author: CONNER, J.

text:
    Odette SCHWARTZ, Appellant, v. The GUARDIAN LIFE INSURANCE COMPANY OF AMERICA, Susan Jean Schwartz, Babette Madeline Schwartz, and Arielle Phillipine Schwartz, Appellees.
    No. 4D09-3736.
    District Court of Appeal of Florida, Fourth District.
    Oct. 5, 2011.
    Rehearing Denied Dec. 1, 2011.

      Robert M. Kahn of Shooster Kahn & Kleiman, Margate, for appellant.
    Harold E. Patricoff, Jerel C. Dawson, and Stephen T. Maher of Shutts & Bowen LLP, Miami, for appellees.
   CONNER, J.

Odette Schwartz appeals the denial of her motion for summary judgment and the granting of summary judgment in favor of The Guardian Life Insurance Company of America (“Guardian Life”). Odette raises five issues on appeal regarding the order granting Guardian Life’s motion for summary judgment. She contends the trial court erred by (1) granting summary judgment when the facts are in dispute, (2) determining she waived her claim to life insurance proceeds, (3) determining that she is estopped from asserting the insurance proceeds were paid to the wrong beneficiary, and (4) determining that section 627.423, Florida Statutes „ (2004), shielded Guardian Life from liability for paying the wrong beneficiary. Lastly, she contends section 627.423 is unconstitutional as applied in this case. We agree there are material facts in dispute which preclude the granting of summary judgment for either side. Thus, we affirm the denial of Odette’s motion for summary judgment, and we reverse the granting of Guardian Life’s motion for summary judgment.

This appeal stems from competing claims between Odette and Odette’s former sister-in-law Susan Schwartz to the proceeds of a one million dollar life insurance policy issued by Guardian Life. The policy insured the life of Roy Schwartz, who was Odette’s former husband and Susan’s brother. At the time Guardian Life issued the policy, Odette was the sole owner and beneficiary of the policy. After Roy’s death, Guardian Life paid the policy proceeds in three equal shares. Susan and Odette’s and Roy’s two daughters, Babette and Arielle Schwartz, received equal shares. The shares were paid pursuant to a combined change-of-owner and change-of-beneficiary form (“notice-of-change form”) which Odette alleges was fraudulently procured by Roy and Susan. After Guardian Life paid the proceeds to Susan, Babette, and Arielle, Odette filed a written claim with Guardian Life, which Guardian Life denied.

Guardian Life filed an amended complaint for interpleader and declaratory relief, naming Susan and Odette as defendants and asking the court to determine who was entitled to the life insurance proceeds. Odette filed an amended counterclaim against Guardian Life for breach of contract, claiming Guardian Life failed to pay her the life insurance proceeds, requesting that Guardian Life pay her the amount it had paid to Susan, and acknowledging she was waiving her right to the money it had paid to Babette and Arielle.

In its answer to the counterclaim, Guardian Life denied that it breached the contract and alleged that Odette was not a designated beneficiary under the policy. Guardian Life asserted multiple affirmative defenses, including estoppel, waiver, and payment and discharge. The premise of these affirmative defenses was that Odette delayed making a claim for the proceeds, which led Guardian Life to rely on the notice-of-change form that designated Susan as the owner and Susan, Babette, and Arielle as the beneficiaries.

Summary Judgment Proceedings

Odette filed a motion for summary judgment with respect to her counterclaim and to Guardian Life’s claim for declaratory relief. The motion contained ninety paragraphs of facts that Guardian Life, in its subsequent motion for summary judgment, agreed to view as accurate for purposes of arguing for or against summary judgment. A summary of these agreed-to facts follows.

Agreedr-To Facts

Odette and Roy were married in 1982 and had two daughters, Babette and Ar-ielle, during their marriage. In 1985, Odette, with Roy’s consent, applied to Guardian Life for a life insurance policy on Roy’s life, which Guardian Life approved at a face value of one million dollars. Roy handled the parties’ business affairs, maintained their documents and records, and paid most of the bills, including the premiums on the life insurance policy. Roy filed for divorce in 1997, whereupon a contentious and protracted divorce proceeding ensued, ending in 1999. It was in 1998, while the divorce proceeding was pending, that the notice-of-change form was executed and delivered to Guardian Life.

In 1998, Guardian Life received a telephone call from Roy requesting forms which would allow a change of owner and a change of beneficiary. Guardian Life conceded, for purposes of summary judgment, that at the time Roy requested the forms, Odette was the sole owner of the policy and the only one with authority to authorize a change with respect to ownership or beneficiary status. However, Guardian Life also had a business practice whereby it made the notice-of-change form available to its insureds, regardless of their status as owner, because Guardian Life trusts its insureds. Thus, Roy, as a non-owner insured, was eligible to request — but not to execute — a notice-of-change form. Guardian Life’s records reflect that it sent the notice-of-change form to Roy.

The completed notice-of-change form contains a signature purporting to be Odette’s signature as former owner, which Odette contends is fraudulent. The form also contains Susan’s signature as proposed new owner, and the signature and notary stamp of Una B. Gursey, the wife of Roy’s former accountant. Una Gursey was deceased at the time suit was filed. The notary certificate has three problems: the notary certificate was incomplete; the notary commission had expired by two years according to the notary stamp on the document; and it is unclear whose signature Gursey was intending to notarize. Despite the problems, Guardian Life’s senior title examiner reviewed the notice-of-change form and deemed it satisfactory. Guardian Life changed its records by removing Odette as sole owner and sole beneficiary, replacing Susan as sole owner, and designating Susan, Babette, and Ar-ielle as beneficiaries. Guardian Life sent confirmation of the change to Roy but not to Odette.

The policy at issue provides:

Change of Owner or Beneficiary
The owner may change the owner or beneficiary by written request satisfactory to Guardian ...

(Emphasis added.)

Guardian Life’s business practice when processing notice-of-change forms does not require utilization of a handwriting expert to authenticate signatures. It also does not require comparing the signature of the former owner on the notice-of-change form with any known signature of the former owner already on file with Guardian Life. Although the notice-of-change form contemplates on its face a notarization process applicable to signatures on the form, Guardian Life’s business practice does not require the signatures to be notarized. Whether the signatures are notarized and whether the notarization is irregular would not cause concern to Guardian Life. Guardian Life’s business practice also does not require Guardian Life to contact the former owner to determine whether the former owner’s signature is valid. Guardian Life does not have a time requirement for a beneficiary to make a claim under a policy. None of Guardian Life’s aforementioned business practices are memorialized in writing. Remarkably, there is no written policy regarding what Guardian Life employees should do to implement a change-of-ownership or a change-of-beneficiary.

Odette was not aware of the request to change the ownership and beneficiary of the policy and never authorized anyone to remove her as sole owner or sole beneficiary. In October 2005, she first became aware of the notice-of-change form that Roy had executed — more than one year after Roy’s death and eleven months after Guardian Life had paid the policy proceeds to Susan, Babette, and Arielle. She became aware of the notice-of-change form when she filed a claim on the policy and Guardian Life supplied her with a copy of the notice-of-change form.

Susan and Odette were never on good terms. Two days after Roy’s death in August 2004, Susan filed a claim with Guardian. After Roy’s death, Odette remembered that she was owner of a life insurance policy on Roy’s life (because she had originally applied for it and because it had been guaranteed to her during the final judgment of dissolution), but could not locate the policy or remember which company had issued the policy. At the time of Roy’s death, her immediate financial needs were being taken care of and she was partially bedridden, so she did not consider the matter of presenting a claim to be urgent.

In November 2004, Arielle advised Odette that Susan had received money from “an insurance company” and that Susan had told Arielle that Arielle and Ba-bette would soon be receiving money of their own in connection with Roy’s life insurance. Upon hearing this information, Odette began to feel that she “might” somehow have been involuntarily disenfranchised of her beneficiary rights in the policy, which had been secured by the final judgment of dissolution, and she began to search again for the policy or any documentation identifying the issuer of the policy. Odette did not find the policy, but did find an invoice from Guardian Life.

Upon finding the Guardian Life invoice, Odette contacted or met with three different attorneys, but she took no action because she was told that it would cost tens of thousands of dollars to pursue a claim. Also, after conferring with counsel, she was led to believe that if she interfered with the current state of affairs, the final distribution of insurance proceeds otherwise paid or payable to her children could be tied up in court proceedings and delayed for years so as to deprive not only Odette, but also her children, of the use or possession of any portion of such funds. Because Odette loved her children and they needed funds to live and attend college, Odette concluded that the law and the court system had failed her and that there was nothing she could do to undo Roy’s decision to change owner and beneficiaries of the policy.

In September 2005, Odette decided to take legal action. Through counsel, she submitted a letter of inquiry to Guardian Life seeking an explanation as to why she had not been paid any money in connection with the policy and presenting a written claim for the proceeds. In response, Guardian Life advised that Odette’s rights as both beneficiary and owner of the policy had been extinguished in March 1998 pursuant to the notice-of-change form, a copy of which Guardian Life attached to its letter. Odette immediately denounced her purported signature on the notice-of-change form as a forgery and, in late October 2005, resubmitted a claim to Guardian Life for the proceeds of the policy. The second demand for payment by Odette prompted Guardian Life to file its complaint for interpleader and declaratory relief.

Supplemental Facts Submitted by Guardian Life

Guardian Life filed a memorandum of law opposing Odette’s motion for summary judgment, as well as its own motion for summary judgment with respect to the counterclaim. Guardian Life supplemented Odette’s list of undisputed facts with additional facts it contended were “undisputed.” A summary of the supplemental “undisputed” facts alleged by Guardian Life follows:

In June 1989, at the request of Odette, Guardian Life’s address of record changed from the Schwartz’s home address to Roy’s business address, and the address of record remained as such until Roy’s death.
Odette knew the policy proceeds had been paid out as early as November 2004.
Odette made a conscious decision to let her daughters keep the money and even accompanied them to a financial advisor to develop a long-term investment plan.
Babette and Arielle each gave their mother portions of the proceeds.
Odette made a conscious decision to let Susan keep and dissipate her share of the proceeds.

Odette filed an amended reply memorandum in support of her motion for summary judgment and amended memorandum in opposition to Guardian Life’s motion for summary judgment. In these filings, Odette expressed her disagreement with the supplemental “undisputed” facts alleged by Guardian Life and contended that many of them were facts presented in her motion but restated in a misleading light so as to unfairly characterize their content.

