source: Caselaw Access Project

author: DAMOORGIAN, J.

license: Public Domain

text:
    Walter James GEISER, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-4242.
    District Court of Appeal of Florida, Fourth District.
    Dec. 7, 2011.
    Carey Haughwout, Public Defender, and James W. Mclntire, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda Melear, Assistant Attorney General, West Palm Beach, for appellee.
   DAMOORGIAN, J.

Walter J. Geiser was charged by information with eight counts of sexual battery (Count I through VIII), and two counts of lewd or lascivious battery (Count IX and X). Counts I through VII applied to victim L.A.V. and Counts VIII through X applied to victim J.L.P. Counts I through VIII in the information each stated that the crimes occurred “on one or more occasions” between two specific dates identified in each count. On appeal, Geiser assigns error to the State’s use of the phrase “on one or more occasions” in the information because doing so deprived him of notice of when the specific criminal acts charged occurred. Additionally, Geiser argues that the trial court erred by permitting one of the victims to testify about uncharged collateral crimes. Finding no merit to Geiser’s arguments, we affirm Geiser’s convictions and sentences on all counts.

By way of background, Geiser was charged by information with committing unlawful sexual acts on the two victims from 2002-2007. Geiser never raised challenges to the content of the information, nor did he move for a judgment of acquittal. Victim, L.A.V., testified to numerous sexual acts between Geiser and herself beginning when she was nine years old and continuing until she was sixteen. Although L.A.V. could not pinpoint specific dates, she did provide the general time-frame during which the acts occurred, as well as a description of the acts. Geiser did not object to L.A.V.’s testimony at trial. During a controlled telephone call that was played to the jury, Geiser admitted to perpetrating a number of the sexual acts. The jury found Geiser guilty on all counts, but in Count VIII, Geiser was found guilty of the lesser included offense of battery. The trial court adjudicated Geiser guilty, and sentenced him to life in prison (Counts I, II, and III), thirty years in prison (Counts IV, V, VI, and VII), one year in jail (Count VIII), and fifteen years in prison (Counts IX and X).

As to the first issue, Geiser never objected to the content of the information. “ ‘[WJhere the charging allegations are merely incomplete or imprecise, the failure to timely file a motion to dismiss under [Florida Rule of Criminal Procedure] 3.190(c) waives the defense, and it cannot be raised for the first time on appeal.’ ” Hart v. State, 761 So.2d 334, 335 (Fla. 4th DCA 1998) (quoting Carver v. State, 560 So.2d 258, 260 (Fla. 1st DCA 1990)). Therefore, out of necessity, Geiser argues that the use of the phrase “on one or more occasions” in the information was fundamental error. We disagree.

In State v. Generazio, 691 So.2d 609 (Fla. 4th DCA 1997), we held “that in a case of ongoing sexual abuse of a child, where the child is unable to remember the specific dates on which he or she was abused, the allegation that the act occurred ‘on one or more occasions’ is not, per se, duplicitous.” Id. at 611. We noted:

Each count of this information charged only a single, ongoing offense of sexual abuse of a child. Furthermore, the evidence presented at trial showed that the sexual abuse occurred daily over more than an eight-month period. Additionally, the victim testified that he was unable to remember specifically when certain acts happened. He could only testify that the acts of abuse occurred every day. Under the facts of this case, it is apparent that the state could not narrow the time frame in which the acts of child abuse alleged in Counts I through IV occurred nor could it identify any separate acts, other than that charged in Count V. It could, however, and did identify several different types of sexual abuse....

Id. at 611.

We see no distinction between the victim’s testimony in Generazio and the testimony of the victims in this case. Here, the victims, L.A.V. and J.L.P., could not pinpoint specific dates when the acts occurred, although they could identify their ages when the acts occurred, the specific acts themselves, and where they took place. See Whittingham v. State, 974 So.2d 616, 618-19 (Fla. 4th DCA 2008) (“[T]he state may charge a defendant in child sexual abuse cases in a manner not permitted in other types of criminal cases, expanding time periods for the commission of offenses and grouping types of offenses together....”). Finally, we note the State separated counts based upon the ages of the victims at different points in time and the specific acts perpetrated. See Dell’Orfano v. State, 616 So.2d 33 (Fla.1993).

Geiser also claims that the trial court erred by allowing the State to present Williams rule evidence of collateral sex crimes that occurred before the dates identified in the information. Geiser’s argument is without merit because L.A.V.’s testimony was not Williams rule evidence. L.A.V.’s testimony regarding these acts covered related activities inextricably intertwined with the charged criminal acts from 2002-2007. In Griffin v. State, 639 So.2d 966 (Fla.1994), the Florida Supreme Court stated:

[E]vidence of uncharged crimes which are inseparable from the crime charged, or evidence which is inextricably intertwined with the crime charged, is not Williams rule evidence. It is admissible under section 90.402 because “it is a relevant and inseparable part of the act which is in issue.... [I]t is necessary to admit the evidence to adequately describe the deed.”

Id. at 968 (quoting Charles W. Ehrhardt, Florida Evidence § 404.17 (1993 ed.)). “Evidence is inextricably intertwined if the evidence is necessary to (1) ‘adequately describe the deed’; (2) provide an intelligent account of the crime(s) charged; (3) establish the entire context out of which the charged crime(s) arose; or (4) adequately describe the events leading up to the charged crime(s).” Dorsett v. State, 944 So.2d 1207, 1213 (Fla. 3d DCA 2006) (internal citations and emphasis omitted).

The illegal sexual acts, that were not charged in the information to which L.A.V. testified, began when L.A.V. was nine years old and lasted until L.A.V. was eleven. We conclude that the description of these acts was inextricably intertwined with the charged crimes and was necessary to adequately describe how Geiser came to know his victim and the manner in which Geiser fostered the relationship leading up to the acts for which he was charged. See McGee v. State, 19 So.3d 1074, 1078-79 (Fla. 4th DCA 2009) (holding that there was no error in allowing the victim’s testimony about a sexual encounter that occurred on a separate date before the charged incident because it was inextricably intertwined with the charged crime); see also Triplett v. State, 947 So.2d 702, 704 (Fla. 5th DCA 2007) (upholding trial court’s admission of Williams rule testimony where collateral act of molestation and the charged molestation shared “numerous similarities”). Additionally, the credibility of L.A.V.’s testimony was not at issue because Geiser admitted in the controlled telephone call to perpetrating a number of the sexual acts to which L.A.V.' testified. Finally, the State did not heavily rely upon the incidents that were not charged in the information during its case in chief or in its closing argument. Cf. Pulcini v. State, 41 So.3d 338, 346 (Fla. 4th DCA 2010) (holding that it was error to admit the collateral evidence when the State’s ease “boiled down to the credibility of the victim” and the collateral evidence was heavily relied upon by the State in its closing argument). Accordingly, we hold that the trial court did not err in admitting L.A.V.’s testimony.

Affirmed.

STEVENSON and HAZOURI, JJ., concur.

      . The only issue that Geiser appeals in regards to J.L.P. is the defect in the information used in Count VIII.

      . In the information, the longest time frame for the sexual misconduct was two years (Counts IV and V), and the shortest time frame was four months (Count I).

      . Williams v. State, 110 So.2d 654 (Fla.1959).


author: PER CURIAM.

text:
    Manzell ARNOLD, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-3351.
    District Court of Appeal of Florida, Fourth District.
    Dec. 7, 2011.
    Manzell Arnold, Belle Glade, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. Appellant is cautioned against filing future appeals or petitions in this Court involving the same sentencing challenge as raised here and which was previously the subject of his appeal in Arnold v. State, 881 So.2d 1122 (Fla. 4th DCA 2004). Such attempts may result in orders imposing the sanction of no longer accepting his pro se filings and referring him to prison officials for disciplinary proceedings. State v. Spencer, 751 So.2d 47 (Fla.1999); see also § 944.279(1), Fla. Stat. (2011).

WARNER, DAMOORGIAN and LEVINE, JJ., concur.


author: STEVENSON, J.

text:
    Wes Dante McGEE, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D09-1638, 4D09-2425.
    District Court of Appeal of Florida, Fourth District.
    Dec. 7, 2011.

      Carey Haughwout, Public Defender, and Paul E. Petillo and Margaret Good-Earnest, Assistant Public Defenders, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Helene C. Hvizd, Assistant Attorney General, West Palm Beach, for appellee.
   STEVENSON, J.

Defendant, Wes Dante McGee, appeals his convictions for first degree murder with a weapon, attempted first degree murder with a weapon, burglary of a dwelling with assault or battery and robbery with a deadly weapon and, in a consolidated case, possession of cocaine. Defendant has raised four issues. We affirm and write only to address Defendant’s argument regarding improper prosecutorial closing remarks.

