author: RAMIREZ, J.

text:
    FNS4, LLC, Appellant, v. SECURITY BANK, N.A., Appellee.
    No. 3D10-2553.
    District Court of Appeal of Florida, Third District.
    Oct. 12, 2011.
    Alicia Almansa Roman and Douglas D. Stratton, for appellant.
    Garbett, Stiphany, Allen & Roza, and David S. Garbett, and Philip A. Allen, III, for appellee.
    Before WELLS, C.J., and RAMIREZ, and SUAREZ, JJ.
   RAMIREZ, J.

FNS4, LLC appeals an order setting aside a foreclosure judgment and sale. Because the motion to set aside the judgment was untimely, we reverse.

Matthew Valencia owned a condominium at Mark Yacht Club on Brickell Bay. The property secured a mortgage assigned to Security Bank, N.A. In late 2008, the homeowner stopped paying the mortgage and the association fees on the condominium. The bank and the association filed separate actions to foreclose on their liens. Both excluded the other as a defendant in their action. The resulting judgments did not provide for the other’s interest in the property. The bank obtained a final judgment in the amount of $222,333.17 and purchased title to the property at the foreclosure sale in its action. Thereafter, the association received a final judgment for $19,411.24 in its action, and FNS4, LLC purchased the property for the judgment amount.

Fourteen months after obtaining its judgment, the bank moved to set aside the final judgment of foreclosure. Although not cited, we know of no other authority for setting aside a final judgment after ten days other than under Florida Rule of Civil Procedure 1.540(b). The bank also requested leave to amend its foreclosure complaint to include the association. In this appeal, FNS4, LLC seeks review of the order granting the requested relief.

Rule 1.540(b) states that a motion for relief from judgment for “mistake, inadvertence, surprise, or excusable neglect” must be filed “not more than 1 year after the judgment ... was entered or taken.” After the one year, the trial court loses jurisdiction to amend the judgment. See, e.g., Pure H2O Biotechnologies, Inc. v. Mazziotti, 937 So.2d 242, 246 (Fla. 4th DCA 2006); Mocegui v. Pub. Serv. Mut. Ins. Co., 821 So.2d 1189, 1191-92 (Fla. 3d DCA 2002). Here, the motion to set aside the judgment was filed over one year after it was entered. Thus, the motion was untimely, and should have been denied.

Accordingly, we reverse the motion setting aside the final judgment, without prejudice to the bank filing a separate action to reforeclose on its mortgage. See Quinn Plumbing Co. v. New Miami Shores Corp., 129 So. 690 (Fla.1930); Mid-State Inv. Corp. v. Fort Walton Land Dev. Co., 145 So.2d 289 (Fla. 1st DCA 1962).

Reversed and remanded.


source: Caselaw Access Project

author: CORTINAS, J.

license: Public Domain

text:
    DEUTSCHE BANK NATIONAL TRUST COMPANY, as Indentured Trustee, in the Trust for the Registered Holders of Argent Mortgage Loan Trust 2005-W1, Asset Backed Notes, Series 2005-WI, Appellant, v. Paul Valentin BASANTA a/k/a Paul V. Basanta, Melba Basanta, et al., Appellees.
    No. 3D10-3146.
    District Court of Appeal of Florida, Third District.
    Oct. 19, 2011.
    Adams and Reese and Joey E. Schlos-berg, St. Petersburg, and Laura S. Bau-man, Sarasota, for appellant.
    Lionel Barnet and John H. Ruiz and Karen Barnet-Backer, Miami, for appel-lees.
    Before CORTIÑAS, ROTHENBERG, and LAGOA, JJ.
   CORTINAS, J.

Following the dismissal of its mortgage foreclosure action against Paul Valentin Basanta and his wife Melba (“Borrowers”) for lack of prosecution, Deutsche Bank National Trust Company (“Bank”) filed a verified motion for relief from the order of dismissal. The trial court denied the motion for relief and the Bank argues on appeal that the denial was reversible error because it never received the notice of lack of prosecution (“FWOP Notice”) and there was sufficient record activity to preclude dismissal. We agree and reverse.

The FWOP Notice at issue was dated January 25, 2010 and specified that the corresponding hearing was scheduled for March 25, 2010. The FWOP Notice further provided that “[i]f record activity occurs within 60 days following the service of this notice, you must provide the court with a copy of the docket showing the record activity attached to your good cause filing or appear at the scheduled hearing.” Additionally, the FWOP Notice warned that “[t]he failure of the party opposing the motion to appear at the hearing and to timely file a showing of good cause in writing, if required, shall constitute an abandonment of any justified defense to the motion and the above styled action shall be dismissed for lack of prosecution. ..

The record demonstrates that, on February 16, 2010, the Bank filed with the court a request for production and a notice of taking the depositions of the Borrowers. On March 25, 2010, apparently unbeknownst to the Bank, the hearing on the FWOP Notice took place and the trial court entered the order dismissing the complaint for lack of prosecution. Unaware of the order of dismissal, the Bank filed a motion to compel after the Borrowers failed to timely respond to the request for production and appear for their scheduled depositions. On July 21, 2010, the trial court entered an order granting the motion to compel and requiring the Borrowers to appear for deposition on August 9, 2010. The trial court also required the Borrowers to provide all documents responsive to the request for production at least one week prior to the depositions and admonished that the Borrowers’ further failure to comply could result in the striking of their pleadings. On August, 6, 2010, the Borrowers’ counsel filed a motion to withdraw. When the Borrowers failed to comply with the August 9, 2010 deadline, the Bank, still unaware of the dismissal order, filed a motion to strike the Borrowers’ affirmative defenses and for entry of a default judgment against the Borrowers. The motion to strike and for default judgment was set for hearing on October 26, 2010.

Without the Bank’s knowledge, on October 20, 2010, the trial court entered an order determining that it no longer had jurisdiction over the case and that the Borrowers’ counsel’s motion to withdraw was, therefore, moot. By all appearances, the very able trial judge was misled with respect to record activity. Mere days before the October 26, 2010 hearing, the Borrowers’ counsel sent the Bank an email stating the motion to strike and for default judgment was moot because the case had already been dismissed for lack of prosecution. The Bank filed a verified motion for relief from the order of dismissal and set it for hearing on the same date as the motion to strike. Due to the closeness in proximity of the filing of the verified motion for relief and the actual hearing date, the trial court did not allow the verified motion to be heard. The court also noted that six days before, on October 20th, it had entered an order finding that it no longer had jurisdiction because the case had been dismissed. This appeal followed.

Rule 1.420(e) clearly states that:

In all actions in which it appears on the face of the record that no activity by filing of pleadings, order of court or otherwise has occurred for a period of 10 months, and no order staying the action has been issued nor stipulation for stay approved by the court, any interested person, whether a party to the action or not, the court, or the clerk of the court may serve notice to all parties that no such activity has occurred. If no such record activity has occurred within the 10 months immediately preceding the service of such notice, and no record activity occurs within the 60 days immediately following the service of such notice, and if no stay was issued or approved prior to the expiration of such 60-day period, the action shall be dismissed by the court on its own motion or on the motion of any interested person, whether a party to the action or not, after reasonable notice to the parties, unless a party shows good cause in writing at least 5 days before the hearing on the motion why the action should remain pending. Mere inaction for a period of less than 1 year shall not be sufficient cause for dismissal for failure to prosecute.

Fla. R. Civ. P. 1.420(e) (emphasis added).

Although the Borrowers state in their brief that the order of dismissal “was entered on January 25, 2010,” and that “[subsequent activity occurred after the complaint was dismissed...,” this is simply untrue. Here, the Bank filed its request for production and notice of taking the Borrowers’ depositions well within the 60-day period following the issuance of the FWOP Notice. As we have previously stated, “[t]he Florida Supreme Court in Wilson v. Salomon, 923 So.2d 363, 368 (Fla.2005), created a bright line rule that any filing would prevent dismissal pursuant to ... rule [1.420(e) ]. Likewise, any filing in the 60-day period following the notice or motion for lack of prosecution would qualify as record activity and would keep the case from being dismissed.” Turner v. FIA Card Servs., N.A., 51 So.3d 1242, 1243 (Fla. 3d DCA 2011). Because the record clearly demonstrates that the Bank made the necessary filings within the 60-day period following the FWOP Notice, the case should not have been dismissed for lack of prosecution. Appellee’s counsel should have conceded error on this issue on appeal. See § 57.105 Fla. Stat. (2010); Sullivan v. Sullivan, 54 So.3d 520, 522 (Fla. 4th DCA 2010) (“Fees are appropriate under section 57.105(1) when the party or his attorney pursues a claim or defense that is without factual or legal merit.”) (emphasis added).

Presumably, the trial court dismissed the case, despite the record activity, because it was not notified of the filings by the parties. The Bank asserts that this was due to the fact that it received neither the FWOP Notice nor the order of dismissal. The Bank’s actions subsequent to the issuance of the FWOP Notice and the dismissal of the case are consistent with its contention that it never received notice. Although the FWOP Notice and the order of dismissal generally reference that copies were furnished to counsel of record, the Bank received an e-mail from the clerk of the court’s office stating that “[ujnfortu-nately, the [court’s] data base does not reflect an attorney for the [Bank], therefore, it is safe to assume that none of the attorneys that you mentioned were notified of the pending [FWOP Notice].”

The record shows that the Bank apparently continued its efforts to move forward with the case despite a seeming lack of cooperation from the Borrowers’ counsel. Nothing in the record conclusively refutes the Bank’s assertion that it never received the FWOP Notice or the order of dismissal and, noticeably, the Borrowers make no argument to the contrary on appeal. As such, we find that “the conditions precedent in the provisions of rule 1.420(e) were not satisfied because” the Bank’s counsel “was not properly served with the notice of lack of prosecution.” Boosinger v. Davis, 46 So.3d 152, 153 (Fla. 2d DCA 2010). Accordingly, under the facts of this case, “the trial court abused its discretion in denying the motion for relief from the dismissal order.” Id. at 154.

Because there was record activity as required by rule 1.420(e) and the Bank never received the FWOP Notice, we reverse the trial court’s order of dismissal and remand with instructions to reinstitute the Bank’s lawsuit against the Borrowers.