After a hearing on the motions, the lower court denied Odette’s motion for summary judgment, granted Guardian Life’s motion for summary judgment, and entered a final judgment.

Legal Analysis

Appellate review of orders granting summary judgment is de novo. Saris v. State Farm Mut. Auto. Ins. Co., 49 So.3d 815, 817 (Fla. 4th DCA 2010); Fina v. Hennarichs, 19 So.3d 1081, 1084 (Fla. 4th DCA 2009). Our supreme court has said:

The law is well settled in Florida that a party moving for summary judgment must show conclusively the absence of any genuine issue of material fact and the court must draw every possible inference in favor of the party against whom a summary judgment is sought. A summary judgment should not be granted unless the facts are so crystallized that nothing remains but questions of law.
If the evidence raises any issue of material fact, if it is conflicting, if it will permit different reasonable inferences, or if it tends to prove the issues, it should be submitted to the jury as a question of fact to be determined by [the jury].

Moore v. Morris, 475 So.2d 666, 668 (Fla.1985) (internal citations omitted).

Odette argues on appeal that the lower court’s summary judgment in favor of Guardian Life relied on facts supplemental to those that the parties had stipulated and that “many of the purported supplemental ‘facts’ inclusive of those identified by the Court in paragraphs 6, 7, 10, 14, 15, 18, 20, 21, 22, 23, and 24 of the Order and Final Judgment appealed from were either unsupported by the record and/or presented in a misleading light so as to unfairly characterize their content.” We agree the trial court improperly relied upon some of the supplemental facts put forth by Guardian Life that the record shows were disputed, rather than “undisputed.”

Odette argues that the facts alluded to in paragraphs 20 and 24 of the summary judgment are disputed. She contends the common thread of those paragraphs is that Odette was aware in November 2004 that Susan had claimed and received proceeds from the Guardian Life policy. The issue of Odette’s knowledge that the proceeds of the policy she took out on Roy’s life had been paid to Susan, Babette, and Arielle is central to the legal theories employed by the trial court to grant summary judgment in favor of Guardian Life. It is important to note that Guardian Life’s assertion that Odette knew that proceeds of the policy had been paid relies on inferences from other facts. Guardian Life argues that each of its supplemental facts is supported by the record and provides accompanying record citations to prove so. Even if Guardian Life’s citations demonstrate that each of its supplemental facts is supported by the record, such record support does not mean summary judgment is appropriate where the facts are in dispute. Odette repeatedly testified in depositions and provided record support that she did not know that the policy proceeds Susan and her daughters received were from the Guardian Life policy originally issued to her as the owner until she received the copy of the notice-of-change form from Guardian Life. She believed it was possible that Roy had purchased another policy after the divorce.

Based on a review of Odette’s and Guardian Life’s competing record citations, the record provides support for Odette’s contention that the facts concerning her knowledge that the insurance proceeds had been paid are disputed. That disputed issue alone affects whether the affirmative defenses of waiver, estoppel, and payment and discharge apply. Thus, this case was not ripe for summary judgment for either side.

Facility of Payment Statutory Defense

The circuit court found that Guardian Life was entitled to summary judgment based on its affirmative defense of payment and discharge pursuant to section 627.423, Florida Statutes (2004), which provides:

Whenever the proceeds of or payments under a life or health insurance policy or annuity contract become payable in accordance with the terms of such policy or contract, or the exercise of any right or privilege thereunder, and the insurer makes payment thereof in accordance with the terms of the policy or contract or in accordance with any written assignment thereof, the person then designated in the policy or contract or by such assignment as being entitled thereto shall be entitled to receive such proceeds or payments and to give full acquittance therefor; and such payments shall fully discharge the insurer from all claims under the policy or contract unless, before payment is made, the insurer has received at its home office written notice by or on behalf of some other person that such other person claims to be entitled to such payment or some interest in the policy or contract.

This statute was originally passed in 1959. Other states have adopted a similar statute, and the case law of several states refers to the statute as a “facility of payment statute.” There are no state court appellate decisions in Florida interpreting or applying the statute.

Given the dearth of case law in Florida construing section 627.423, both Odette and Guardian Life relied in the trial court and in this court upon out-of-state cases for guidance as to the application of the statute to the facts of this case. Odette principally relied upon Stavros v. Western & Southern Life Insurance Co., 486 S.W.2d 712 (Ky.1972), Bigley v. Pacific Standard Life Insurance Company, 229 Conn. 459, 642 A.2d 4 (1994), and the dissent in Fortis Benefits Insurance Company v. Pinkley, 926 So.2d 981 (Ala.2005); Guardian Life principally relied upon the majority opinion in Fortis. Each of these cases dealt with a facility of payment statute.

In her brief, Odette first argues that section 627.423 as an affirmative defense is not available because páyment was not made “in accordance with the terms of the policy.” She contends that the statute does not apply to situations in which a change of beneficiary is procured by a forgery. Her argument is that a change of beneficiary by forgery is not “in accordance with the policy,” thus, payment pursuant to such a fraudulent change of beneficiary is likewise not “in accordance with the policy,” and the statute offers no protection. For the reasons discussed below, we determine her argument on this point is not persuasive.

Odette next argues that the defense of facility of payment should not be available to Guardian Life because the less-than-vigilant business practices of Guardian Life allowed a fraudulent situation to occur. For this argument, Odette relies on the legal principle espoused in Niccolls v. Jennings, 92 So.2d 829 (Fla.1957), and Eulette v. Merrill, Lynch, Pierce, Fenner and Beane, 101 So.2d 603 (Fla. 3d DCA 1958) that “where one of two innocent parties must suffer through the act of a third person, the loss should fall upon the one whose conduct created the circumstances which enabled the third party to perpetrate the wrong or cause of loss.” Niccolls, 92 So.2d at 832-33 (citing Reasoner v. Fisikelli, 114 Fla. 102, 153 So. 98 (1934)). Again, for the reasons discussed below, we determine her argument on this point is not persuasive.

Odette supports her analysis of the inapplicability of section 627.423 using case law from other jurisdictions. She first relies on Stavros v. Western & Southern Life Insurance Co., 486 S.W.2d 712 (Ky.1972), where the crucial issue was whether an insurance company is absolved from liability for improper payment when it accepts a change-of-beneficiary from an individual not authorized to effect such a change. Kentucky’s facility of payment statute is almost identical in language to Florida’s. However, Stavros is not persuasive for the situation presented by this case.

In Stavros, the insurance policy required that a change of beneficiary could be accomplished only by the insured with the consent of the beneficiary. The policy was purchased by a father to insure the life of his minor son. The father, who was the original beneficiary under the policy, died before his son was an adult. Upon the father’s death, the insured’s adult sister became the insured’s guardian. A few weeks after the sister was appointed as guardian, she provided the insurance company with a death certificate for the father and a signed change of beneficiary form designating herself as the beneficiary of the policy. However, when she signed the change of beneficiary form, she signed designating herself as “sister,” and not as guardian, and she did not obtain the approval of the guardianship court to make the change of beneficiary. The insured was accidentally killed shortly after he became an adult, and the policy proceeds were paid to the sister. The insured’s estate then brought an action against the insurance company for improper payment of the proceeds. The insurance company defended, raising Kentucky’s facility of payment statute. The Kentucky Supreme Court ruled that facility of payment statute did not protect the insurance company because the sister signed the change of beneficiary form as “sister,” and not as guardian. Thus, the insurance company was put on notice, by the terms of the insurance policy, that the change of beneficiary was not proper and that payment was not in accordance with the terms of the policy.

We do not find Stavros persuasive because, in that case, there was no assertion of fraud by the insured’s estate or any issue of forgery involved in the transaction. The sister made an innocent mistake in not signing the change of beneficiary form as guardian and in not obtaining approval of the guardianship court for the change of beneficiary. The Kentucky Supreme Court simply concluded the sister’s mistake should have put the insurance company on notice that it was not complying with its own insurance policy by changing the beneficiary.

Odette next relies on Bigley v. Pacific Standard Life Insurance Co., 229 Conn. 459, 642 A.2d 4 (1994) to argue that we should rule section 627.423 does not provide a defense in this case. However, we determine Bigley presents no useful guidance to us. First, the statute addressed in Bigley, Connecticut General Statutes section 38a-453, is not at all comparable to section 627.423. Second, the Supreme Court of Connecticut noted in a footnote that section 38a-453 did not apply to the facts of the case.

Lastly, Odette argues that in interpreting section 627.423, we should adopt the reasoning of the dissent in Fortis Benefits Insurance Co. v. Pinkley, 926 So.2d 981 (Ala.2005). However, before addressing her argument, it is best to address the majority opinion in Fortis, which was relied upon by the trial court in granting summary judgment and by Guardian Life in the trial court proceedings and on appeal.

We begin our discussion of Fortis with two observations: the case addresses the issue of a change of beneficiary obtained by forgery, and Alabama’s facility of payment statute is almost identical in language to section 627.423. We note that Fortis analyzes Stavros and Bigley. We also note that Fortis contains a good, although brief, discussion of the historical background of facility of payment clauses in insurance contracts and the adoption of facility of payment statutes by several states. We further view Fortis to be helpful because the appeal was in the context of reviewing the denial of a motion for summary judgment.

In Fortis, Jay Pinkley purchased a life insurance policy listing his wife, Bertha Pinkley, as the primary beneficiary, and Paul Sanford, Bertha’s son and Jay’s stepson, as the contingent beneficiary. Similar to the policy involved in this appeal, the policy in Fortis provided that only the owner of the policy may change the beneficiary. Nine years later, someone identifying himself as Jay Pinkley telephoned one of Fortis’s offices requesting a change of beneficiary form. The caller not only provided the policy number, but also Jay’s social security number. Fortis sent the change of beneficiary form to the address on file for the owner of the policy (Jay’s address). Shortly thereafter, Fortis received a complete change of beneficiary form changing the beneficiary to Dianne Sanford, the wife of Paul Sanford, as the primary beneficiary and designating “Bernice Pinkley” as the contingent beneficiary. “Jay D. Pinkley” was handwritten directly above the line indicated for “Policyowner’s signature.” The form also contained the social security numbers for both Pinkleys and a telephone number which matched the number for Jay Pinkley on the policy application. The form was witnessed by Paul Sanford. Fortis made the change as requested and sent a copy of the request form stamped “received” to Jay Pinkley at the address on record for him. No objection to the change was received from Jay Pinkley.

