses arising from a single criminal episode violate the principles of double jeopardy. Compare § 810.02(1)(b), (2)(a), Fla. Stat. (2009), with § 812.135(1), Fla. Stat. (2009); see Bowers v. State, 679 So.2d 340, 341 (Fla. 1st DCA 1996); Elmy v. State, 667 So.2d 392, 392 (Fla. 1st DCA 1995); Perez v. State, 951 So.2d 859, 859-60 (Fla. 2d DCA 2006); cf. Coleman v. State, 956 So.2d 1254, 1257 (Fla. 2d DCA 2007) (holding that “multiple burglary convictions based upon a single forced entry violate double jeopardy principles”); McAllister v. State, 718 So.2d 917, 918 (Fla. 5th DCA 1998) (recognizing home-invasion robbery as a form of burglary).

Because burglary with an assault or battery is the greater offense, this conviction should stand, and the conviction and sentence for home-invasion robbery should be vacated. Bowers, 679 So.2d at 341. Accordingly, we reverse Appellant’s conviction for home-invasion robbery and remand with directions that the trial court vacate the conviction and sentence for that charge. Appellant’s remaining convictions and sentences are affirmed.

AFFIRMED in part; REVERSED in part; and REMANDED with directions.

DAVIS, LEWIS, and WETHERELL, JJ., concur.


author: GRIFFIN, J.

text:
    Larry D. ODUM, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-467.
    District Court of Appeal of Florida, Fifth District.
    Sept. 9, 2011.
    Rehearing Denied Oct. 31, 2011.
    Larry D. Odum, Perry, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   GRIFFIN, J.

Larry Odum [“Odum”] appeals the summary denial of his motion for post-conviction relief, raising one claim of ineffective assistance of counsel and double jeopardy.

A jury found Odum guilty of vehicular homicide and reckless driving causing serious bodily injury. The evidence presented at his trial demonstrated that Odum drove his truck, at excessive speed, through a red light and into a minivan, killing one person and seriously injuring another. According to the evidence, Odum had alcoholic beverages inside his vehicle and smelled strongly of alcohol. At sentencing, the court pronounced a sentence of twenty years on count one, followed by five years on count two, for a total of twenty-five years in prison. However, five days later, the court entered a written order increasing the sentence on count one to twenty-five years, with both counts to run concurrently. Odum did not raise this change in the sentence in his appeal; rather, Odum argued he was improperly sentenced as a habitual felony offender. This Court affirmed the convictions and sentences. See Odum v. State, 4 So.3d 1258 (Fla. 5th DCA 2009). Odum now complains that the trial court was not allowed to alter his sentence after he began serving it.

The reason for the change in the sentence is not clear from the record. Odum says it came about because the State was concerned about the propriety of a consecutive sentence for the two counts. The record reflects that the orally pronounced sentence was twenty years on count one and five years on count two, to be served consecutively, but the written sentence is twenty-five years on count one and a suspended five-year sentence on count two, to be served concurrently. In denying Odum’s rule 3.850 motion, the court concluded that the sentence, as written, was proper because the overall term of incarceration (twenty-five years) was the same as the orally pronounced sentence, so that Odum suffered no prejudice. Although the lower court’s resolution was practical, Odum correctly asserts that the trial court was obliged to execute a written sentencing document that conformed to the oral pronouncement of sentence. Odum further contends that any increase in the twenty-year sentence on count one would violate double jeopardy. The parties to this appeal appear to assume that the originally announced sentence was illegal because the two counts were to run consecutively, but that issue is not before us. The trial court must enter a sentencing order that matches the oral pronouncement. If Odum then seeks to have that sentence declared illegal and, if he succeeds, the trial court may correct the sentence to conform to the original sentencing intent. If the sentences on the two counts must, by law be concurrent, not consecutive, upon resentencing, we see no reason why the trial court could not impose the concurrent twenty-five year sentence, or any other lawful concurrent sentence, so long as it does not violate the limitations of North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). See Golz v. State, 722 So.2d 210, 210-11 (Fla. 2d DCA 1998) (Altenbernd, J., concurring).

REVERSED and REMANDED.

