text:
    BANK OF AMERICA, Appellant, v. BANK OF SALEM and Mace David Howell, III, et al., Appellee.
    No. 1D10-1424.
    District Court of Appeal of Florida, First District.
    Nov. 22, 2010.

      Edward P. Fleming, James E. Cheek, and Bradley M. Saxton of Winderweedle, Haines, Ward & Woodman, P.A., Winter Park, for Appellant.
    Richard P. Petermann, Jr. and L. Paul Sirmans of Anchors, Smith, Grimsley, P.L.C., Fort Walton Beach, for Appellee.
   PER CURIAM.

Mace David Howell (Howell) obtained two separate loans from two separate banks totaling $800,000. The loans were unsecured. Shortly after Howell obtained the loans, he died. Upon Howell’s death, both banks sought to recover their loans by having the trial court impose a constructive trust on property Howell allegedly used the funds to purchase. The trial court entered an order imposing a constructive trust in favor of the first of the two banks to loan the funds to Howell. Because neither bank was entitled to a constructive trust on the property, or res derived from the sale, we reverse.

Facts

On September 16, 2002, Bank of Salem loaned Howell $400,000 (the Bank of Salem Loan). On September 17, 2002, Bank of America loaned Howell $400,000 (the Bank of America Loan). Both banks claim they agreed to loan Howell money on the condition he purchase a specific condominium in Okaloosa County (the Condo) and later secure the respective loans with a mortgage on the Condo.

Five days after Howell obtained the Bank of America loan, he purchased the Condo and recorded the deed. Less than one month later, Howell passed away. Both banks concede they are unable to demonstrate Howell agreed to secure either loan with a mortgage on the Condo. Upon Howell’s death, ownership of the Condo was transferred to the Howell Family Trust, located in the State of Arkansas.

In December 2002, Bank of America filed a complaint against Howell’s estate seeking to “impress and foreclose an equitable mortgage, equitable lien and/or constructive trust” on the Condo. It also filed a lien lis pendens.

On May 23, 2003, Bank of Salem filed an “Answer, Cross-claim and Counterclaim of Intervener” in Bank of America’s action, claiming to have “an equitable lien and interest” in the Condo and requesting “the impression of a constructive trust.” The trial court granted Bank of Salem’s request to intervene; after which, Bank of Salem also filed a lien lis pendens on the Condo.

The liens lis pendens connected with the banks’ claims each expired one year after the date they were filed. See § 48.23(2), Fla. Stat. (2003). Neither party attempted to extend their lien.

While the dispute over the Condo was pending in Florida, Bank of America initiated unrelated litigation in an Arkansas court, claiming the Howell Estate owed it a debt of over $2,000,000. In May 2003, the State of Arkansas awarded Bank of America a judgment totaling $2,068,142.84 against the Howell Estate and the Howell Family Trust, jointly and severally. Bank of America sought to recover the $2,068,142.84 by forcing the sale of Howell Estate and Howell Family Trust owned assets.

In March 2005, after both of the liens lis pendens the banks levied against the Condo had lapsed, Bank of America filed a certified copy of the Arkansas Judgment in the public records of Okaloosa County, Florida. On July 6, 2005, the Okaloosa County Sheriff executed the domesticated Arkansas Judgment, sold the Condo to a third-party bona fide purchaser, and distributed the proceeds of the sale to Bank of America in its capacity as judgment creditor under the Arkansas Judgment.

In 2007, five years after it was permitted to intervene in Bank of America’s Action, and two years after the Condo was sold in the sheriffs sale, Bank of Salem filed a motion for summary judgment seeking an order “establishing and foreclosing” a constructive trust on either the Condo or the proceeds paid to Bank of America from the sheriffs sale. Specifically, Bank of Salem claimed it had rights identical to those of Bank of America and should be entitled to the proceeds from the sale of the Condo. Bank of America countered by arguing Bank of Salem had not established any right to an equitable lien on the Condo or a constructive trust over the proceeds of the sheriffs sale.

The trial court entered summary judgment in favor of Bank of Salem, finding the $400,000 Bank of Salem loaned Howell were “funds traceable to the proceeds of the sheriffs sale that went to Bank of America.” Accordingly, it ordered Bank of America to pay the entire $400,000 to Bank of Salem. We disagree with the trial court’s ruling and find Bank of Salem failed to demonstrate it was entitled to a constructive trust over funds Bank of America recovered from the unrelated Arkansas judgment.

Analysis

Under Florida law, courts may impose a constructive trust where there is “clear and convincing proof of (1) a promise, express or implied, (2) transfer of the property and reliance thereon, (3) a confidential relationship, and (4) unjust enrichment.” Gersh v. Cofman, 769 So.2d 407, 409 (Fla. 4th DCA 2000). Constructive trusts are used to prevent a party from being unjustly enriched through abuse of confidence, duress, or fraud. See Harrell v. Branson, 344 So.2d 604, 605-7, (Fla. 1st DCA 1977). Accordingly, a constructive trust may be imposed only where the trust res is “specific and identifiable property,” or can be “clearly traced in assets of the defendant.” Gersh, at 409. Moreover, as a general rule, a mere promise of future conduct will not serve as a predicate for a claim of fraud sufficient to support the imposition of a constructive trust. See Palmer v. Santa Fe Healthcare Sys., Inc., 582 So.2d 1234, 1236 (Fla. 1st DCA 1991); Wadlington v. Continental Med. Servs., Inc., 907 So.2d 631, 632 (Fla. 4th DCA 2005).

As noted, the trial court imposed a constructive trust on $400,000 of the proceeds Bank of America recovered from the sheriffs sale of the Condo and ordered Bank of America to pay that amount to Bank of Salem. We disagree with the court’s reasoning in reaching this conclusion.

First, Bank of Salem has failed to show how its loan to Howell was used, or even intended to be used, to purchase the Condo. It is undisputed that both Bank of America and Bank of Salem each loaned Howell an unsecured $400,000. Although both banks originally maintained the respective loans were contingent on Howell purchasing the Condo and securing the loans with a mortgage on the Condo, both parties failed to demonstrate such. Further, Bank of Salem based its claim on mere allegations that Howell “promised” he would provide a mortgage on the Condo after he acquired it. Such allegations, which pertained only to promises of future conduct, are insufficient evidence of fraud to warrant a constructive trust. See Palmer, at 1236.

Second, Bank of America was awarded the proceeds of the sale of the Condo pursuant to the Arkansas Judgment, which was separate and unrelated to the loans the bank made to Howell in Florida. When Howell died, his estate owed Bank of America over $2,000,000, not including the unsecured $400,000 Bank of America loaned him in September 2002. In an attempt to recover this $2,000,000, Bank of America obtained the Arkansas Judgment, giving it the right to force the sale of property belonging to Howell to recover debts owed to it by the Howell Estate. Because the Condo had passed to the Howell Estate upon Howell’s death, Bank of America was able to domesticate the Arkansas Judgment in Okaloosa County and force the sale of the Condo. Thus, the proceeds Bank of America received from the sale were derived from a separate judgment unrelated to the original $400,000 loan. Because Bank of Salem failed to demonstrate its loan was connected to the Condo and had no valid lien inhibiting the property at the time of the sale, it had no right to the proceeds of the sale.

Third, any opportunity Bank of Salem had to prevent the Condo from being sold expired when it allowed its lien lis pendens against the Condo to lapse. In May 2003, Bank of Salem intervened in Bank of America’s action against Howell and filed a lien lis pendens on the Condo. One year later, the lien expired. See § 48.23(2), Fla. Stat. (2003). Bank of Salem did not attempt to renew or revive the lien. In fact, it waited until two years after the Condo was sold and five years after it filed its initial motion to intervene to seek summary judgment on this constructive trust issue.

In sum, it is clear from the record that (1)Both banks loaned Howell an unsecured $400,000 and are unable to show the loans were contingent on Howell purchasing and mortgaging the Condo; (2) Bank of Salem failed to demonstrate Howell used the $400,000 to purchase the Condo; and (3) The proceeds of the Condo sale were paid to Bank of America pursuant to a separate Arkansas Judgment. Given the foregoing, Bank of Salem is not entitled to a constructive trust on the Condo or Condo res. Accordingly, we reverse the trial court’s order granting summary judgment in favor of Bank of Salem and remand for the trial court to take action consistent with this opinion.

REVERSED.

PADOVANO, HAWKES, and MARSTILLER, JJ., concur.

      . The Arkansas Judgment (Bank of America v. David Howell, et al., Pulaski Circuit No. 02-10782) was based on overdraft debts that the Howell Estate owed Bank of America on a separate bank account. The overdraft debts were unrelated to the Condo Unit or the unsecured $400,000 Bank of America loaned Howell in 2002.


source: Caselaw Access Project

author: WEBSTER, J.

license: Public Domain

text:
    Corey Bernard PRYOR, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-3208.
    District Court of Appeal of Florida, First District.
    Nov. 22, 2010.

      Nancy A. Daniels, Public Defender, and Pamela D. Presnell, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Michael T. Kennett, Assistant Attorney General, Tallahassee, for Appellee.
   WEBSTER, J.

In this direct criminal appeal, appellant claims that (1) the trial court committed fundamental error when it instructed the jury on the lesser included offense of manslaughter by act in appellant’s prosecution for first-degree murder with a firearm where appellant was convicted of the lesser included offense of second-degree murder with a firearm; (2) appellant’s dual convictions for possession of a firearm by a violent career criminal and possession of a firearm by a convicted felon violated the constitutional prohibition against double jeopardy; (3) the trial court erred in denying appellant’s motion for judgment of acquittal on the charges of tampering with evidence because there was insufficient evidence that appellant had knowledge of an imminent or pending investigation; and (4) the trial court erred in imposing a mandatory life sentence for possession of a firearm by a violent career criminal. Because we agree that the trial court committed fundamental error in instructing the jury on the lesser included offense of manslaughter by act and that appellant’s dual convictions for possession of a firearm by a violent career criminal and possession of a firearm by a convicted felon violated double jeopardy, we reverse appellant’s convictions for second-degree murder with a firearm and possession of a firearm by a convicted felon. However, we affirm as to appellant’s last two claims.