Reversed and remanded with instructions.


author: SHEPHERD, J.

text:
    Robert SARHAN, et al., Appellants, v. H & H INVESTORS, INC., Appellee.
    No. 3D10-3394.
    District Court of Appeal of Florida, Third District.
    Oct. 19, 2011.
    Robert Sarhan and Anabella Sarhan, his wife, in proper persons.
    Thomas G. Sander, for appellee.
    Before SHEPHERD and CORTIÑAS, JJ., and SCHWARTZ, Senior Judge.
   SHEPHERD, J.

This is an appeal from a final judgment of foreclosure based upon an order granting the plaintiffs, H & H Investors, Inc., motion to enforce the parties’ stipulation of settlement, which was approved by the trial court. Because we find the trial court did not have jurisdiction to enforce the stipulation of settlement by way of foreclosure, we reverse the final judgment of foreclosure.

After Sarhan defaulted on his balloon note and mortgage, H & H Investors filed suit for foreclosure with the circuit court. The parties ultimately reached a stipulation of settlement, which modified the terms of the promissory note and mortgage to add all past-due interest to the principal balance of the loan, reduce the interest rate on the loan, and extend the due date. Although the parties stipulated that “[a]ll terms of the mortgage ... that have not been specifically modified herein, shall remain in full force and effect,” the stipulation was silent on any remedies H & H Investors could pursue if Sarhan again were to default on the note and mortgage. The trial court approved the stipulation in an order that dismissed the action without prejudice, “reserv[ing] jurisdiction over the parties for the purpose of enforcing the [stipulation of [sjettlement, if needed.”

Sarhan again defaulted on the note and mortgage. In response, H & H Investors filed a motion to enforce the stipulation of settlement with the trial court, seeking a final judgment of foreclosure. After an evidentiary hearing, the trial court granted H & H Investor’s motion to enforce the stipulation of settlement, finding Sarhan in default for failing to make timely payments on the mortgage. The trial court subsequently entered a final judgment of foreclosure, which Sarhan now appeals.

When a trial court approves a settlement agreement by order and retains jurisdiction to enforce its terms, the trial court’s continuing jurisdiction to enforce the terms of the settlement agreement is circumscribed by the terms of the agreement. See Paulucci v. Gen. Dynamics Corp., 842 So.2d 797, 803 (Fla.2003). In this case, the parties agreed in their stipulation to modify the terms of the note and mortgage. The stipulation did not include a provision authorizing the trial court to summarily enter a final judgment of foreclosure upon a default. In so doing, the trial court exceeded the jurisdiction it reserved for itself in the order of dismissal. Compare Zimmerman v. Olympus Fid. Trust, LLC, 847 So.2d 1101, 1102 n. 2 (Fla. 4th DCA 2003) (“Although the settlement agreement provided that the Zimmermans ... ‘agree[d]’ to waive any defenses to the foreclosure of the mortgage, ... [t]he agreement fell short of providing that if the payments were not made when due, a final judgment of foreclosure could be entered against the Zimmermans.”), with BAC Int'l Credit Corp. v. Macia, 626 So.2d 1037, 1038 (Fla. 3d DCA 1993) (finding the settlement should have been enforced in accordance with its terms, which “provided that if the payments were not made when due, an agreed final judgment of foreclosure would be entered against the borrowers”).

Reversed and remanded for further proceedings.


author: ROTHENBERG, J.

text:
    Denis R. WEINBERG, M.D. and Associates Corp., et al., Appellants, v. SIEMENS FINANCIAL SERVICES, INC., Appellee.
    No. 3D11-1046.
    District Court of Appeal of Florida, Third District.
    Oct. 19, 2011.

      Cruz & Ruz, and Rick Ruz, Miami Beach, for appellants.
    Bennett Aiello & Cohen, and Michael Bennett, Miami, for appellee.
    Before WELLS, C.J., and CORTIÑAS and ROTHENBERG, JJ.
   ROTHENBERG, J.

The defendants, Denis R. Weinberg, M.D. and Associates Corp., et al. (collectively, “Weinberg”), appeal from a non-final order requiring Weinberg to post a bond, although the trial court denied the Verified Motion for Pre-Judgment Writ of Replevin (“Replevin Motion”) filed by the plaintiff, Siemens Financial Services, Inc. (“Siemens”). We reverse and remand for further proceedings consistent with this opinion.

Siemens filed a Verified Complaint against Weinberg, asserting claims for breach of medical equipment leases, a loan agreement, corporate guaranties, and a settlement agreement, and seeking a re-plevin of the leased medical equipment. Siemens also filed the Replevin Motion, citing to sections 78.01 et seq., Florida Statutes. Thereafter, the trial court issued an Order to Show Cause, notifying Weinberg, in part, as follows:

The Defendants have the right to file affidavits on their behalf with the Court and may appear personally or by way of an attorney and present testimony on their behalf at the time of the hearing; or, on a finding by the Court pursuant to section 78.067(2), Florida Statutes, that Plaintiff is entitled to the possession of the claimed property described in the motion for prejudgment writ of replevin pending final adjudication of the claims of the parties, the Defendants may file with the Court a written undertaking executed by a surety approved by the Court in an amount equal to the value of the property to stay the order authorizing the delivery of the property to Plaintiff.

(Emphasis added).

At the show cause hearing, at which both parties were represented, the trial court ruled that it was denying Siemens’ Replevin Motion, but ordered Weinberg to post a bond equaling 1.25 times the amount owed to Siemens. As there was no transcript of the hearing and the parties could not agree as to the trial court’s basis for ordering Weinberg to post a bond, two proposed orders were submitted to the trial court — one citing to section 78.068(4) and the other not citing to any statute. The trial court executed the order that did not cite to any statute. Despite the denial of Siemens’ Replevin Motion, the trial court ordered Weinberg to “post a bond in the amount of $1,544,246.25, which is 1.25 times the amount of $1,235,397.00, which is the amount due and owing on the agreements through March 10, 2011, exclusive of attorneys’ fees and costs, for the satisfaction of any judgment that may be rendered against [Weinberg].” Weinberg’s non-final appeal follows.

Weinberg contends that, pursuant to section 78.068(4), Florida Statutes (2011), the trial court erred by requiring it to post a bond where the trial court denied Siemens’ Replevin Motion. In response, Siemens argues that (1) the trial court’s order does not reference section 78.068, and therefore, the statute is inapplicable, and (2) the portion of trial court’s order requiring Weinberg to post a bond was entered pursuant to the trial court’s “inherent authority” to protect a litigant’s property. Contrary to the parties’ contentions, we conclude that neither section 78.068 nor the trial court’s “inherent power” constituted a legal basis for ordering Weinberg to post a bond. Rather, we conclude that section 78.067, Florida Statutes (2011), is applicable.

Prior to addressing the merits of the order under review, we address the basis of the trial court’s ruling. In arguing that the trial court ordered Weinberg to post the bond pursuant to the trial court’s “inherent power,” Siemens ignores that its Replevin Motion was filed “pursuant to Florida Statutes § 78.01 et seq.”; the trial court ordered Weinberg to show cause pursuant to section 78.067(2); and the order under review does not refer to the trial court’s “inherent power.” Further, a court’s inherent power does not permit a court to ignore existing law, such as writ of replevin statutes. See Brand v. Old Republic Nat’l Title Ins. Co., 797 So.2d 643, 645 (Fla. 3d DCA 2001) (“Courts have the inherent power to do all things that are reasonably necessary to administer justice within the scope of their jurisdiction, subject to existing laws and constitutional provisions.”). Rather, “[ijn-herent power has to do with the incidents of litigation, control of the court’s process and procedure, control of the conduct of its officers, and the preservation of order and decorum with reference to its proceedings.” Brand, 797 So.2d at 645 (quoting Petition of Fla. Bar, 61 So.2d 646, 647 (Fla.1952)). Therefore, we conclude that the trial court did not order Weinberg to post a bond pursuant to the trial court’s “inherent power.”

Next, we address the statutes that authorize Siemens to seek a writ of replevin prior to entry of a final judgment, thereby allowing Siemens “to obtain possession of the property during the pendency of the replevin action and until the parties’ claims are finally adjudicated.” Brown v. Reynolds, 872 So.2d 290, 294 (Fla. 2d DCA 2004). “Chapter 78 of the Florida Statutes provides two separate and distinct methods of obtaining a writ of replevin prior to the entry of final judgment in the replevin action.” Id. First, “[pjursuant to sections 78.065 and 78.067, and in the absence of an effective waiver, the defendant must be given notice and a show cause hearing held before the writ of replevin may issue prior to the entry of final judgment.” Id. Second, “[pjursuant to section 78.068, the prejudgment writ may issue without notice and a hearing, but the plaintiff must post a bond.” Id.

In the instant case, the record before this Court reflects that Siemens did not file its Replevin Motion pursuant to section 78.068 because Siemens neither sought an ex parte writ of replevin nor posted the required bond. See § 78.068(3), Fla. Stat. (2011) (“The petitioner must post bond in the amount of twice the value of the goods subject to the writ or twice the balance remaining due and owing, whichever is lesser as determined by the court, as security for the payment of damages the defendant may sustain when the writ is obtained wrongfully.”). Rather, the record reflects that Siemens’ Replevin Motion proceeded under section 78.067 as the trial court, pursuant to section 78.067(2), directed Weinberg to show cause why the claimed property should not be taken. Therefore, we review the merits of the trial court’s order pursuant to section 78.067, which provides, in part, as follows:

(2) If the court finds that the defendant has not waived the right to be heard on the order to show cause in accordance with s. 78.075, the court shall at the hearing on the order to show cause consider the affidavits and other showings made by the parties appearing and make a determination of which party, with reasonable probability, is entitled to the possession of the claimed property pending final adjudication of the claims of the parties. This determination shall be based on a finding as to the probable validity of the underlying claim alleged against the defendant. If the court determines that the plaintiff is entitled to take possession of the claimed property, it shall issue an order directing the clerk of the court to issue a writ of replevin. However, the order shall be stayed pending final adjudication of the claims of the parties if the defendant files with the court a written undertaking executed by a surety approved by the court in an amount equal to the value of the property.

(Emphasis added).

We first address the trial court’s ruling requiring Weinberg to post a bond. This was error for two separate reasons.

First, because the trial court denied the Replevin Motion, there was no need for Weinberg to post a bond to stay a non-existing writ of replevin. Second, even if the trial court had granted Siemens’ Re-plevin Motion, the trial court lacked authority to require Weinberg to post a bond, as the decision to post a bond would have rested solely with Weinberg. Section 78.067(2) merely provides a defendant with a mechanism for obtaining a stay of a prejudgment writ of replevin by posting the requisite bond pending final adjudication of the parties’ claim. If a replevin order was issued pursuant to section 78.067(2), and Weinberg elected to post a bond to stay the seizure of the property, the bond should have been “in an amount equal to the value of the property,” not 1.25 times the amount owed by Weinberg as ordered by the trial court. We, therefore, reverse the order under review.