This case stems from the murder of Jane Tackaberry and attempted murder of her then six-year-old grandson, Elijah Tackaberry. Jane Tackaberry suffered multiple stab wounds and a blow to the head. A shoeprint was visible on the side of Jane Tackaberry’s face. Elijah was stabbed multiple times. They were discovered by John Tackaberry, Jane Tackaber-ry’s son and Elijah’s father, who resided in the home. Prior to the murder, John Tackaberry had spoken to Defendant’s co-defendant and informed her that he would be out for the evening.

The police recovered several items from the Tackaberry home, including a black duffle bag containing a butcher knife and a meat cleaver, two sets of green, bloody latex gloves and bloody Reebok shoeprints that were visible inside the home. Elijah’s DNA was found on some of these items. A DNA mixture was found on a pair of bloody boots recovered from the co-defendant’s home, and neither Elijah nor Jane Tackaberry could be excluded as contributors. Defendant’s fingerprint was found on one of the latex gloves. Finally, blood stains were found on the passenger side of the co-defendant’s vehicle.

Defendant was subsequently apprehended wearing clothing reported stolen by John Tackaberry. Bloodstains were found on clothing and a pair of Reebok shoes recovered from a trashcan at Defendant’s home. Defendant gave a statement to the police indicating that he rode in co-defendant’s vehicle to the Tackaberry residence and entered the home. Defendant denied stabbing anyone and characterized the incident as a “robbery went bad.” Defendant admitted to grabbing Jane Tacka-berry’s purse and carrying Elijah from the bedroom to his co-defendant in the front room.

During closing argument, the Prosecutor placed a picture of the shoeprint on Jane Tackaberry’s face on a projector. The Prosecutor then argued:

What I first want you to look at, let’s look at the left side of her face and— what I want you to look at is the channel that is going along here, it’s a parallel channel and it’s a little curve. That’s the first thing I want you to look at.
Now, let’s take a look at the black Reeboks. Look at the heel of the black Reeboks. Look at the hole of the black Reeboks. Again, you get to take them back there and there are photos of them and everything, but you look at them with your own naked eyes.
Look at the channels that run across the word Reeboks, you could see how they’re swirly channels, they’re curved.
Now, I want you to look, look at the curved channels, and it’s hard to see on here. You can see some here a little bit more. Look at the — there are actually two of them, they’re running down and like this, not once, I mean, she’s getting stomped on by, by the guy wearing these shoes, right by him. That’s what he’s doing to her.

Defendant was found guilty and sentenced to four consecutive terms of life imprisonment. Defendant now argues on appeal that the Prosecutor improperly acted as an expert witness and opined that the shoeprint on Jane Tackaberry’s face matched the bottom of the Reebok shoe found at Defendant’s home. A trial court’s ruling on prosecutorial closing comments is reviewed for an abuse of discretion. See Barrios v. State, 50 So.3d 708, 710 (Fla. 4th DCA 2010). “The purpose of closing argument is to present a review of the evidence and suggestions for drawing reasonable inferences from the evidence.” Fleurimond v. State, 10 So.3d 1140, 1148 (Fla. 3d DCA 2009).

The Prosecutor’s comments did not constitute error. The Prosecutor began by describing two pieces of evidence, drawing the juror’s attention to certain details in the shoeprint and the Reebok shoe. When read in context, the final comment that Jane Tackaberry was “getting stomped on by, by the guy wearing these shoes” is better interpreted as an inference the State believed was supported by this evidence, rather than an expert opinion. Given this context, the comment was permissible. We also note that an expert opinion was not needed to draw the comparison between the shoe print on Jane Tackaber-ry’s face and the Reebok shoe. See White v. State, 375 So.2d 622, 623 (Fla. 4th DCA 1979) (lay witness competent to testify that footprint found at crime scene was “size 10, smooth, without printed matter and had a two inch heel” and that the defendant’s shoe was also “a size 10, smooth, without any writing on it, and a two inch heel”); see also Irvin v. State, 66 So.2d 288, 296 (Fla.1953) (no error in permitting lay witness to testify that shoeprint found at scene was made by shoes worn by defendant).

We have examined the remaining issues and find no error. Accordingly, we affirm Defendant’s convictions.

Affirmed.

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


author: GROSS, J.

text:
    Roderick WALKER, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-1586.
    District Court of Appeal of Florida, Fourth District.
    Dec. 7, 2011.
    Carey Haughwout, Public Defender, and Richard B. Greene, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda Melear, Assistant Attorney General, West Palm Beach, for appellee.
   GROSS, J.

The single, narrow issue in this case is whether the trial court properly excluded a check stub from evidence as hearsay. We affirm, holding that the check stub was hearsay and that the party offering the check failed to qualify the stub under any exception to the rule against hearsay.

Roderick Walker was charged with possession of cocaine with intent to sell or deliver within 1,000 feet of a school, among other charges. To prove Walker’s intent to sell, the state introduced $3,000 in cash found on him at the time of his arrest, along with powder cocaine and freshly cooked crack cocaine. Walker sought to introduce his fiancée’s check stub to support his contention that the cash had an innocent source; the fiancée testified that she had cashed a $10,881.79 paycheck from her employer and gave $3,000 to Walker. The check stub indicated that (1) the net amount of the check was $10,881.79, (2) the funds came from the termination of a 401 (k) retirement fund, (3) the distribution reason was “Termination of employment,” and (4) the check came from Hartford Retirement Services. The state raised a hearsay objection and the trial judge sustained it.

The trial court correctly ruled that the check stub was inadmissible hearsay. As a “written assertion,” the stub was a “statement, other than one made by the declarant [the fiancée] while testifying at trial ... offered in evidence to prove the truth of the matter asserted.” § 90.801(l)(a)l. & (c), Fla. Stat. (2009). Walker was seeking to use the information contained on the check stub for its truth, to corroborate the fianeée’s story about the source of the funds.

A check stub is different than the check itself, a negotiable instrument. A check stub is “the inner end of each leaf, for keeping a record of the content of the part filled out and torn away.” The Random House Dictionary of the English Language 1410 (1967). The stub is not a part of the check, but a note reflecting that a check was issued; it is not the negotiable instrument. Generally, cases have treated check stubs as inadmissible hearsay unless they are qualified under an exception to the hearsay rule. See § 90.803(6), Fla. Stat. (2009).

For example, in Franklin Investment Co. v. Smith, 383 A.2d 355, 356 (D.C.1978), a party attempted to introduce a “checkbook stub” to show he had made a disputed payment. According to the court, “[tjhere [was] an additional notation of ‘Replaced 3-16-71 with cash Deposit,’ ” “[t]he stub was removed from what was apparently a spiral-bound book containing stubs for previously-written checks, and there was no entry on the stub indicating ‘balance forward.’ ” Id. The party who introduced the stub testified that it came from the ledger of a firm in which he was a partner and that another partner delivered the actual check. Id. The trial court admitted the stub as demonstrative evidence. Id.

On review, the appellate court held that the check stub was inadmissible hearsay, writing that, “[a]s demonstrative evidence, the checkbook stub demonstrates neither that a check was written nor that it was delivered; it merely demonstrates that the stub was completed.” Id. at 356-57. To go further — “to demonstrate that the check was written” — “the stub would first have to qualify as a business record of the transaction or come within some other exception to the rule against hearsay.” Id. at 357 (citations omitted). The testimony from the proponent of the stub failed to do so, primarily because he did not testify that the. stub was kept within the regular course of business. Id.

Smith applied the general rule that check stubs are inadmissible hearsay unless they are qualified under an exception to the hearsay rule. See McWhorter v. Tyson, 203 Ala. 509, 83 So. 330, 331 (1919); Discover Bank v. Smith, 326 S.W.3d 120, 125-26 (Mo.Ct.App.2010); Leask v. Hoagland, 205 N.Y. 171, 98 N.E. 395 (1912); Better Homes Equip. Co. v. Nixon, 134 N.E.2d 850, 851 (Ohio Ct.App. 10th Dist. 1955); Elmore v. Middlesex Mut. Fire Ins. Co., 219 S.C. 520, 65 S.E.2d 871, 872-73 (1951); see also Admissibility of Check Stubs as Evidence, 68 A.L.R. 692 (“The general rule seems to be that check stubs are not admissible as evidence.” (citations omitted)); 29A Am.Jur.2d Evidence § 1240 (“At common law, cheek stubs containing notations as to the purpose of the check, or other circumstances, have been deemed excludable as hearsay where they did not come within an exception to the hearsay rule .... ” (footnote omitted)).

Affirmed.

POLEN and CONNER, JJ., concur.