Appellant was indicted for first-degree murder with a firearm, possession of a firearm by a violent career criminal, possession of a firearm by a convicted felon, and five counts of tampering with evidence. On the first-degree murder count, the jury was instructed on the lesser included offenses of second-degree murder and manslaughter by act. Without objection, the court gave the following standard jury instruction on manslaughter by act:

To prove the crime of manslaughter, the State must prove the following two elements beyond a reasonable doubt: One, [the victim] is dead; and two, the defendant intentionally caused the death of the victim.
However, the defendant cannot be guilty of manslaughter if the killing was either justifiable or excusable homicide, as I have previously explained those terms.
In order to convict of manslaughter by intentional act, it is not necessary for the State to prove that the defendant had a premeditated intent to cause death, only an intent to commit an act which caused death.

At the conclusion of the trial, the jury returned verdicts finding appellant guilty of the lesser included offense of second-degree murder with a firearm and guilty as charged of possession of a firearm by a violent career criminal, possession of a firearm by a convicted felon, and five counts of tampering with evidence.

At sentencing, the trial court adjudicated appellant guilty and imposed concurrent prison sentences of life for second-degree murder with a firearm, fifteen years with a three-year mandatory minimum for possession of a firearm by a convicted felon, and five years for each count of tampering with evidence followed by a life sentence for possession of a firearm by a violent career criminal. After filing this appeal, appellant filed a motion to correct a sentencing error which claimed that the trial court erred in imposing a mandatory life sentence for possession of a firearm by a violent career criminal. The trial court denied the motion.

First, appellant claims that the trial court committed fundamental error when it gave the standard jury instruction on the lesser included offense of manslaughter by act, which erroneously stated that the state had to prove that “the defendant intentionally caused the death of the victim.” In State v. Montgomery, 39 So.3d 252 (Fla.2010), our supreme court held that the trial court’s use of the standard jury instruction on manslaughter by act, which erroneously required a jury finding that the defendant intended to kill the victim, constituted fundamental error in a first-degree murder prosecution wherein the defendant was convicted of the lesser included offense of second-degree murder. In December 2008, the supreme court amended this instruction to provide: “In order to convict of manslaughter by intentional act, it is not necessary for the State to prove that the defendant had a premeditated intent to cause death, only an intent to commit an act which caused death.” In re Standard Jury Instructions in Criminal Cases-Report No. 2007-10, 997 So.2d 403, 404 (Fla.2008).. However, the instruction retained the erroneous language that the state had to prove that the defendant “intentionally caused the death” of the victim. Id. Recently, in Riesel v. State, 48 So.3d 885, 2010 WL 4025863 (Fla. 1st DCA 2010), we held that, because this amended instruction still stated that intent to kill was an element of manslaughter, giving the instruction constituted fundamental error pursuant to Montgomery where the jury was not instructed on manslaughter by culpable negligence. Because appellant was convicted of second-degree murder (which was one step removed from the lesser included offense of manslaughter by act) and the jury was not instructed on manslaughter by culpable negligence, the trial court committed fundamental error in giving the erroneous standard jury instruction on manslaughter by act, requiring the reversal of appellant’s second-degree murder conviction pursuant to Montgomery and Riesel.

Second, appellant claims that his dual convictions for possession of a firearm by a violent career criminal pursuant to section 790.235, Florida Statutes (2007), and possession of a firearm by a convicted felon pursuant to section 790.28, Florida Statutes (2007), violated the constitutional prohibition against double jeopardy. The state correctly concedes error because the indictment did not charge separate acts of possession and the offense of possession of a firearm by a convicted felon was a lesser offense the elements of which were subsumed by the greater offense of possession of a firearm by a violent career criminal. See § 775.021(4)(b)3., Fla. Stat. (2007) (expressing the legislature’s intent that a defendant is to be convicted and sentenced for each criminal offense committed in the course of one criminal episode or transaction except for “[ojffenses which are lesser offenses the statutory elements of which are subsumed by the greater offense”). See also Williams v. State, 776 So.2d 358, 359 (Fla. 1st DCA 2001) (holding that the offense of carrying a concealed firearm by a convicted felon set out in section 790.23, Florida Statutes, is a lesser included offense of the offense of carrying a concealed firearm by a violent career criminal set out in section 790.235, Florida Statutes). Dual convictions in contravention of legislative intent are a violation of the constitutional prohibition against double jeopardy and constitute fundamental error that can be raised for the first time on appeal. Kilmartin v. State, 848 So.2d 1222 (Fla. 1st DCA 2003). Accordingly, appellant’s conviction and sentence for possession of a firearm by a convicted felon must be vacated.

Third, appellant claims that the trial court erred in denying his motion for judgment of acquittal on the charges of tampering with evidence because there was insufficient evidence that appellant had knowledge of an imminent or pending investigation. The state correctly responds that this claim is not preserved for appeal because appellant never raised this specific argument in his motion for judgment of acquittal. See Steinhorst v. State, 412 So.2d 332, 338 (Fla.1982) (holding that “in order for an argument to be cognizable on appeal, it must be the specific contention asserted as legal ground for the objection, exception, or motion below”). However, our supreme court has recognized that “an argument that the evidence is totally insufficient as a matter of law to establish the commission of a crime need not be preserved” because it “meets the requirements of fundamental error — i.e., an error that reaches to the foundation of the case and is equal to a denial of due process.” F.B. v. State, 852 So.2d 226, 230-31 (Fla.2003). Because appellant has failed to show that the evidence was totally insufficient as a matter of law to establish the commission of a crime, we conclude that there was no fundamental error in this case.

Finally, appellant claims that the trial court erred in imposing a mandatory life sentence for possession of a firearm by a violent career criminal pursuant to section 775.084(4)(d)l., Florida Statutes (2007), which requires that violent career criminals be sentenced to life for first-degree felonies, because sentencing should be controlled by section 790.235, Florida Statutes (2007), which provides in pertinent part:

(1) Any person who meets the violent career criminal criteria under s. 775.084(l)(d), regardless of whether such person is or has previously been sentenced as a violent career criminal, who owns or has in his or her care, custody, possession, or control any firearm, ammunition, or electric weapon or device, or carries a concealed weapon, including a tear gas gun or chemical weapon or device, commits a felony of the first degree, punishable as provided in s. 775.082, s. 775.088, or s. 775.084. A person convicted of a violation of this section shall be sentenced to a mandatory minimum of 15 years’ imprisonment; however, if the person would be sentenced to a longer term of imprisonment under s. 775.084(4)(d), the person must be sentenced under that provision.

Otherwise, appellant claims that section 775.084(4)(d)l. would nullify section 790.285(1) by always requiring a life sentence. This claim is without merit. A trial court is required to impose a life sentence pursuant to section 775.084(4)(d)l. unless it finds that a violent career criminal sentence is not necessary for the protection of the public pursuant to section 775.084(4)(e), in which case the trial court has the discretion to impose a prison sentence of up to thirty years with a mandatory minimum of fifteen years pursuant to section 790.235(1). Pope v. State, 884 So.2d 328, 329 (Fla. 2d DCA 2004). Because the trial court did not find that a violent career criminal sentence was not necessary for the protection of the public, appellant was properly sentenced to life in prison pursuant to section 775.084(4)(d)l. We also reject appellant’s claim that the trial court erred in sentencing appellant without a scoresheet since the Criminal Punishment Code did not apply pursuant to section 775.084(4)(h).

In conclusion, we reverse appellant’s conviction for second-degree murder with a firearm and remand for a new trial. We also reverse and remand with directions that the trial court vacate appellant’s conviction and sentence for possession of a firearm by a convicted felon. In all other respects, we affirm.

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

WOLF and KAHN, JJ., concur.


author: THOMAS, J.

text:
    The TONNELIER CONSTRUCTION GROUP, INC., Appellant, v. Ronald J. SHEMA, individually, Carolyn Shema, individually, Holly M. Shema, individually, Noelle Shema, individually, Gainesville Realty & Development, Inc., a Florida corporation, Gainesville Custom Homes, Inc., a Florida corporation, Ronj, Inc., a Florida corporation, and Gainesville Realty, Inc., a Florida corporation, Appellees.
    No. 1D09-4820.
    District Court of Appeal of Florida, First District.
    Nov. 22, 2010.

      Robert P. Butts and Danielle M. Pollock of Fisher, Butts, Sechrest, Warner & Palmer, P.A., Gainesville, for Appellant.
    Stephen B. Rakusin of The Rakusin Law Firm, P.A., Fort Lauderdale; Jefferson M. Braswell of Scruggs & Carmichael, P.A., Gainesville, for Appellees.
   THOMAS, J.

Appellant seeks reversal of the lower court’s order and final judgment denying Appellant’s request to set aside various asset transfers. Appellant argues that this was error, because Appellees’ failure to respond to Appellant’s allegations acted as an admission to those allegations, thus precluding Appellees from presenting any rebuttal evidence. Appellant also argues the trial court erred by failing to find the transfers were fraudulent. For the reasons explained below, we affirm as to both issues.

I.

Appellant’s first argument faces several obstacles. First, Appellant neither identified this argument as a distinct issue in its Initial Brief, nor did Appellant present what passes for an argument on that point as a separate basis for reversal. This is improper. See F.M.W. Properties, Inc. v. Peoples First Fin. Sav. & Loan Ass’n, 606 So.2d 372, 378 (Fla. 1st DCA 1992) (holding “the failure to organize arguments under cogent and distinct issues on appeal presents sufficient reason for an appellate court to decline consideration of a matter.”). We say “passes for argument,” because in both Appellant’s Summary of Argument and its Argument, Appellant did not explicitly assert that the trial court erred in allowing Appellees to present evidence.

Furthermore, although the heading for Appellant’s first argument addressed an entirely different matter, Appellant addressed this procedural matter under that argument. In doing so, however, Appellant simply stated: “The lower court found, after reviewing Tonnelier’s pleadings and the transcript of Shema’s deposition, that Tonnelier had presented a prima facie case that the transfers at issue were fraudulent. Accordingly, at a procedural minimum, the burden shifted to the Defendants to disprove Tonnelier’s prima facie case.” This is a mere recitation of what transpired at trial, not an assertion that the trial court erred.