We additionally note that based on Weinberg’s admission that it owes Siemens over $1.2 million and the trial court’s finding that Weinberg owed Siemens $1,544,246.25, the trial court implicitly determined that, “with reasonable probability,” Siemens “is entitled to the possession of the claimed property pending final adjudication of the claims of the parties.” Under section 78.067(2), “[i]f the court determines that the plaintiff is entitled to take possession of the claimed property, it shall issue an order directing the clerk of the court to issue a writ of replevin.” (emphasis added). Accordingly, we reverse the order under review without prejudice to allow the trial court to reconsider Siemens’ motion under section 78.067(2), and in conformity with the trial court’s previous findings, as expressed in this opinion.

Reversed and remanded with directions.

      . The lack of a transcript does not preclude appellate review because the error was apparent on the record. See Hill v. Calderin, 47 So.3d 852, 854 (Fla. 3d DCA 2010); Wolfe v. Nazaire, 758 So.2d 730 (Fla. 4th DCA 2000): Peacock Constr. Co, v. Gould, 351 So.2d 394, 395 (Fla. 2d DCA 1977).


author: CORTIÑAS, J.

text:
    CITY OF SUNNY ISLES BEACH, Petitioner, v. PUBLIX SUPER MARKETS, INC., Respondent.
    No. 3D11-1846.
    District Court of Appeal of Florida, Third District.
    Oct. 19, 2011.

      Hans Ottinot, City Attorney and Fernando Amuchastegui, Assistant City Attorney, City of Sunny Isles Beach; Coffey Burlington and Kendall B. Coffey and Jeffrey B. Crockett and David J. Zack, Miami, for petitioner.
    Greenberg Traurig and Elliot H. Scherker and Paul R. Lipton and Brigid F. Cech Samóle, Miami, for respondent.
    Before CORTIÑAS and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.
   CORTIÑAS, J.

This Court returns for the third time to a dispute between the City of Sunny Isles Beach (the “City”) and Publix Supermarkets, Inc. (“Publix”). The basis for the dispute is a Site Plan Application submitted to the City by Publix in 2006, which the City has deemed null and void due to fraud allegedly perpetrated by Publix. We have previously granted the City’s petition for a writ of prohibition preventing the circuit court’s consideration of Publix’s request for a declaratory judgment regarding the City’s interpretation of one of its land development ordinances. City of Sunny Isles Beach v. Publix Super Markets Inc., 996 So.2d 238 (Fla. 3d DCA 2008). We have also previously addressed the circuit court’s order quashing the decision of the City Commission (the “Commission”) that Publix’s application was null and void, which we vacated and remanded because of a departure from the essential requirements of the law due to the circuit court’s failure to provide the reasons for its grant of certiorari. City of Sunny Isles Beach v. Publix Supermarkets Inc., 53 So.3d 1237 (Fla. 3d DCA 2011).

On remand, the circuit court quashed the decision of the Commission, finding that the Commission denied Publix due process, that the decision of the Commission departed from the essential requirements of law, and that the decision was not supported by substantial, competent evidence. The City now challenges, on second-tier certiorari, the order of the circuit court.

I. STANDARD OF REVIEW

Second-tier certiorari review is granted under very narrow circumstances. The mere discovery of legal error will not warrant such review. Rather, “a district court should exercise its discretion to grant review only when the lower tribunal has violated a clearly established principle of law resulting in a miscarriage of justice.” Custer Med. Ctr. v. United Auto. Ins. Co., 62 So.3d 1086, 1092 (Fla.2010) In considering a petition for second-tier cer-tiorari review, a district court does not consider whether the circuit court came to the correct legal conclusion or whether the decision below was supported by substantial, competent evidence. Rather, the district court asks only “whether the circuit court afforded procedural due process and whether the circuit court applied the correct law.” Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 530 (Fla.1995).

Although on remand the circuit court expressly found that Publix was denied due process, that the Commission violated the essential requirements of law, and that no competent, substantial evidence supported the Commission’s decision, the court’s holding violated clearly established principles of law resulting in a miscarriage of justice. Accordingly, we grant the petition and quash the decision below.

II. DUE PROCESS

The circuit court found that Publix was denied due process for two reasons. First, according to the circuit court, “[t]he City Commission did not afford Publix a fair hearing ... when it addressed matters which pertained to the Publix’s [sic] first appeal filed, at a hearing noticed only for matters raised in Publix’s second appeal.” Publix Supermarkets, Inc. v. City of Sunny Isles Beach, No. 07-362AP, at *2 (Fla. Cir.Ct. May 1, 2011).

The circuit court’s finding that the notice for the hearing before the City Commission raised due process concerns violated clearly established principles of law. Publix had requested three administrative appeals, and it is difficult to determine what the circuit court had in mind when it referred to only two appeals. Publix first appealed to the City Manager on December 14, 2006, contesting the interpretation of the City Code by the City Attorney. Publix later filed an appeal with the City Manager on March 16, 2007, seeking review of the Community Development Director’s determination that Pub-lix’s application was null and void due to fraudulent representations made by Pub-lix. When the City Attorney notified Pub-lix that its March 16 appeal was rejected, Publix filed an appeal with the City Commission on May 3, 2007, seeking a public hearing on that decision. That hearing took place on June 21, 2007.

The circuit court incorrectly characterized the notice for the June 21 hearing as a narrow one that made Publix aware that some, but not all, of its concerns and challenges were to be addressed. The notice was not so restrictive. In fact, the notice indicated that the Commission would meet “to hear an appeal filed by Publix Supermarkets, Inc. challenging Administrative Decisions relating to its Site Plan Application.” (emphasis added) The Commission gave no indication that it intended to hear only some of the challenges Publix had raised since December 2006. Rather, Pub-lix was on notice that it would be afforded the tribunal it had been requesting for six months, and could reasonably have concluded that it would have the opportunity to challenge all the administrative decisions relating to its Site Plan Application.

Publix did argue at the hearing that the appeal was meant to address only certain issues, stating “[t]he only issue today is a letter ... that says we cannot appeal to you because our application was untimely and we were fraudulent.” Publix also claimed “the appeal should have been properly brought before you on issues that are totally different that were discussed by [opposing] counsel. I just don’t know what world these people are in.” But Publix never maintained that it was not given notice regarding the allegedly ancillary issues, nor did it refuse to argue them, nor allege that it was unprepared to argue them. Publix was told that the hearing was to occur, and that it could present any objections it had raised regarding the decisions made concerning its application. Due process demands no more. See, e.g., Keys Citizens for Responsible Gov’t. v. Florida Keys Aqueduct Auth., 795 So.2d 940 (Fla.2001).

The circuit court also found a violation of due process in the presence of the City Attorney acting “both as advocate for the City, as well as advisor to the City Commission.” Publix No. 07-362AP at *2 (citing Cherry Commc’ns Inc. v. Deason, 652 So.2d 803 (Fla.1995)). The circuit court violated a clearly established principle of law in concluding that Cherry prohibits the City Attorney’s exercise of his functions in this matter. Due process does not bar agencies from embracing dual roles in administrative proceedings. Nothing in Cherry established a bright-line rule that would permit a reviewing court to assume a due process violation merely because an agency attorney involved in an administrative decision is present to give legal advice at an agency hearing involving that decision. See, e.g., Citrus County v. Florida Rock Indus., 726 So.2d 383, 388 (Fla. 5th DCA 1999) (“There is no single test to be applied to determine if the requirements of procedural due process have been met.”).

Unlike in Cherry, this is not a situation where “the prosecution was given special access to the deliberations.” Cherry, 652 So.2d at 805. The City Attorney was present to clarify legal issues for the Commission, precisely according to his role. City of Sunny Isles Beach, Fla., City Charter, Art. Ill, § C-3.6 (2006). He had participated in no “prosecution” of Publix, and there had been no disciplinary proceedings. Acting in his capacity as City Attorney, he had previously made a decision regarding a permit application. In an appeal involving that decision, he gave legal advice to the Commission.

Thus, the circuit court’s finding that Publix was denied due process violated clearly established principles of law.

III. THE ESSENTIAL REQUIREMENTS OF LAW

The circuit court also quashed the decision of the City Commission on the grounds that “[t]he City failed to observe the essential requirements of law when it attempted to enforce conduct not forbidden by its code.” Publix No. 07-362AP at *2. This finding violated clearly established principles of first-tier certiorari review, inasmuch as it indicates that the circuit court was engaging in fact-finding.

Section 33-6(A) of the City Code states that “[a]ll parties making any presentation, formal request or petition of the City Commission or the City staff shall be required to make full and accurate disclosure based in fact and in law.” City of Sunny Isles Beach, Fla., City Code, ch. 33, § 33-6(A) (2006). Section 33-6(B) states that “[i]f the City ... discovers that any disclosure required was not made fully or truthfully, in violation of this § 33-6, the action taken with respect to that matter shall be voidable.” City of Sunny Isles Beach, Fla., City Code, ch. 38, § 33-6(B) (2006). The City Commission found that Publix had not made full and accurate disclosure, as required by § 33-6(A) the Code, and took the requisite action as authorized by § 33-6(B). The circuit court is only capable of reaching the conclusion that the City Commission attempted to punish conduct not forbidden by its code by providing a misleadingly precise account of the conduct at issue: “Publix’s failure to disclose to the Miami-Dade County Shoreline Committee that it had previously claimed under oath to the City that the parcel size was 17.13 acres and its intent to develop a large commercial arena.” Publix No. 07-362AP at *2.

The only intelligible way to read the circuit court’s holding is to infer a meaningful distinction between “failing to make a full and accurate disclosure to the City” and providing one representation of its property and intentions to the City and another to the Miami-Dade County Shoreline Committee (the “County”). Publix had not engaged in the former, according to the circuit court, in doing the latter. But this is re-weighing the evidence, something the circuit court was prohibited from doing on certiorari review. See, e.g., Dusseau v. Metro. Dade County Bd. Of County Comm’rs, 794 So.2d 1270 (Fla.2001). In making its own determination that Publix’s conduct did not rise to the level of fraud, and that therefore the conduct was not forbidden by the City Code, the circuit court violated clearly established principles of law, resulting in a miscarriage of justice.