      . Cash found on a defendant at the time of his arrest is relevant to prove a defendant’s state of mind when charged with possession of drugs with intent to sell. See Williams v. State, 538 So.2d 73 (Fla. 4th DCA 1989); cf. Ferguson v. State, 697 So.2d 979 (Fla. 4th DCA 1997) (holding that cash seized from a defendant's person is not relevant evidence in a case charging simple possession of drugs).


author: PALMER, J.

text:
    R.A., Father of J.A., J.A., A.A., A.A., etc., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D11-1504.
    District Court of Appeal of Florida, Fifth District.
    Dec. 13, 2011.

      Nickole E. Frederick, Orlando, for Appellant.
    Rosemarie Farrell of Children’s Legal Services, Orlando, for Appellee.
   PALMER, J.

R.A. (father) appeals the trial court’s order terminating his parental rights to his five children. He argues that the court erred in finding the grounds of consent (based on his failure to appear) and abandonment. We agree and, therefore, reverse.

The Department of Children and Families (DCF) filed a petition for termination of parental rights (TPR) against the father on the ground of abandonment. The trial court conducted an advisory hearing at which the father appeared by telephone and entered a denial to the petition. The court appointed counsel for the father and scheduled an adjudicatory hearing, authorizing the father to appear by phone. At the adjudicatory hearing, the father appeared by phone; however, the court continued the hearing and scheduled a second advisory (not adjudicatory) hearing. The father did not appear at the second advisory hearing, but the court found that he had not received proper notice. The court then scheduled a third advisory hearing. When the father failed to appear at the third hearing, the court entered a default against him. The court then conducted an adjudicatory hearing limited to the manifest best interests element of the TPR proceeding. See §§ 39.802(4)(a), (c), 39.810, Fla. Stat. (2010). Following that hearing, the court entered an order terminating the father’s parental rights on the grounds of his failure to appear (consent-by-default) and abandonment.

The father argues that the trial court erred in finding consent-by-default because the court lacked the authority to conduct more than one advisory hearing and then to default him for failing to appear at the third advisory hearing. Although the father did not raise this argument below, he contends the error was fundamental. We agree.

When a parent fails to appear at a TPR advisory or adjudicatory hearing, the trial court can deem the default a consent to the termination. See § 39.801(3)(d); Fla. R. Juv. P. 8.510(a)(3), 8.525(d); D.M. v. Dep’t of Children & Families, 921 So.2d 737, 739 (Fla. 5th DCA 2006). However, the only two types of TPR proceedings during which a parent can be defaulted are advisory hearings and adjudicatory hearings. V.D.C. v. Dep’t of Children & Family Servs., 899 So.2d 1193, 1194 (Fla. 1st DCA 2005); see In re C.R., 806 So.2d 646 (Fla. 2d DCA 2002) (holding trial court erred in defaulting parent for failing to appear at scheduling conference); C.R.K. v. Dep’t of Children & Families, 826 So.2d 1053 (Fla. 4th DCA 2002) (holding same regarding calendar call). Thus, the initial question here is whether, after conducting an advisory hearing, a trial court can label a subsequent court event an “advisory hearing” and then enter a default against a parent who fails to appear at it. We agree with the father that a trial court cannot do so.

Florida’s TPR statutory and rule scheme contemplates only one advisory hearing. The scheme consistently refers to an advisory “hearing” in the singular rather than the plural. See §§ 39.801(3)(a), (d), 39.808(l)-(3); Fla. R. Juv. P. 8.510(a)(1), (3), 8.525(b), (d). Further, our rules contemplate that, after the initial advisory hearing, the next significant hearing will be an adjudicatory hearing, not another advisory hearing. See Fla. R. Juv. P. 8.510(a)(5), 8.520(b).

In addition, only one advisory hearing is necessary because the “purpose of an advisory hearing is to advise the parents of their right to counsel, appoint counsel if necessary, determine whether the parents will consent to the termination, appoint a guardian ad litem for the children, and set a date for the adjudicatory hearing.” In re E.L., 732 So.2d 37, 39 (Fla. 2d DCA 1999). See § 39.808(2), Fla. Stat.; Fla. R. Juv. P. 8.510(a)(2).

Further, the purpose of allowing a trial court to enter a consent-by-default is to “ensure that the object of the termination petition is not defeated by the neglect of the proceeding by the parent.” D.M., 921 So.2d at 740; E.A. v. Dep’t of Children & Families, 894 So.2d 1049, 1051 (Fla. 5th DCA 2005). This purpose is not furthered by requiring a parent to appear at multiple advisory hearings. Once a parent appears at an advisory hearing and the due process purposes of the hearing are accomplished, the parent’s absence from any subsequent non-adjudicatory hearing cannot defeat the progress of the case.

Accordingly, the trial court erred by entering a consent-by-default against the father when he failed to appear at the third advisory hearing.

The next question becomes whether this error was fundamental, since the father raises it for the first time on appeal. We conclude that it was. Cf. A.H. v. Dep’t of Children & Families, 22 So.3d 801 (Fla. 5th DCA 2009) (reversing where trial court violated due process in finding consent-by-default, despite apparent lack of sufficient objection below).

Last, regarding the ground of abandonment, the father argues that the evidence submitted during the adjudicatory hearing was insufficient to support the finding that he abandoned his children. We agree. However, we recognize that because the trial court entered a default against the father and then proceeded to an adjudicatory hearing limited to the manifest best interests element, DCF was not on notice of the need to present evidence of abandonment. Thus, our reversal is without prejudice to DCF’s right to present evidence of abandonment at a new adjudicatory hearing.

We reverse the trial court’s termination order and remand for further proceedings consistent with this opinion.

REVERSED and REMANDED.

LAWSON and EVANDER, JJ., concur.


author: WELLS, C.J. SALTER, J.

text:
    Claudia ROSTRAN, Appellant, v. The FLORIDA UNEMPLOYMENT APPEALS COMMISSION and Holiday CVS, LLC., Appellees.
    No. 3D10-1352.
    District Court of Appeal of Florida, Third District.
    Dec. 14, 2011.
    Claudia Rostran, in proper person, for appellant.
    Louis A. Gutierrez, Senior Attorney, for appellee Florida Unemployment Appeals Commission.

      Before WELLS, C.J., and CORTINAS and SALTER, JJ.
   WELLS, C.J.

Affirmed. See Quintana v. Fla. Unemployment Appeals Comm’n 29 So.3d 446, 446 (Fla. 3d DCA 2010) (“As nothing in the record supports a finding that the claimant’s notice was not provided to her in a timely manner, and Florida law does not permit good cause exceptions to the dismissal rule, we are bound to affirm the order of the Appeals Commission below.”); Espinosa v. Cableoptics, Inc., 807 So.2d 195, 196 (Fla. 3d DCA 2002) (“Espinoza [sic] never claimed that the referee’s decision was not mailed to him, or mailed to him untimely, even though the U.A.C. did give him an opportunity to show cause why his appeal should not be dismissed as untimely, prior to its dismissal of the same. For this reason, we agree with the appel-lees that an evidentiary hearing on the timeliness issue would serve no useful purpose.”); see also de la Torre v. Siguanea, LLC, 10 So.3d 1164, 1164 (Fla. 3d DCA 2009) (“Because de la Torre does not dispute that her notice of appeal was untimely, we must accept the referee’s finding of untimeliness and affirm the Commission’s order.”); Exposito v. S. Fla. Hotels, Inc., 994 So.2d 1117, 1117 (Fla. 3d DCA 2007) (“We agree that the late filing deprived the referee of jurisdiction to consider the merits of Exposito’s claim.”); Lawson v. Elizabethtown Gas Co., 913 So.2d 738, 738 (Fla. 3d DCA 2005) (“Lawson does not dispute that her notices of appeal were untimely. We must, therefore, accept the referee’s findings of untimeliness and affirm the Unemployment Appeals Commission’s orders.”).

SALTER, J.

(concurring).

I reluctantly concur in the result in this case, but write separately to emphasize again (a) that the Agency for Workforce Innovation should adhere to its own rules and procedures in unemployment compensation benefits appeals, and (b) that claimants should be allowed more time within which to seek advice and to prepare and file their administrative appeals, so that such appeals are resolved on the merits rather than through procedural defaults.

Ms. Rostran’s claim for unemployment compensation benefits was initially granted by the Agency. She had worked for a CVS pharmacy for over four years before her employment was terminated. On the basis of information which has not been made a part of the record, the Agency reconsidered and issued a revised determination that Ms. Rostran voluntarily quit and was thus ineligible for the benefits.