Shortly after Jay’s death, Dianne Sanford filed a claim for the policy benefits, which were paid to her the same month. Almost two years later, Bertha Pinkley made a claim for the benefits, contending the signature of Jay Pinkley on the change form was a forgery. Fortis denied Bertha’s claim, so Bertha sued Fortis, raising various claims. Similar to this case, Fortis and Bertha filed cross-motions for summary judgment. The trial court denied both motions for summary judgment but certified a controlling question of law to be addressed by the Alabama Supreme Court. The question of law was whether Alabama Code section 27-14-24 (1975) barred Bertha’s claims regarding improper payment of insurance proceeds. The issue presented a matter of first impression for the Alabama Supreme Court. The supreme court framed and answered the question as follows:

[Wjhether § 27-14-24 protects an insurer from double liability if in good faith it pays life-insurance benefits to an individual claiming the benefits on the basis of a forged change-of-beneficiary request form. Stated more narrowly, the question is whether a life insurer that receives a change-of-beneficiary request form, regular on its face and executed by a person purporting to be the owner of the policy, has a duty to investigate the authenticity of the signature before paying death benefits under the policy to the person designated on the form as the primary beneficiary. We answer that question in the negative.

Fortis, 926 So.2d at 984.

The Alabama Supreme Court began its analysis with the general rule that when an insurer pays the policy proceeds to the person who by the policy is the proper recipient, such payment is a discharge of the liability of the insurer. The supreme court then observed “the insurer is not under any duty to determine whether the change of beneficiary was procured or induced by improper means where it has no reason to believe or know that such was the case.” Id. at 984 (citing 5 George J. Couch, et al., Couch on Insurance § 28:97 (Rev. 2d ed. 1984)). The court then noted that section 27-14-24 is consistent with a number of facility of payment statutes in various states (including Florida) and such statutes mirror facility of payment clauses frequently found in certain types of insurance contracts. Next, the court noted that such insurance clauses were for the protection of the insurer against later claims from others who might arguably have a superior claim to the proceeds. However, the case law developed around such clauses requires insurance companies to act in good faith. The Alabama Supreme Court concluded that Alabama’s facility of payment statute likewise required insurers to act in good faith when paying policy proceeds.

Bertha argued on appeal that Alabama’s facility of payment statute does not afford protection to the insurer in situations where payment is obtained by forgery because in such situations, payment cannot be considered as being “in accordance with the policy” as required by the statute. She further argued that the policy provisions limiting the right to change the beneficiary to the policy owner do not allow the insurer to rely on the representations of an imposter. In support of her argument, Bertha cited and relied upon Bigley. The Alabama Supreme Court found Bigley to be unpersuasive (for reasons we similarly find Bigley to be unpersuasive).

The Alabama Supreme Court then analyzed whether forgery presents a different situation than facility of payment protection given to insurers in situations in which a change of beneficiary designation was obtained by undue influence or from a policy owner who is incompetent. The court noted those situations are a species of fraud, just like forgery. A signature obtained by undue influence or when the policy owner is incompetent is no more the act of the policyholder than when a signature is forged. The court also noted that Bigley fails to explain why forgery should be treated any differently from those situations. Historically, facility of payment statutes have been interpreted to apply to signatures obtained by undue influence or from an incompetent person.

The majority in Fortis concluded that the Alabama facility of payment statute made no distinction in affording protection to situations involving forgery as compared to situations involving undue influence or incompetence. The majority focused on the language of the statute, which provides that payment “to the person then designated in the policy” fully discharges the insurer absent written notice of competing claims. Fortis, 926 So.2d at 988 (emphasis in original). The court reinforced this interpretation of the statute with the following analysis:

The phrase “payment ... in accordance with the terms of the policy” refers primarily to the time the proceeds become payable. Specifically, it refers back to the first word of the statute, namely, “whenever,” that is, “whenever,” pursuant to the policy, “the proceeds of [the policy] ... become payable.” Thus, “whenever” an event triggers the insurer’s duty to pay and payment is made to “the person” whose name appears on the face of the policy or any change to the policy in regular form as the proper beneficiary, payment has been made “in accordance with the terms of [the] policy.”

Id. at 989 (emphasis in original). The majority agreed with Fortis that Alabama’s facility of payment statute presumes that benefits might be paid to someone with an inferior claim. The majority rejected the interpretation sought by Bertha (the statute did not apply to forgeries) because Bertha’s construction negates the presumption that benefits might be paid to someone with an inferior claim.

We agree with the logic and the analysis of the Alabama Supreme Court in Fortis. The operation of the Florida facility of payment statute presumes that benefits might have been paid to someone with an inferior claim. We see no logical reason to treat situations in which a change of beneficiary, or change in the owner of the policy, is obtained by a forgery differently from situations where the change occurs as a result of undue influence or incompetency.

Odette argues that we are compelled to follow Stavros and Bigley rather than Fortis because Florida requires that policy owners strictly comply with the procedures for effectuating a change-of-owner or change-of-beneficiary, whereas Alabama requires that policy owners substantially comply with the procedures for effectuating such a change. She argues that difference means we should agree with the dissent in Fortis. We do not find her argument persuasive because the policy does not outline the procedure to be followed in implementing a change of owner or beneficiary in any detail.

The majority in Fortis held:

In summary, we hold that § 27-14-24 does not cast upon the insurer a duty to investigate and discover whether a change of beneficiary has been procured by forgery, and that where an insurer in good faith pays life-insurance benefits in reliance on a forged change-of-beneficiary request form, which appears regular in all respects, the insurer is fully discharged “from all claims under the policy or contract.”

Fortis, 926 So.2d at 989 (emphasis added). Although we decline to follow the lead of the Alabama Supreme Court and impute a good faith requirement on the application of the statute, we agree our statute, like Alabama’s statute, does not impose a duty on the insurer to investigate whether a change of owner or beneficiary has been procured by forgery. We agree with Odette that the statutory language that payment must be “in accordance with the terms of the policy or contract” requires that a change-of-owner or change-of beneficiary request must be in strict compliance with the terms of the policy.

In this case, the policy requires that a change of owner or beneficiary must be “by written request satisfactory to Guardian [Life].” A factual dispute exists as to whether Guardian Life made changes to the policy and paid the policy proceeds in strict compliance with the policy’s terms. By the policy’s terms, only Odette, as owner of the policy, had the right to change beneficiary or transfer ownership to another person. However, the policy does not specify the procedures for changing a beneficiary. Guardian Life claims that changing a beneficiary is governed by unwritten business policies. These unwritten policies include a policy of trusting its insureds, allowing an insured to request a notice-of-change form, and not requiring notice-of-change forms to be notarized. But, there is a factual inconsistency between an unwritten policy that notarization for a notice-of-change form is not necessary and a written form sent out by Guardian Life that includes a notary certificate. Arguably speaking, the inclusion of a notary certificate on the notice-of-change form creates an inference that notarization meets the policy requirement that a change must be “by written request satisfactory to “Guardian [Life].” The factual inconsistency between unwritten policies and written forms approved for use by Guardian Life can be resolved only by a trier of fact, and not by a judge on a motion for summary judgment.

Because we find that material facts were in dispute and summary judgment should not have been granted for either side, we do not address the issue of whether the application of section 627.428 was unconstitutional in this case.

Reversed and remanded.

WARNER and LEVINE, JJ., concur.

      . The amended complaint had four additional counts revolving around claims of fraud and unjust enrichment against Susan, Babette, and Arielle, but the motions for summary judgment by both sides did not address those claims.

      . Ky.Rev.Stat. § 304.14-260 (1972).

      . Ala.Code § 27-14-24 provides:
      Whenever the proceeds of, or payments under, a life or disability insurance policy or annuity contract, heretofore or hereafter issued, become payable in accordance with the terms of such policy or contract, or the exercise of any right or privilege thereunder, and the insurer makes payment thereof in accordance with the terms of the policy or contract or in accordance with any written assignment thereof, the person then designated in the policy or contract, or by such assignment, as being entitled thereto shall be entitled to receive such proceeds or payments and to give full acquittance therefor; and such payments shall fully discharge the insurer from all claims under the policy or contract, unless, before payment is made, the insurer has received at its home office written notice by, or on behalf of, some other person that such other person claims to be entitled to such payment or some interest in the policy or contract.

      . "Bernice Pinkley” was apparently meant to refer to Bertha Pinkley.

      . Bertha Pinkley conceded on appeal that Alabama’s facility of payment statute affords protection to the insurer in situations where a change of beneficiary designation is obtained by undue influence or from an incompetent policy holder.

      . Justice Lyons in his dissent opined that the majority in Fortis in essence rewrote and expanded Alabama’s facility of payment statute by interpreting certain words to include more than the plain language.


source: Caselaw Access Project

author: POLEN, J.

license: Public Domain

text:
    GUY BENNETT RUBIN, P.A., Appellant, v. Matthew GUETTLER, Georgia Guettler and Brandon Guettler, Appellees.
    No. 4D09-5055.
    District Court of Appeal of Florida, Fourth District.
    Oct. 5, 2011.

      Guy Bennett Rubin and Laurence C. Huttman of Rubin & Rubin, Stuart, for appellant.
    Robert J. Gorman of Robert J. Gorman & Associates, P.A., Fort Pierce, for appel-lees.
   POLEN, J.

Appellant, Guy Bennett Rubin, P.A. (Rubin), appeals the final judgment of the trial court, granting final summary judgment in favor of appellees and denying partial summary judgment in favor of Rubin in Rubin’s action to collect attorney’s fees from his former clients. We find the subject Representation Agreement unenforceable as a matter of law, as it violates rule 4-1.5(a), Rules Regulating the Florida Bar. As such, we affirm the trial court’s order granting final summary judgment in favor of appellees.