ORFINGER, C.J., and EVANDER, J., concur.


text:
    Jermaine A. HARRIS, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-2458.
    District Court of Appeal of Florida, First District.
    Sept. 27, 2011.
    Jermaine A. Harris, pro se, Appellant.
    Nancy A. Daniels, Public Defender, and Glen P. Gifford, Assistant Public Defender, Office of the Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant challenges the lower court’s order granting in part and denying in part his motion to correct illegal sentence. We affirm all but the first issue, and reverse and remand with directions to reinstate the 766 days of jail credit for time served on Counts IV and V that were improperly rescinded from defendant’s initial judgment and sentence. See Davis v. State, 63 So.3d 847 (Fla. 1st DCA 2011); Session v. State, 37 So.3d 873 (Fla. 1st DCA 2010); Palmer v. State, 22 So.3d 795 (Fla. 1st DCA 2009); Canete v. Dep’t of Corrs., 967 So.2d 412 (Fla. 1st DCA 2007); Wheeler v. State, 880 So.2d 1260 (Fla. 1st DCA 2004).

AFFIRMED IN PART, REVERSED IN PART and REMANDED.

DAVIS, PADOVANO, and ROWE, JJ., concur.


author: KELLY, Judge.

text:
    Kristopher SANDERS, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-983.
    District Court of Appeal of Florida, Second District.
    Oct. 5, 2011.
    Rehearing Denied Nov. 30, 2011.
    James E. Felman and Katherine Earle Yanes of Kynes, Markman, & Felman, P.A., Tampa, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Donna S. Koch, Assistant Attorney General, Tampa, for Appellee.
   KELLY, Judge.

Kristopher Sanders appeals his conviction for second-degree murder with a firearm. We find merit only in his argument that the trial court fundamentally erred when instructing the jury on the lesser-included offense of manslaughter by act. State v. Montgomery, 39 So.3d 252 (Fla.2010), mandates reversal.

The State charged Sanders with second-degree murder following the shooting death of Tyrie Gunn. At the conclusion of trial, the court instructed the jury on second-degree murder and on manslaughter by act, a category one lesser-included offense of the murder charge. The court instructed that in order to convict Sanders of manslaughter, the State was required to prove that Sanders “intentionally caused” the victim’s death. There was no objection to this instruction despite the fact that at the time of Sanders’ trial, the standard jury instruction on manslaughter by act had been amended to clarify that a conviction for manslaughter by act did not require an intent to kill but “only an intent to commit an act which caused [the victim’s] death.” See In re Standard Jury Instructions in Criminal Cases-Report No. 2007-10, 997 So.2d 403, 403 (Fla.2008). The jury was not instructed on manslaughter by culpable negligence.

On appeal, Sanders, citing Montgomery, argues that the manslaughter by act instruction was defective and that its use constituted fundamental error. We agree that Montgomery is controlling. Here, the trial court gave the same manslaughter jury instruction that was given in Montgomery. As in Montgomery, the jury was not instructed on manslaughter by culpable negligence. See Barros-Dias v. State, 41 So.3d 370 (Fla. 2d DCA 2010) (holding that giving the erroneous manslaughter by act instruction did not constitute fundamental error when the jury was also instructed on manslaughter by culpable negligence). We therefore reverse Sanders’ second-degree murder conviction, vacate his sentence, and remand for a new trial. See Stoddard v. State, — So.3d —, 2011 WL 3760863 (Fla. 2d DCA 2011); Carter v. State, 53 So.3d 1248 (Fla. 2d DCA 2011); Walker v. State, 46 So.3d 160 (Fla. 2d DCA 2010).

Reversed and remanded.

WHATLEY and DAVIS, JJ., Concur.

      . In 2010 the supreme court amended the manslaughter by act instruction deleting the language requiring an intent to kill and requiring proof that the “(defendant’s) act(s) caused the death of (victim).” In re Amendments to Standard Jury Instructions in Criminal Cases-Instruction 7.7, 41 So.3d 853, 854 (Fla.2010).


text:
    Corey MILLEDGE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-4829.
    District Court of Appeal of Florida, First District.
    Oct. 5, 2011.
    Rehearing Denied Dec. 5, 2011.
    Corey Milledge, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

PADOVANO, ROBERTS, and MARSTILLER, JJ., concur.


text:
    Robert FOWLER, Petitioner, v. Kenneth S. TUCKER, Secretary, Florida Department of Corrections, Respondent.
    No. 1D11-4996.
    District Court of Appeal of Florida, First District.
    Oct. 10, 2011.
    Rehearing Denied Dec. 6, 2011.
    Robert Fowler, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

DISMISSED. See Baker v. State, 878 So.2d 1236 (Fla.2004).