That revised determination included a computer-generated “date mailed” of November 24, 2009. Ms. Rostran’s electronic appeal was transmitted on January 7, 2010. Because this was over twenty days after the date shown on the Agency’s revised determination, the Agency’s automated on-line appeal form included a “late explanation” section for Ms. Rostran to complete. Her explanation stated: “I file late because I didn’t understand really well how to the appealing process and I call a lot of times at the automated phone system to see if any representative could help me but it was always busy.”

A telephonic hearing was noticed, but the employer did not participate. Ms. Rostran, a non-attorney representing herself, was the only witness allowed to testify, despite Ms. Rostran’s proffer that her mother would substantiate her claim that she was sick and under a doctor’s care at the time CVS claimed she had voluntarily quit her job. The referee limited the hearing to the timeliness of the appeal. He asked whether Ms. Rostran “first received a copy of this determination” on the “date mailed” shown on the redetermination, and she answered “yes” (though this was obviously impossible, as the letter could not have reached Ms. Rostran in Miami on the same day it was mailed from Tallahassee). The referee then asked Ms. Rostran why it had taken her more than twenty days to submit her appeal, and she testified:

It didn’t — I didn’t file it because I didn’t really understand how was the process and, you know, I call a lot of times, you know, at the number to — the 1-800 number for the Unemployment Compensation and, you know, it was always busy until I spoke with a representative and, you know, they explain it to me — the whole process and how to do it by the internet.

Ms. Rostran’s testimony was unrebut-ted, and of course the period during which she made her calls (before she obtained assistance from the Agency) spanned the Thanksgiving, Hanukkah, Christmas, and New Year holidays when the Agency was frequently closed. The referee then dismissed the appeal as untimely, and Ms. Rostran’s further appeal to the Unemployment Appeals Commission was rejected. Her appeal to this Court followed.

Although the majority is correct that section 443.151(4), Florida Statutes (2009), has no judicially-recognized, traditional “good cause” exception for a late-filed appeal, these cases should be addressed on the merits because of their importance. Unemployment compensation benefits are a safety net that should not be snatched away on a technicality that prejudices no one. The existing twenty-day statutory period for an administrative appeal includes the days the Agency’s adverse determination is in the mail. No allowance is made for intervening weekends and holidays after the mailing but before the twentieth day. Thus, in practice, the claimant may have two weeks from receipt of the Agency’s adverse ruling within which to seek assistance and prepare and file an appeal. There is no statutory or administrative procedure for seeking an extension of time for the claimant to further investigate the stated basis for the Agency’s adverse determination, to seek pro bono or other counsel, to actually write and file the appeal itself, or to “get through” to the Agency’s advertised help line.

In practice, the purportedly bright-line twenty-day rule is sometimes evaded by an employer or attorney familiar with the intricacies of the statute. Under section 443.151(3)(e)l, a party can ask the Agency to reconsider an adverse determination for a full year (two full years, if it is shown that the determination was based on a false or fraudulent representation) based on “an error” or when “new evidence or information pertinent to the determination is discovered after a prior determination or redetermination.” While in theory this provision is also available to former employees/claimants, the reported cases suggest that redeterminations and delays in adjudicating claims are a result of actions taken by the Agency and employers rather than claimants. See, e.g., Arensen v. Fla. Unemployment Appeals Comm’n, 48 So.3d 936, 940 (Fla. 1st DCA 2010) (recognizing that ten months between a monetary determination and commencement of benefits and retroactive finding of ineligibility was, in effect, a redetermination); Grover v. Brumell Investigations, Inc., 915 So.2d 750, 753-54 (Fla. 2d DCA 2005) (rejecting an employer’s attempt to obtain a redeter-mination after failing to appeal an initial determination in favor of the claimant).

While reluctantly concurring in the decision in this case, it is my hope that our Legislature will remedy this recurring elevation of a procedural deadline above an unemployed claimant’s right to present his or her evidence and to obtain a decision on the merits. The financial and emotional challenges of unemployment ought to be enough without compounding the effect by putting the claimants through a futile administrative and judicial labyrinth. I therefore urge the Agency to provide claimants with the documents and information provided to the Agency by the employer in support of a determination that the employee is not qualified for benefits, and I respectfully urge the Legislature to amend section 443.151(4), Florida Statutes (2011), to allow a longer period of time within which a party may appeal an adverse determination.

CORTIÑAS, J., concurs.

      . We have previously criticized the Agency’s redetermination disallowing an employee’s initially-allowed claim on the basis of documents and written interview forms that are not furnished to the employee with the rede-termination and notice of appellate remedies. Lopez v. A Aaron Super Rooter, Inc., 54 So.3d 575, 577-78 (Fla. 3d DCA 2011) (Salter, J., concurring). If the employee is to make reasoned decisions about whether to appeal the Agency’s redetermination and what testimony or documents to present at the telephonic hearing on any such appeal, that information should be provided, just as the employee's claim form is routinely submitted to the employer.

      . Section 443.151(4)(b)3 provides that the Agency's Office of Appeals may issue to an appellant an order to show cause why a facially-untimely appeal should not be dismissed. The appellant must, within fifteen days of the mailing date on that order, "provide written evidence of timely filing or good cause for failure to appeal timely” or the appeal is to be dismissed. As noted in the majority opinion, however, "good cause” in this context has been limited to non-receipt of a determination, Agency-caused confusion, or other circumstances establishing a lack of due process. Agency and judicial rulings have not found “good cause” for reinstating an untimely appeal under this provision based on an appellant's misunderstanding, busy schedule, or similar excuse. See, e.g., Dakers v. State, Unemployment Appeals Comm’n, 942 So.2d 957, 958 (Fla. 4th DCA 2006) (finding no "good cause” exception to the twenty-day filing requirement for a claimant/appellant out of the country tending to a sick relative).

      . While claimants appear to miss the twenty-day deadline more often than employers, any legislative increase in the appeal period would apply reciprocally to employers as well.


text:
    LAW OFFICE OF DAVID J. STERN, P.A., Appellant, v. STATE of Florida, Department of Legal Affairs, Appellee.
    No. 4D10-4708.
    District Court of Appeal of Florida, Fourth District.
    Dec. 14, 2011.

      Jeffrey Tew and Spencer Tew of Tew Cardenas LLP, Miami, for appellant.
    Pamela Jo Bondi, Attorney General, and Jason Vail, Assistant Attorney General, Tallahassee, for appellee.
   STEVENSON, J.

This appeal stems from an order denying a petition to quash an investigative subpoena duces tecum, issued by the Florida Office of the Attorney General (the “OAG”) to the Law Office of David J. Stern, P.A. (“Law Firm”), pursuant to the Florida Deceptive and Unfair Trade Practices Act (FDUTPA). Because the OAG lacked authority under FDUTPA to issue the subpoena, we reverse.

The subpoena at issue indicates that “[t]he general purpose and scope of this investigation extends to possible unfair and deceptive trade practices, unconscionable acts and/or unfair competition of [Law Firm].” The subpoena sought production of thirteen categories of information relating to Law Firm’s foreclosure cases, including: the names and addresses of all lawyers and/or law firms that Law Firm used to represent its clients in foreclosure cases; names and addresses of lending institutions represented by Law Firm in foreclosure cases; names and addresses of companies employed by Law Firm to draft and/or execute mortgage assignments or affidavits; names and addresses of parties hired to perfect service of process in foreclosure cases; names and addresses of servicing companies represented by Law Firm; names and addresses of any corporations, companies, partnerships or associations, pertaining to Law Firm’s foreclosure practices, that Law Firm has any interest in; copies of files and documents relating to specifically identified foreclosure cases; names of notaries who notarized affidavits regarding fees and mortgage assignments; copies of non-disclosure agreements; and information about payments and bonuses made in relation to work done on foreclosure cases, including copies of checks from clients. In its petition to quash, Law Firm argued that the OAG lacked authority under FDUTPA because it was not involved in “trade or commerce” as defined by the statute.

At the hearing on Law Firm’s petition to quash, the OAG indicated that it had received numerous consumer complaints regarding Law Finn preparing forgeries and fraudulent documents for clients in foreclosure cases and for recordation in county public records. Law Firm explained that its practice was limited to representing lenders in residential foreclosures. Because of that, Law Firm argued that there was no “plausible set of facts that c[ould] be developed that would bring the activities of [Law Firm] within FDUTPA.”

The trial court denied Law Firm’s petition to quash. Whether the trial court properly concluded that the OAG had authority under FDUTPA to issue the subpoena presents a matter of statutory interpretation that is. reviewed de novo. See State, Office of Att’y Gen. v. Shapiro & Fishman, LLP, 59 So.3d 353, 355 (Fla. 4th DCA 2011) [hereinafter Shapiro & Fish-man ].