IV. SUBSTANTIAL COMPETENT EVIDENCE

The final basis for the decision by the circuit court was its finding that “[t]he City Commission did not have substantial competent evidence to establish fraud under City Code Section 33-6.” Publix, No. 07-362AP at *2. In so ruling, the court violated clearly established principles of law.

For reasons not explained, the court held that substantial competent evidence on this matter would be “evidence that Publix never had 17.13 acres of land.” Id. The court gave no indications as to what would support such a restrictive view, nor why it placed the burden on the City to show that Publix did not own the acres it claimed to own. To the extent that Pub-lix’s ownership of the property was at issue, the City’s allegations stemmed from Publix’s failure to provide appropriate evidence supporting its claims to own the land it claimed in its application. The City had no burden to'show that Publix did not own the land in question. Moreover, the fraud alleged was not merely a fraudulent claim to title but rather Publix’s failure to provide complete and accurate disclosure of all relevant facts in its site plan application.

Publix initially filed an application for site plan approval for a 3.57 acre parcel on which it intended to erect a 21-story mixed-use project with a new supermarket and a 284-unit condominium complex. When informed of problems with the application, including Publix’s failure to provide the required survey of the land to indicate its precise size and location, Publix took no action, and the application was nullified through procedural default on the part of Publix. Almost a full year later, Publix filed an amended Letter of Intent, this time indicating that the parcel size was 17.13 acres, and the proposed density of the condominium complex would be 378 units. Publix also proposed a marina with 140 boat slips. The City Attorney informed Publix that the density requirements for the proposal could not include underwater land, as Publix had done. One month after Publix submitted its revised application to the City, it submitted a site plan application to the County, ostensibly for precisely the same development plan. However, the plan submitted to the County referred to a parcel size of 5.41 acres, and neglected to mention the marina.

The Commission concluded that Publix purchased submerged land in an attempt to evade the City density requirements. “Publix claims to be a good corporate citizen, and if they are such a good corporate citizen then they should follow the laws and ordinances of our city but instead they decided for probably a minimal investment ... they could roll the dice and see what happens.” The fraud alleged by the City was not, therefore, a fraudulent claiiri to title, but consisted rather of Publix’s evasive account of the precise nature of its development plans and the nature of its holdings, and its purchase of almost 14 acres of submerged land in an apparent attempt to satisfy the City’s density requirements.

Because the circuit court’s analysis demonstrates its failure to apply the correct law and its order violated clearly established principles of law resulting in a miscarriage of justice, we grant the petition and quash the decision below.

Petition granted.

      . In fact, Publix seems to have somewhat failed to notice that the issue it insisted was the only proper issue before the Commission had essentially been decided in its favor. Publix argued that its appeal of March 16 had been unfairly rejected, but the issues raised by that appeal were precisely the issues noticed and argued at the June 21 hearing.
      Publix posed, as the only issue properly before the Commission on June 21, the question as to whether or not Publix would be allowed to raise other issues on appeal — precisely those issues which Publix was now expressed reluctance to argue on appeal. Consequently, Publix’s somewhat tortured position seems to have been that it demanded the right to argue certain issues, but that it would be unfair (and, in the view of the circuit court, a violation of due process) actually to argue them.

      . The City Attorney argued at the hearing, "In order to determine how much you own, what's the location, you need to survey it. They [Publix] failed to provide it to the city ..." Although the City was therefore alleging that Publix had not provided adequate evidence as to Publix’s ownership of the 17.13 acres of land — because the precise size and location had not been accounted for — the more accurate allegation was that Publix had been evasive about the nature and extent of its holdings as well as the manner in which it had complied with the density requirements in its site plan application.


author: EMAS, J. RAMIREZ, J.

text:
    BLT NOW, LLC, Appellant, v. COLDWELL BANKER RESIDENTIAL REAL ESTATE, & Sewnarainsing Jankipersadsing, Appellees.
    No. 3D10-1204.
    District Court of Appeal of Florida, Third District.
    Oct. 19, 2011.

      Roy D. Wasson, Miami, for appellant.
    No appearance for appellee.
    Before RAMIREZ, SALTER, and EMAS, JJ.
   EMAS, J.

BLT Now, LLC (“BLT”), the seller, appeals the trial court’s entry of summary judgment in favor of Appellee, Sewna-rainsing Jankipersadsing (Dr. Sing), the buyer. We reverse, holding that a genuine issue of material fact exists, precluding the trial court’s entry of summary judgment in Dr. Sing’s favor.

FACTUAL BACKGROUND

In November of 2004, Betsy Lee Turner (“Turner”), managing partner for BLT, contracted with WCI communities to purchase a condominium unit (the “Unit”) in Miami Beach. BLT was required to provide a $236,000 deposit on the Unit, and closing was contingent on BLT obtaining financing. BLT was unable to obtain the requisite financing and failed to close on the Unit. In an effort to avoid losing its deposit, BLT requested that WCI allow BLT to obtain another purchaser and assign its interest in the contract. WCI orally agreed to such an assignment but did not provide written consent as required under the contract between WCI and BLT.

BLT was subsequently introduced to Dr. Sing. In June of 2008, Dr. Sing signed a Residential Sale and Purchase Contract with BLT for the Unit. The contract required Dr. Sing to provide a $250,000 down payment on the property, which was deposited in escrow with Coldwell Banker. Additionally, as with the contract between BLT and WCI, Dr. Sing’s contract with BLT was contingent on Dr. Sing’s ability to obtain financing within five days of the effective date of the contract. The contract allowed either party to cancel the contract “[i]f after using diligence and good faith, Buyer is unable to provide the Commitment and provides Seller with written notice that Buyer is unable to obtain a Commitment within the Commitment Period.”

After executing the contract, Dr. Sing utilized the services of Audrey Rosen-baum, a mortgage broker with Southeast Capital Group, Jason Schoen, the branch manager for IndyMac, and Marc Hamer-off, a loan officer for Mortgage Network Solutions, to assist him in his efforts to obtain a financing commitment.

According to Hameroff s affidavit, Ham-eroff pre-approved Dr. Sing for the requested financing at an interest rate of 8.5 percent. Displeased with the high interest rate, however, Dr. Sing, with the assistance of Ms. Rosenbaum, applied for loans with several other lenders in an effort to obtain a more acceptable interest rate. According to Rosenbaum’s affidavit, she was unable to obtain financing from any of the lenders she contacted on Dr. Sing’s behalf. Dr. Sing also applied for a loan with Citi Mortgage, Inc., but Citi Mortgage similarly failed to approve Dr. Sing’s application.

As a result, Dr. Sing sent a letter to BLT to advise that he was canceling the contract due to his inability to acquire financing. Thereafter, Dr. Sing and BLT disagreed as to which party was entitled to Dr. Sing’s deposit. Because Dr. Sing and BLT were unable to reach an agreement, Coldwell Banker instituted the current in-terpleader action against Dr. Sing and BLT. Dr. Sing answered the complaint for interpleader, asserting his entitlement to the interpleaded funds by virtue of having been unable to obtain financing in the exercise of due diligence. He also cross-claimed against BLT. Turner subsequently intervened in the lawsuit, alleging that Dr. Sing forfeited the deposit on the property by failing to exercise diligence in seeking financing. Turner claimed Dr. Sing was offered financing to purchase the Unit but chose to reject that offer.

In support of his motion for summary judgment, Dr. Sing provided the affidavit of Audrey Rosenbaum and the affidavit from the real estate broker for Coldwell Banker. Both supported Dr. Sing’s assertion that he exercised good faith and due diligence in attempting to acquire the financing, but was unable to secure a letter of commitment or pre-approval.

Both parties also relied upon the testimony of Marc Hameroff. BLT relied on Hameroff s affidavit, through which Ham-eroff attested that Dr. Sing qualified for a loan with an 8.5 percent interest rate. Hameroff further attested that Dr. Sing did not like this interest rate and that he therefore turned it down, believing he could obtain a better rate. Dr. Sing, on the other hand, relied on a portion of Hameroffs deposition in which Hameroff stated he was unaware that Dr. Sing’s contract was not directly with the developer, and that very few lenders would consider financing a contract that was not entered into directly with the developer. Dr. Sing contended that had Hameroff known the intricacies of the deal, Hameroff would have had a new contract drawn up between BLT and WCI.

ANALYSIS

“The issue of whether a purchaser exercises due diligence and makes a good faith effort to secure the requisite financing is ordinarily a question of fact for the trier of fact.” Quirch v. Coro, 842 So.2d 184, 186 (Fla. 3d DCA 2003). See also Fieldstone v. Chung, 416 So.2d 11, 12 (Fla. 3d DCA 1982). This case falls squarely within the rule established in Quirch and Fieldstone. Dr. Sing received pre-approval for a loan at an interest rate of 8.5 percent. The only reason Dr. Sing did not pursue a commitment on this loan was because he was not pleased with the interest rate and thought he could obtain a lower rate. Whether this constitutes due diligence and good faith is for the jury to determine.

The dissent indicates that the transaction was complicated by the fact that the assignment — orally agreed upon between WCI and BLT at the time Dr. Sing applied for financing — had not yet been reduced to writing. The dissent describes this situation as requiring a “restructuring” of the transaction. This is an inaccurate characterization. The terms of the contract between WCI and BLT provided for its assignment with the written approval of WCI. The contract between Dr. Sing and BLT also provided that it was subject to WCI assignment. That BLT and WCI had not yet reduced to writing the agreed-upon assignment of the contract to Dr. Sing is of no moment, as it does not pertain to Dr. Sing’s efforts to obtain financing.

CONCLUSION

Dr. Sing failed to conclusively establish he could not obtain financing after exercising due diligence and good faith; thus, there remains a genuine issue of disputed material fact, subject to resolution by the trier of fact.

Reversed and remanded.

SALTER, J., concurs.

RAMIREZ, J.

(dissenting).

Respectfully, I do not see any genuine issue of material fact that precluded the trial court’s entry of summary judgment in favor of Dr. Sing. I do not see that BLT ever showed that the pre-approval obtained through Hameroff was a viable offer to provide financing.