This is an important point because on the first day of the bench trial, Appellant’s counsel asked the court to take notice that Appellees failed to comply with its order to respond to Appellant’s allegations and assert any defenses. Appellant’s counsel then “submit[ted] to the court that, as a result of that [failure] ... there is a rebuttable presumption that the assertions in the motion are accurate.... ” After a brief discussion with both attorneys, the trial court found that the motion to' set aside the contested transfers “put forth a prima facie case,” and the burden then shifted to Appellees to show why the transfers should not be set aside. When asked if there was anything else the court needed to do, Appellant’s counsel replied, “No sir, not as long as you take the assertions.” Thus, to the extent the court’s conclusion that Appellees’ failure to respond to the allegations was incorrect, Appellant either waived this argument or invited the error. “[A] party may not invite error and then be heard to complain of that error on appeal.” Terry v. State, 668 So.2d 954, 962 (Fla.1996).

Despite the foregoing, after the court declined to set aside any of the contested transfers, Appellant filed a motion for rehearing, arguing for the first time that, pursuant to Florida Rules of Civil Procedure 1.110(e) and 1.140(b), Appellees’ failure to respond to Appellant’s motion to set aside resulted in an admission of all aver-ments in the motion, including the allegations that the transfers, which Appellees did not deny took place, were fraudulent. As noted, the trial court did exactly what Appellant asked it to do: it treated the assertions in the motion to set aside as true, subject to rebuttal by Appellees as to whether the transfers were in fact fraudulent. Thus, to the extent the trial court erred by not deeming as admitted all the assertions in the motion, including the allegations that the transactions were fraudulent, Appellant invited this error.

II.

As to Appellant’s second argument, in the proceedings below Appellant alleged the challenged transfers were fraudulent and were made for the purpose of preventing Appellant from collecting on its judgment against Gainesville Realty, Inc., which was succeeded by Gainesville Realty & Development, Inc. Appellees stipulated below that the latter company was a continuation of the former. Appellees also did not dispute that the contested transfers took place, nor did they deny when and to whom the transfers were made; rather, Appellees argued that there was no fraudulent intent behind any of the transfers. Appellant did not call any witnesses, but relied instead on the direct testimony and cross-examination of Appellees’ witnesses, including the accountant expert witness.

Because Appellees presented evidence to rebut the presumption of fraud created by the contested conveyances, the trial court was charged with deciding whether there was a preponderance of evidence to establish fraud; that is, whether Appellees presented sufficient evidence to overcome the presumption that the conveyances were in fact fraudulent. This was a factual determination, and appellate courts typically do not disturb a trial court’s fraud determination unless it is clearly erroneous. See Scott v. Dansby, 334 So.2d 331, 333 (Fla. 1st DCA 1976) (holding “[i]t was the duty of the court to weigh the testimony presented to it with due consideration being given to the particular circumstances surrounding the conveyances under attack. [Those] findings of fact ... come to [the appellate court] with a presumption of correctness and will not be disturbed unless they are clearly erroneous.”). Here, there was sufficient evidence to support the trial court’s determination that there was no fraud.

Furthermore, considering the issue of whether the conveyances were made with the intent to prevent Appellant from being able to collect on its judgment, the trial court was also ultimately required to make a credibility determination, which appellate courts typically do not disturb. See Smiley v. Greyhound Lines, Inc., 704 So.2d 204, 205 (Fla. 5th DCA 1998) (holding that because trial court has the firsthand opportunity to hear and observe the witnesses as they testify, it is in a superior position to weigh the evidence and credibility of the witnesses and, “[a]ccordingly, it is not the function of an appellate court to substitute its judgment for that of the trial court unless there is a lack of competent substantial evidence to support the findings upon which a final judgment is based.”).

Appellant essentially argues that because one or more of the subject conveyances bore multiple prima facie “badges of fraud,” Appellant was entitled to a finding of fraud and an attendant avoidance of the contested transfers. This is incorrect. As stated by this court in Banner Construction Corp. v. Arnold, 128 So.2d 893, 896 (Fla. 1st DCA 1961), “[b]adges of fraud are not conclusive, but are more or less strong or weak according to their nature and the number occurring in the same case.... And while a badge of fraud standing alone may amount to little more than a suspicious circumstance, insufficient in itself to constitute fraud per se, several of them when considered together may afford a basis from which its existence is properly inferable.” (Emphasis added.) Thus, although multiple badges of fraud may raise the suspicion level concerning a given conveyance, they do not constitute fraud per se. It is also important to note that the Arnold decision affirmed a jury verdict finding the subject conveyance was fraudulent, holding that the evidence was sufficient to sustain the verdict because of the existence of several indicia of fraud. Id. Here, however, the trial court found that, despite such indicia, there was no fraudulent intent.

For the foregoing reasons, the trial court’s order and final judgment denying Appellant’s request to set aside the transfers at issue is AFFIRMED.

KAHN and VAN NORTWICK, JJ„ concur.


author: PER CURIAM.

text:
    Theresa EVANS, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 1D10-4917.
    District Court of Appeal of Florida, First District.
    Nov. 23, 2010.
    Scott Timothy Smith, Brooksville, for Appellant.
    Joyce Miller, Department of Children and Families, Wildwood, for Appellee.
   PER CURIAM.

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

BENTON, C.J., KAHN, and WETHERELL, JJ., concur.


author: HAZOURI, J.

text:
    L.E.D., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-2164.
    District Court of Appeal of Florida, Fourth District.
    Nov. 24, 2010.
    Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant Public Defender, West Palm Beach, for appellant.

      Bill McCollum, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   HAZOURI, J.

L.E.D., a child, appeals from the finding of guilt for burglary of a dwelling and grand theft. L.E.D. asserts the trial court abused its discretion and reversibly erred in sequestering L.E.D.’s mother from the trial. We reverse.

L.E.D., age ten at the time of the offense, was charged by Petition with (1) burglary of a dwelling and (2) grand theft, along with co-defendants, S.T. (counts 3 and 4) and her brother, M.T. (counts 5 and 6). After L.E.D. was found guilty, the trial court withheld adjudication and placed her on probation with special conditions. L.E.D. and her mother were ordered to pay restitution to the victim in the amount of $1000.

At the beginning of the trial, defense counsel invoked the rule of sequestration of witnesses. Although L.E.D.’s mother was going to be a witness in the case, defense counsel argued that the mother, a party to this matter, should not be sequestered from the courtroom. The trial court disagreed and ordered L.E.D.’s mother to be sequestered until she was called as a witness by the defense.

L.E.D. argues that the trial court should not have sequestered her mother throughout the presentation of the state’s case. We agree.

Section 90.616, Florida Statutes (2009), provides:

(1) At the request of a party the court shall order, or upon its own motion the court may order, witnesses excluded from a proceeding so that they cannot hear the testimony of other witnesses except as provided in subsection (2)
(2) A witness may not be excluded if the witness is:
(a) A party who is a natural person.
(c) A person whose presence is shown by the party’s attorney to be essential to the presentation of the party’s cause.
(d) In a criminal case, the victim of the crime, the victim’s next of kin, the parent or guardian of a minor child victim, or a lawful representative of such person, unless, upon motion, the court determines such person’s presence to be prejudicial.

L.E.D. relies on J.R. v. State, 923 So.2d 1269 (Fla. 1st DCA 2006), in which the First District reversed a delinquency adjudication because the trial court erroneously sequestered the juvenile/defendant’s mother during his trial, finding this not to be harmless.

In J.R., his counsel stated, “I would object to this child going to trial without his mother being present in the courtroom.” Id. at 1270. She was also a defense witness. The trial court noted the objection and sequestered J.R.’s mother. On appeal, the court made several holdings. First:

[W]e conclude that J.R.’s mother was herself a party and entitled to be present at the adjudicatory hearing on that account. But counsel did not object at the hearing on her behalf, and argues on appeal only that her exclusion violated J.R.’s rights. Preliminarily, therefore, we confront a standing question. Like most other courts that have considered the question, we conclude that it is appropriate for J.R. to assert this as error on appeal.

Id. at 1270-71. In making this determination, the First District cites two out-of-state cases in support of the child having standing to assert this right. See L.B. v. State, 675 N.E.2d 1104, 1107 (Ind.Ct.App.1996); Hopkins v. Youth Court of Issaquena Cnty., 227 So.2d 282, 284 (Miss.1969). The state in the instant case cites People v. Akers, 17 Ill.App.3d 624, 307 N.E.2d 630 (Ill.Ct.App.1974), which holds otherwise. The First District cited Akers and recognized in its opinion in J.R. that Akers went the other way, but it still held the juvenile had standing.

The First District also found that the mother of J.R. was a party to the delinquency proceeding and therefore, the rule of sequestration gave no basis upon which the trial court could exclude her from the adjudicatory hearing, even if she was listed as a defense witness. J.R., 923 So.2d at 1272. The court based its holding on a number of statutes and rules which (1) make her legally responsible for restitution, see generally Florida Rule of Juvenile Procedure 8.030(b) (2004); (2) require service of summons on parents, section 985.219, Florida Statutes (2004); and (3) contemplates the parents’ participation at both detention hearings and final disposition hearings, Florida Rule of Juvenile Procedure 8.010(a) (2004).

Finally, the court held that it was not harmless error. Quoting L.B. v. State, 675 N.E.2d 1104 (Ind.Ct.App.1996), it stated: “[T]he exclusion here was not for a small portion of cumulative evidence but for a substantial portion of the proceedings, including the entire case-in-chief for the State during the adjudicatory hearing. The parents’ exclusion ... was not harmless.” Id. at 1107.

We find the First District’s opinion in J.R. to be persuasive and adopt its reasoning as our own. We, therefore, reverse and remand for a new adjudicatory hearing.

Reversed and Remanded.

TAYLOR and CIKLIN, JJ., concur.


author: DAMOORGIAN, J.

text:
    STRAX REJUVENATION AND AESTHETICS INSTITUTE, INC., Appellant, v. Donna SHIELD and Roger L. Gordon, M.D., Appellees.
    No. 4D09-3587.
    District Court of Appeal of Florida, Fourth District.
    Nov. 24, 2010.
    Dinah Stein of Hicks, Porter, Ebenfeld & Stein, P.A., Miami, and Monica L. Pierce of Chimpoulis & Hunter, P.A., Da-vie, for appellant.
    Susan S. Lerner of Josephs Jack, Miami, for appellee, Donna Shield.
   ON REMAND FROM THE SUPREME COURT OF FLORIDA

DAMOORGIAN, J.