FDUTPA was enacted “[t]o protect the consuming public and legitimate business enterprises from those who engage in unfair methods of competition, or unconscionable, deceptive, or unfair acts or practices in the conduct of any trade or commerce.” § 501.202(2), Fla. Stat. (2010). “Trade or commerce” is defined as:

[T]he advertising, soliciting, providing, offering, or distributing, whether by sale, rental, or otherwise, of any good or service, or any property, whether tangible or intangible, or any other article, commodity, or thing of value, wherever situated. “Trade or commerce” shall include the conduct of any trade or commerce, however denominated, including any nonprofit or not-for-profit person or activity.

§ 501.203(8). Pursuant to FDUTPA, the OAG may issue an investigative subpoena when it “has reason to believe that a person has engaged in, or is engaging in, an act or practice that violates this part.” § 501.206(1). FDUTPA also authorizes the OAG to bring an action seeking declaratory or injunctive relief, or to bring an action for damages on behalf of consumers. § 501.207(1).

The subpoena at issue in Shapiro & Fishman is very similar to the instant subpoena. There, the OAG issued an investigative subpoena for the purpose of investigating the “advertising and marketing practices” of the appellee law firm. 59 So.3d at 355. However, the subpoena sought production of documents relating to thirteen different subjects of the law firm’s representation of various lending institutions in foreclosure cases. Id. at 354. The subpoena requested information regarding:

any corporations, companies, partnerships, or associations in which the law firm and the named partners had any interest. It also asked for the names of all servicing companies the firm had represented in the past five years; all nondisclosure agreements the firm executed in the past five years with employees, subcontractors, and independent contractors; copies of checks or evidence of other payment from plaintiffs represented in foreclosure cases by the firm; and documents on the amount paid to the firm’s employees, subcontractors, and independent contractors for completion of foreclosure cases within a certain time period.

Id. The OAG admitted that the subpoena was issued in “response to complaints alleging that the law firm had been fabricating or presenting false or misleading documents for utilization in foreclosure cases.” Id. at 355. We affirmed the trial court’s order quashing the subpoena, reasoning that “the alleged conduct of the law firm ... d[id] not fall within the rubric of ‘trade or commerce’ as required for civil investigative subpoenas under FDUTPA.” Id. at 356.

Though the subpoena in the instant case states a different purpose — “deceptive trade practices, unconscionable acts and/or unfair competition” as opposed to “advertising and marketing practices” — it seeks the same information sought in Shapiro & Fishman. Both subpoenas were designed to elicit information regarding the law firm’s representation in foreclosure cases. Further, the investigator’s testimony confirmed that the OAG was investigating the same allegations and complaints as those present in Shapiro & Fishman. Just as in Shapiro & Fishman, the instant alleged conduct by Law Firm does not constitute “trade or commerce.” See also Kelly v. Palmer, Reifler & Assocs., P.A., 681 F.Supp.2d 1356, 1374-77 (S.D.Fla.2010) (holding that law firm’s issuance of pre-suit demand letters did not constitute “trade or commerce” and noting that law firm’s acts — “conduct ostensibly occurring during the exercise of a legal remedy — had zero connection whatsoever to any ‘trade or commerce’ ”). Here, as in Shapiro & Fishman, the OAG’s subpoena “centers on the law firm’s conduct in the processing of foreclosure cases, as opposed to the initial applications for mortgages or the initial lending relationships, which would be more akin to traditional notions of ‘trade or commerce’ as defined by the FDUTPA statute.” 59 So.3d at 356.

Accordingly, the OAG lacked the authority, under FDUTPA, to issue the subpoena in question and the trial court’s order must be reversed.

Reversed.

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


text:
    FLORIDA INSURANCE GUARANTY ASSOCIATION, a Florida not-for-profit corporation, Appellant, v. SOMERSET HOMEOWNERS ASSOCIATION, INC., a Florida not-for-profit corporation, Appellee.
    No. 4D10-4157.
    District Court of Appeal of Florida, Fourth District.
    Dec. 21, 2011.

      Jeffrey T. Kuntz, Philip E. Ward, Roland E. Schwartz and Evan D. Appell of GrayRobinson, P.A., Fort Lauderdale, for appellant.
    Ernest P. Wagner of Childress Duffy, Ltd., Illinois, and Christopher N. Mammel of Childress Duffy, Ltd., Miami, for appel-lee.
   DAMOORGIAN, J.

Florida Insurance Guaranty Association (“FIGA”) appeals from a final judgment confirming an appraisal award arising out of an insurance policy between FIGA and Somerset Homeowners Association, Inc. (“Somerset”). FIGA raises a number of issues on appeal. FIGA argues, among other things, that the trial court erred by awarding Somerset replacement cost value (“RCV”) benefits. We agree and reverse on that one issue, but affirm the final judgment in all other respects.

By way of background, the Somerset condominium buildings sustained extensive damage due to two hurricanes. Somerset was covered by an insurance policy, the obligations for which were assumed by FIGA after the original carrier was placed in receivership. Somerset submitted claims for coverage, and both the former carrier and FIGA made partial payments on the claims. However, believing that more was owed, Somerset instituted suit to enforce the appraisal process.

While the suit was pending, the parties agreed to submit the dispute over the amount of the claim of loss to the appraisal process set forth in the policy. The appraisal process provided a series of steps, none of which are relevant to our discussion. Ultimately, the claim was submitted to an independent umpire who entered an award which set the RCV of the loss at $12,581,471.43 and the actual cash value (“ACV”) of the loss at $11,630,208.55. “ ‘As replacement cost policies are intended to operate, following a loss, both actual cash value and the full replacement cost are determined. The difference between those figures is withheld as depreciation until the insured actually repairs or replaces the damaged structure.’ ” Goff v. State Farm Fla. Ins. Co., 999 So.2d 684, 690 (Fla. 2d DCA 2008) (citation omitted).

FIGA neither timely paid nor disputed the award. Somerset moved to confirm the appraisal award, prompting FIGA to move to vacate it. The court entered a final judgment in the amount of $6,262,339.83, which reflected a deduction of $5,026,539.25 in prior payments and a deductible of $1,292,592.35.

On appeal, FIGA argues that contrary to the express terms of the policy, the appraisal award included $951,262.88 attributed to depreciation. Somerset counters that it was entitled to depreciation under the doctrine of prevention of performance because FIGA failed to timely pay the appraisal award.

Our analysis of this issue necessarily requires us to turn to the plain language of the policy. See State Farm Mut. Auto. Ins. Co. v. Menendez, 70 So.3d 566, 569 (Fla.2011) (“In interpreting an insurance contract, we are bound by the plain meaning of the contract’s text.”); see also Prudential Prop. & Cas. Ins. Co. v. Swindal, 622 So.2d 467, 470 (Fla.1993) (“Insurance contracts are construed in accordance with the plain language of the policies as bargained for by the parties.”). The policy provided:

d. We will not pay on a replacement cost basis for any loss or damage:
(1) Until the lost or damaged property is actually repaired or replaced; and
(2) Unless the repairs or replacement are made as soon as reasonably possible after the loss or damage.

Under the terms of the policy, an insured must actually repair or replace the damage as a condition precedent to payment of replacement costs. Somerset failed to do so in this case.

Notwithstanding the policy’s express terms, Somerset argues that under the doctrine of prevention of performance, it was excused from the contractual obligation to complete the repairs before receipt of payment because FIGA delayed payment of the appraisal award. In support of this argument, it cites to the decision of the federal district court in Buckley Towers Condominium, Inc. v. QBE Ins. Corp., No. 07-22988-CV, 2009 WL 1492019 (S.D.Fla. May 27, 2009) (hereinafter “Buckley I”). In Buckley I, the insured sued its insurer, and after a trial, the jury awarded the insured nearly $20 million in damages. Buckley I, 2009 WL 1492019, at *1. The insurance contract required that an ACV claim be filed before the insured could recover RCV payments. Id. Although the insured made no repairs, the district court held that the doctrine of prevention of performance permitted Buckley Towers to recover RCV benefits. Id. at *2.

On appeal, however, the Eleventh Circuit Court reversed, concluding that the district court erred by allowing the insured to claim RCV damages, when under the express terms of the contract, the insured had to repair or replace the damaged property before it was entitled to payment. Buckley Towers Condo., Inc. v. QBE Ins. Corp., 395 Fed.Appx. 659 (11th Cir.2010) (hereinafter “Buckley II ”). In so holding, the court noted:

Applying the doctrine of prevention of performance in this case would imper-missibly rewrite the insurance contract on the equitable theory that it would be too costly for Buckley Towers to comply with the terms of the agreement. Under Florida’s binding law, however, courts are not free to rewrite the terms of an insurance contract and where a policy provision “is clear and unambiguous, it should be enforced according to its terms.”