The contract between Dr. Sing and BLT was contingent on Dr. Sing obtaining 50% financing for a $625,000 loan at prevailing rates. Dr. Sing was required to apply for financing within five days of the effective date of the contract and furnish BLT with either a loan commitment, approval letter, or, alternatively, written notice that he was unable to obtain the commitment within the earlier of thirty days or five days prior to closing. The contract allowed either party to cancel the contract “[i]f, after using diligence and good faith, Buyer is unable to obtain a Commitment within the Commitment Period.” The Commitment period was to end July 8.

Because condominium hotel units present unique financing challenges, BLT provided Dr. Sing contact information for Marc Hameroff, loan officer for Mortgage Network Solutions, and Jason Schoen, branch manager for IndyMac, both of whom had experience in obtaining lending for condominium hotel buyers. Following execution of the contract, Dr. Sing met with Hameroff, Schoen, and Audrey Rosenbaum, a mortgage broker with Southeast Capital Group.

It was undisputed that Hameroffs affidavit states that Dr. Sing was pre-ap-proved for financing at a rate of 8.5% and that Dr. Sing was displeased with the high interest rate. Subsequently, Dr. Sing, with the help of Rosenbaum, applied for loans with at least five other lenders in an effort to obtain a rate of about 5%. He was unable to obtain financing from any of the five other lenders. According to Rosen-baum, the lenders refused to originate a loan where a condominium hotel unit was not being purchased directly from the developer. It appears from the record that the transaction was further complicated because there was no documentation regarding the assignment arrangement between WCI and BLT at the time Dr. Sing applied for the financing. BLT was not the developer of the condominium hotel property, but had received the unit at issue through contract.

It is undisputed the documentation issue, which was not corrected until after Dr. Sing’s cancellation, interfered with Dr. Sing’s diligent efforts to obtain financing. On June 26, Rosenbaum sent Dr. Sing a Statement of Credit Denial, Termination, or Change stating “[n]o loan programs available for contract as submitted.” That same day, Dr. Sing sent a letter notifying BLT he was canceling the contract due to his inability to acquire financing. Dr. Sing also requested that his deposit be released within five days.

Following Dr. Sing’s cancellation, a dispute arose regarding release of the deposit, which resulted in attempts to correct the documentation issue. BLT asserted that Dr. Sing forfeited the deposit because he failed to exercise due diligence and good faith in acquiring the necessary financing. Specifically, BLT focused on the June 11 pre-approval letter from Hamer-off. Apparently realizing that the assignment arrangement had posed a significant obstacle in Dr. Sing’s efforts to obtain financing, BLT contacted WCI and requested they draft a formal assignment. According to the affidavit of WCI employee Kristen Fazio, WCIs management team formally consented to the assignment sometime in July, 2008. Thereafter, the assignment form was sent to Dr. Sing, who received it twenty days after he had canceled the contract.

Because the parties were unable to reach an agreement regarding the deposit, Coldwell Banker instituted the current in-terpleader action against Dr. Sing and BLT. Dr. Sing answered and asserted that, having exercised good faith in attempting to acquire financing, he was entitled to the deposited funds. Dr. Sing also filed a cross-claim joining Turner and claiming breach of contract against BLT and Turner on the basis that they failed to provide Dr. Sing access to the condominium as was required under the contract. In response, Turner reasserted that Dr. Sing failed to act in good faith, and denied Dr. Sing’s claim that he was foreclosed from accessing the property in accordance with the contract.

In support of his motion for summary judgment, Dr. Sing provided an affidavit from Rosenbaum, as well as the affidavit of Darrell Burks, the real estate broker for Coldwell Banker who was Dr. Sing’s agent on the Unit 1610 contract. Both affidavits support Dr. Sing’s assertion that he exercised good faith and due diligence in attempting to acquire the financing. It is undisputed that Rosenbaum contacted at least five lenders on Dr. Sing’s behalf and was unable to secure a letter of commitment or pre-approval.

Dr. Sing also relied on Marc Hameroff s deposition regarding the June 11 pre-ap-proval offer for 8.5%. Hameroff initially provided an affidavit in support of BLT in which he stated, “[b]ased on the information [Dr. Sing] provided, he was perfectly qualified for financing of a hotel/condominium development unit and I was certain I could obtain financing for him.” However, in his deposition, Hameroff testified that he was unaware that Dr. Sing’s contract was not directly with the developer, and very few lenders would consider financing a contract that was not entered into directly with the developer. If he had known that was happening, he would have had a new contract drawn up, particularly when the contract between BLT and the developer had a clause stating that it could not be assigned. The pre-approval he gave Dr. Sing was not a firm commitment.

BLT did not have the necessary written approval for the assignment at the time Hameroff pre-approved Dr. Sing. This is reflected both in the contract itself, and in Fazio’s affidavit wherein she states, “WCI consented to the assignment in July, 2008.” The record shows BLT attempted to remedy the assignment problem after Dr. Sing had canceled the contract. The assignment was not obtained until July 28, long after the financing period had run.

In the summary judgment hearing below, Dr. Sing averred cancellation was proper because the pre-approval Hameroff provided was contingent on a restructuring of the contract, to which Dr. Sing was neither obligated nor inclined to agree. Accordingly, Dr. Sing argued that he fulfilled his good faith obligation in filing at least six applications with the additional lenders. Notwithstanding, BLT argued Dr. Sing exercised bad faith in canceling the contract prior to revisiting Hameroff s offer. It was BLTs position that had Dr. Sing returned to Hameroff prior to canceling the contract, the problem with the assignment would have been discovered and possibly rectified before closing. Thus, BLT argued that with the possibility of proper assignment looming, good faith would require Dr. Sing consult Hameroff again before canceling the contract.

The issue of whether a purchaser exercises due diligence to secure the requisite financing is ordinarily a question of fact. See Quirch v. Coro, 842 So.2d 184, 186 (Fla. 3d DCA 2003); Fieldstone v. Chung, 416 So.2d 11, 12 (Fla. 3d DCA 1982). Here, however, Dr. Sing conclusively established that in the exercise of due diligence and good faith, he would not have received financing for the unit pursuant to the existing contract. See Meyers v. Cunningham, 415 So.2d 802, 802 (Fla. 3d DCA 1982) (holding the purchaser was entitled to return of his deposit where he was rejected for financing after submitting all documents and information available to him). I do not believe this record shows Dr. Sing was required to take steps to overcome lenders’ reservations about financing his purchase, and accept a bad deal, when the lenders’ reservations arose because of the seller’s failure to properly document its interest in the property. Neither good faith nor due diligence requires that a purchaser restructure the transaction. See Merritt v. Davis, 265 So.2d 69, 70 (Fla. 3d DCA 1972) (affirming summary judgment for the purchaser, who was unable to secure financing as originally contemplated in the sale agreement, and rejecting the seller’s contention that the purchaser was required to accept a modified financing proposal the seller obtained).

The written approval for assignment and related forms WCI eventually sent BLT required Dr. Sing’s signature. However, I agree with the trial court’s reasoning that, as a matter of law, due diligence would not require that Dr. Sing agree to the new terms. Thus, because Dr. Sing satisfied his burden by showing that no genuine issue of material fact existed here, we should affirm the trial court’s order granting Dr. Sing’s motion for summary judgment. See Holl v. Talcott 191 So.2d 40, 43 (Fla.1966). See also Quirch, 842 So.2d at 186.

      . The dissent concludes that Hameroff testified in deposition that there would have been no financing because of the assignment issue. However, a careful reading of the deposition reveals this is not the case. In Hameroff's affidavit he described the terms of this pre-approved loan and averred Dr. Sing "was perfectly qualified for financing of a hotel/condominium development unit and I was certain I could obtain financing for him.” Hameroff was asked in deposition to assume the contract between WCI and BLT prohibited an assignment. Dr. Sing's counsel posed this question: "If the contract from WCI stated this contract cannot be assigned and Dr. Sing was not purchasing directly from WCI, would you change your statement [in your affidavit]?” In answer to that question, Hameroff stated, "we would have to restructure the contract to obtain a firm commitment.” However, Hameroff also stated in his deposition (correctly) that there was an assignment clause in the contract, and it is undisputed that WCI had agreed to BLT’s assignment of the contract to Dr. Sing. Thus, Hameroff's answer to this hypothetical question (which was based upon an incorrect assumption) did not change the position Hameroff took in his earlier affidavit — that Dr. Sing qualified for financing at 8.5%. At best, Hameroff’s statements in deposition created a genuine issue of material fact to be resolved by the trier of fact.

      . The dissent suggests that the written approval of the assignment between WCI and BLT also required Dr. Sing’s signature, and that "due diligence would not require that Dr. Sing agree to the new terms." The assignment by WCI to BLT — and Dr. Sing's signature approving it — do not constitute "new terms.” If the dissent’s statement is correct, Dr. Sing could have unilaterally prevented the closing (even if he had obtained more favorable financing) by simply refusing to affix his signature to a document approving the assignment. How would Dr. Sing be able to take the position that he was exercising due diligence and good faith while refusing to sign the very document that granted BLT the right to sell the condominium to him?


text:
    Yuri BERY, as Personal Representative of the Estate of Juliana Bery; Yuri Bery (Individually); and Inness Bery (Individually), Appellants, v. Ghassan FAHEL, D.O., Appellee.
    No. 3D10-2019.
    District Court of Appeal of Florida, Third District.
    Oct. 19, 2011.
    Austin & Laurato, and Michael V. Lau-rato and Jeffrey Constantinos, Tampa, for appellants.
    Hicks, Porter, Ebenfield & Stein, and Mark Hicks, Dinah Stein, Miami, and Erik P. Bartenhagen; Fann & Petruccelli and Michael A. Petruccelli, Ft. Lauderdale, for appellee.
    Before CORTIÑAS, ROTHENBERG, and LAGOA, JJ.
   ROTHENBERG, J.

The plaintiffs, Yuri Bery, etc., et ah, appeal from a final judgment dismissing the medical malpractice complaint filed against the defendant, Ghassan Fahel, D.O. (“Dr. Fahel”), for failing to comply with the medical malpractice presuit requirements. We reverse and remand for an evidentiary hearing.

In February 2007, Juliana Bery died of a bacterial infection after being evaluated and treated by Dr. Fahel, a board certified family physician. Prior to initiating a medical malpractice action against Dr. Fa-hel, the plaintiffs conducted a statutory presuit investigation to determine if there were reasonable grounds to believe that Dr. Fahel was negligent in caring for and treating Juliana and whether such negligence caused her death. § 766.203(2), Fla. Stat. (2008). On November 3, 2008, the plaintiffs mailed a notice of intent to initiate litigation to Dr. Fahel, attaching the corroborating medical affidavit of Mark Khilnani, M.D., a board certified emergency physician, which was dated October 31, 2008. § 766.106(2), Fla. Stat. (2008). Shortly after Dr. Khilnani executed the affidavit, he contacted the plaintiffs’ counsel in an attempt to withdraw his affidavit because he felt he was not qualified to act as an expert witness.