BENTON, C.J., VAN NORTWICK and THOMAS, JJ., concur.


author: MARSTILLER, J.

text:
    William H. FORTNER, Appellant, v. TOWN OF LONGBOAT KEY and Gallagher Bassett, Appellees.
    No. 1D11-2172.
    District Court of Appeal of Florida, First District.
    Oct. 17, 2011.
    Rehearing Denied Dec. 5, 2011.
    Bill McCabe, Longwood, and Alex Lancaster, Sarasota, for Appellant.
    M. Todd Merritt of M. Todd Merritt, P.A., Sarasota, for Appellees.
   MARSTILLER, J.

The appellant, William H. Fort-ner, is a firefighter/paramedic employed by the Town of Longboat Key. Mr. Fort-ner sought workers’ compensation benefits after injuring his left ankle in January 2010 while exercising on an elliptical machine during his shift. He claimed the injury occurred because of trauma to his left ankle from work-related accidents in May 2002, September 2005 and September 2009. A Judge of Compensation Claims (“JCC”) denied Mr. Fortner’s claim finding no medical evidence that any of the asserted work-related accidents, including the elliptical machine incident in January 2010, resulted in injury to Mr. Fortner’s ankle. On appeal, Mr. Fortner challenges the denial of his claim arguing that the decision is unsupported by competent, substantial evidence. But in workers’ compensation cases, “[a] decision in favor of the party 'without the burden of proof need not be supported by competent substantial evidence.” Fitzgerald v. Osceola County Sch. Bd., 974 So.2d 1161, 1164 (Fla. 1st DCA 2008) (citing Mitchell v. XO Commc’ns, 966 So.2d 489, 490 (Fla. 1st DCA 2007) (emphasis added)). And after reviewing the evidence Mr. Fortner presented in support of his claim, we concur with the JCC’s conclusion and affirm the denial of benefits.

Harold W. Vogler, D.P.M., a certified reconstructive foot and ankle surgeon, testified via deposition that Mr. Fortner came to him on August 19, 2009, complaining of severe left ankle pain. Dr. Vogler’s notes from that visit indicate that Mr. Fortner said he had been experiencing progressively worsening pain for approximately twelve years. Mr. Fortner brought with him some x-rays and an MRI taken the day before that showed, among other conditions, chronic degenerative changes in the tip of the fibula, chronic hypertrophic Achilles tendonitis, and a deep osteochondri-tis dissecans lesion (“OCD lesion”) in the ankle. Mr. Fortner did not tell Dr. Vogler of any work-related accidents, and Dr. Vo-gler could give no medical opinion on whether Mr. Fortner’s employment in any way caused the OCD lesion.

Patrick O’Neill, M.D., an orthopedic surgeon, first saw Mr. Fortner in March 2010 and performed surgery on him in late July or early August of that year. Dr. O’Neill described in deposition what he did and saw during the surgery:

He had essentially what we expected to see. He had areas of cartilage loss, some bone involvement. We went ahead and debrided his lesion down to — you know, it was good stable surrounding rim of cartilage. Extensive — you know, extensive like we would have expected ... what we call and OCD lesion, osteo-chondral [sic] bone and cartilage lesion there.

ks to the OCD condition, Dr. O’Neill testified, “at some point he had an injury that caused it. Without knowing — I mean it’s hard for me to place — it’s hard for me to say what injury would have caused it.”

Both physicians testified, when presented with a hypothetical involving prior work-related injuries to Mr. Fortner’s ankle, that such injuries could have caused and exacerbated the OCD condition. But neither physician had any concrete information about previous injuries, work-related or otherwise. Thus neither could opine ■with reasonable medical certainty that Mr. Fortner’s current condition resulted from work-related injuries. The JCC therefore correctly concluded there was no evidence Mr. Fortner’s employment is the major contributing cause of the ankle injury he sustained in January 2010.

AFFIRMED.

HAWKES and RAY, JJ„ concur.

       Separation of a portion of joint cartilage and of underlying bone. Stedman's Medical Dictionary 1107 (25th ed. 1990).


text:
    John Wallace HUGHES, III, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-5396.
    District Court of Appeal of Florida, First District.
    Oct. 17, 2011.
    Rehearing Denied Dec. 6, 2011.
    Nancy A. Daniels, Public Defender, and Pamela D. Presnell, Assistant Public Defender, Tallahassee, for Appellant.

      Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Bureau Chief-Criminal Appeals, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, John Wallace Hughes, III, challenges his two convictions and sentences for possession of a firearm by a convicted felon. As properly conceded by the State, Appellant’s convictions and sentences violate double jeopardy because they were based on the possession of multiple firearms at the same time. Hill v. State, 711 So.2d 1221, 1224-25 (Fla. 1st DCA 1998) (holding that because the word “any” preceded the list of items a felon was prohibited from possessing, the prohibition against double jeopardy precluded more than one conviction for the possession of multiple firearms at the same time). We, therefore, reverse and remand with directions for the trial court to vacate one of Appellant’s convictions and sentences.

REVERSED and REMANDED for further proceedings.

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


text:
    Ronald Thomas VAN DYKE, Appellant, v. PNC, NATIONAL ASSOCIATION and Shriners, etc., Appellee(s).
    No. 5D11-1888.
    District Court of Appeal of Florida, Fifth District.
    Oct. 18, 2011.
    Rehearing Denied Nov. 22, 2011.
    Ronald Thomas Van Dyke, Melbourne, pro se.
    Kimberly Bonder Rezanka, of Dean Mead, Viera, for Appellee.
   PER CURIAM.

AFFIRMED. See Fla. R.App. P. 9.315(a).

SAWAYA, MONACO and JACOBUS, JJ. concur.


author: ALTENBERND, Judge.

text:
    Yolanda RODRIGUEZ and Ted Rodriguez, Appellants, v. GARCO, INC., individually and as Trustee for the Rodriguez Family Trust; Gideon Rechnitz; Thomas S. Cook; Profitmax, Inc.; and Garco Property Management, Inc., Appellees.
    No. 2D10-2005.
    District Court of Appeal of Florida, Second District.
    Oct. 21, 2011.
    Rehearing Denied Dec. 5, 2011.

      David Singer of Holland & Knight LLP, Tampa; Elizabeth M. Boyle, John P. Cunningham, Robin L. Stover, and James D. McDonald of Gulfcoast Legal Services, Sarasota; and Leland H. Kynes, Atlanta, Georgia, for Appellants.
    Courtney L. Fish of Englander and Fischer, LLP, St. Petersburg, for Appel-lees.
   ALTENBERND, Judge.

Yolanda and Ted Rodriguez appeal a judgment entered in favor of Gideon Re-chnitz and several legal entities controlled by Mr. Rechnitz. This case arises out of an unusual real estate sales and leaseback transaction in which Yolanda Rodriguez sold her home to one of Mr. Rechnitz’s legal entities when she was facing the risk of foreclosure. Although Ms. Rodriguez had substantial equity in the home, the transaction resulted in no cash payment to her. Instead, she received a lease with an option to repurchase. Without sufficient cash to pay the rent, Ms. Rodriguez was evicted from the home within a few months, resulting in the complete loss of her equity in the home. Ted Rodriguez is Ms. Rodriguez’s disabled brother. He had no ownership interest in the home. We affirm the judgment as to Ted Rodriguez without further discussion. We affirm the judgment against Ms. Rodriguez except for the portion deriving from the partial summary judgment that was entered early in this case on counts alleging fraud and a violation of the Florida Deceptive and Unfair Trade Practices Act (FDUTPA). We conclude that there were material issues of fact as to these claims that were unresolved at the time the trial court entered the partial summary judgment.

I. The Real Estate Transaction.

Ms. Rodriguez is over the age of seventy and her disabled brother is at least fifty-five. In 1996, Ms. Rodriguez purchased a home in Englewood, Florida. She and her brother lived in this home. In 2002, Ms. Rodriguez apparently refinanced this home with Brasota Mortgage Company with a balloon mortgage. As a result, she owed about $145,000 on a five-year note that came due on May 1, 2007. Her payments on the note were not designed to reduce the principal amount due on the note.

Ms. Rodriguez allegedly made payments on this note until sometime in 2005. She then became ill and could no longer work. Her income and her brother’s disability payments were not enough to allow her to pay the mortgage, taxes, and other expenses associated with this home. Consequently, she fell behind on the note and was facing the real possibility of foreclosure by Brasota.