Id. at 663 (quoting Acosta, Inc. v. Natl Union Fire Ins. Co., 39 So.3d 565, 573 (Fla. 1st DCA 2010)); see also Ceballo v. Citizens Prop. Ins. Corp., 967 So.2d 811, 815 (Fla.2007) (explaining that with contracts, replacement cost damages do not arise unless the repairs or replacement have been completed); State Farm Fire & Cas. Co. v. Patrick, 647 So.2d 983, 984 (Fla. 3d DCA 1994) (holding that the trial court erred by ignoring the plain language of the replacement cost policy issued to the insured).

We concur with the reasoning in Buckley II and adopt its holding in the instant case. Somerset’s suggestion that we adopt the decision of a lower court, when that decision has been overturned by a higher court, finds no support here. The case is remanded to the trial court to deduct from the final judgment the amount attributed to depreciation.

Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.

WARNER and GERBER, JJ., concur.

      . Under the doctrine of prevention of performance, "one who prevents the happening of a condition precedent upon which his liability is made to depend, cannot avail himself of his own wrong and thereby be relieved of his responsibility to perform under the contract.” Ward v. Branch, 429 So.2d 71, 74 (Fla. 4th DCA 1983).


text:
    Margarette R. VILVAR, Appellant, v. DEUTSCHE BANK TRUST COMPANY AMERICAS formerly known as Banker’s Trust Company, Ixis 2005-HE4 as Trustee and Custodian By: Saxon Mortgage Services, Inc. f/k/a Meritech Mortgage Services, Inc., as its Attorney-in-Fact, Appellee.
    No. 4D11-457.
    District Court of Appeal of Florida, Fourth District.
    Dec. 21, 2011.

      Garry W. Johnson and Bruce K. Herman of 511 Law, P.A., Fort Lauderdale, for appellant.
    Jeffrey M. Gano of Florida Default Law Group, P.L., Tampa, for appellee.
   DAMOORGIAN, J.

Margarette R. Vilvar appeals a non-final order denying her motion to vacate an amended final summary judgment of foreclosure. Concluding that Vilvar’s claims have no merit, we affirm and write only to address the insufficiency of the allegations of fraud and misrepresentation contained in Vilvar’s motion to vacate.

The underlying foreclosure action was commenced five years ago when Vilvar failed to pay her mortgage. Soon after filing the foreclosure action, Deutsche Bank (“the bank”) obtained a final judgment against Vilvar. Thereafter, Vilvar filed a petition in bankruptcy, which was later dismissed. The bank then moved to amend the final judgment to include additional sums due. In support of its motion, the bank filed an affidavit from Lonna Cross, the assistant vice president of Saxon Mortgage Services, Inc. (“Saxon”), the entity that serviced the loan. The motion was granted and an amended final judgment was entered.

One day before the foreclosure sale was to have occurred, Vilvar filed a second petition in bankruptcy, which was also later dismissed. The sale was re-scheduled, but one week before the sale, Vilvar filed a motion to vacate the amended final judgment pursuant to Florida Rule of Civil Procedure 1.540(b). In her motion, Vilvar alleged that Cross’s affidavit “was inaccurate and constituted hearsay” and it “failed to include sworn or certified copies of the very business records upon which” Cross relied. The motion was denied and this appeal followed.

The standard of review of an order on a rule 1.540(b) motion is whether there has been an abuse of discretion. J.J.K. Int’l, Inc. v. Shivbaran, 985 So.2d 66, 68 (Fla. 4th DCA 2008) (citing Snipes v. Chase Manhattan Mortg. Corp., 885 So.2d 899, 900 (Fla. 5th DCA 2004)).

Vilvar argues that Cross’s affidavit failed to comply with Florida Rule of Civil Procedure 1.510(e) because it “did not constitute admissible evidence, and the facts therein and [the] affiant’s personal knowledge were intentionally or negligently misrepresented to the trial court.” Vilvar’s argument is without merit. We recently addressed the same issue in Freemon v. Deutsche Bank Trust Co. Ams., 46 So.3d 1202 (Fla. 4th DCA 2010).

In Freemon, the appellant moved for relief from a foreclosure judgment because she claimed “that the affidavit of indebtedness attesting to the amounts due on the mortgage and note was not made on the personal knowledge of the affiant.” Id. at 1203. Deutsche Bank moved for summary judgment, attaching an affidavit from an assistant secretary of a separate company that serviced the loan. Id. at 1204. In the affidavit, the affiant stated that she was familiar with the books and accounts and “specifically had personal knowledge of the sums due on the mortgage loan.” Id. The affidavit also “set forth the unpaid balance, interest, and other charges.” Id. The trial court entered summary judgment in favor of Deutsche Bank and denied the appellant’s motion to vacate. Id. We affirmed and explained:

Freemon’s motion does not demonstrate fraud or show why any of the alleged facts would entitle her to relief sufficient to set aside a default judgment. Freemon nowhere contends that she did not default on her mortgage, nor does she allege that the amounts due and owing, set forth in the affidavit and incorporated in the final judgment, are incorrect.

Id. at 1205.

What occurred in Freemon is precisely what transpired in this case. Cross’s affidavit stated that she was the assistant vice president of Saxon, which, as the loan ser-vicer, was responsible for collection of the loan and pursuit of any delinquency in payments. Cross went on to explain that she was familiar with Saxon’s books, records, and documents relevant to the allegations in the complaint, and that all of the books, records, and documents concerning the loan were kept by Saxon in the regular course of its business. Cross’s affidavit also stated that she had personal knowledge of the facts regarding the sums due and owing to the bank, and provided a complete breakdown of those sums.

In stark contrast, Vilvar’s motion does not demonstrate fraud or show why any of the alleged facts would entitle her to relief sufficient to set aside the amended final judgment. She does not dispute that she defaulted on her mortgage, and does not allege that the amounts set forth in Cross’s affidavit or that were due and owing are incorrect. Indeed, Vilvar has not specifically alleged any fraud in connection with Cross’s statements in her affidavit regarding the amounts due. Equally as compelling is the fact that Vilvar failed to object to or appeal the final judgment and the amended final judgment. Vilvar waited over a year from the entry of the amended final judgment to take issue with Cross’s affidavit.

This Court has made it abundantly clear that general allegations of fraud will not support a motion to vacate a final judgment under rule 1.540(b)(3). See Freemon, 46 So.3d at 1204 (providing that a rule 1.540(b)(3) motion must specify the fraud with particularity and explain why the fraud, if it exists, would entitle the movant to have the judgment set aside) (citation omitted); Hembd v. Dauria, 859 So.2d 1238, 1239 (Fla. 4th DCA 2003) (“Where a litigant seeks to inject the issue of fraud into a lawsuit, Florida law requires that it be pled with precision, not just flung into the case willy-nilly.”); Flemenbaum v. Flemenbaum, 636 So.2d 579, 580 (Fla. 4th DCA 1994) (stating that “a rule 1.540(b)(3) motion must clearly and concisely set out the essential facts of the fraud, and not just legal conclusions”) (citing Cady v. Chevy Chase Sav. & Loan, Inc., 528 So.2d 136, 138 (Fla. 4th DCA 1988)); see also Fla. R. Civ. P. 1.120(b) (“In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with such particularity as the circumstances may permit.”).

We likewise find no merit to Vil-var’s claim that Cross’s affidavit did not constitute admissible evidence and that failure to attach any sworn or certified copies of the records upon which she relied should have made the affidavit insufficient under rule 1.510(e). Vilvar’s failure to timely object to the sufficiency of Cross’s affidavit when it was presented on motion for summary judgment is fatal to this claim. U.S. Bank Nat’l Ass’n v. Paiz, 68 So.3d 940, 943-44 (Fla. 3d DCA 2011) (holding that absent fraud or misrepresentation, challenges to affidavits in support of motion for summary judgment must be raised in pleadings or at hearing on motion for summary judgment, not in motion for relief from judgment); see also Wambles v. Amrep Se., Inc., 568 So.2d 125, 126 (Fla. 5th DCA 1990) (concluding that the sufficiency of the affidavit based on the affi-ant’s personal knowledge was not raised before the trial court, thus barring it from being raised on appeal); cf. Coastal Caribbean Corp. v. Rawlings, 361 So.2d 719, 721 (Fla. 4th DCA 1978) (holding that even though copies of the mortgage and note were not served with the affidavit, there was no error under rule 1.510(e) because they had already been served several months beforehand).