We reconsider on remand our opinion in Strax Rejuvenation & Aesthetics Institute, Inc. v. Shield, 24 So.3d 666 (Fla. 4th DCA 2009), which was quashed by the Florida Supreme Court following its decision in Strax Rejuvenation & Aesthetics Institute, Inc., v. Shield, 49 So.3d 741 (Fla.2010). Pursuant to the Supreme Court mandate, we remand the matter for an evidentiary hearing to determine the actual date the notice of appeal was filed in the circuit court. At the evidentiary hearing, Strax must overcome, by competent and substantial evidence, the presumption that the clerk’s time stamp on the notice of appeal accurately reflects the date the notice was filed in the circuit court. In order for this court to determine whether Strax timely filed its notice of appeal, Strax shall file, with this court, a copy of the circuit court order with its findings as to the filing date of the notice of appeal within ten days from the date of entry of the order.

Remanded for Further Proceedings.

TAYLOR and HAZOURI, JJ., concur.


text:
    DEPARTMENT OF REVENUE o/b/o Sharon M. SIMMONS, Appellant, v. Bryant WARDLAW, Appellee.
    No. 4D09-3656.
    District Court of Appeal of Florida, Fourth District.
    Nov. 24, 2010.
    Bill McCollum, Attorney General, Tallahassee, and Toni C. Bernstein, Senior Assistant Attorney General, Tallahassee, for appellant.
    Patricia Ireland of Phillips & Richard, P.A., Miami, for appellee.
   PER CURIAM.

The Department of Revenue (Department), on behalf of Sharon M. Simmons, appeals a circuit court’s order vacating the Final Order of Paternity and Administrative Support issued by the Department against appellee, Bryant Wardlaw. The circuit court vacated the order upon its finding that the order was entered without proper notice and was thus void. Jurisdiction to judicially review administrative support orders rendered pursuant to section 409.2563, Florida Statutes (2009), lies with the district courts of appeal. Because the circuit court lacked jurisdiction to vacate the Final Order of Paternity and Administrative Support, we reverse the circuit court’s order. See § 120.68, Fla. Stat. (2009); Dep’t of Revenue v. Manasala, 982 So.2d 1257, 1259 (Fla. 1st DCA 2008) (holding that circuit courts do not have jurisdiction to enter an order either vacating or retroactively affecting an administrative support order); Dep’t of Revenue v. Mohomed, 996 So.2d 900, 901 (Fla. 5th DCA 2008) (explaining that “jurisdiction to retroactively review a final administrative support order is vested in the district courts of appeal not in the circuit courts”).

Reversed.

TAYLOR, HAZOURI and CIKLIN, JJ., concur.


text:
    Linda HAMILTON, as Personal Representative of the Estate of Herbert Hamilton, deceased, Appellant, v. FLORIDA POWER & LIGHT COMPANY, Asplundh Tree Expert Company, Boynton Landscape Company, Inc., and Susan Smith, Appellees.
    No. 4D09-3971.
    District Court of Appeal of Florida, Fourth District.
    Nov. 24, 2010.

      Diana L. Martin of Leopold-Kuvin, P.A., Palm Beach, Gardens, and Edwin Ferguson of The Ferguson Firm, Riviera Beach, for appellant.
    Helen Ann Hauser and Maria E. Dalma-nieras of Restani, Dittmar & Hauser, P.A., Coral Gables, for appellee Florida Power & Light Company.
    Mitchell L. Lundeen and Kevin M. O’Brien of George, Hartz, Lundeen, Coral Gables, for appellee Asplundh Tree Expert Company.
    Rayford H. Taylor of Stiles, Taylor & Grace, P.A., Atlanta, Georgia, and Robert J. Grace, Jr., of Stiles, Taylor & Grace, P.A., Tampa, for appellee Boynton Landscape Company, Inc.
   HAZOURI, J.

Linda Hamilton, as Personal Representative of the Estate of Herbert Hamilton, filed a wrongful death action against Florida Power & Light Company (FPL), As-plundh Tree Expert Company (Asplundh), Boynton Landscape Company, Inc. (Boyn-ton) and Susan Smith. FPL, Asplundh, and Boynton settled with Hamilton through her attorney for fifty thousand dollars each. Hamilton asserted that she had not given her attorney the authority to settle and FPL, Asplundh and Boynton filed motions to enforce settlement after Hamilton refused to execute the settlement agreement.

The trial court held an evidentiary hearing to determine whether Hamilton had given her attorney the clear and unequivocal authority to settle. Following the evi-dentiary hearing, the trial court granted the appellees’ motions to enforce settlement from which Hamilton now appeals.

A party seeking to enforce a settlement agreement bears the burden of showing that the attorney proposing the settlement had the clear and unequivocal authority from his client to do so. Sosnick v. McManus, 815 So.2d 759, 762-63 (Fla. 4th DCA 2002). The trial court’s factual findings that there was a clear and unequivocal grant of authority must be supported by competent, substantial evidence in order to be upheld on appeal. See Spiegel v. H. Allen Holmes, Inc., 834 So.2d 295, 297 (Fla. 4th DCA 2002).

At the hearing to enforce the settlement there was conflicting evidence regarding Hamilton’s attorney’s authority to settle. The trial court took testimony and resolved the conflict in favor of the appellees. When there is a nonjury finding on disputed evidence, it is reviewed on appeal for competent, substantial evidence because the lower court “is in the best position ‘to evaluate and weigh the testimony and evidence based upon its observation of the bearing, demeanor and credibility of the witnesses.’” Acoustic Innovations, Inc. v. Schafer, 976 So.2d 1139, 1143 (Fla. 4th DCA 2008) (quoting Shaw v. Shaw, 334 So.2d 13, 16 (Fla.1976)). Upon review of the record of the hearing on the motions to enforce settlement there is competent, substantial evidence to support the trial court’s findings and we therefore affirm.

Affirmed.

CIKLIN and LEVINE, JJ., concur.


text:
    Tamara ACKERMAN, Appellant, v. MIAMI RESCUE MISSION, INC., d/b/a Broward Outreach Center, Appellee.
    No. 4D10-2891.
    District Court of Appeal of Florida, Fourth District.
    Nov. 24, 2010.
    Neil Rose and Dara L. Schottenfeld of Bernstein, Chackman, Liss & Rose, Hollywood, and Russel Lazega of the Law Office of Russel Lazega, North Miami, for appellant.
    Shelley H. Leinicke of Wicker, Smith, O’Hara, McCoy & Ford, P.A., Ft. Lauder-dale, for appellee.
   PER CURIAM.

In this negligence action involving a trip and fall at the Broward Outreach Center, a homeless shelter, the trial court granted summary judgment in favor of the defendant Center. In this appeal of the summary judgment, the Center has filed a notice of consent to this court entering a decision “remanding this case to the trial court with instructions to vacate the summary final judgment that is the subject of this appeal.” Upon a review the record, we accept appellee’s concession of error and reverse.

Reversed and remanded for further proceedings consistent with this decision.

STEVENSON, DAMOORGIAN and GERBER, JJ., concur.


author: DAVIS, Judge.

text:
    Joe Nathan WILLINGHAM, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-53.
    District Court of Appeal of Florida, Second District.
    Nov. 24, 2010.
    James Marion Moorman, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Ap-pellee.
   DAVIS, Judge.

Joe Nathan Willingham challenges his convictions and sentences for aggravated battery with a firearm causing great bodily harm and shooting at, within, or into a vehicle. We affirm his convictions and sentences without further comment. We remand for the limited purpose of correcting a scrivener’s error which appears on the face of the written judgment. Although the record reflects that Willingham was convicted after a jury trial, the written judgment erroneously indicates that he entered a no contest plea. Accordingly, we remand for the trial court to correct this error. See Newson v. State, 867 So.2d 603 (Fla. 2d DCA 2004).

ALTENBERND and NORTHCUTT, JJ., Concur.


text:
    John AURELIUS, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-2378.
    District Court of Appeal of Florida, Second District.
    Nov. 24, 2010.
    James Marion Moorman, Public Defender, and John C. Fisher, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Sara Macks, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Affirmed. See Simmons v. State, 913 So.2d 19 (Fla. 2d DCA 2005).

DAVIS, CRENSHAW, and BLACK, JJ., Concur.


text:
    Allen Harrell HUNTER, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-1076.
    District Court of Appeal of Florida, Fourth District.
    Nov. 24, 2010.
    Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Allen Harrell Hunter appeals his conviction and sentence for burglary of a dwelling and grand theft and the amount of restitution awarded to the victim. We affirm the conviction without discussion, and reverse on the issue of restitution.

Hunter was charged with burglary of a dwelling and grand theft in connection with a break-in at the victim’s residence. Several items were taken from the home: jewelry, a laptop computer, a handgun, and a piece of luggage. At Hunter’s sentencing hearing, the victim sought twenty thousand dollars in restitution. When the court inquired as to how the victim arrived at this figure, she stated:

The amount of money that I came up with was based on my research that I took the time to do, to find even pieces that was [sic] even slightly resembling what I lost. And the value that I placed on each one was fair. And then my alarm system cost me $1000 and the repair to my home cost me another thousand. So the eighteen thousand is where I find the value in my list [of] possessions. And the other two thousand was in repair and upgrading of my home so I wouldn’t be victimized again.

During her direct testimony, the victim stated that she purchased her laptop and accessories for approximately $1500 in 2003. She purchased the firearm for $379 several months prior to the burglary, and the piece of luggage for $39 in February 2005. The victim also testified that she had purchased a twenty-four inch strand of pearls in 2001 for $2500 and a large cubic zirconia ring in 2004 for $350. Based on the victim’s testimony, the trial court ordered restitution in the amount of $12,500. Hunter objected to the award and contends that the award is not supported by substantial, competent evidence. We agree.