In September 2005, she received a flyer from “Foreclosure Prevention Corp.” that urged her to call “Tom Cook” to learn how to save her home from foreclosure. In large print the flyer stated “We don’t want to buy your home ...,” which was followed by a parenthetical in small print that stated “unless you want to sell it.” The flyer made a number of representations. In response to the flyer, Ms. Rodriguez called Mr. Cook, and he came to her home on September 25, 2005. He provided Ms. Rodriguez with an explanation of the program. Within an hour, she appears to have signed a one-page “Program Outline” and a one-page “Program Understanding” as well as a purchase and sales agreement in which she agreed to sell her home to “Foreclosure Prevention Corp.” for $176,800. This amount was later changed in a handwritten entry to $206,800. She agreed to sell the property “as is.” The agreement explained that she would lease the home back from the buyer for $1850 per month and that she had the option to buy back the home before October 31, 2007, for $190,000. These amounts were later changed to $1525 per month, and $282,900. Oddly, Ms. Rodriguez also signed a warranty deed that was dated September 25, 2005, conveying her home to “the Rodriguez Family Trust, Garco, Inc., Trustee, UTD.” Ms. Rodriguez’s verified complaint alleges that Mr. Cook kept the signed original copies of these agreements and did not provide copies for Ms. Rodriguez.

The second page of the purchase and sales agreement contains a paragraph that provides that the buyer “may” purchase the property “subject to” the existing mortgage and appears to give the buyer the unilateral right to make that decision. Neither that paragraph nor any other provision contained within the two-page purchase and sales agreement specifically state that the buyer was, in fact, purchasing the property subject to the existing mortgage or that the seller was agreeing to sell the property without satisfaction of the existing mortgage. The other documents signed by Ms. Rodriguez during the September 25 meeting were similarly vague and ambiguous with respect to whether the buyer intended to pay off the existing mortgage.

Ms. Rodriguez first met Mr. Rechnitz on October 21, 2005, when he picked her up at her home and drove her to a closing at the offices of Florida Regional Title Service. Interestingly, Mr. Rechnitz video recorded the closing, and that recording is in our record. Ms. Rodriguez says very little during the closing, but she seems to understand that she is selling her home and that she will be leasing it back with a two-year option to purchase.

At the closing, Ms. Rodriguez signed another warranty deed, conveying her home to “Garco, Inc., as Trustee of the Rodriguez Family Trust.” Mr. Rechnitz orally explained to Ms. Rodriguez that no member of her family would have any interest in this trust and that it was a legal entity created to allow for “investor” participation. Ms. Rodriguez signed an option to purchase real estate, giving her the right to repurchase the home for $245,000 on or before October 31, 2007. Mr. Re-chnitz signed this option on behalf of Gar-co, Inc. Ms. Rodriguez also signed an irrevocable power of attorney giving Gideon Rechnitz, individually, full authority over the home. She signed a month-to-month lease for her home, which named “Garco Property Management Co.” as the landlord. Mr. Rechnitz signed the lease on behalf of “Garco Property Management Co.,” the landlord. The lease states that the rent is due by 5 p.m. on the first of each month and that the landlord will provide no grace period. Pursuant to the lease, the tenant has the duty to maintain the property and pay for repairs to the property. However, although Mr. Re-chnitz advised Ms. Rodriguez that the home was being rented in “as-is condition” when he explained the maintenance provision to her at the closing, he added “we’re taking care of putting the new roof on and whatever pre-emptive repairs are necessary to make sure the home doesn’t fall into code violation.”

Perhaps the most interesting document at the closing was a document entitled “U.S. Department of Housing and Urban Development Settlement Statement,” which was provided even though a “federally related loan” was not involved in this transaction. See 12 U.S.C. § 2603(a), (b) (2005) (requiring the development of a standard real estate settlement form that must be provided to borrowers to identify all settlement or closing costs in all transactions in the United States which involve “federally related mortgage loans”). The official appearing document is commonly referred to as a HUD-1 settlement statement. On the settlement statement, the “Borrower,” i.e., the buyer, appears to be paying a total of $214,520.17. Of this amount, the settlement statement is drafted as if $147,268.95 were to be paid by or on behalf of the borrower to cover the amount of the balance due on the first mortgage. The “Gross Amount due to Seller,” i.e., Ms. Rodriguez, was reduced by a comparable amount. The gross amount due to her was also reduced by $30,000 to cover the cost of the roof repair even though the written sales contract was an “as-is” transaction. This $30,000 apparently was an estimate of the amount required to reroof this average-sized home. The record contains no estimate or contract for this work, which appears to have been done only after Ms. Rodriguez was evicted.