The parties entered into a “Business Matter Contingency Fee Representation Agreement” (Agreement) on August B, 2007. The Agreement provides, in pertinent part:

RUBIN & RUBIN
(GUY BENNETT RUBIN, P.A.)
BUSINESS MATTER CONTINGENCY FEE
REPRESENTATION AGREEMENT
This document shall serve as our agreement for legal representation in the above referenced matter.
Fees for Legal Services
3. In the event I discharge the firm prior to resolution by judgment or settlement, or if I elect to no longer pursue the Anticipated Claims as identified herein-below, I agree to immediately thereafter pay LAW FIRM accrued hourly legal fees based upon the hourly rates as follows:
Services of Guy Bennett Rubin $500/hr., all other attorneys $400/hr., all paralegals $150/hr., all legal assistants $100/hr. listed in paragraph 4 immediately above. I agree that unless otherwise provided herein, I will not be responsible for any additional attorneys fees payable to the LAW FIRM other than those stated above.
Costs and Expenses
I am responsible for all costs and expenses necessary to prosecute and defend these respective claims. All unpaid invoice billing for costs or expenses remaining unpaid for a period in excess of ten (10) days, shall accrue interest at the rate of 1 ½% per month. I agree that all balances for costs and expenses incurred by the LAW FIRM, but not yet paid by me in connection with this action, including all accrued interest if any, will be disbursed out of the proceeds of any recovery as they are received....
Client Rights and Responsibilities
I agree not to settle this matter without the prior written approval of the LAW FIRM....
I understand that time is of the essence, LAW FIRM will begin work on my behalf immediately, and I will incur fees and costs as soon as I sign this Agreement.
I may discharge the LAW FIRM at any time.
ANTICIPATED CLAIMS: Dispute and contest the last will and testament of Leo Guettler Jr. and/or revocable trust of Leo Guettler Jr.; defense of claims by Edna L. Guettler, Inc. and dissolution or liquidation of my interest in Edna L. Guettler, Inc.

On September 28, 2007, appellee, Matthew Guettler, by written letter, asked Rubin to dismiss his cases pending in the probate and civil divisions in Martin County. Also, on September 28, Guettler voluntarily dismissed the probate case and sent a notice of voluntary dismissal to Rubin. All three appellees discharged Rubin on November 16, 2007.

On January 25, 2008, Rubin filed a three-count complaint, alleging breach of contract, account stated and quantum me-ruit. Subsequently, Rubin filed a motion for partial summary judgment on the sole issue of Guettler’s liability to Rubin for unpaid fees and costs. Appellees then filed a motion for summary judgment, arguing that because none of the three contingencies stated in the Agreement occurred, Rubin was not entitled to a fee. The trial court entered an order granting appellees’ motion for summary judgment, and denying Rubin’s motion for partial summary judgment, finding that:

• the Agreement, by its clear and unambiguous terms, is a contingency-fee agreement;
• it is undisputed that no recovery was realized in connection with the “Anticipated Claims” while Rubin represented Appellees or at any time after Rubin represented Appellees;
• Appellees discharged Rubin; a dispute exists as to the timing of the discharge, however, it does not rise to a genuine issue of material fact;
• the Rosenberg rule governs this case;
• Rubin is not entitled to recover fees based on quantum meruit, as a matter of law, because the contingency did not occur;
• the provision in the Agreement providing for immediate payment of accrued hourly rates upon discharge constitutes a penalty clause in violation of rule 4-1.5, Rules Regulating the Florida Bar (an attorney shall not charge or collect an illegal, prohibited or clearly excessive fee);
• no recovery can be had on provisions of a fee agreement that are in violation of the Rules of the Florida Bar therefore, Rubin is not entitled, as a matter of law, to recover fees from Appellees under Count I of the complaint (breach of contract)

The court then entered final judgment for appellees, and this appeal followed.

“The standard of review of the entry of summary judgment is de novo.” Craven v. TRG-Boynton Beach, Ltd., 925 So.2d 476, 479 (Fla. 4th DCA 2006) (citing Everett Painting Co. v. Padula & Wadsworth Constr., Inc., 856 So.2d 1059, 1061 (Fla. 4th DCA 2003)). The trial court determined that the discharge clause in the Agreement constitutes a penalty clause in violation of rule 4-1.5, Rules Regulating the Florida Bar. Rubin argues that the trial court failed to cite any provision of rule 4-1.5 which prohibits the fee sought or the use of the subject provision in the Agreement and also failed to make any specific findings indicating which of the three forbidden fees under 4-1.5 the Agreement violated. Rubin further argues that, under the facts of this case, the clause was not a penalty because it did not restrict appellees from hiring subsequent counsel because at the time Rubin was discharged, the claims were “irretrievably dead.” Rubin finally argues that the trial court should have severed the offending language from the Agreement rather than finding the entire Agreement unenforceable.

“An attorney shall not enter into an agreement for, charge, or collect an illegal, prohibited, or clearly excessive fee or cost_” Rule 4-1.5(a), Rules Regulating the Florida Bar. A termination-of-services clause in a contingency-fee agreement, which provides for the client to pay the discharged law firm for all services rendered up through the date of termination at the prevailing hourly rate for firm members, if the client abandons or dismisses the claim, violates rule 4-1.5 on its face. The Fla. Bar v. Hollander, 607 So.2d 412, 414 (Fla.1992). “A bilateral contract is severable where the illegal portion of the contract does not go to its essence and, where, with the illegal portion eliminated, there still remain valid legal promises on one side which are wholly supported by valid legal promises on the other.” Gold, Vann & White, P.A. v. Friedenstab, 831 So.2d 692, 696 (Fla. 4th DCA 2002) (citing Slusher v. Greenfield, 488 So.2d 579, 580 (Fla. 4th DCA 1986)). Likewise, contingent-fee agreements can be enforceable even if they have technical or immaterial violations of rule 4—1.5(d). State Contracting & Eng’g Corp. v. Condotte Am., Inc., 368 F.Supp.2d 1296, 1305 (S.D.Fla.2005). Cf. Lackey v. Bridgestone/Firestone, Inc., 855 So.2d 1186, 1188 (Fla. 3d DCA 2003) (finding that the inclusion of infirm clauses in the contract did not render the agreement void or foreclose the attorney from recovering his fee because the offending clauses were not at issue: “this is not a case where an attorney is seeking to recover fees under a void provision in a contingent fee agreement.”).

In The Florida Bar v. Doe, 550 So.2d 1111 (Fla.1989), the contingency-fee contract included a “discharge clause” which permitted the client to discharge Doe only after paying him the greater of $350 per hour for all the time spent on the case or forty percent of the greatest gross amount offered in settlement. At the disciplinary hearing, the referee found that while the contingent fee contract violated rule 4-1.5 on its face, there was no testimony offered that Doe’s actions were ever in violation of the rules; consequently, the referee found that Doe was not guilty of any ethical violation warranting disciplinary proceedings. Id. at 1112. However, on review, the supreme court disagreed because “the contract itself shows an ethical violation.” Id. The court found that the discharge provision had the effect of intimidating the client into not exercising her right of discharge and penalized the client for exercising this right. Id. at 1113. The court concluded that “[a)n attorney cannot exact a penalty for a right of discharge. To do so is contrary to our statement of policy in Rosenberg ....” Id. See also The Fla. Bar v. Spann, 682 So.2d 1070, 1072-73 (Fla.1996) (finding that a contingency-fee agreement that provided for payment based on a specified hourly rate upon termination by the client constitutes a penalty clause in violation of rule 4-1.5 because the client would be forced to pay the attorney upon discharge even where the contingency had never been met).

Here, Rubin never argued below (in his motions for, or in opposition to, summary judgment, or at the hearing on said motions) that the trial court should sever the offending language relating to the discharge clause; as such, Rubin has not preserved his severance argument for review. Therefore, we hold that based on rule 4-1.5, Hollander, and Doe, the trial court correctly held the Agreement unenforceable as a matter of law because a discharge clause of this type has been consistently held by the supreme court to be contrary to public policy because of the potential it has for chilling a client’s right to change counsel. The case law clearly holds that it is a prohibited fee agreement. Further, here, and in contrast to Lackey, the discharge clause went to the essence of the agreement: Rubin is seeking fees under this exact clause. Thus, the Agreement was unenfoi’ceable from its inception.

Rubin next argues that the trial court erred in applying Rosenberg to the facts of this case because Rosenberg does not apply to completed contracts, whether contingent, fixed fee, or mixed. Rubin asserts that by the time he was discharged, the matters which were the subject of the fee contract were already concluded — that the result of the dismissal filing by appellees concluded the Agreement, making impossible any chance that a recovery could ever occur. We need not reach the merits of this issue because the trial court properly found the Agreement to be in violation of rule 4-1.5, and thus unenforceable.

Even if the Agreement is unenforceable as a matter of law, Rubin argues that he should have been permitted to proceed on the theory of quantum meruit as pled in Count III of his complaint. “A Florida Bar member who has entered into an improper fee agreement is nonetheless entitled to receive the reasonable value of his or her services on the equitable basis of quantum meruit.” Patterson v. Law Office of Lauri J. Goldstein, P.A., 980 So.2d 1234, 1236, n. 1 (Fla. 4th DCA 2008) (citing Chandris, S.A. v. Yanakakis, 668 So.2d 180, 186, n. 4 (Fla.1995)). However, an action for quantum meruit “arises only upon the successful occurrence of the contingency. If the client fails in his recovery, the discharged attorney will similarly fail and recover nothing.” Rosenberg, 409 So.2d at 1022. Here, the trial court found that there was no evidence that the plaintiffs received anything as a result of the litigation. Instead, the Guettlers dismissed their claims against the estate and recovered nothing. Therefore, because the contingency did not occur, Rubin is not entitled to any quantum meruit recovery.

Finally, Rubin argues that he is entitled to reimbursement for costs; however, Rubin never raised this issue below. Consequently, the issue has not been preserved for appellate review.

Affirmed.

WARNER and LEVINE, JJ., concur.

      . There is disputed testimony regarding when Rubin was officially discharged. However, we agree with the trial court that the dispute did not raise a genuine issue of material fact because the Agreement is unenforceable as a matter of law; therefore, the exact time of discharge is irrelevant.