A trial court’s restitution order is reviewed under an abuse of discretion standard. Wolff v. State, 981 So.2d 651, 653 (Fla. 4th DCA 2008) (quoting Bennett v. State, 944 So.2d 524 (Fla. 4th DCA 2006)). Restitution must be proved by substantial, competent evidence and this evidence must be greater than mere speculation. Id. (citations omitted). “A victim’s testimony, without documentation, is not enough to support an award of restitution.” Id. (citations omitted).

Section 775.089, Florida Statutes, permits a trial court to order a defendant to make restitution for damages or losses caused by the defendant’s offense. § 775.089(l)(a), Fla. Stat. (2008). The state bears the burden of proving by the preponderance of the evidence the loss sustained by the victim as a result of the offense. § 775.089(7), Fla. Stat. (2008); Davis v. State, 707 So.2d 842, 843 (Fla. 2d DCA 1998).

The trial court erred in awarding $12,500 in restitution for the following reasons. First, the victim testified that she paid $1000 for repairs to her home, but did not indicate what repairs were actually performed. See Tullis v. State, 692 So.2d 229, 229 (Fla. 1st DCA 1997) (striking a restitution order based on the victim’s offer of a “guesstimate” as to the cost of repairs).

Second, the court did not specify the value it was assigning to the laptop, piece of luggage, or handgun. In State v. Hawthorne, 573 So.2d 330, 333 (Fla.1991), the Florida Supreme Court held that fair market value should be used to determine the amount of restitution in most instances. Courts should rely on four factors to ascertain fair market value: “(1) original market cost; (2) the manner in which the item was used; (3) the general condition and quality of the item; and (4) the percentage of depreciation.” Hawthorne, 573 So.2d at 332. In the instant case, the only testimony presented regarding the value of the laptop, luggage, and handgun was the original purchase price. As the items were purchased several years prior to the burglary, the court should have taken depreciation into account.

The victim also failed to identify all of the jewelry that had been taken from her home. “[B]asic fairness seems to dictate that the owner should be required, at a minimum, to identify what property has been lost so that the trier of fact may reasonably determine the value of the stolen items.” Fisher v. State, 722 So.2d 873, 874 (Fla. 1st DCA 1998). In Fisher, the court reversed a restitution award for stolen jewelry because the owner was unable to identify all the property she had lost. Id. While three containers of jewelry had been taken, the owner was able to give an estimated value for only four pieces of jewelry. Id. at 873. The court stated that

where some items of jewelry were identified and a value placed on them, where other items of jewelry were identified but no value placed on them, and where other jewelry was not identified at all, the State must produce some specific evidence or testimony as to the nature and value of the pieces claimed to have been taken.

Id. at 874.

Finally, the victim testified that her mother had given her a ruby and diamond ring and told her that she had paid $3500 for it. Hearsay testimony is insufficient to establish the value of property for restitution purposes. See Aboyoun v. State, 842 So.2d 238, 239 (Fla. 2d DCA 2003). In Aboyoun, the victim testified that he had received four gold necklaces as a gift from his parents and that they had told him the amount they paid for the items. Id. The court, however, found the testimony did not adequately establish the value of the jewelry, and reversed the restitution order. See id. at 240.

The trial court erred in establishing the amount of restitution because the victim could not identify all of the items that had been taken, relied on hearsay evidence to establish value, and failed to take into account depreciation. Accordingly, we reverse the order of restitution and remand for further proceedings consistent with this opinion.

Reversed and Remanded.

TAYLOR, HAZOURI and CIKLIN, JJ„ concur.


text:
    Leon Parker DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-1073.
    District Court of Appeal of Florida, Fourth District.
    Nov. 24, 2010.

      Carey Haughwout, Public Defender, and Gary Lee Caldwell, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for appellee.
   TOWBIN SINGER, MICHELE, Associate Judge.

The appellant, Leon Parker Davis, appeals the revocation of his probation and accompanying sentence. Davis was charged with two counts of violating the conditions of his probation, to wit: committing the crimes of 1) burglary of an unoccupied dwelling and 2) grand theft. We reverse only the count of grand theft and remand for further proceedings.

At the probation violation hearing, Randolph Hubing testified that on the day of the incident, he was living in an efficiency located behind his landlord’s house. The house and the efficiency were surrounded by a fence with locked gates. There is an alley behind the house for garbage trucks and cars to use. The windows to the efficiency were closed and the fence gates were locked when he left for work that morning. Midday, Richard Aldrich, his landlord, called Hubing to tell him that his efficiency had been burglarized.

When Hubing returned to his efficiency, he saw that the window screen was on the ground and the window was open. Almost everything in the efficiency was moved, showing someone had gone through everything. Hubing noticed that one of his bicycles, his computer and some other electronics were missing. A laundry basket with clothes in it was also missing. Hubing never recovered any of the missing items except for the bicycle.

Hubing testified as follows about the value of the stolen items:

Q And out of all the — let’s start with the computer, can you tell me how much that was?
A I bought it new for about $700.
Q How about the DVD player?
A New for $150.
Q The headphones?
A Sixty.
Q The class ring?
A That was a long time ago, ma'am. I don’t know what it would be worth today. I’d say $50.
Q Okay. And how about the camera?
A $150.
Q Okay.

Hubing also testified that he bought the bicycle used for $100.

Aldrich, the landlord, testified that he left work early that day and arrived home between 11:00 A.M. and 1:00 P.M. He looked out his kitchen window and saw a man walking inside his fenced backyard. The man was walking with a bicycle which Aldrich recognized as belonging to Hub-ing. (The bicycle was easily recognizable because of its green color and the milk carton attached behind the seat.) Aldrich watched the man push the bicycle through the back gate of the fence into the back alley.

Aldrich immediately called 911. The police arrived a few minutes later. He provided the police with a description of the individual and the bicycle. Within minutes, the police found Davis walking with the bicycle a few blocks away from Ald-rich’s house. Davis and the bicycle matched the descriptions given by Aldrich. Aldrich subsequently identified Davis as the person he had seen in his backyard. At the probation violation hearing, Aldrich testified that too much time had passed since the incident and he could not make a positive in-court identification of the person he had seen in his backyard.

Defense counsel moved to dismiss the violation arguing that (1) the burglary charge was not proven because Aldrich did not identify Davis in court; (2) the grand theft charge was not proven because the value of the property had to be over $100 and the only property found in his possession was the bicycle; and (3) the state’s evidence failed to refute the defendant’s hypothesis of innocence that he found the bicycle in the alley after it was ditched by the burglar. The trial court denied the motion. After arguments, the trial court found that Davis had knowingly, willfully and intentionally violated his probation by committing the offense of burglary of a dwelling and grand theft.

“To revoke probation, the conscience of the court must be satisfied that the State proved by a greater weight of the evidence that, under the totality of the circumstances, the probationer deliberately, willfully, and substantially violated a condition of his or her probation.” Ubiles v. State, 23 So.3d 1288, 1290 (Fla. 4th DCA 2010) (quoting Shepard v. State, 939 So.2d 311, 313 (Fla. 4th DCA 2006)). “An appellate court reviews a trial court decision on violations of probation under an abuse of discretion standard.” Ubiles, 23 So.3d at 1291 (quoting Kaduk v. State, 959 So.2d 817, 819 (Fla. 4th DCA 2007)). Recognizing the relaxed standards of a revocation hearing, there must still be sufficient evidence to show that a probationer committed the offense charged. See, e.g., Collins v. State, 446 So.2d 268 (Fla. 2d DCA 1984) (in revocation proceedings, a finding of grand theft was improper because the state did not prove the value of the property stolen, but a finding of petit theft was not precluded).

Davis argues that the state failed to refute his hypothesis of innocence that he merely found the bicycle in the alley and was cutting through the backyard to get to the street in front of the house. We disagree. There was sufficient evidence for the trial court to have found that Davis committed a burglary and a theft. Aldrich testified that he saw Davis walking between his house and the efficiency inside the fenced-in yard. Davis was walking with a bicycle which Aldrich recognized as belonging to Hubing. Hubing testified that his bicycle was in his efficiency when he left for work that morning. Proof of possession of property recently stolen, unless satisfactorily explained, gives rise to an inference of guilt of theft and burglary. See Francis v. State, 808 So.2d 110 (Fla.2001); see also Kerr v. State, 954 So.2d 692 (Fla. 4th DCA 2007) (citing T.S.R. v. State, 596 So.2d 766 (Fla. 5th DCA 1992) (“unexplained possession of recently stolen property is not only sufficient to support theft conviction, but when burglary necessarily occurs as adjunct, inference of guilt from unexplained possession of recently stolen goods also supports conviction for burglary”)). Here, the state presented evidence that Davis possessed the bicycle which recently had been stolen from inside Hub-frig’s efficiency.

Although Aldrich could not make a positive identification of Davis at the probation violation hearing as the person he saw with the bicycle, both he and the officer testified that Aldrich made a positive identification of Davis on the day of the burglary. Moreover, the officer testified at the hearing that Davis was the same person who Aldrich identified on the date of the burglary. Accordingly, the trial court did not abuse its discretion by determining that the state proved, by the greater weight of the evidence, that Davis committed a burglary in violation of the terms of his probation.

Davis next argues that the state presented insufficient evidence to prove that he committed grand theft. As previously discussed, the state clearly presented sufficient evidence for the court to find that Davis committed a theft. The only issue is whether the state presented sufficient evidence of the stolen property’s value to sustain a violation for grand theft.

“Value may be established by direct testimony of fair market value or through evidence of the original market cost of the property, the manner in which the items were used, the condition and quality of the items, and the percentage of depreciation of the items since their purchase.”

D.H. v. State, 864 So.2d 588, 588 (Fla. 2d DCA 2004) (quoting Pickett v. State, 839 So.2d 860, 861-62 (Fla. 2d DCA 2008)).

In D.H., the victim testified that numerous items were stolen including a DVD player, computers, a Sony PlayStation 2, video games, jewelry, matchbox cars, baseball cards, cameras, and children’s toys. She had paid $199.99 for the PlayStation 2, between $14.99 and $39.99 for the six or seven games stolen, and $.69 to $.99 for the 100 matchbox cars. There was no other testimony of the fair market value or of any other means of establishing value. The court held this testimony was insufficient to prove the value was over $300 and rejected “the state’s argument that the description of the items stolen, by their sheer number and type, indicates a value over $300.” Id. at 589.