During the ninety-day period in which Dr. Fahel had to respond to the plaintiffs’ notice of intent to initiate litigation, see § 766.106(3), .203(3), Fla. Stat. (2008), his counsel sent letters to the plaintiffs advising that they had not fully complied with the presuit requirements because Dr. Khil-nani and Dr. Fahel do not have the same specialty.

In May 2009, the plaintiffs filed a medical malpractice action against Dr. Fahel, alleging that his treatment and evaluation of Juliana Bery fell below the requisite standard of care, resulting in her death. In May 2009, Dr. Fahel filed his answer and affirmative defenses, raising the plaintiffs’ failure to comply with the presuit requirements.

Although Dr. Khilnani attempted to withdraw his affidavit in November 2008, the plaintiffs listed Dr. Khilnani on their Preliminary Expert Witness List. Thereafter, Dr. Khilnani wrote plaintiffs’ counsel several times once again advising that he believed that he was not qualified to act as an expert.

In February 2010, pursuant to section 766.206, Dr. Fahel filed a motion to dismiss the complaint, arguing that Dr. Khil-nani’s corroborating affidavit was insufficient because Dr. Khilnani and Dr. Fahel do not practice in the same or similar specialty. § 766.102(5), Fla. Stat. (2008). At the hearing on the motion to dismiss, the trial court, without objection, ordered that an evidentiary hearing be held to address Dr. Khilnani’s qualifications. Thereafter, Dr. Fahel unsuccessfully attempted to depose Dr. Khilnani, who by then had moved to a different state. Dr. Fahel’s counsel then requested that a commissioner be appointed to depose Dr. Khilnani. At a subsequent hearing, the plaintiffs’ counsel objected on the basis of privilege, citing to section 766.205(4), which provides: “No statement, discussion, written document, report, or other work product generated solely by the pre-suit investigation process is discoverable or admissible in any civil action for any purpose by the opposing party.” Thereafter, the trial court learned, for the first time, that Dr. Khilnani had attempted to withdraw his corroborating affidavit. The trial court immediately, without conducting an evidentiary hearing, granted Dr. Fahel’s motion to dismiss, and subsequently entered a final judgment in Dr. Fahel’s favor. The plaintiffs’ appeal followed.

In challenging the trial court’s order dismissing the appeal, the plaintiffs have raised several arguments. However, as the trial court failed to conduct an evidentiary hearing to address whether Dr. Khilnani qualifies to act as an expert witness against Dr. Fahel, in light of Dr. Khilnani’s qualifications and his attempt to withdraw his affidavit, we reverse the order under review and remand for an evi-dentiary hearing as instructed in Williams v. Oken, 62 So.3d 1129, 1137 (Fla.2011).

As we have reversed and remand for an evidentiary hearing, we find it unnecessary to address the remaining issues raised by the plaintiffs.

Reversed and remanded.

      . Dr. Fahel asserts that the plaintiffs waived any entitlement to an evidentiary hearing because plaintiffs' counsel objected to the appointment of a commissioner to depose Dr. Khilnani pursuant to section 766.205(4). As section 766.205(4) merely pertains to the dis-coverability or admissibility of any "statement, discussion, written document, report, or other work product generated solely by the presuit investigation process,” we disagree. The record does not indicate that the plaintiffs counsel objected to an evidentiary hearing to address Dr. Khilnani’s qualifications.


author: SUAREZ, J.

text:
    M.S., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-2752.
    District Court of Appeal of Florida, Third District.
    Oct. 19, 2011.

      Carlos J. Martinez, Public Defender, and Howard K. Blumberg, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Shayne R. Burnham, Assistant Attorney General, for appellee.
    Before SUAREZ, LAGOA, and SALTER, JJ.
   SUAREZ, J.

M.S. appeals from a withhold of adjudication for battery and a sentence of probation. We affirm.

M.S. was enrolled at Miami Bridge, a temporary shelter for neglected and homeless children. On March 10, 2010, Rochelle Canton, a supervisor at the shelter, saw a young girl, K.V., crying in her dorm room because she had recently been in an altercation with other girls at the shelter. Ms. Canton took K.V. to a hallway outside the dorm and M.S. followed them. A verbal altercation between M.S. and K.V. ensued, and M.S. reached around Ms. Canton and slapped K.V. Ms. Canton was standing in between the girls as this happened. There was a fifteen minute interval between the time Ms. Canton arrived at KV.’s dorm room and when M.S. slapped K.V.

At the adjudicatory hearing, the State’s only witness was Ms. Canton. Ms. Canton testified that she did not know if K.V. had struck M.S. first or if they were striking each other in mutual combat. The State rested its case at the conclusion of Canton’s testimony, and the defense moved for dismissal on grounds that the State’s evidence failed to establish guilt because of the lack of evidence concerning how the altercation began. The trial court denied the motion. After the defense rested, it made a second motion for dismissal asserting that the State had failed to establish that M.S. had not slapped K.V. in self defense. That motion was denied as well. In closing argument, defense counsel tried to argue self-defense, but was prohibited— the trial judge ruled that she would not “be hearing any references in closing argument to a defense that was not raised.”

This appeal followed and M.S. alleges that the trial court abused its discretion and erroneously prohibited argument of self-defense during closing argument.

The trial court’s decision is reversible only if it abused its discretion by not allowing the defense’s argument of self-defense in closing, and such abuse of discretion resulted in a harmful error. Bonifay v. State, 680 So.2d 413 (Fla.1996).

Closing arguments are improper where they cannot be reasonably inferred from the evidence presented at trial. See Dessaure v. State, 891 So.2d 455 (Fla.2004). Here, it cannot be reasonably inferred from the evidence presented at trial that M.S. acted in self-defense.

For M.S. to have acted in self-defense, it must have appeared to a reasonable person in her situation that M.S. needed to defend herself from “imminent use of unlawful force.” See § 776.012, Fla. Stat (2010); S.J.C. v. State, 906 So.2d 1115, 1115-16 (Fla. 2d DCA 2005). It cannot be inferred that a reasonable person in the same situation as M.S. would have found that M.S. needed to defend herself against imminent force from K.V., who was being escorted away from M.S. and was being separated from M.S. by a supervisor. Thus, the trial court did not abuse its discretion by prohibiting M.S. from arguing self-defense in closing since it could not have been reasonably inferred from any evidence at trial. See Dessaure, 891 So.2d at 455.

M.S.’s self-defense argument was properly prohibited during closing argument since there was no evidence of self-defense at trial. We find no abuse of discretion in any of the trial court’s rulings.

Affirmed.

      . There is no need to apply a harmless error analysis since there was no abuse of discretion in the trial court’s decision to prohibit M.S.’s self-defense argument in closing.


text:
    LATAM INVESTMENTS, LLC, Appellant, v. HOLLAND & KNIGHT, LLP, Alex Gonzalez, and Brett Barfield, Appellees.
    No. 3D10-3042.
    District Court of Appeal of Florida, Third District.
    Oct. 19, 2011.

      Guy Spiegelman, Miami, for appellant.
    Podhurst Orseck, P.A., and Stephen F. Rosenthal, Miami, and Peter Prieto, for appellees.
    Before CORTINAS, ROTHENBERG, and LAGOA, JJ.
   ROTHENBERG, J.

The issue in this appeal is whether the litigation privilege applies to a cause of action for abuse of process based on actions taken by Holland & Knight, Alex Gonzalez, and Brett Barfield (collectively, “Holland & Knight”) during their post-judgment efforts to collect on a judgment entered in federal court in their clients’ favor. Because the litigation privilege serves as an absolute bar to LatAm Investments, LLC’s (“LatAm”) abuse of process action, we affirm the trial court’s order dismissing LatAm’s complaint.

FACTUAL BACKGROUND

Holland & Knight filed a lawsuit in federal court on behalf of its clients, Golden Dawn Corporation and Markwood Investments, Ltd., against Fabrizio Neves and Acosta Realty Holdings, LLC., based on diversity jurisdiction. After several years of litigation, the trial court entered a partial final judgment in favor of Holland & Knight’s clients. When Holland & Knight attempted to execute on the judgment, Neves filed for bankruptcy and revealed that he was not a permanent resident alien, thus defeating the federal district court’s diversity jurisdiction.

Upon the federal district court’s dismissal of the case for lack of subject matter jurisdiction, Neves, through LatAm, filed the instant action against Holland & Knight alleging that its post-judgment actions — issuing subpoenas and writs of garnishment — in the federal proceedings constituted an abuse of process. Holland & Knight filed a motion to dismiss, which the trial court granted with prejudice after finding that Holland & Knight’s conduct was protected by the litigation privilege. This appeal followed.

THE LITIGATION PRIVILEGE

LatAm contends that: (1) the litigation privilege does not apply to an action for abuse of process; (2) the application of the litigation privilege for a cause of action for abuse of process would abolish abuse of process as a cause of action; and (3) the litigation privilege cannot protect actions taken during a judicial proceeding where the trial court lacked subject matter jurisdiction over the proceedings. We disagree.

(1) Does the litigation privilege applg to an action for abuse of process?

The Florida Supreme Court in Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. U.S. Fire Insurance Co., 639 So.2d 606, 608 (Fla.1994), and in Echevarria, McCalla, Raymer, Barret & Frappier v. Cole, 950 So.2d 380, 380-81 (Fla.2007), has unequivocally held that it does. In Levin, the Florida Supreme Court held that “absolute immunity must be afforded to any act occurring during the course of a judicial proceeding ... so long as the act has some relation to the proceeding.” Levin, 639 So.2d at 608. In Echevarria, the Court reiterated its broad application of the privilege, and specifically held that the litigation privilege “applies in all causes of action, statutory as well as common law.” Echevarria, 950 So.2d at 380-81.

The Florida Supreme Court in Levin and again in Echevarria articulated the rationale for adopting the litigation privilege and the reason for applying it to all actions taken during and related to judicial proceedings. The Court explained: “Just as participants in litigation must be free to engage in unhindered communication, so too must those participants be free to use their best judgment in prosecuting or defending a lawsuit without fear of having to defend their actions in a subsequent civil action for misconduct.” Echevarria, 950 So.2d at 384 (quoting Levin, 639 So.2d at 608). “It is the perceived necessity for candid and unrestrained communications in those proceedings, free of the threat of legal actions predicated upon those communications, that is the heart of the rule. The nature of the underlying dispute simply does not matter.” Echevarria, 950 So.2d at 384.