      . Rosenberg v. Levin, 409 So.2d 1016 (Fla.1982). In Rosenberg, the supreme court held that "an attorney employed under a valid contract who is discharged without cause before the contingency has occurred dr before the client's matters have concluded can recover only the reasonable value of his services rendered prior to discharge, limited by the maximum contract fee.” Id. at 1021 (emphasis added). The court further held that “in contingency fee cases, the cause of action for quantum meruit arises only upon the successful occurrence of the contingency. If the client fails in his recovery, the discharged attorney will similarly fail and recover nothing.” Id. at 1022.

      . Rubin argues that due to the statute of limitations in the probate code rules and by statute, the unilateral dismissal of claims by the appellees operated as a dismissal with prejudice.

      . Rule 4-1.5(d), Rules Regulating the Florida Bar provides: "Enforceability of Fee Contracts. Contracts or agreements for attorney’s fees between attorney and client will ordinarily be enforceable according to the terms of such contracts or agreements, unless found to be illegal, obtained through advertising or solicitation not in compliance with the Rules Regulating The Florida Bar, prohibited by this rule, or clearly excessive as defined by this rule.”


author: PER CURIAM.

text:
    Trudy DIEDRICK-CLARKE, Appellant, v. WASHINGTON MUTUAL BANK, Appellee.
    No. 4D10-3881.
    District Court of Appeal of Florida, Fourth District.
    Oct. 5, 2011.

      Larry R. Fleurantin of Larry R. Fleu-rantin & Associates, P.A., North Miami, for appellant.
    Jeffrey T. Kuntz and Thomas H. Loffre-do of GrayRobinson, P.A., Fort Lauder-dale, for appellee.
   PER CURIAM.

Trudy Diedrick-Clarke appeals from a final summary judgment of foreclosure in favor of appellee and an order denying her motion to set case for mediation. JPMor-gan Chase Bank National Association, as the acquirer of certain assets and liabilities of appellee (“JPMorgan”), confesses that the trial court committed procedural errors relating to the summaiy judgment hearing and the evidence presented. However, with respect to the order denying Diedrick-Clarke’s motion to set case for mediation, JPMorgan argues that the trial court did not abuse its discretion in denying the motion. We agree.

As to the issues relating to the confession of error, we reverse the summary judgment and remand for further proceedings consistent with the laws and rules of procedure applicable to the underlying foreclosure proceeding. Gulf Power Co. v. Illinois-Florida Land Co., 132 So. 109 (Fla.1931); Indian Harbor Estates, Inc. v. Wagner, 148 So.2d 757 (Fla. 1st DCA 1963).

Next, Diedrick-Clarke argues that the trial court abused its discretion by denying her motion to compel the parties to mediation pursuant to the Seventeenth Judicial Circuit Administrative Order 2010-29-Civ., amended and superseded by Administrative Order 2011-13-Civ. A plain reading of the administrative order leads us to conclude that the trial court is granted the exclusive discretion to decide whether to compel parties to mediate in cases which were filed before July 1, 2010. “At the discretion of the division judge, compliance with this Administrative Order may also be required for homestead residential mortgage foreclosure actions filed prior to July 1, 2010 ...” Admin. Order 2011-13-Civ, pg. 3, Seventeenth Judicial Circuit. This is one such case.

Reversed and Remanded.

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


author: GERBER, J.

text:
    Willis MORGAN, Appellant, v. Chadwick E. WAGNER, Chief of Police of the City of Hollywood, Florida, Michael J. Satz, State Attorney for the Seventeenth Judicial Circuit in and for Broward County, Florida, and Joseph Matthews, Appellees.
    No. 4D10-3433.
    District Court of Appeal of Florida, Fourth District.
    Oct. 12, 2011.
    Rehearing Denied Dec. 1, 2011.

      Thomas R. Julin and Patricia Acosta of Hunton & Williams, Miami, for appellant.
    Joel D. Cantor, Hollywood, for appellee Wagner.
    Joel Silvershein, Assistant State Attorney, Fort Lauderdale, for appellee Satz.
    Thomas F. Panza and Richard A. Beau-champ of Panza, Maurer & Maynard, P.A., Fort Lauderdale, for appellee Matthews.
    Cobb Cole and Jonathan D. Kaney Jr., Daytona Beach, for Amici Curiae First Amendment Foundation, Florida Press Association, News Service of Florida, and Health News Florida, Inc.
   GERBER, J.

The plaintiff appeals the circuit court’s final order in the defendants’ favor on the plaintiffs action to enforce the public records law. The plaintiff argues that the court erred in its factual findings and legal conclusions. The plaintiff also argues that the court had no procedural basis to enter the final order. We are compelled to affirm.

Nothing in the plaintiffs appendix suggests that he raised his procedural argument to the circuit court, and he has not provided us with a transcript of the hearing which led to the final order. As such, we are unable to determine whether the plaintiff argued to the circuit court that it had no procedural basis to enter the final order or whether, as defendants claimed at oral argument, the plaintiff waived all procedural requirements in order to obtain an immediate disposition which he believed would be in his favor. Thus, we are forced to conclude that the plaintiff has not preserved what may have been a valid procedural argument. See Zommer v. State, 31 So.3d 733, 752 (Fla.2010) (“Given the absence from the record of any motion or argument that presented the claims raised here to the trial court, we conclude that this issue has not been preserved for review.”); Morris v. Knight, 1 So.3d 1236, 1240 (Fla. 4th DCA 2009) (“Even if this claim is supported by the record, it is not preserved for appellate review, as it was not argued below.”). We do not consider the plaintiffs procedural argument to amount to fundamental error. See Sanford v. Rubin, 287 So.2d 134, 137 (Fla.1970) (“ ‘Fundamental error,’ which can be considered on appeal without objection in the lower court, is error which goes to the foundation of the case or goes to the merits of the cause of action. The Appellate Court should exercise its discretion under the doctrine of fundamental error very guardedly.”) (citations omitted).

Because we lack a transcript of the hearing which led to the final order, we also are unable to review the circuit court’s factual findings and resulting legal conclusions. As our supreme court stated in Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979):

Without a record of the trial proceedings, the appellate court can not properly resolve the underlying factual issues so as to conclude that the trial court’s judgment is not supported by the evidence or by an alternative theory. Without knowing the factual context, neither can an appellate court reasonably conclude that the trial judge so misconceived the law as to require reversal.

Id. at 1152.

We also have considered whether the final order is fundamentally erroneous on its face. See Quality Holdings of Fla., Inc. v. Selective Invs., IV, LLC, 25 So.3d 34, 36 (Fla. 4th DCA 2009) (“[A]n appellate court may reverse an order even in the absence of an adequate record if the order is fundamentally erroneous on its face.”) (citation omitted). Based on the circuit court’s factual findings, we cannot conclude that the final order is fundamentally erroneous on its face. See Nat’l Collegiate Athletic Ass’n v. Associated Press, 18 So.3d 1201, 1208 (Fla. 1st DCA 2009) (accepting the general premise that a document is not “received” within the meaning of the public records law merely because it is viewed by an agent of the state).

Affirmed.

DAMOORGIAN, J., and MARX, KRISTA, Associate Judge, concur.


author: EVANDER, J.

text:
    Mark LANZO, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-3888.
    District Court of Appeal of Florida, Fifth District.
    Oct. 21, 2011.

      James S. Purdy, Public Defender, and Rebecca M. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   EVANDER, J.

Mark Lanzo appeals a final order withholding adjudication and imposing a sentence of probation after a jury found him guilty of burglary of an occupied dwelling and petit theft. Lanzo contends that the trial court erred in instructing the jury that it could infer that he had the intent to commit a crime inside a structure if the entry into the structure was “done stealthily without the consent of the owner or occupant....” We conclude there was insufficient evidence to support the giving of this instruction, and, accordingly, reverse Lanzo’s convictions and remand for a new trial.

On the afternoon of March 9, 2010, David Smith left his home to run an errand, leaving his home’s garage door open. Smith’s seventeen-year-old son was inside the house and the son’s car was parked either in the driveway or on the street. Five bicycles were inside the garage, where they were visible from the street.

When Smith returned, he saw Lanzo standing just inside the garage next to a blue beach rider bicycle worth $30-$40. Lanzo had one hand on the seat and the other on the handle bars. Although Smith did not see Lanzo take any steps, it appeared to Smith that Lanzo was slowly moving the bicycle out of the garage. As soon as Smith pulled into the driveway and stopped, Lanzo let go of the bicycle and turned to face him.

In response to Smith’s question of what he [Lanzo] was doing, Lanzo stated that he thought he recognized the bicycle as one that had been recently stolen from him. Lanzo then said, “It will never happen again, it will never happen again.” Smith told Lanzo to leave and Lanzo walked away. After checking with his son, who was unaware that anyone had been in the garage, Smith called 9-1-1.

Officer Casey responded to the 9-1-1 call and found Lanzo walking away from Smith’s house. When the officer asked Lanzo to speak with him, Lanzo did so. After being given Miranda warnings, Lan-zo told the police that he had looked at the bicycle to determine if it was his recently stolen bike. Lanzo claimed that he had purchased a new blue beach cruiser bike and that the bike had been stolen a few days before. Lanzo acknowledged that he had not reported the bicycle theft.

At trial, Lanzo testified that on the day in question, he was walking home from school. A friend from school, Terrell Nelson, had seen Smith’s bike and told Lanzo to check and see if it was Lanzo’s missing bicycle. Lanzo further testified that after looking at Smith’s bike, he realized that it was not his bike and that he would have walked away without the bike even if Smith had not arrived at that moment.

At the charge conference, the State requested that the jury be instructed on the statutory presumption set forth in section 810.07(1), Florida Statutes (2010). That statute provides that where a defendant is tried on a burglary charge, evidence that the defendant entered a particular structure or conveyance “stealthily and without consent of the owner or occupant thereof is prima facie evidence of entering with intent to commit an offense.” Over Lanzo’s objection, the trial judge granted the State’s request and instructed the jury as follows:

You may infer that Mark Anthony Lan-zo had the intent to commit a crime inside a structure if the entering of the structure was done stealthily without the consent of the owner or occupant. ...

To utilize the presumption set forth in section 810.07, the State must present evidence of the owner or occupant’s lack of consent and that entry into the structure was done “stealthily.” While the statute does not define “stealth,” this term has been interpreted to mean activity that is “surreptitious, furtive, or sly.” J.A.S. v. State, 952 So.2d 638, 640 (Fla. 2d DCA 2007); see also Black’s Law Dictionary 1548 (9th ed. 2009).