A review of the testimony concerning the value of the property stolen in this case indicates that there was no testimony about their present value. Hubing testified only as to what he paid for the items, except for the class ring. With respect to the ring, he estimated that it was worth $50 today. The state argues that based upon the number and nature of items stolen in this case, a minimum value of at least $300 could be found. As in D.H., the state’s argument must be rejected.

Based upon the foregoing, the trial court’s finding of grand theft was improper. Rather, there is sufficient evidence for the court to find that a petit theft was proven. We, therefore, reverse the revocation of Davis’s probation and remand for further proceedings because the record does not make clear whether the trial court would have revoked his probation and imposed the same sentence based on the remaining probation violation. See Ubiles, 23 So.3d at 1292; Costanz v. State, 740 So.2d 71, 72 (Fla. 4th DCA 1999).

Reversed and Remanded for Farther Proceedings.

TAYLOR and CIKLIN, JJ., concur.

      . It is not clear from the affidavit of violation of probation under which section of the theft statute the state was operating. It could have been section 812.014(2)(c) 1., Florida Statutes (2008), which provides: "It is grand theft of the third degree and a felony of the third degree, ... if the property stolen is: 1. Valued at $300 or more, but less than $5,000.” Or it could have been section 812.014(2)(d), which provides: "It is grand theft of the third degree and a felony of the third degree ... if the property stolen is valued at $100 or more, but less than $300, and is taken from a dwelling as defined in s. 810.011(2) or from the unenclosed curtilage of a dwelling pursuant to s. 810.09(1)."
      Pursuant to the state's argument to the court, it appears that the state was proceeding under the first section above and believed it had shown property stolen valued at more than $300. Even if the amount necessary to prove grand theft was only $100 under section 812.014(2)(d), the state still did not meet its burden.


author: WELLS, Judge.

text:
    TURNBERRY INVESTMENTS, INC., a Florida corporation, Appellant, v. Richard STREATFIELD, Appellee.
    No. 3D10-190.
    District Court of Appeal of Florida, Third District.
    Nov. 24, 2010.

      Larson and Jones and Steven L. Jones, for appellant.
    Jose Herrera, Miami, for appellee.
    Before WELLS, CORTIÑAS, and LAGOA, JJ.
   WELLS, Judge.

Turnberry Investments, Inc. appeals from a final judgment canceling a tax deed issued to it and quieting title in the former owner of the property (the delinquent tax payer). That judgment sets aside a tax deed for improper notice of the tax deed sale and requires the former owner to repay Turnberry, the tax deed purchaser, an amount equal to the delinquent taxes paid ($4,487.43), the fees incurred ($792), and the amount paid in excess of the delinquent taxes and fees to acquire the property ($64,200.76). While the judgment also requires the former owner to pay interest as required by section 197.602 of the Florida Statutes to Turnberry on the amounts it paid to satisfy the unpaid taxes, it refuses, on due process grounds, to apply this provision to require the former owner to pay interest on the $64,200.76 paid by Turnberry to acquire the tax deed. We reverse this portion of the final judgment because section 197.602 clearly and unambiguously mandates payment of interest on this amount and because we reject the delinquent tax payer’s argument, adopted by the trial court, that his due process rights are impinged by such an application.

As we on more than one occasion have explained, a statute that is clear and unambiguous on its face requires no construction and should be applied in a manner consistent with its plain meaning:

Florida’s rules of statutory construction require that language be given its plain and ordinary meaning when the language is clear and unambiguous. See Metropolitan Dade Cty. v. Milton, 707 So.2d 913, 915 (Fla. 3d DCA 1998). Courts are not permitted to construe an unambiguous statute in a way which would extend, modify, or limit its express terms or its reasonable and obvious implications. To do so would be an abrogation of legislative power. Id. at 914-915. See also Oruga Corp., Inc. v. AT & T Wireless of Fla., Inc., 712 So.2d 1141, 1143-44 (Fla. 3d DCA 1998).

Active Spine Ctrs., LLC v. State Farm Fire & Cas. Co., 911 So.2d 241, 244 (Fla. 3d DCA 2005); see Zuckerman v. Alter, 615 So.2d 661, 663 (Fla.1993) (“Words of common usage, when employed in a statute, should be construed in their plain and ordinary sense.”); see also Moonlit Waters Apartments, Inc. v. Cauley, 666 So.2d 898, 900 (Fla.1996).

In this case, the controlling provision, section 197.602, needs no interpretation, clearly and unambiguously stating that the purchaser of a tax deed determined to be invalid as of the date of issuance is to be made whole by reimbursement of (1) all expenses incurred to acquire the deed; (2) all expenses relating to the land during ownership including the fair value of any improvements; (3) all sums paid to acquire the tax deed; (4) all taxes paid relating to the land; and (5) 12 percent interest on the latter two amounts from the date the tax deed is issued:

If, in an action at law or in equity involving the validity of any tax deed, the court holds that the tax deed was invalid at the time of its issuance and that title to the land therein described did not vest in the tax deed holder, then, if the taxes for which the land was sold and upon which the tax deed was issued had not been paid prior to issuance of the deed, the party in whose favor the judgment or decree in the suit is entered shall pay to the party against whom the judgment or decree is entered the amount paid for the tax deed and all taxes paid upon the land, together with 12-percent interest thereon per year from the date of the issuance of the tax deed and all legal expenses in obtaining the tax deed, including publication of notice and clerk’s fees for issuing and recording the tax deed, and also the fair cash value of all permanent improvements made upon the land by the holders under the tax deed. The amount of the expenses and the fair cash value of improvements shall be ascertained and found upon the trial of the action, and the tax deed holder or anyone holding thereunder shall have a pri- or lien upon the land for the payment of the sums.

§ 197.602, Fla. Stat. (2010) (emphasis added).

Under the clear terms of this provision, Turnberry was entitled to an interest award not just on the amount it paid to satisfy the former owner’s taxes, but also on the $64,200.76 it paid to acquire the tax deed. See Vill. of Doral Place Ass’n, Inc. v. RU4 Real, Inc., 22 So.3d 627, 681 (Fla. 3d DCA 2009) (citing section 197.602, concluding “[a]s acknowledged by the Association, the Association must repay the Buyers the purchase price with interest.”).

While we take most seriously the violation of due process claim made in this case, we nonetheless conclude that the outcome we reach here does not impinge on this delinquent property owner’s due process rights. This owner, like all other real property owners in this state, is charged not only with knowing that real property taxes are due annually but also with ascertaining the amount of taxes due and timely paying same. By law, such taxes constitute a first lien against the property at issue in favor of the taxing authority. As to delinquent taxes, tax certificates may be sold. After a two year statutory waiting period, the holder of a tax certificate may apply for a tax deed. Which is what occurred in this case — the property taxes went unpaid, a tax certificate was issued and the holder of the tax certificate applied for a tax deed with the Miami-Dade tax collector.

At that point, the property owner should have received notice that the property would be sold to satisfy the tax lien which the certificate represented. Here, the trial court found that the property owner, Richard Streatfield, “did not receive proper notice of the tax deed sale, and the tax deed sale should be set aside.” Neither side disputes this determination. What Streatfield argued below, and the position erroneously adopted by the trial court, was that application of the plain wording of section 197.602, i.e., making Streatfield responsible for the interest on “the amount paid for the tax deed,” amounted to a violation of Streatfield’s due process rights.

While failure to give proper notice that his property was going to be sold at a tax deed sale did initially deprive Streatfield of the statutory right to “redeem,” that is, the ability to retain ownership by satisfying the outstanding tax lien, his due process and “redemption” rights nonetheless were vindicated when the court below nullified the tax deed. See § 197.472, Fla. Stat. (2010); Crocker v. Pleasant, 778 So.2d 978, 989-90 (Fla.2001) (“[T]he deprivation by state action of a constitutionally protected interest in ‘life, liberty, or property’ is not in itself unconstitutional; what is unconstitutional is the deprivation of such an interest without due process of law .... In some circumstances ‘a statutory provision for a post deprivation hearing, or a common-law tort remedy for erroneous deprivation, satisfies due process[J ... simply because they are the only remedies the State could be expected to provide.’ ” (quoting Zinermon v. Burch, 494 U.S. 113, 125-128, 110 S.Ct. 975, 108 L.Ed.2d 100(1990))). But as section 197.602 and longstanding Supreme Court precedent confirm, such vindication does not, for good reason, come at the expense of the tax deed purchaser.

Indeed, the very purpose of section 197.602, which has been on the books since at least 1927, is to facilitate the statutory scheme embodied in Chapter 197 to keep government running by assuring a steady flow of tax revenues, a goal accomplished in significant part by allowing governmental entities to collect delinquent taxes via sales of tax certificates and then by sale of those certificates to non-governmental purchasers. To this end, section 197.602 was enacted to assure investors that if they purchased a tax deed — thereby assuring both revenue flow and a limitation on government ownership of land — they would receive either title to land or be made whole by return of their money, with interest, as consideration for becoming a purchaser:

The present statute was passed by the Legislature in 1927 on recommendation of departmental officials as a means of attacting [sic] purchasers at tax sales and to prevent the increasingly large number of parcels of land sold at such sales from going to the state for want of any other purchaser who would take a tax sale certificate and advance the taxes assessed which were necessary to keep up the state’s revenue. Its object was to assure to the purchaser at the tax sale the good faith of the state in the conduct of tax proceedings and to make reasonably certain to the purchaser at a tax sale that he would either get title to the land which the state was offering for sale or would secure a return of his money, with interest, as a consideration for becoming a purchaser.

San Sebastian Dev. Corp. v. Couch, 103 Fla. 692, 138 So. 61, 64-65 (1931); see generally 52 Fla. Jur. 2d Taxation § 1862 (2010).