We remind counsel of their ethical obligation to know the legal precedent of this Court and to base their legal arguments on that precedent. Where counsel fails to do so and the result is an appeal that is so clearly devoid of merit both on the facts and the law as to be completely untenable, we will not hesitate to impose sanctions pursuant to Florida Rule of Appellate Procedure 9.410(a) (2011) and section 57.105, Florida Statutes (2011). See Sullivan v. Sullivan, 54 So.3d 520, 522 (Fla. 4th DCA 2010) (“Section 57.105 permits an appellate court to impose appellate attorney’s fees for conduct on appeal.”) (citation omitted). This appeal comes mighty close to that point. See Boca Burger, Inc. v. Forum, 912 So.2d 561, 569 (Fla.2005) (“[Ajllowing appellate courts to impose sanctions ... will not chill representation, but instead will emphasize that counsels’ obligations as officers of the court override their obligations to zealously represent their clients.”).

Affirmed.

WARNER and GERBER, JJ., concur.

      . In 2005, Vilvar executed a promissory note and mortgage to Rose Mortgage. The mortgage was later transferred to Deutsche Bank.

      . Rule 1.510(e) provides:
      Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.
      Fla. R. Civ. P. 1.150(e).


text:
    UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, v. MILLENNIUM RADIOLOGY, LLC a/a/o Luis Rivas, Appellee.
    No. 4D10-4459.
    District Court of Appeal of Florida, Fourth District.
    Dec. 21, 2011.
    Michael J. Neimand of the Office of General Counsel, United Automobile Insurance Company, Miami, for appellant.
    Roberts J. Bradford, Jr., of Law Office of R.J. Bradford, Jr., P.C., Gray, TN, and Gary M. Farmer, Sr., of Farmer Jaffe Weissing Edwards Fistos & Lehrman, P.L., Fort Lauderdale, for appellee.
    Maria Elena Abate and Elana H. Gloetz-ner of Colodny, Fass, Talenfeld, Karlinsky & Abate, P.A., Fort Lauderdale, for Ami-cus Curiae Florida Property and Casualty Association.
   PER CURIAM.

Affirmed. See Kingsway Amigo Ins. Co. v. Ocean Health, Inc., 63 So.3d 68 (Fla. 4th DCA 2011).

POLEN, STEVENSON and TAYLOR, JJ., concur.


text:
    D.J., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-1592.
    District Court of Appeal of Florida, Fourth District.
    Dec. 21, 2011.
    Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

D.J. appeals an order finding him guilty, but withholding adjudication of delinquency and imposing probation, for possession of a weapon or firearm on school property. He claims the trial court erred when it denied his motion for judgment of dismissal and determined the knife he was charged with carrying was not a common pocketknife, but a weapon, as defined in section 790.001(13), Florida Statutes.

The knife in this case is a folding knife that snaps closed and locks into place. It has a partially serrated, curved single-edge blade with a pointed tip. The length of the blade is slightly less than three inches, and the entire length of the blade and handle is less than four inches. The blade shows quite a bit of wear and scratches consistent with significant use. A clip on the handle allows the knife to be attached to a belt. At trial, the arresting officer testified the knife could be opened in a smooth action with one hand and the blade locks into place.

The trial court held the knife was distinguishable from a common pocketknife because it was larger and heavier than a common pocketknife, snaps out in a smooth action and locks into place, and the blade has serrations, is very sharp, and very pointy. On appeal, the State argues that the knife at issue in this case is not a common pocketknife because it has a serrated edge.

The standard of review for a motion for judgment of dismissal in juvenile cases is de novo. R.H. v. State, 56 So.3d 156, 157 (Fla. 4th DCA 2011).

In L.B. v. State, 700 So.2d 370 (Fla.1997), the 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.” Id. at 372. Following a 1951 Florida Attorney General’s opinion, the court held that a pocketknife with a blade of four inches or less in length which could be carried in one’s pocket was presumed to be a “common pocketknife,” although the court declined to apply a bright-line rule. Id. at 373 n. 4 (citing Op. Att’y Gen. Fla. 051-358 (1951)).

In T.S.W. v. State, 82 So.3d 1021 (Fla. 4th DCA 2011), we recently held that a knife with a three-and-a-quarter inch partially serrated blade and a grooved handle was a common pocketknife, because it had “no weapon-like characteristics such as a hilt guard, notched combat-style grip, double-edged blade, or switchblade; furthermore, it was not carried in an open and locked position.” Also, in C.R. v. State, 73 So.3d 825 (Fla. 4th DCA 2011), we determined that a knife with a blade of less than four inches that included features such as a belt clip, a knob to open the blade, a locking mechanism, and a textured handle was not distinctive enough to be distinguishable from a common pocketknife.

In this case, the three-inch knife carried by D.J. lacks any of the weapon-like characteristics we noted in T.S.W., and includes features we have previously held to not distinguish a knife from a common pocketknife. Therefore, we find the trial court erred in denying the motion for judgment of dismissal.

Reversed.

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


text:
    Jack PERSAUD, Appellant, v. Ramona PERSAUD, Appellee.
    No. 4D09-2793.
    District Court of Appeal of Florida, Fourth District.
    Dec. 21, 2011.

      Michael L. Cohen, West Palm Beach, for appellant.
    No appearance for appellee.
   PER CURIAM.

Affirmed. See Gardner v. Gardner 501 So.2d 1300 (Fla. 4th DCA1986).

POLEN, STEVENSON and TAYLOR, JJ., concur.


author: MAY, C.J.

text:
    Doris ROTHMAN-BROWNING, Individually, and as Co-Trustee of the Phyllis Rothman Irrevocable Trust u/a/d 9/12/2000, and as Co-Trustee of the Qualified Terminable Interest Property (QTIP) Trust under Article VIII of the George Rothman Amended and Restated Revocable Trust Agreement u/a/d 9/12/2000, Appellant, v. Marcia MARSHALL, as Guardian of the Person of Phyllis Rothman and Barbara Thomas, as Co-Trustee of the Phyllis Rothman Irrevocable Trust u/a/d 9/12/2000, and as Co-Trustee of the Qualified Terminable Interest Property (QTIP) Trust Under Article VIII of the George Rothman Amended and Restated Revocable Trust Agreement u/a/d 9/12/2000; and Citicorp Trust, N.A., as Co-Trustee of the Phyllis Rothman Irrevocable Trust u/a/d 9/12/2000, and as Co-Trustee of the Qualified Terminable Interest Property (QTIP) Trust under Article VIII of the George Rothman Amended and Restated Revocable Trust Agreement u/a/d 9/12/2000; and as Guardian of the Property of Phyllis Rothman, Appellees.
    No. 4D11-2079.
    District Court of Appeal of Florida, Fourth District.
    Dec. 21, 2011.

      Stephen T. Maher of Shutts & Bowen LLP, Miami, for appellant.
    Amy S. Rubin of Fox Rothschild LLP, West Palm Beach, for appellee, Marcia Marshall.
   MAY, C.J.

This is an appeal from an order approving a guardianship plan. Two of the three appellees concede error. The third appel-lee (“guardian”) has not. We reverse.

The guardian filed the guardianship plan with the trial court on April 4, 2011. The Clerk of Court completed its review of the Guardianship Plan and filed its approval on April 26, 2011. The co-trustee, both individually and in her fiduciary capacity, filed an “Objection to Annual Guardianship Plan of Guardian of Person” within thirty days on May 4, 2011. The trial court entered its Final Order approving the guardianship plan on April 29, 2011; it was rendered on May 5, 2011. At a subsequent hearing, the trial court denied the objection as untimely, never addressing its merits. From this order, the co-trustee now appeals.

The co-trustee argues that because she submitted a timely objection to the guardianship plan in accordance with section 744.367, Florida Statutes, the trial court erred in prematurely approving the plan without considering the objection. The co-trustee also argues the premature approval of the plan denied her due process. The guardian responds that section 744.369(1), Florida Statutes, only requires the trial court to review the guardianship plan within 30 days and because the trial court approved the guardianship plan within that time, it did not err.

This Court reviews questions of law de novo. Major League Baseball v. Morsani, 790 So.2d 1071, 1074 (Fla.2001).

Section 744.367(4), Florida Statutes, provides that, “[wjithin 30 days after the annual report has been filed, any interested person, including the ward, may file written objections to any element of the report, specifying the nature of the objection.” § 744.367(4), Fla. Stat. (2010). Section 744.369(7) provides that, “[i]f an objection has been filed to a report, the court shall set the matter for hearing and shall conduct the hearing within 30 days after the filing of the objection.” § 744.369(7), Fla. Stat. (2010). Section 744.369(1) provides that, “[t]he court shall review the annual guardianship report within 30 days after the filing of the clerk’s report of findings to the court.” § 744.369(1), Fla. Stat. (2010).