Florida courts have concluded that a defendant acts stealthily when his or her actions are done in a furtive or clandestine manner to avoid discovery. See, e.g., Baker v. State, 636 So.2d 1342, 1343 (Fla.1994) (evidence supported a finding of stealthy entry where defendant crept underneath plastic tarp into backyard surrounded by privacy fence, broke window while hidden from view in seclusion of backyard, and fled when alarm sounded); M.S. v. State, 774 So.2d 777, 778 (Fla. 3d DCA 2000) (inferring intent through statutory presumption of stealthy entry where defendant ran from back exit of apartment late at night).

In contrast, courts have declined to conclude that evidence showed stealthy entry where the defendant did not act in a furtive or a clandestine manner. See, e.g., J.A.S. v. State; Frazier v. State, 664 So.2d 985, 986 (Fla. 4th DCA 1995) (stealth instruction improper where defendant smashed through glass door of home in broad daylight and in presence of victims).

J.A.S. is particularly instructive. There, our sister court reversed an order adjudicating J.A.S. delinquent for attempted burglary of a dwelling. The State’s evidence established that a neighbor had observed J.A.S. jiggle the garage door handle of the alleged victim’s residence, while another boy went to the front door of the house. Neither boy was observed gaining entry into the house as both remained in front of the house. After shaking the handle for approximately five to ten minutes, J.A.S. leaned against the garage door another few minutes. While the neighbor continued to watch, the boys walked away from the residence.

A few minutes later, a police officer arrived at the home in response to a signal from a burglar alarm. Police investigated the scene and discovered a sliding door in the back of the house that was partially open. There was no evidence of entry into the house and no evidence that connected the boys to any action that may have set off the burglar alarm or placed them near the partially open door. The alleged victim knew J.A.S. and testified that J.A.S. did not have permission to be in her house.

At the close of the State’s case, the defense unsuccessfully moved for a judgment of dismissal arguing that the State had failed to prove J.A.S. had the intent to commit a crime. On appeal, the Second District Court of Appeal determined that J.A.S.’s motion should have been granted. The court rejected the State’s argument that intent could be inferred based upon the statutory presumption set forth in section 810.07, concluding there was insufficient evidence to permit the presumption’s use. The court observed that the two boys did not sneak up to or run away from the house. Rather, in broad daylight, they approached and remained near the front entrance of a house (located on a residential street), where their activities could readily be observed by any passerby.

In the instant case, there is similarly insufficient evidence to support the employment of the statutory presumption set forth in section 810.07. Lanzo was seen at the open garage door of a house on a residential street during daylight hours and in full view of any passerby. There was no evidence that he approached the house in a furtive manner, and the evidence established that he left there by simply walking down the street. Furthermore, Lanzo readily spoke with both the alleged victim and the responding police officer. While the State presented sufficient evidence to have the charges decided by the jury, the evidence was insufficient to permit use of the statutory presumption.

REVERSED and REMANDED FOR NEW TRIAL.

TORPY and JACOBUS, JJ., concur.

      . Nelson did not testify at trial. For the benefit of the trial court and counsel, we caution that should this case be retried and Nelson is once again not called as a witness, the circumstances in which the State may comment on a defendant's failure to call a witness are extremely limited. See Rodriguez v. State, 753 So.2d 29, 38-39 (Fla.2000) ("[T]he state may not comment on a defendant's failure to mount a defense because doing so could lead the jury to erroneously conclude that the defendant has the burden of doing so.... There is a 'narrow exception' to this rule, applicable where the defendant has asserted a defense of alibi, self-defense, or defense of others, relying on facts that could be elicited only from a witness who is not equally available to the state. Unless the circumstances fall within this 'narrow exception,' these matters are not the subject of fair comment, and any comment ‘fairly susceptible’ to being construed as a comment on the failure to mount a defense is impermissible.”) (internal citations omitted); see also Conner v. State, 910 So.2d 313 (Fla. 5th DCA 2005) (improper for prosecutor, during rebuttal closing argument, to comment on defendant’s failure to call two witnesses, where based on defendant’s version of events, it was unlikely that had those witnesses been called, defendant would have asserted defense of alibi, self-defense, or defense of others).


text:
    David HORTON, Petitioner, v. STATE of Florida, Respondent.
    No. 5D11-1887.
    District Court of Appeal of Florida, Fifth District.
    Oct. 21, 2011.

      David L. Horton, Raiford, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the order denying petitioner’s Rule 3.850 motion in case no. 2006-CF-1266, in the Circuit Court in and for Marion- County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

ORFINGER C.J., MONACO and LAWSON, JJ., concur.


text:
    Marco T. GARIN, Petitioner, v. STATE of Florida, Respondent.
    No. 5D11-2848.
    District Court of Appeal of Florida, Fifth District.
    Oct. 21, 2011.
    Marco T. Garin, Raiford, pro se.
    Pamela J. Bondi, Attorney General, Tallahassee and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. The untimely appeal currently pending in this Court in Case No. 5D11-2958 shall proceed as timely filed.

PETITION GRANTED.

PALMER, TORPY and COHEN, JJ., concur.


text:
    Jean F. BARTHELEMY, Petitioner, v. STATE of Florida, Respondent.
    No. 5D11-2893.
    District Court of Appeal of Florida, Fifth District.
    Oct. 21, 2011.
    Jean F. Barthelemy, East Palatka, pro se.
    No Appearance for Respondent.
   PER CURIAM.

Jean F. Barthelemy seeks certiorari review of the trial court’s denial of his motion to mitigate his sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(c).

On November 30, 2009, a jury found Barthelemy guilty of possession of cocaine and drug paraphernalia. The trial court sentenced him to five years’ incarceration. Barthelemy was granted a belated appeal of his judgment and sentence. See Barthelemy v. State, 29 So.3d 387 (Fla. 5th DCA 2010). This court affirmed his judgment and sentence. See Barthelemy v. State, 56 So.3d 18 (Fla. 5th DCA 2011).

On April 7, 2011, Barthelemy filed his rule 3.800(c) motion to mitigate sentence. The trial court denied Barthelemy’s motion as untimely because it was filed more than 60 days from the date his sentence was imposed. The court also stated, however, that “[e]ven if it were timely, the court would, in its discretion, deny the motion.” (emphasis added).

Barthelemy timely filed the instant cer-tiorari petition, contending that the trial court improperly denied his rule 3.800(c) motion. Specifically, he pointed to the rule’s language providing that a rule 3.800(c) motion may be filed within 60 days of sentencing or within 60 days of the court’s receipt of the appellate court’s mandate. See Fla. R.Crim. P. 3.800(c). Since the trial court received the mandate on March 11, 2011, and Barthelemy’s rule 3.800(c) motion was filed on April 7, 2011, his motion was timely. It matters not that Barthelemy’s direct appeal came after this court granted a belated appeal. Barthelemy filed his motion within 60 days of the trial court’s receipt of the direct appeal mandate. See Diaz v. State, 931 So.2d 1002 (Fla. 3d DCA 2006).

Nonetheless, given the trial court’s statement that it would have denied even a timely motion for mitigation, it would serve no purpose to remand the case for further judicial labor.

PETITION DENIED.

MONACO, COHEN and JACOBUS, JJ., concur.


text:
    STATE of Florida, Appellant, v. Desmond L. SWILLEY, Appellee.
    No. 5D11-397.
    District Court of Appeal of Florida, Fifth District.
    Oct. 21, 2011.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appellant.
    No Appearance for Appellee.
   PER CURIAM.

The State of Florida appeals the downward departure jail and probationary sentence imposed on Desmond L. Swilley, following his plea to a third degree felony grand theft charge. Based upon his extensive prior criminal record of nine prior felony convictions and even more prior misdemeanors, Swilley scored 34.35 months in prison as a minimum legal sentence on his criminal punishment score-sheet. Following an off-the-record discussion with the prosecutor and defense counsel, the trial court departed downward, explaining that a prison sentence seemed “unreasonable” given the nature of the crime. The trial judge also discussed the need for restitution, but never clearly identified this as a justification for the departure sentence. Although the State made it clear, for the record, that it would not offer a departure sentence as part of a negotiated plea, the State never objected to the court’s imposition of a departure sentence. Rather, the prosecutor told the judge that if she “would like to mitigate, that’s on you, that’s not from the State.” Accordingly, we find that the issue was not preserved for appellate review, and affirm. See State v. Colbert, 968 So.2d 1043 (Fla. 5th DCA 2007) (holding that to successfully challenge a departure sentence on appeal the state must properly preserve the issue by objection during the sentencing hearing).

AFFIRMED.

PALMER, LAWSON, and JACOBUS, JJ., concur.


text:
    Lee Enrique GARCIA, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-881.
    District Court of Appeal of Florida, Fifth District.
    Oct. 21, 2011.
    James S. Purdy, Public Defender, and Michael S. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Lee Enrique Garcia appeals the trial court’s order revoking his probation and sentencing him to fifty-four months in prison, concurrent, for his two earlier convictions of grand theft third degree. The trial court verbally announced that Garcia violated condition 13 of his probation, which prohibited him from “associating with persons engaged in criminal activity.” This violation was alleged in the affidavit of violation and the evidence supports the trial court’s finding. Accordingly, we affirm as to this violation without further discussion. The trial court also announced that Garcia violated his probation by possessing a firearm during the episode on which the State based the condition 13 violation. Although the State’s evidence supported this finding, we must reverse as to this •violation because it was not alleged in the affidavit. See, e.g., Lynn v. State, 2 So.3d 1088 (Fla. 5th DCA 2009) (“Revoking probation for conduct not charged is fundamental error.”) (citation omitted). On remand, the trial court is directed to clarify in its violation order that the revocation of Garcia’s probation is based solely upon Garcia’s violation of condition 13.