The settlement statement further reduced the payment due to Ms. Rodriguez by fees to Mr. Cook and “Profitmax, Inc.,” totaling over $6000, which fees do not appear to be authorized by the purchase and sales agreement. The settlement statement also included a charge of $14,768 for reinstatement of the first mortgage. A few more reductions were made on the settlement statement. The combined reductions in the payment due to the seller, Ms. Rodriguez, totaled $214,520.17, which was the same amount as the total to be paid by the borrower, i.e., the buyer. Ms. Rodriguez received $0 at closing.

At the closing, neither Mr. Rechnitz nor any of his legal entities agreed to pay off or assume the balloon mortgage as part of this transaction. Mr. Rechnitz was only paying $14,768 to reinstate the loan. As long as Ms. Rodriguez paid her rent, Mr. Rechnitz agreed to transmit the payment of the note on her behalf from the proceeds of the rent. But Ms. Rodriguez was the only person liable to pay the $145,000 balloon note when it came due in May 2007, several months before the end of her two-year option period. Thus, to the extent that the settlement statement reflects that payment due to her from the borrower, i.e., the buyer, is reduced by the total amount of the mortgage balance and the buyer appears to pay the mortgage in the settlement statement, that statement is incongruous.

Additionally, the record contains evidence that the home was worth about $387,000. This transaction took place before the recent decline in housing prices. If Ms. Rodriguez had sold this home in a standard “as-is” transaction to a bona fide purchaser for even $325,000, the mortgage would have been paid off and she would have cleared at least $120,000. Although the settlement statement makes it appear that the buyer was paying $214,520.17, Mr. Rechnitz or his legal entities appear actually to have paid approximately $30,-000 — an amount comprised of the mortgage reinstatement amount and miscellaneous expenses, including the payment of tax obligations and outstanding homeowners’ association fees — to obtain this home, subject to the $145,000 mortgage and in need of a new roof.

Ms. Rodriguez had been unable to pay her mortgage before the closing. Not surprisingly, after the closing, in part because she did not receive any money in this closing, she could not pay the rent that was roughly the same as her earlier mortgage payment. She apparently sent an unsigned check to the landlord in December 2005 and never cured the default. By March 2006, she and her brother had been evicted from the home.

II. The Parties.

Ms. Rodriguez and her brother filed their initial complaint in this action in November 2006. As defendants they named: (1) Garco, Inc., as Trustee for the Rodriguez Family Trust; (2) Garco, Inc.; (3) Gideon Rechnitz; and (4) Garco Property Management, Inc. Thomas S. Cook was named as a defendant in the Rodriguezes’ second and third amended complaints, subsequent to the filing of the Rodriguezes’ initial and verified amended complaints.

Because this transaction began with “Foreclosure Prevention Corp.,” it is helpful to know that the record reflects that a corporation named Foreclosure Prevention Corporation once existed but was apparently dissolved in 1987. When this transaction occurred, “Foreclosure Prevention Corp.” was not an active corporate entity in Florida, it was merely a registered fictitious name used by Profitmax, Inc. Gideon Rechnitz is the president and sole shareholder of Profitmax, Inc. Mr. Cook is described in this case as an employee of Foreclosure Prevention Corporation, which apparently means he is employed by Pro-fitmax, Inc.

Mr. Rechnitz is also the president and sole shareholder of Garco, Inc. In an affidavit filed in support of the critical motion for summary judgment, Mr. Rechnitz claims that he is the “trustee of the Rodriguez Family Trust.” This is odd because the deed to that trust states that Garco, Inc., is the trustee. He claims that he created this trust on or about October 21, 2005, for the benefit of Rental Acquisitions, LLC, a Florida limited liability company for which he is the managing member. The record contains a copy of a written trust agreement in which Garco, Inc., is named as the trustee.

Garco Property Management, Inc., is alleged to be another corporation controlled by Mr. Rechnitz.