Our supreme court has explained that, “[wjhen the words of a statute are plain and unambiguous and convey a definite meaning, courts have no occasion to resort to rules of construction — they must read the statute as written” and the court’s inquiry should end. Nicoll v. Baker, 668 So.2d 989, 990-91 (Fla.1996). When “part of a statute appears to have a clear meaning if considered alone but when given that meaning is inconsistent with other parts of the same statute or others in pari mate-ria, the [cjourt will examine the entire act and those m pan matena in order to ascertain the overall legislative intent.” E.A.R. v. State, 4 So.3d 614, 629 (Fla.2009) (quoting Fla. Dep’t of Envtl. Prot. v. ContractPoint Fla. Parks, LLC, 986 So.2d 1260, 1265-66 (Fla.2008)).

Here, the co-trustee filed an objection to the guardianship plan precisely thirty days after it was filed. Under the plain meaning of sections 744.367(4) and 744.369(7), an objection filed within thirty days entitles the objector to a hearing. While section 744.369(1) does not expressly require the trial court to wait the full thirty days before entering a final order approving a guardianship plan, when section 744.369(1) is read in pari materia with sections 744.367(4) and 744.369(7), it is clear that an objection filed within thirty days is entitled to consideration. Otherwise, sections 744.367(4) and 744.369(7) would be rendered meaningless.

Reversed and Remanded for consideration of the Co-Trustee’s objection.

WARNER and GROSS, JJ., concur.

      . Barbara Thomas and CitiCorp Trust, N.A. filed Confessions of Error.


text:
    Robert MEYERS, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-3404.
    District Court of Appeal of Florida, Fourth District.
    Dec. 21, 2011.
    Carey Haughwout, Public Defender, and Emily Ross-Booker, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Helene C. Hvizd, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant challenges his sentence for felony criminal mischief. At his resentenc-ing hearing, appellant informed the trial court that he desired to represent himself. We find that the trial court erred by not adequately inquiring into appellant’s knowing and voluntary waiver of his right to counsel under Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).

“A defendant cannot make an intelligent, knowing waiver of his right to counsel without being informed of the dangers and disadvantages of self-representation.” Vega v. State, 57 So.3d 259, 262 (Fla. 5th DCA 2011); see also Fla. R.Crim. P. 3.111(d)(2). In this case, though the trial court informed appellant that he was entitled to counsel, the colloquy between the trial court and appellant reveals that the trial court did not advise appellant of the dangers and disadvantages of waiving the assistance of counsel. Nor did the “waiver of counsel” form signed by appellant indicate that dangers accompany representing oneself. We therefore reverse and remand for appellant to be resenteneed on his felony criminal mischief conviction.

Reversed and remanded.

STEVENSON, HAZOURI and LEVINE, JJ., concur.


text:
    CARDEN & ASSOCIATES, INC. and Lenwood Hollister, Jr., Appellants, v. C.O.D. TREES PARTNERSHIP, Appellee.
    No. 5D11-2960.
    District Court of Appeal of Florida, Fifth District.
    Jan. 6, 2012.
    Donald L. O’Dell of Meier, Bonner, Muszynski, O’Dell & Harvey, P.A., Long-wood, for Appellants.
    Joel E. Roberts and Brian E. Smith of Gray Robinson, P.A., Orlando, for Appel-lee.
   ON APPELLEE’S MOTION FOR SANCTIONS

PALMER, J.

C.O.D. Trees Partnership filed a motion with this court seeking sanctions against Carden & Associates, Inc. (Carden), and Lenwood Hollister, Jr., for their failure to appear at appellate mediation in violation of this court’s order. See Fla. RApp. P. 9.720. We grant the motion.

This court ordered appellate mediation in this matter. Under rule 9.720(b), which governs appellate mediations, the court may impose sanctions against a party who fails to appear at a mediation conference without good cause. The rule further provides that, unless changed by order of the court, a party is deemed to appear at a mediation conference if certain persons are physically present, including “the party or its representative,” the party’s “counsel of record,” and “a representative of the insurance carrier for an insured party.” Fla. RApp. P. 9.720(a).

In this case, neither Hollister nor a representative of Carden attended the mediation; only their insurance company representative and attorney appeared. No motion was filed with the court seeking to excuse the personal appearance of Carden and/or Hollister from the mediation. The law is clear that, absent being excused by the court, the party must appear at mediation and a representative of the insurance company cannot take the party’s place. See Carbino v. Ward, 801 So.2d 1028 (Fla. 5th DCA 2001). The fact that Carbino involved a trial mediation, rather than an appellate mediation, is of no relevance since the appearance language in the applicable rules are identical. See Fla. R. Civ. P. 1.720(b). See also Harrelson v. Hensley, 891 So.2d 635 (Fla. 5th DCA 2005).

Accordingly, we grant the motion for sanctions. Carden and Hollister are hereby ordered to pay the following amounts as sanctions within 80 days from the date of this opinion:

(1) all fees charged by the mediator in connection with this appellate mediation; and,
(2) C.O.D.’s reasonable costs and attorneys’ fees incurred in preparing for and attending the appellate mediation and filing the instant motion for sanctions.

In the event the parties cannot agree on the amount of the reasonable attorneys’ fees and costs, we appoint the trial judge as a commissioner to conduct an evidentia-ry hearing and to make a recommendation to this court regarding such amount. Any dispute over the reasonable amount of attorneys’ fees and costs in paragraph (2) above will not delay the obligation to timely pay the mediator fees set forth in paragraph (1).

MOTION GRANTED.

EVANDER and COHEN, JJ., concur.


text:
    NATIONWIDE INSURANCE COMPANY OF FLORIDA, Petitioner, v. Albertha NELSON, Respondent.
    No. 5D11-876.
    District Court of Appeal of Florida, Fifth District.
    Jan. 6, 2012.
    Anthony J. Tinelli and Robin A. Richi-son of Lydecker Diaz LLC, Miami, for Petitioner.
    Mark A. Nation and Paul W. Pritchard of The Nation Law Firm, Longwood, for Respondent.
   PER CURIAM.

Nationwide Insurance Company of Florida seeks certiorari review of a trial court discovery order requiring it to produce all home inspection reports that HSA Engineers and Scientists generated on its behalf during a three-year period. Determining that the discovery request is overbroad and unduly burdensome, we grant the petition for certiorari and quash the trial court’s order.

After Albertha Nelson suffered losses and damages to her home from allegedly improperly applied stucco, she submitted a claim for coverage to her homeowner’s insurer, Nationwide. As part of its evaluation of Nelson’s claim, Nationwide retained HSA to inspect her home. Nationwide subsequently denied Nelson’s claim for coverage on the ground that the losses and damages were not covered by Nelson’s insurance contract.

Nelson then filed a lawsuit against Nationwide for breach of the parties’ insurance contract. During discovery, Nelson requested certain documents from Nationwide in order to determine the extent of HSA’s relationship with Nationwide in an effort to show that HSA was biased towards Nationwide. Specifically, Nelson sought production of all home inspection reports HSA generated for Nationwide throughout the country for the five-year period preceding the inspection of her home. Nationwide objected arguing, among other things, that the request was overbroad and unduly burdensome. The trial court ordered discovery of all such reports, but limited the timeframe to the three-year time period preceding the inspection of Nelson’s home, and allowed Nationwide to redact any information from the reports which identified proprietary information or work product.

Nationwide filed a motion for rehearing in which it argued that complying with the trial court’s order would cost Nationwide in excess of $82,000.00, and require over 400 man hours to accomplish. In addition, Nationwide’s counsel would be required to spend a minimum of 30 minutes per report reviewing and redacting information, as well as additional time discussing the content of each report with Nationwide and preparing a privilege log. Nationwide estimated that the privilege log would take approximately twelve minutes per report at an hourly attorney rate of $150.00. Affidavits were attached to the motion supporting these claims. The motion for rehearing was denied.

In Allstate Insurance. Co. v. Boecher, 733 So.2d 993 (Fla.1999), our supreme court explained that “certiorari is the appropriate remedy when a discovery order ‘departs from the essential requirements of law and thus causes a material injury to the petitioner throughout the remainder of the proceedings, effectively leaving no adequate remedy on appeal.’ ” Id. at 999 (citing Allstate Ins. Co. v. Langston, 655 So.2d 91, 94-95 (Fla.1995)). See also Stihl Se. Inc. v. Green Thumb Lawn & Garden Center Newco, Inc., 974 So.2d 1200 (Fla. 5th DCA 2008). In this case, the trial court’s discovery order meets the criteria for certiorari relief. Accordingly, we grant Nationwide’s petition and quash the trial court’s order. See Allstate Ins. Co. v. Binder, 746 So.2d 1255 (Fla. 5th DCA 1999) (holding that plaintiffs were not allowed to obtain documents showing identity of all cases in last three years in which defendant’s doctors were retained to perform exams).

PETITION GRANTED; ORDER QUASHED.

GRIFFIN, PALMER and MONACO, JJ., concur.