We affirm the revocation in this case because it is clear from our review of the record that the trial court would have revoked Garcia’s probation based solely upon its finding that Garcia violated condition 13 of his probation. See id. We affirm the sentences for the same reason. Although Garcia argues that the trial judge improperly considered his possession of a firearm when exercising her sentencing discretion, we find that it was appropriate for the judge to consider the evidence of Garcia’s firearm possession as a sentencing factor in this case. As explained in Rogers v. State, 963 So.2d 328 (Fla. 2d DCA 2007):

In a charging instrument, it is only necessary under the reasoning suggested by Apprendi [v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) ] that “the charged facts” make defendants “aware of the ‘heaviest punishment’ they face if convicted.” Harris [v. United States], 536 U.S. [545,] 562, 122 S.Ct. 2406 [153 L.Ed.2d 524 (2002) ] (quoting Bishop, Criminal Procedure § 85, at 54). In imposing sentences, judges may consider “uncharged ‘aggravating circumstances’ that, while increasing the defendant’s punishment, have not ‘swell[ed] the penalty above what the law has provided for the acts charged.’ ” Id.

Id. at 335 (footnote omitted). The State could not use Garcia’s possession of a firearm as an independent basis for revoking Garcia’s probation because it was not alleged as a basis for revocation in the affidavit. However, the trial court was still permitted to consider Garcia’s possession of the firearm as an “uncharged aggravating circumstance” when imposing a sentence within the range permitted by law based upon the condition 13 violation.

AFFIRMED; REMANDED WITH DIRECTIONS.

PALMER, LAWSON and JACOBUS, JJ., concur.

      . Condition 4 of Garcia’s probation prohibited him from possessing, carrying or owning any weapon or firearm without the prior consent of his probation officer. The affidavit did not allege a violation of condition 4. Nor did the affidavit allege that Garcia's possession of the firearm violated condition 5 of his probation — which required Garcia to "live and remain at liberty without violating any law.”


text:
    Derrick James HAYWOOD, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-4217.
    District Court of Appeal of Florida, Fifth District.
    Oct. 21, 2011.
    James S. Purdy, Public Defender, and Dee Ball, Assistant Public Defender, Day-tona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

A jury found Defendant guilty as charged of both grand theft and dealing in stolen property, which property was the subject of the grand theft. The trial court, correctly recognizing that a defendant cannot be convicted and sentenced for both offenses, did not adjudicate Defendant guilty of the lesser offense (grand theft) or sentence Defendant for that offense. The trial court’s procedure was proper pursuant to this court’s holding in Ridley v. State, 407 So.2d 1000 (Fla. 5th DCA 1981), that the remedy in this situation is to reverse the less serious conviction. Accordingly, we affirm the conviction for dealing in stolen property. We certify conflict with Kiss v. State, 42 So.3d 810 (Fla. 4th DCA 2010) (certifying conflict with Ridley).

AFFIRMED; CONFLICT CERTIFIED.

SAWAYA, LAWSON and COHEN, JJ., concur.

      . Section 812.025, Florida Statutes (2010), precludes such a result: "Notwithstanding any other provision of law, a single indictment or information may, under proper circumstances, charge theft and dealing in stolen property in connection with one scheme or course of conduct in separate counts that may be consolidated for trial, but the trier of fact may return a guilty verdict on one or the other, but not both, of the counts.”


text:
    Eric Marcell YOUNG, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-2450.
    District Court of Appeal of Florida, Fifth District.
    Oct. 21, 2011.
    James S. Purdy, Public Defender, and James R. Wulchak, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

We affirm the defendant’s convictions for burglary of a dwelling with an assault or battery with a dangerous weapon and for carjacking with a weapon. We certify conflict with Munoz v. State, 937 So.2d 686 (Fla. 2d DCA 2006).

AFFIRMED; CONFLICT CERTIFIED.

SAWAYA, MONACO and TORPY, JJ., concur.


author: PER CURIAM. MARX, KRISTA, Associate Judge,

text:
    C.R., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-3867.
    District Court of Appeal of Florida, Fourth District.
    Oct. 26, 2011.
    Rehearing Denied Dec. 1, 2011.

      Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

C.R. appeals a juvenile disposition order finding him guilty of possession of a weapon on school property. We conclude that the court erred in its determination that the knife is not a “common pocketknife,” which is an exception to the statutory definition of “weapon.” We reverse.

On April 29, 2009, C.R. brought a knife to his middle school and gave it to another student, asking her to hold it for him because he thought he would get caught. C.R. indicated that he brought the knife to school and intended to use it for protection against a bully. An investigation resulted in C.R. being charged by petition for juvenile delinquency with possession of a weapon on school property, in violation of section 790.115(2), Florida Statutes (2008), which states, in pertinent part:

[a] person shall not possess any firearm, electric weapon or device, destructive device, or other weapon as defined in s. 790.001(13), including a razor blade or box cutter, except as authorized in support of school-sanctioned activities, at a school-sponsored event or on the property of any school, school bus, or school bus stop....

§ 790.115(2)(a), Fla. Stat. (2008). A “weapon” is defined under section 790.001(13), Florida Statutes (2008), as being “any dirk, knife, metallic knuckles, slingshot, billie, tear gas gun, chemical weapon or device, or other deadly weapon except a firearm or a common pocketknife, plastic knife, or blunt-bladed table knife.” (emphasis added).

On appeal, C.R. argues that it was error for the trial court to deny the motion for judgment of dismissal. C.R. asserts that the knife was a common pocketknife and not a weapon, because the knife was a folding knife with a blade that was less than four inches in length.

In juvenile proceedings, a motion for judgment of dismissal is akin to a motion for judgment of acquittal, as the motion tests the legal sufficiency of the State’s evidence. W.W. v. State, 993 So.2d 1182, 1184 (Fla. 4th DCA 2008). Accordingly, an appellate court reviews the denial of a motion for a judgment of dismissal de novo. R.E. v. State, 13 So.3d 97, 98 (Fla. 4th DCA 2009). “If the evidence, taken in a light most favorable to the State does not support a conviction, the motion must be granted.” T.L.T. v. State, 53 So.3d 1100, 1102 (Fla. 4th DCA 2011).

In L.B. v. State, 700 So.2d 370, 372 (Fla.1997), the Florida Supreme Court defined a “common pocketknife” as “[a] type of knife occurring frequently in the community which has a blade that folds into the handle and that can be carried in one’s pocket.” The Court looked to a 1951 Florida Attorney General’s opinion, which concluded that a pocketknife with a blade of four inches or less in length was a “common pocketknife.” Id. at 373 (citing Op. Att’y Gen. Fla. 051-358 (1951)). In a footnote, the Court declined to state that four inches was a bright-line cutoff for determining whether a particular knife is a “common pocketknife.” Id. at 373 n. 4.

Since L.B., some courts have found that knives with distinctive weapon-like characteristics do not fall within the common pocketknife exception, even though the blades at issue were less than four inches. See J.D.L.R. v. State, 701 So.2d 626, 627 (Fla. 3d DCA 1997) (distinguishing a knife with a pointed 3 1/2 inch blade and notched combat-style grip with a large metal hilt guard designed to prevent the user’s fingers from sliding onto the blade); K.H. v. State, 29 So.3d 426, 428 (Fla. 5th DCA 2010) (distinguishing a knife that was a “folding-type switchblade with a double-edged blade approximately three inches in length” and determining that such features were “not usual for an ordinary or common pocketknife but more characteristic of a knife designed to be a weapon”).

The trial court, in its analysis, considered several weapon-like characteristics of the knife: a clip to attach to a belt, a knob that makes the blade easy to open, a locking mechanism, and a textured handle. The record does not support the ultimate conclusion of the trial court that these features distinguish the knife from a “common pocketknife” within the definition set forth by the Florida Supreme Court. We reverse and remand for entry of a judgment of dismissal.

DAMOORGIAN and GERBER, JJ., concur.

MARX, KRISTA, Associate Judge, concurs specially with opinion.

MARX, KRISTA, Associate Judge,

concurring specially.

Although I concur in this opinion, I write separately to urge the Legislature to address the issue raised by this case. Over the years, there have been variations in the statutory language and consequently the case law as to whether a person may lawfully possess a common pocketknife on school property or at a school bus stop. Compare R.H. v. State, 56 So.3d 156 (Fla. 4th DCA 2011), with A.B. v. State, 757 So.2d 1241 (Fla. 4th DCA 2000).

The trial court expressed concern that it would not make sense to find that the knife was a common pocketknife when it seemed more dangerous than a razor blade or box cutter, which do qualify as weapons under the statute. This is particularly troublesome in light of C.R.’s statement that he brought the knife to school because he needed it for protection against a bully and that he intended to use the knife.

In the present climate of bullying and violence on school campuses, it is difficult to reconcile the result this court must reach based on the present law. As with all cases that implicate constitutional rights, there will inevitably be conflict between two opposing ideologies. While it is important to resist a trend toward criminalization of otherwise innocent conduct, it is difficult to imagine that reasonable minds would differ as to the soundness of disallowing razor blades or box cutters on school campuses, but not knives such as the one in this case. A knife with nearly a four-inch blade can quickly become a dangerous instrument.

Sound public policy dictates that it is necessary to promote safety within schools. The Legislature could certainly fashion a law that prohibits unauthorized knives of any kind on school property without infringing upon the lawful use of some knives in other settings. Section 790.115, Florida Statutes, generally proscribes weapons on school property and excepts from its proscription “common pocketknives.” In 2006, when the Legislature most recently changed the statutory language which adopted the definition of weapon from section 790.001(13), Florida Statutes (exempting pocketknives), the legal effect of this change may not have been contemplated. In practical application, this language gives anyone on a school campus or school property the general statutory right to possess a knife with a blade of up to four inches in length. Legislative review would enable a closer look at the appropriateness of the end result mandated by this law and an examination of whether such result was indeed the intent of the Legislature.


text:
    Armando ZEIGLER, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-4146.
    District Court of Appeal of Florida, Fourth District.
    Oct. 26, 2011.
    Philip J. Massa, Regional Counsel, and Randall Berman, Special Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant, Armando Zeigler, appeals his convictions for aggravated battery with a firearm, burglary while armed with a firearm and burglary with a battery. Zeigler raises three issues on appeal, the first two of which we affirm without discussion.

In his third issue, Zeigler argues that his dual convictions for burglary while armed with a firearm and burglary with a battery occurred in a single incident of entry into the vehicle and therefore violate the prohibition against double jeopardy. We agree. See Docanto v. State, 811 So.2d 790 (Fla. 4th DCA 2002) (because there was only one entry, dual convictions for burglary with a battery and burglary while armed cannot stand).