III. The Partial Summary Judgment.

Ms. Rodriguez and her brother filed a verified amended complaint in early 2007, which contained eleven counts. The defendants filed a motion to dismiss. While their motion to dismiss was pending, the defendants also filed a motion for partial summary judgment. This motion sought summary judgment on most of count one, on counts two through nine, and to all claims by Ted Rodriguez. As to count seven, which alleged a theory under FDUTPA, and count eight, which alleged fraud, the motion is not detailed and relies primarily, if not exclusively, on the fact that at the closing Ms. Rodriguez was aware that she was selling her home.

This ground would appear to be well taken to the extent that the verified amended complaint alleges that Ms. Rodriguez was unaware that she was selling her home. However, this is not the only misrepresentation alleged in the verified amended complaint. Among other things, the verified amended complaint also alleges misrepresentations concerning the financial descriptions on the HUD-1 settlement statement. It further alleges that Ms. Rodriguez’s home was actually worth $387,000 and that the defendants misrepresented the nature and details of this transaction in order to obtain the equity in her home without fair compensation. Whether Ms. Rodriguez understood that she was selling her home was not disposi-tive of these other allegations.

The verified amended complaint sufficiently alleges each of the essential elements to state a cause of action for the claims in counts seven and eight, and the defendants failed to establish that they were entitled to summary judgment as a matter of law. They failed to prove the absence of any genuine issue of material fact. See, e.g., Holl v. Talcott, 191 So.2d 40, 43 (Fla.1966) (reiterating the principle that the burden of proving the absence of a genuine issue of material fact is upon the moving party). As framed and presented, the defendants’ motion for partial summary judgment simply did not address the combination of allegations that were sufficient to state these causes of action. Inasmuch as material issues of fact on these claims were unresolved, the trial court erred in entering partial summary judgment on counts seven and eight of the verified amended complaint. Although this error has led us to conclude that the judgments must be reversed as to Ms. Rodriguez’s claims on these two counts, we decline to create extensive law of the case in light of the limited grounds for partial summary judgment raised by the defendants.

In closing, we note that while this case was pending on appeal, another panel of this court affirmed a judgment against Mr. Rechnitz and several of his corporations for a similar transaction that also occurred in Sarasota County. Rechnitz v. Costa, 59 So.3d 1144 (Fla. 2d DCA 2011) (table decision). Although this court did not issue an opinion in that case, our record reflects that the jury returned an award in favor of the plaintiff under FDUTPA.

We affirm on all issues raised by the Rodriguezes in this appeal except those related to counts seven and eight of the verified amended complaint, upon which we reverse and remand for further proceedings as to Ms. Rodriguez.

Affirmed in part, reversed in part, and remanded.

NORTHCUTT and BLACK, JJ„ Concur.

      . The judgment was also entered in favor of Thomas S. Cook on counts ten, eleven, and twelve. In this appeal, the Rodriguezes take issue with the judgment entered in favor of Mr. Cook as to count twelve only. We affirm the judgment as to Thomas S. Cook on count twelve without further discussion.

      . The total amount owed on this balloon promissory note varies a few thousand dollars throughout the course of these events. This opinion uses $145,000 as an approximate number that is adequate to tell the story.

      . The verified amended complaint discussed later in this opinion alleges that some documents were fraudulently back dated. For purposes of this opinion, the dates we mention are not intended to be conclusive.

      . This transaction also occurred before the October 1, 2008, effective date of section 501.1377, Florida Statutes (2008), that provides consumer protection for foreclosure-rescue transactions involving a lease option or other repurchase agreement between an equity purchaser and a homeowner and creates a rebuttable presumption between the equity purchaser and the homeowner that "[a]ny foreclosure-rescue transaction involving a lease option or other repurchase agreement ... is a loan transaction and the conveyance from the homeowner to the equity purchaser is a mortgage under s. 697.01.” Section 501.1377 contains numerous compliance requirements, including a provision that “[a] foreclosure-rescue transaction agreement must comply with all applicable provisions of 15 U.S.C. ss. 1601 et seq. and related regulations” — the provisions which govern federal consumer credit protection, including truth in lending. § 501.1377(5)(a)(4). We do not address whether a HUD-1 settlement statement must be used for transactions that fall within the purview of section 501.1377.

      . We are not suggesting that the cost of the roof repair could not have been an adjustment to the repurchase price in the option. However, nothing in the purchase and sales agreement would appear to allow for this reduction at closing.