In short, and as the Florida Supreme Court long ago recognized, section 197.602 is no more than a remedial measure adopted by this and many other states grounded “on the principle that he who seeks equity must do equity” to assure that both the delinquent property owner and the tax deed purchaser are treated equitably when a tax deed is invalidated. See Kester v. Bostwick, 153 Fla. 437, 15 So.2d 201, 206 (1943). This is neither new nor novel and neither improperly penalizes a delinquent taxpayer nor otherwise violates a delinquent taxpayer’s constitutional rights. See Gordon v. State, 608 So.2d 800, 802 (Fla.1992) (“We agree with the trial court that no substantive due process violation occurred. The statute under attack here bears a rational relationship to legitimate legislative objectives”); see also Smith v. Fisher, 965 So.2d 205, 208 (Fla. 4th DCA 2007) (finding no substantive due violation where legislation is “narrowly tailored to serve a compelling state interest” (quoting Reno v. Flores, 507 U.S. 292, 302, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993))).

We therefore conclude that Turnberry should have been awarded interest not just on the amount it paid to satisfy the former owner’s taxes, but also on the $64,200.76 it paid to acquire the tax deed. See Vill. of Doral Place, 22 So.3d at 631. Accordingly, that portion of the judgment entered below which denied an interest award on the amount paid by Turnberry to acquire the tax deed at issue is reversed with this matter remanded for entry of an award of interest on the “the amount paid for the tax deed and all taxes paid upon the land, together with 12-percent interest thereon per year from the date of the issuance of the tax deed.” § 197.602, Fla. Stat. (2010).

Reversed in part and remanded.

      . See § 197.122, Fla. Stat. (2010); see, e.g., Harris v. City of Sarasota, 132 Fla. 568, 181 So. 366, 369 (1938) ("Taxation is essential to the maintenance of sovereign government and the law charges property owners with notice of the operation of tax laws.”); see generally 51 Fla. Jur. Taxation § 704 (2010) ("Purchasers or owners of real property are presumed to know the procedure prescribed by law for the taxation of that property and its improvements.”).

      . See § 197.122(1), Fla. Stat. (2010) (“All taxes imposed pursuant to the State Constitution and laws of this state shall be a first lien, superior to all other liens, on any property against which the taxes have been assessed and shall continue in full force ... until discharged by payment or until barred under chapter 95.”).

      . § 197.432(1), Fla. Stat. (2010) (providing “the tax collector shall commence the sale of tax certificates on those lands on which taxes have not been paid”); § 197.402(3), Fla. Stat. (2010) ("[0]n or before June 1 or the 60th day after the date of delinquency, whichever is later, the tax collector shall advertise once each week for 3 weeks and shall sell tax certificates on all real property with delinquent taxes.”).

      . See § 173.03(1), Fla. Stat. (2010) ("Suit may be brought at any time after any one or more of the following events, respectively; (a) After the expiration of 2 years from the date of any tax certificate issued and held by a city or town whose charter provides for or requires the issuing of tax certificates for delinquent taxes[.]”); § 197.502(1), Fla. Stat. (2010) ("The holder of any tax certificate, other than the county, at any time after 2 years have elapsed since April 1 of the year of issuance of the tax certificate ... may file the certificate and an application for a tax deed.... ”).

        .See § 197.522(l)(a), Fla. Stat. (2010) ("The clerk of the circuit court shall notify ... the persons listed in the tax collector’s statement pursuant to s. 197.502(4) that an application for a tax deed has been made.”); see also Delta Prop. Mgmt., Inc. v. Profile Invs., Inc., 875 So.2d 443, 447-48 (Fla.2004) (citing Dawson v. Saada, 608 So.2d 806 (Fla.1992), and stating that the requirement that all property owners know of and pay delinquent and current taxes does not relieve the State of its obligation to give adequate notice of a pending tax sale and that no valid tax deed may be issued without complying with statutory notice requirements); Vosilla v. Rosado, 944 So.2d 289, 294 (Fla.2006) ("The Due Process Clause of the Fourteenth Amendment ‘re-quirefs] that deprivation of life, liberty or property by adjudication be preceded by notice and [an] opportunity for [a] hearing appropriate to the nature of the case.' Mullane [v. Central Hanover Bank & Trust Co.], 339 U.S. at 313, 70 S.Ct. 652, 94 L.Ed. 865 [1950], The fundamental right to have a meaningful opportunity to be heard 'has little reality or worth unless one is informed that the matter is pending and can choose for himself whether to appear or default, acquiesce or contest.' Id. at 314, 339 U.S. 306, 70 S.Ct. 652. 'A landowner whose property is to be sold for delinquent taxes undoubtedly has a vested ownership interest in the subject property and is therefore entitled to notice of a pending tax deed sale.’ Dawson, 608 So.2d at 808.”) (footnote omitted)).

      . Section 197.472(1), provides:
      (1) Any person may redeem a tax certificate or purchase a county-held certificate at any time after the certificate is issued and before a tax deed is issued or the property is placed on the list of lands available for sale. The person redeeming or purchasing a tax certificate shall pay to the tax collector in the county where the land is situated the face amount of the certificate or the part thereof that the part or interest purchased or redeemed bears to the whole. Upon purchase or redemption being made, the person shall pay all taxes, interest, costs, charges, and omitted taxes, if any, as provided by law upon the part or parts of the certificate so purchased or redeemed.

      . While we take no position as to the viability of any claim against the clerk of the court for failure to properly serve Streatfield with notice of the tax deed sale, we note that Streat-field’s motion to proceed against the clerk of the court remains pending below. See First Am. Title Ins. Co. v. Dixon, 603 So.2d 562 (Fla. 4th DCA 1992) (rejecting a sovereign immunity claim in an action where a title insurer sought indemnity from the clerk of the court for failing to properly index a document observing that the law requiring proper indexing imposed a special duty owed to the individual at risk); see also Orix Fin. Servs., Inc. v. MacLeod, 977 So.2d 658 (Fla. 1st DCA 2008) ("[A]ppellees' remedy, if any, will lie against the title insurer or abstractor or against the clerk of the circuit court itself, which can make no claim of sovereign immunity[.]").


text:
    Steven Ray OPELLA, Appellant, v. BAYVIEW LOAN SERVICING, LLC., Appellee.
    No. 3D09-2921.
    District Court of Appeal of Florida, Third District.
    Nov. 24, 2010.

      Steven Ray Opella, in proper person.
    Popkin & Rosaler, Brian L. Rosaler, Richard P. Cohn and Deborah Posner, Deerfield Beach, for appellee.
    Before GERSTEN, WELLS, and LAGOA, JJ.
   WELLS, Judge.

Steven Ray Opella appeals from a final summary judgment of foreclosure entered in favor of Bayview Loan Servicing, LLC., claiming that he was never served with process. Because the record unequivocally confirms that Opella was neither served with process nor waived service, we reverse.

On November 20, 2006, 21 NW 59th Street, Inc. executed and delivered a promissory note and a mortgage securing payment of the note on a parcel of commercial property located in Miami-Dade County. Steven Ray Opella executed the mortgage and note as an officer/director of 21 NW 59th Street, Inc.; he also personally guaranteed the note. Bayview Loan Servicing, LLC (“Bayview”) currently holds the mortgage and note.

On February 17, 2009, Bayview brought suit against 21 NW 59th Street, Inc., Opel-la, and a number of others to collect on the note, foreclose the mortgage, and secure payment of any deficiency from Opella’s personal guarantee. While Bayview made a number of attempts to serve Opella individually and on behalf of 21 NW 59th Street, Inc., it never managed to serve process on him.

Despite the fact that neither Opella nor 21 NW 59th Street, Inc. had been served with process, Bayview moved for summary judgment against both, expressly alleging that “[sjervice of process has been properly perfected upon the Defendants herein.” Following a hearing on this motion, a final summary judgment of foreclosure was entered in pertinent part upon a finding that “[sjervice of process has been duly and regularly obtained over NW 59TH STREET, INC., [and] STEVEN R. OPELLA....”

Opella, acting pro se, has timely appealed from this judgment arguing that it is void for lack of service of process. Because the record unequivocally confirms that no service of any kind was had on Opella, we agree. See M.L. Builders, Inc. v. Reserve Developers, LLP, 769 So.2d 1079, 1081 (Fla. 4th DCA 2000) (“A judgment entered without service of process is void and will be set aside and stricken from the record on motion at any time.” (quoting Kennedy v. Richmond, 512 So.2d 1129, 1130 (Fla. 4th DCA 1987))); Del Conte Enters., Inc. v. Thomas Publ’g Co., 711 So.2d 1268, 1269 (Fla. 3d DCA 1998) (“It is well settled that a judgment entered without due service of process is void.”); see also Johnson v. State, Dep’t of Revenue ex rel. Lamontagne, 973 So.2d 1236, 1238 (Fla. 1st DCA 2008) (holding that “[bjeeause a judgment entered by a court lacking jurisdiction over the person of the party against whom the judgment purports to run is a legal nullity, it may be set aside as void at any time”).

We also reject Bayview’s argument that Opella and 21 NW 59th Street, Inc. failed to raise, and thereby waived, sufficiency of service of process in their “pro se answer.” We reject this argument, first because neither Opella nor 21 NW 59th Street, Inc. filed a pro se answer or otherwise made an appearance in the court below. Rather, one month after it moved for summary judgment, Bayview’s attorney, Brian L. Rosaler, concededly without agreement or authorization from Opella or 21 NW 59th Street, Inc., filed a “Notice of Filing Defendant’s Pro Se Answer,” notifying the court below that Bayview was filing Opella and 21 NW 59th Street, Inc.’s pro se answer. Attached to this notice was an undated letter that Opella purportedly sent to Rosaler, Bayview’s attorney, offering to settle the parties’ dispute over the subject mortgage. On these facts, we see no basis on which to conclude that Opella and 21 NW 59th Street, Inc. either expressly or indirectly waived service of process or otherwise subjected themselves to the jurisdiction of the courts. See Caldwell v. Caldwell, 921 So.2d 759, 760 (Fla. 1st DCA 2006) (finding that by entering a general appearance without challenging defective service of process, a party waives this defense); Solmo v. Friedman, 909 So.2d 560, 564 (Fla. 4th DCA 2005) (“Active participation in the proceedings in the trial court, especially without objecting to jurisdiction due to the lack of service of process, constitutes a submission to the court’s jurisdiction and a waiver of any objection.”); Lennar Homes, Inc. v. Gabb Constr. Servs., Inc., 654 So.2d 649, 651 (Fla. 3d DCA 1995) (confirming that a defendant “who fails to contest the sufficiency of service of process at the inception of the case, whether by motion or responsive pleading, has waived this defense once he or she has entered a general appearance”); Parra v. Raskin, 647 So.2d 1010, 1011 (Fla. 3d DCA 1994) (recognizing that “when a defendant waives an objection to insufficient service of process by failing to timely object, the defendant thereby consents to litigate the action and the court may not, either on the defendant’s motion or on its own initiative, dismiss the suit for insufficient service of process”).