Affirmed in part; Reversed in part and Remanded with instructions that the trial court vacate one of the burglary convictions and sentences.

TAYLOR, HAZOURI and LEVINE, JJ., concur.


text:
    Kembrick WALKER, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-2991.
    District Court of Appeal of Florida, Fourth District.
    Oct. 26, 2011.
    Kembrick Walker, Bushnell, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Killings v. State, 567 So.2d 60 (Fla. 4th DCA 1990).

MAY, C.J., TAYLOR and CIKLIN, JJ., concur.


text:
    Martin SCHAFFER and Linda E. Schaffer, Petitioners, v. FIRST BANK, a Missouri state chartered bank, as successor by merger to Coast Bank of Florida, Steeplechase Property Owners’ Association, Inc., a Florida corporation, JP Morgan Chase Bank, N.A., a national banking association, and Unknown Tenants, Respondents.
    No. 4D11-3406.
    District Court of Appeal of Florida, Fourth District.
    Oct. 26, 2011.

      John W. Chapman of Chapman & Ply-male Law, P.A., Stuart, for petitioners.
    No appearance required for respondents.
   PER CURIAM.

Martin and Linda Schaffer petition for a writ of certiorari seeking to quash the Palm Beach circuit court’s August 18, 2011, order granting the bank’s motion to reopen this foreclosure case following a dismissal for lack of prosecution. See Fla. R. Civ. P. 1.420(e) (providing a procedure for dismissal for “Failure to Prosecute”). We deny the petition.

The foreclosure case was administratively dismissed on April 7, 2011. The bank moved to reinstate on May 26, 2011. In the motion, the bank’s attorney explained that he had filed a Notice of Change of Firm Name and Address on May 1, 2009. Despite this, on July 19, 2010, the court mailed the Motion, Notice, and Order of Dismissal — which advised of the lack of record activity and that dismissal would occur if no record activity occurred within sixty days — to the incorrect address.

Petitioners argue that certiorari jurisdiction lies because the trial court acted in excess of its jurisdiction where the motion to reinstate was not served within thirty days of the dismissal. See Fla. R. Civ. P. 1.420 (Author’s Comment ¶ 9); Wilds v. Permenter, 228 So.2d 408, 409 (Fla. 4th DCA 1969) (holding that under the Rule (as drafted in 1968) a court lost subject matter jurisdiction to reinstate a case following dismissal for failure to prosecute if a motion was not served within one month of dismissal).

The original version of the rule, which was the rule applied in Wilds, provided:

(e) Failure to Prosecute. All actions in which it does not affirmatively appear from some action taken by filing of pleadings, order of court or otherwise that the same is being prosecuted for a period of one year shall be deemed abated for want of prosecution and shall be dismissed by the court on its own motion or on motion of any interested person, whether a party to the action or not, after notice to the parties; provided that actions so dismissed may be reinstated on motion for good cause, such motion to be served by any paHy within one month after such order of dismissal.

Fla. R. Civ. P. 1.420(e) (1968) (emphasis added). Effective October 1, 1968, the Florida Supreme Court removed the italicized sentence, which had been read to limit the trial court’s subject matter jurisdiction to reinstate a case following dismissal. In re Fla. R. Civ. P., 211 So.2d 206 (Fla.1968).

In 2005, the Florida Supreme Court amended Subdivision 1.420(e) “to provide that an action may not be dismissed for lack of prosecution without prior notice to the claimant and adequate opportunity for the claimant to re-commence prosecution of the action to avert dismissal.” Fla. R. Civ. P. 1.420 (Committee Notes, 2005 Amendment); In re Amendments to the Fla. Rules of Civil Procedure, 917 So.2d 176, 177 (Fla.2005). Rule 1.420(e) requires notice and an opportunity to recommence prosecution before dismissal. Swait v. Swait, 958 So.2d 552, 553-54 (Fla. 4th DCA 2007).

The bank was not provided notice or an opportunity to recommence prosecution of the case before the dismissal. The trial court was not without jurisdiction to reinstate the case under these circumstances. The petition is without merit.

Petition denied.

GROSS, DAMOORGIAN and LEVINE, JJ., concur.

      . In Bernard v. Rose, 68 So.3d 946, 948 (Fla. 3d DCA 2011), the references to the Author’s Comment to the original version of the rule, and this court’s 1969 decision in Wilds, were made in passing and were not essential to the court’s decision.


text:
    Calvin Keith WATSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-5356.
    District Court of Appeal of Florida, Fourth District.
    Oct. 26, 2011.
    Carey Haughwout, Public Defender, and Susan D. Cline, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See State v. Cannon, 57 So.3d 892, 894 (Fla. 4th DCA 2011).

WARNER, DAMOORGIAN and GERBER, JJ., concur.


author: ORFINGER, C.J.

text:
    Linda M. SCHIMENTI, Appellant, v. SCHOOL BOARD OF HERNANDO COUNTY, Florida, Appellee.
    No. 5D10-3694.
    District Court of Appeal of Florida, Fifth District.
    Oct. 28, 2011.

      Linda M. Schimenti, Spring Hill, pro se.
    J. Paul Carland, II, Brooksville, for Ap-pellee.
   ORFINGER, C.J.

Linda M. Schimenti appeals a final administrative order of the School Board of Hernando County (“School Board”) terminating her employment as a teacher following an informal hearing. Ms. Schimen-ti’s primary claim on appeal is that she was denied due process by not being given fair notice and an opportunity to be heard on the charges against her. We affirm the School Board’s decision.

Ms. Schimenti was an elementary school teacher with the School Board and a member of the instructional staff. See § 1012.01(2), Fla. Stat. (2010). The School Board does not dispute that Ms. Schimenti was employed pursuant to a professional services contract at the time of her termination. As such, she had an established protected property interest in her continued employment with the School Board. See Bd. of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972) (explaining that property interests are created and defined by independent sources such as state law); Royster v. Bd. of Trs., 774 F.2d 618, 620-21 (4th Cir.1985) (reiterating that in context of employment in public education, protected property interest is established by “contract which provides for continued employment, and which can be terminated only for good cause”). Thus, the question that we must consider is what process was due and whether it was provided to Ms. Schimenti before her employment was terminated. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 582, 541, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985); Stone v. Univ. of Md. Med. Sys. Corp., 855 F.2d 167, 172 (4th Cir.1988).

Due process is flexible and calls for such procedural protections as the particular situation demands. Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). In Florida, the termination of school board employees is governed by section 1012.33, Florida Statutes (2010), and Florida Administrative Code Rule 6B-4.009. See Blackwood v. Div. of Admin. Hearings, 2 So.3d 386, 387 (Fla. 4th DCA 2009). The School Board is an agency for purposes of Florida’s Administrative Act, chapter 120, Florida Statutes. Witgenstein v. Sch. Bd., 347 So.2d 1069, 1071 (Fla. 1st DCA 1977). When a school board brings a proceeding to discharge a teacher from her employment, the teacher must have fair notice and an opportunity to be heard on each of the charges against her. Pilla v. Sch. Bd., 655 So.2d 1312, 1314 (Fla. 3d DCA 1995). Specifically, section 1012.33(6)(a), which provides the procedure and grounds for dismissal, states that the school board must notify any member of the instructional staff in writing whenever charges are made against the employee. If the instructional staff member wishes to contest the charges, she must, within fifteen days after receipt of the written notice, submit a written request for a hearing. The hearing must be conducted within sixty days of the written request in accordance with statutorily provided procedures.

The controlling statute does not require any formal process for delivery of the written charges. § 1012.33(6)(a), Fla. Stat. (2010). Likewise, the Uniform Rules developed by the Division of Administrative Hearings pursuant to section 120.54(5), Florida Statutes, do not designate a formal process for delivery. Instead, Florida Administrative Code Rule 28-106.2015(1) provides:

Prior to entry of a final order to suspend, revoke, or withdraw a license, to impose administrative fines, or to take other enforcement or disciplinary action against a licensee or person or entity subject to the agency’s jurisdiction, the agency shall serve upon the licensee an administrative complaint. For purposes of this rule, an agency pleading or communication that seeks to exercise an agency’s enforcement authority and to take any kind of disciplinary action against a licensee or other person shall be deemed an administrative complaint.

Cf. § 120.60(5), Fla. Stat. (2010) (providing agency must serve licensee by personal service or certified mail before revoking, suspending, or withdrawing license; however, agency may use service by publication if it was unable to make personal service and certified mail notice was returned undelivered).

The essential requirements of due process, and all that respondents seek or the Court of Appeals required, are notice and an opportunity to respond. The opportunity to present reasons, either in person or in writing, why proposed action should not be taken is a fundamental due process requirement. The tenured public employee is entitled to oral or written notice of the charges against him, an explanation of the employer’s evidence, and an opportunity to present his side of the story. To require more than this prior to termination would intrude to an unwarranted extent on the government’s interest in quickly removing an unsatisfactory employee.

Loudermill, 470 U.S. at 546, 105 S.Ct. 1487 (citations omitted); see M.J.W. v. Dep’t of Children & Families, 825 So.2d 1038, 1040 (Fla. 1st DCA 2002) (reiterating that object and purpose of service of process is to give notice of proceedings to opposing party so that she may be given opportunity to defend suit). As a consequence, due process “does not require a showing by the State that an interested party received actual notice.” Crum v. Vincent, 493 F.3d 988, 993 (8th Cir.2007).

Ms. Schimenti was provided notice of a pre-determination conference to discuss her absence from work, which she did not attend. Nor did she return calls regarding her attendance at the conference or her absence from work. The administrative complaint was hand delivered to the mailbox at Ms. Schimenti’s official home address after there was no response at the front door, and was also sent to two different email addresses on file for her. The complaint provided a clear explanation of the disciplinary charges against her as well as the evidence in support of those charges. The complaint clearly informed Ms. Schimenti that if she wished to contest the charges, she must file a written request for a hearing; that if she did not request a hearing, it would constitute an admission to the charges; and that the District was requesting the termination of her employment. When Ms. Schimenti took no action in response to the School Board’s complaint, her employment was terminated. We conclude that Ms. Schi-menti has not demonstrated that the School Board did not provide her sufficient notice before terminating her employment.

AFFIRMED.

GRIFFIN and PALMER, JJ., concur.