Because it is undisputed that the acts complained of here occurred during and were related to the judicial proceedings, we agree with the trial court that the litigation privilege applies to LatAm’s cause of action against Holland & Knight for abuse of process. See also Am. Nat’l Title & Escrow of Fla. v. Guarantee Title & Trust Co., 748 So.2d 1054, 1055 (Fla. 4th DCA 2000) (affirming the trial court’s order granting summary judgment in favor of the law firm in an action for abuse of process on the basis of absolute immunity and on the authority of Levin).

(2)Does the application of the litigation privilege to a cause of action for abuse of process abolish the cause of action?

We conclude that the application of the litigation privilege to a cause of action for abuse of process does not eliminate that cause of action. The litigation privilege, by definition, is limited to actions taken during a judicial proceeding and which are related to the judicial proceeding. Levin, 639 So.2d at 608. Therefore, a claimant may still pursue a claim for an abuse of process when the claim is based on actions taken outside of a judicial proceeding or on actions that are taken during a judicial proceeding but which are unrelated to the judicial proceeding. See Olson v. Johnson, 961 So.2d 356 (Fla. 2d DCA 2007) (holding that the litigation privilege did not preclude a malicious prosecution claim where the accusatorial statements that led to the plaintiffs arrest were made before the charges against him were filed and were not made during, and were unrelated to, the judicial proceeding); see also Montejo v. Martin Mem’l Med. Ctr., Inc., 935 So.2d 1266 (Fla. 4th DCA 2006) (holding that the litigation privilege did not prohibit the plaintiffs false imprisonment claim because the confinement did not occur during the course of the judicial proceedings nor in an effort to prosecute or defend the lawsuit).

The Florida Supreme Court has also specifically noted that the inability to pursue a tort action due to the litigation privilege does not leave a party with no remedy. Viable alternative remedies for a participant’s misconduct during judicial proceedings include “the discipline of the courts, the bar association, and the state.” Levin, 639 So.2d at 608 (quoting Wright v. Yurko, 446 So.2d 1162, 1164 (Fla. 5th DCA 1984)). Specifically, “a trial court would have the ability to use its contempt powers to vindicate its authority and protect its integrity by imposing a compensatory fine as punishment for contempt.” Levin, 639 So.2d at 609 (citing S. Dade Farms, Inc. v. Peters, 88 So.2d 891 (Fla. 1956)). We therefore reject LatAm’s argument that application of the litigation privilege eliminates abuse of process as a cause of action.

(3)Does the lack of subject matter jurisdiction preclude application of the privilege?

The fact that the lawyers and federal district court subsequently discovered a jurisdictional defect during the federal litigation does not preclude application of the privilege nor deny Holland & Knight its protection. In Willy v. Coastal Corp., 503 U.S. 131, 112 S.Ct. 1076, 117 L.Ed.2d 280 (1992), the United States Supreme Court held that a district court could enforce sanctions imposed pursuant to Rule 11 of the Federal Rules of Civil Procedure even though the district court was later determined to have lacked subject matter jurisdiction. In so holding, the Supreme Court affirmed the Fifth Circuit’s determination that the federal court’s sanctioning power was derived from the inherent authority of courts to effectuate the judicial process, and that this inherent authority could be exercised even in the absence of subject matter jurisdiction. Id. at 133-34, 112 S.Ct. 1076. The Supreme Court also emphasized:

It is well established that a federal court may consider collateral issues after an action is no longer pending.... [An] imposition of a Rule 11 sanction is not a judgment on the merits of an action. Rather, it requires determination of a collateral issue: whether the attorney has abused the judicial process, and, if so, what sanction would be appropriate. Such an order implicates no constitutional concern because it “does not signify a district court’s assessment of the legal merits of the complaint.” It therefore does not raise the issue of a district court adjudicating the merits of a “case or controversy” over which it lacks jurisdiction.

Id. at 138, 112 S.Ct. 1076 (emphasis added) (internal citations omitted). Consequently, the Supreme Court reasoned, “[a] final determination of lack of subject matter jurisdiction ... does not automatically wipe out all proceedings had in the district court at a time when the district court operated under the misapprehension that it had jurisdiction.” Id. at 137, 112 S.Ct. 1076 (emphasis added).

The Willy Court’s reasoning is applicable here. As in Willy, the instant lawsuit alleges misconduct in a federal lawsuit where it was later determined that the federal court had lacked subject matter jurisdiction. And, like the sanctions in Willy, the litigation privilege (1) is a common law construct derived from a court’s inherent authority to effectuate the judicial process by promoting zealous advocacy, and (2) does not in any way affect the merits of a case. Thus, on the principles of Willy, the subsequently discovered jurisdictional defect did not automatically wipe out all “proceedings” had in the federal district court at a time when the court operated under the misapprehension that it had jurisdiction. Accordingly, we find that Holland <& Knight’s actions, which occurred during and were related to the judicial “proceedings” in the federal lawsuit, were protected by the litigation privilege.

In addition, we conclude that limiting the protection afforded by the litigation privilege on a court having subject matter jurisdiction, as LatAm advises us to do, would severely undercut the public policy which inspired its creation. The litigation privilege was designed to promote effective advocacy by minimizing the threat of legal backlash from actions taken during judicial proceedings. As was made evident in this case, subject matter jurisdiction can be a complicated and technical issue. In fact, the jurisdictional defect below eluded seasoned attorneys and judges for several years. If protection from exposure to liability hinged on a complicated legal issue, it would render the litigation privilege virtually meaningless, as the privilege’s protection would always be uncertain and, therefore, attorneys would have reason to hesitate before employing certain strategies. If faith in the litigation privilege is to remain uncompromised, its protections should not be premised on the existence of subject matter jurisdiction.

DEL MONICO V. TRAYNOR

We recognize that the Florida Supreme Court is presently considering the case of DelMonico v. Traynor, 50 So.3d 4 (Fla. 4th DCA), review granted, 47 So.3d 1287 (Fla. 2010), regarding the litigation privilege. We, however, decline LatAm’s invitation to stay our determination pending the resolution of Traynor because the Court’s determination in Traynor is unlikely to have any effect on our decision in this case, as the facts and issues in Traynor are fundamentally different from those before this Court.

At issue in Traynor is the Fourth District Court of Appeal’s extension of the litigation privilege to protect attorneys for alleged defamatory statements in their ex-parte questioning of potential, non-party witnesses not directly related to the lawsuit before their appearances at deposition or in the courtroom. Id. at 7. LatAm suggests that the Supreme Court might adopt Judge Warner’s dissenting opinion, which would grant only a qualified immunity in such situations. Id. at 8-13. Lat Am’s appeal, however, does not present such a situation.

In this case, Holland & Knight utilized federal procedural rules to direct discovery documents toward entities with the goal of obtaining information which would assist Holland & Knight in collecting on its clients’ judgment, and these actions were directly related to the prosecution of its clients’ lawsuit. Because the facts, issues, and posture of the two cases are fundamentally different, and because the Florida Supreme Court has unequivocally held that the litigation privilege applies to all claims based on actions taken during and related to the litigation, we find it unnecessary to stay our mandate pending resolution of Traynor.

DETERMINING APPLICABILITY OF THE LITIGATION PRIVILEGE ON A MOTION TO DISMISS

LatAm contends that the trial court erred in its ruling on Holland & Knight’s motion to dismiss by: (1) considering the litigation privilege, which is an affirmative defense; and (2) dismissing LatAm’s claim with prejudice without affording LatAm the right to commence discovery, thereby denying LatAm due process and access to the court system. LatAm’s contentions are without merit.

While the litigation privilege is an affirmative defense, Am. Nat’l Title & Escrow of Fla., Inc., 810 So.2d at 998, it can be adjudicated on a motion to dismiss if the applicability of the privilege can be clearly discerned from the face of the complaint. Kidwell v. Gen. Motors Corp., 975 So.2d 503, 505 n. 2 (Fla. 2d DCA 2007) (“Although immunity is an affirmative defense, it can be considered on a motion to dismiss if the complaint demonstrates the existence of the defense.”); see also Donner v. Appalachian Ins. Co., 580 So.2d 797 (Fla. 3d DCA 1991) (dismissing plaintiffs complaint on the basis of the litigation privilege); Vaswani v. Ganobselc, 402 So.2d 1350, 1351 (Fla. 4th DCA 1981) (“If the face of the complaint contains allegations which demonstrate the existence of an affirmative defense, then such defense can be considered on a motion to dismiss.”).

As previously noted, all of the allegations in LatAm’s complaint fall squarely within the litigation privilege’s protection. The trial court, therefore, did not err in considering the litigation privilege on Holland & Knight’s motion to dismiss.

We also find that the trial court did not err in dismissing LatAm’s claim with prejudice before LatAm was afforded discovery. “The function of a motion to dismiss a complaint is to raise as a question of law the sufficiency of the facts alleged to state a cause of action.” Connolly v. Sebeco, Inc., 89 So.2d 482, 484 (Fla.1956) (emphasis in original). Since in considering “a motion to dismiss the Court must assume all facts alleged in the complaint to be true,” discovery is inapposite. Id. We, therefore, affirm the trial court’s order granting Holland & Knight’s motion to dismiss the complaint with prejudice.

Affirmed.

      . Willy v. Coastal Corp., 915 F.2d 965, 966-67 (5th Cir. 1990).


author: LAGOA, Judge.

text:
    Maria INCARNACION, Appellant, v. Kennedy Marie THOMAS, Marlon Berrouet and Marie Charles, Appellees.
    No. 3D10-2208.
    District Court of Appeal of Florida, Third District.
    Oct. 19, 2011.
    Larry R. Fleurantin, North Miami Beach, for appellant.
    Kennedy Marie Thomas, in proper person; Marlon Berrouet, in proper person; and Marie Charles, in proper person.
    Before ROTHENBERG and LAGOA, JJ., and SCHWARTZ, Senior Judge.
   LAGOA, Judge.

Appellant, Maria Incarnacion (“Incarna-cion”), the defendant below, appeals an order dismissing the proceedings for In-carnacion’s counsel’s failm-e to appear at a case management conference. Because we find that the trial court abused its discretion in dismissing the proceedings, we reverse.