Second, the purported “answer” filed by Brian L. Rosaler, Bayview’s attorney, is nothing more than an undated letter to counsel for one of the litigants. This document does not remotely resemble an answer which under Florida Rule of Civil Procedure 1.100(c) must “have a caption containing the name of the court, the file number, the name of the first party on each side with an appropriate indication of other parties, and a designation identifying the party filing it and its nature or the nature of the order, as the case may be.” It also does not indicate the subject matter of the paper, other than to state in its body that it “is written in part for purposes of settlement and compromise ... [and] also serves as a demand letter.” In short, it does not purport to be and is not an answer; it certainly is not an answer which waives any defenses related to service of process.

For these reasons, we reverse the judgment entered below because Opella was not served with, and did not waive, service of process. See Bussey v. Legislative Auditing Comm. of Legislature, 298 So.2d 219, 221 (Fla. 1st DCA 1974) (“Where the defendant does not enter a voluntary general appearance or otherwise waive service of process, the issuance and service of process is Indispensible to the jurisdiction of the Court, even though the Court may have jurisdiction of the subject matter.”).

      . Bayview did effectuate service on the other named defendants — which included several tenants in possession and Universal Holdings Enterprise, LLC — none of which are parties to this appeal.

      . We note that while Opella, who is not an attorney, cannot represent 21 NW 59th Street, Inc., that the judgment is equally void as to it. See Szteinbaum v. Kaes Inversiones y Valores, C.A., 476 So.2d 247, 248 (Fla. 3d DCA 1985) (“It is well recognized that a corporation, unlike a natural person, cannot represent itself and cannot appear in a court of law without an attorney.”).

      . Bayview has now filed a confession of error on this point.

      . We also direct the clerk to forward a copy of this opinion to the Florida Bar for consideration of conduct in violation of the Rules Regulating the Florida Bar.


author: SALTER, J.

text:
    CITIZENS PROPERTY INSURANCE CORPORATION, Appellant, v. GALERIA VILLAS CONDOMINIUM ASSOCIATION, INC., Appellee.
    No. 3D10-807.
    District Court of Appeal of Florida, Third District.
    Nov. 24, 2010.

      Hinshaw & Culbertson, and Maureen G. Pearcy and Paul R. Wallace, Miami, for appellant.
    Alvarez & Alvarez-Zane, and Amado Alan Alvarez, for appellee.
    Before SUAREZ, ROTHENBERG, and SALTER, JJ.
   SALTER, J.

Citizens Property Insurance Corporation appeals a circuit court order granting a motion by the insured, Galería Villas Condominium Association, Inc., to compel appraisal pursuant to an insurance policy. We reverse the order compelling appraisal (which has been stayed during the pen-dency of this appeal) and remand to require Galería to establish that it has (a) provided certain records requested by Citizens as it considered Galeria’s. claim and (b) provided Citizens’ adjuster or “loss consultant” reasonable rights of access to, and inspection of, the property damage detailed in Galeria’s claim.

The issue presented to the trial court was whether Galeria’s demand for appraisal was premature because of Galeria’s alleged failure to comply with certain policy conditions and post-loss duties. See U.S. Fid. & Guar. Co. v. Romay, 744 So.2d 467 (Fla. 3d DCA 1999). Citizens also argues that the order compelling appraisal should have contained an explicit reservation of jurisdiction over various coverage issues.

Hurricane, Claim, Correspondence, and Lawsuit

The pleadings, affidavits, and legal argu-merits presented to the trial court included the following pertinent facts. Galería obtained and paid for a homeowners’ insurance policy issued by Citizens that was in force when the Galería condominium complex was damaged by Hurricane Wilma in October 2005. Galería submitted a sworn proof of loss that was investigated by a Citizens adjuster. Citizens’ estimate of damages did not exceed the deductible for the property, and therefore Citizens made no payment to Galería. Citizens did not dispute that a covered loss had occurred. This first round of administering the claim was completed by some time in 2006.

Thereafter, Galería retained a public adjuster, Preferred Claim Solutions, Inc., and Preferred prepared detailed construction cost estimates broken out by building, line item, quantities, and unit costs. Contractor’s overhead and profit and sales tax were also itemized for each of the 16 buildings, and a separate total for all of the repairs was included. The total estimate for repairs for the October 24, 2005, windstorm loss was $1,886,054.86. These detailed cost estimates, all dated April 8, 2009, were provided to Citizens with an initial demand for appraisal in May 2009.

In a letter of May 28, 2009, - Citizens acknowledged receipt of the Preferred repair estimates, reserved various rights, and requested a final, signed and sworn proof of loss as well as copies of 13 categories of documents. Galería provided the signed and sworn proof of loss in July 2009. On August 10, 2009, Citizens acknowledged receipt of the proof of loss but claimed there were inconsistencies with the earlier estimates prepared by Preferred. Citizens also renewed its request for the 13 categories of documents identified in its May 28 letter and complained that Citizens’ loss consultant “has not been provided an opportunity to inspect this property since the initial inspection in 2005.”

Four days later, Galería filed its lawsuit against Citizens alleging breach of the insurance policy, including Citizens’ failure to comply with the appraisal clause in the policy. A month later, Galería filed a motion to compel appraisal and Citizens moved to strike that motion. Galería filed affidavits and copies of many of the documents that had been requested by Citizens. One of the affidavits acknowledged, however, that Galería had denied Citizens’ request to allow its “loss consultant” to reinspect the damaged buildings:

On or about August 10, 2009, the insurance company requested for a Loss Consultant to re-inspect the Properties. We advised Citizens that we had no objection to the re-inspection; however, we would re-inspect the Properties with an adjuster from Citizens not a Loss Consultant to determine coverage.

In addition, in discovery responses in the lawsuit and during the hearing on the motions in February 2010, Galería acknowledged that it had not provided certain categories of condominium association documents to Citizens as requested nine months before the hearing. Galería argued, and the trial court apparently agreed, that these requests were over-broad, ambiguous, and not relevant to the adjustment of the insurance claim.

Analysis

While Citizens’ requests may seem broad, the types of documents that were not provided by Galería may (and typically do) contain information bearing directly on the claim and the respective obligations of the insurer, the insured, and the homeowners living within the insured units. The declaration and bylaws normally define a condominium association’s insurance and maintenance obligations vis-á-vis a unit occupant. The association board and membership meeting minutes may disclose, for example, (1) decisions to undertake capital improvements affecting the damaged property, (2) expenses incurred in maintaining or repairing a roof or other common elements, and (3) the nature and dates of prior damage or repairs. Property management contracts are important for the same reason. All such records may identify individuals with pertinent knowledge so that they can be contacted during the investigation of the claim. And these records were and are required to be kept by Galería as a matter of Florida law. See § 718.111(12), Fla. Stat. (2009).

Nor may an insured refuse access to the damaged properties to an insurer’s “loss consultant,” insisting instead that the insurer send in an “adjuster.” The post-loss duty in section E.8.a.(6) of the policy obligated Galería to, “[a]s often as may be reasonably required, permit [Citizens] to inspect the property proving the loss or damage.” Citizens acts through employees and agents, and an insured ordinarily recognizes that the sooner the insurer’s representative (irrespective of title) is allowed to inspect the areas of claimed damage, the sooner the claim will be adjusted, appraised, or otherwise brought to resolution. Finally, and as we observed in Ro-may, “[t]hese obligations are not unduly burdensome or arbitrary.”

Until these conditions are met and the insurer has a reasonable opportunity to investigate and adjust the claim, there is no “disagreement” (for purposes of the appraisal provision in the policy) regarding the value of the property or the amount of loss. Only when there is a “real difference in fact, arising out of an actual and honest effort to reach an agreement between the insured and the insurer,” is an appraisal warranted. We therefore reverse the order compelling appraisal and remand for what we anticipate will be complete and immediate cooperation by Gale-ría in affording access to the property and the remaining records, and a prompt response to the claim by Citizens after its prompt investigation.

Citizens also argued that the appraisal order was in error because it failed to reserve jurisdiction on any coverage issues. Although this issue is moot because of our determination that the order compelling appraisal was premature, this court has previously addressed Citizens’ argument. Once the trial court determines that a demand for appraisal is ripe, the court has the discretion to control the order in which an appraisal and coverage determinations proceed. Sunshine State Ins. Co. v. Rawlins, 34 So.3d 753, 754-55 (Fla. 3d DCA 2010). That holding does not require an interlocutory order for appraisal to explicitly reserve jurisdiction to determine legal questions regarding the policy terms after the appraisal has been completed.

The order compelling appraisal is reversed and remanded for further proceedings.

      . Neither Citizens nor Galería offered the testimony of any witness during the hearing on the cross-motions regarding appraisal, nor did either party request the court to set an evidentiary hearing on the motions.

      . Galería retained a different public adjuster in 2007, but Preferred replaced that firm in 2008.

      ."Declarations of Condominium; Condominium Bylaws, and any and all minutes of Association Board meetings for the last seven (7) years; Contracts for property management services between Galería Villas Condo Association and any property management company for the last seven (7) years.”

      . Romay, 744 So.2d at 471.

      . Id. at 470 (quoting 14 Couch on Insurance 2d § 50:56 (1982)). Although the quoted language refers to the prerequisites for arbitration, in Romay this Court found that description equally applicable to the standard appraisal clause.

      .The emphasis on prompt action after remand, as opposed to petulance or foot-dragging, is directed to both parties. Insurance claims are not like fine wines; they do not become better with time.

      . Rawlins reviewed the procedural question as-addressed in cases involving insurance policy arbitration provisions, ultimately determining that the same rule of discretion should apply to the order in which appraisal and coverage issues proceed.