While a trial court’s decision to impose sanctions is discretionary, that discretion is not absolute. The imposition of sanctions requires wrongdoing by the party being sanctioned, and the sanction must be commensurate with the offense. See Mercer v. Raine, 443 So.2d 944 (Fla.1983); Cossio v. Arrondo, 53 So.3d 1141 (Fla. 3d DCA 2011); Taylor v. Mazda Motor of Am., Inc., 934 So.2d 518 (Fla. 3d DCA 2005).

Here, dismissal of Incarnacion’s action for her counsel’s failure to follow the trial court’s pre-trial order constitutes an abuse of discretion. While it is appropriate to strike a party’s pleading “where the offending conduct is flagrant, willful or persistent,” evidence must exist to justify this severest of sanctions. Cossio, 53 So.3d at 1144 (quoting Kamhi v. Waterview Towers Condo. Ass’n, 793 So.2d 1033, 1036 (Fla. 4th DCA 2001)). “Absent evidence of a willful failure to comply or extensive prejudice to the opposition, however, the granting of such an order constitutes an abuse of discretion.” Id. The record does not show that Incarnacion was in any manner responsible for her attorney’s non-compliance. Accordingly, we reverse and remand with instructions to reinstate Incar-nacion’s Amended Counterclaims and Third-Party Complaint.

Reversed and remanded.


author: EMAS, J.

text:
    A. CARLO GUADAGNO, D.C., P.A., d/b/a West Kendall Chiropractic Center (a/a/o Ines Patino), Petitioner, v. UNITED AUTOMOBILE INSURANCE COMPANY, Respondent.
    No. 3D11-1419.
    District Court of Appeal of Florida, Third District.
    Oct. 19, 2011.
    Marlene S. Reiss, Miami, for petitioner.
    Lara J. Edelstein, for respondent.

      Before SHEPHERD and EMAS, JJ„ and SCHWARTZ, Senior Judge.
   EMAS, J.

Upon review of the petition and the response, this Court grants the petition for writ of certiorari and quashes the circuit court’s order denying West Kendall Chiropractic Center’s motion for appellate attorney’s fees. Respondent concedes, and we agree, that the circuit court, acting in its appellate capacity, should have awarded petitioner appellate attorney’s fees, pursuant to section 627.428(1), Florida Statutes (1982), conditioned upon petitioner prevailing in the underlying proceedings. The failure to do so was a departure from the essential requirements of law. See Ramirez v. United Auto. Ins. Co., 67 So.3d 1174 (Fla. 3d DCA 2011); Comprehensive Health Center, LLC v. United Auto. Ins. Co., — So.3d —, 2011 WL 2848667 (Fla. 3d DCA 2011); Allstate Insurance Company v. De La Fe, 647 So.2d 965 (Fla. 3d DCA 1994).

The order denying motion for appellate attorney’s fees is quashed and this cause is remanded to the circuit court for entry of an order conditionally granting petitioner’s motion for appellate attorney’s fees.

Petition granted.


author: PER CURIAM.

text:
    Carlos Gabriel PATINO, a/k/a Gabriel Patina, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-465.
    District Court of Appeal of Florida, Third District.
    Oct. 19, 2011.
    Carlos Gabriel Patino, a/k/a Gabriel Patina, in proper person.
    Pamela Jo Bondi, Attorney General, and Jill D. Kramer, Assistant Attorney General, for appellee.
    Before SHEPHERD and EMAS, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. Herring v. State, 411 So.2d 966 (Fla. 3d DCA 1982); Streeter v. State, 416 So.2d 1203 (Fla. 3d DCA 1982).


text:
    Alvin WILLIAMS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-2242.
    District Court of Appeal of Florida, Third District.
    Oct. 19, 2011.
    Carlos J. Martinez, Public Defender, and Brian L. Ellison, Assistant Public Defender, for appellant.

      Pamela Jo Bondi, Attorney General, and Lunar Claire Alvey, Assistant Attorney General, for appellee.
    Before ROTHENBERG, LAGOA, and EMAS, JJ.
   ROTHENBERG, J.

Although we note that the defendant, Alvin Williams, has conscientiously reported for over ten years as required by section 954.0435(14)(b) of the Florida Statutes, we find that the trial court correctly concluded that Florida Rule of Criminal Procedure 3.040, which extends a deadline where the deadline falls on a Saturday, Sunday, or legal holiday, is not applicable to the reporting requirements set forth in section 954.0435(14)(b), as the reporting requirement does not require a computation of time, but instead requires the defendant to “reregister each year during the month of the sexual offender’s birthday and every third month thereafter.” See Violette v. P.A. Days, Inc., 427 F.3d 1015, 1019 (6th Cir.2005) (holding that the plain language of Rule 6(a) of the Federal Rules of Civil Procedure, which authorizes the extension of a deadline where the deadline expires on a Saturday, Sunday, or legal holiday, is limited “to situations where periods of time must be computed,” and therefore, class settlement opt-out forms that were postmarked on the first business day after the court-ordered Saturday deadline were not timely filed); Fleischhauer v. Feltner, 3 F.3d 148, 151 (6th Cir.1993) (“Computation under Rule 6(a), by its very nature, is only necessary when a court orders something to be done in a particular number of days,” and therefore, as the judge’s “order did not require the plaintiffs to file something within ten days, for example, but rather required the plaintiffs to file all documents the court was to consider by February 1, ... February 1 was a final deadline,” although February 1 fell on a Saturday).

Affirmed.

      . Rule 3.040, titled "Computation of Time,” provides in relevant part:
      In computing any period of time prescribed or allowed by these rules, by order of court, or by any applicable statute, the day of the act or event from which the designated period of time begins to run is not to be included. The last day of the period so computed shall be counted, unless it is a Saturday, Sunday,' or legal holiday, in which event the period shall run until the end of the next day that is neither a Saturday, Sunday, nor legal holiday....

      . The language of Rule 6(a) which was applied in Violette provides:
      In computing any period of time prescribed or allowed by these rules, by the local rules of any district court, by order of court, or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday, or, when the act to be done is the filing of a paper in court, a day on which weather or other conditions have made the office of the clerk of the district court inaccessible, in which event the period runs until the end of the next day which is not one of the aforementioned days.


author: LAGOA, J.

text:
    INVESTACORP, INC., Appellant, v. George M. EVANS and William A. Murphy, Appellees.
    No. 3D10-2644.
    District Court of Appeal of Florida, Third District.
    Oct. 19, 2011.

      Bressler, Amery & Ross and Alex J. Sabo and Jonathan C. Schwartz, Miramar, for appellant.
    Orlando R. Murillo, Hollywood, for ap-pellee George M. Evans, Coral Gables.
    Before SUAREZ, LAGOA, and EMAS, JJ.
   LAGOA, J.

Investaeorp, Inc. (“Investacorp”), appeals a summary judgment awarding damages to George M. Evans and William A. Murphy on the conversion count of a two-count complaint. The trial court reserved jurisdiction on the remaining civil theft count. For the following reasons, we reverse.

On August 31, 2010, the trial court entered a partial final judgment in favor appellees/plaintiffs on the conversion count, and awarded them $17,256.80 using the words of finality: “for which let execution issue, forthwith.” The trial court, however, retained jurisdiction to award fees and to enter judgment on the interrelated civil theft count, which remains pending.

“This court has held that it is improper for a trial court to let execution issue on a partial summary judgment for damages.” New Saga Corp. v. Strongwill Corp., 565 So.2d 407, 408 (Fla. 3d DCA 1990); see also Rothermel v. BXL Assocs., 24 So.3d 664, 665-66 (Fla. 3d DCA 2009); Molina v. Watkins, 824 So.2d 959, 964 (Fla. 3d DCA 2002); Baumann v. Intracoastal Pac. Ltd. P’ship, 619 So.2d 403 (Fla. 3d DCA 1993). Here, although the trial court reserved jurisdiction to consider the interrelated civil theft count, the partial judgment awarding damages on the conversion count improperly contains the language of finality “for which let execution issue, forthwith.” See Rothermel, 24 So.3d at 665; Williamson v. Banta, 22 So.3d 152 (Fla. 1st DCA 2009); Molina, 824 So.2d at 964; see also Millennium Group I, L.L.C. v. Attorneys Title Ins. Fund, Inc., 847 So.2d 1115, 1116-17 (Fla. 1st DCA 2003). Cf. Haven Ctr., Inc. v. Meruelo, 22 So.3d 849 (Fla. 3d DCA 2009). Accordingly, we reverse the partial summary judgment before us and remand with directions to the trial court to strike the phrase “for which let execution issue, forthwith.” Absent that language permitting execution, the partial summary judgment is merely an interlocutory order granting summary judgment, see Rothermel, 24 So.3d at 665-66; Molina, 824 So.2d at 964, and we therefore do not reach the merits of any of Investacorp’s arguments raised in this appeal.

Reversed and remanded for further proceedings consistent with this opinion.


text:
    CITIZENS PROPERTY INSURANCE COMPANY, Appellant, v. Luis DE LOS CUETOS, Appellee.
    No. 3D11-1512.
    District Court of Appeal of Florida, Third District.
    Oct. 26, 2011.
    DeMahy Labrador Drake Victor Payne & Cabeza and Orlando D. Cabeza, Coral Gables and Rachel M. Coe, Fort Lauder-dale, for appellant.

      Alvarez, Carbonell, Feltman, Jimenez & Gomez and Paul B. Feltman, for appellee.
    Before WELLS, C.J., and SUAREZ and FERNANDEZ, JJ.
   On Confession of Error

SUAREZ, J.

Based on the Appellee’s proper confession of error and our own independent review of the record, we reverse the trial court’s non-final order compelling appraisal and remand for an evidentiary hearing to determine whether post-loss obligations were sufficiently met under the policy. See Citizens Prop. Ins. Corp. v. Gutierrez, 59 So.3d 177 (Fla. 3d DCA 2011); Citizens Prop. Ins. Corp. v. Mango Hill Condo. Ass’n 12, 54 So.3d 578 (Fla. 3d DCA 2011); Citizens Prop. Ins. Corp. v. Maytin, 51 So.3d 591 (Fla. 3d DCA 2010); Citizens Prop. Ins. Corp. v. Galeria Villas Condo. Ass’n, 48 So.3d 188 (Fla. 3d DCA 2010).

Reversed and remanded.