author: WETHERELL, J.

text:
    Laura B. FAULKNER, Appellant, v. James Marcus FAULKNER, Tammy F. Gibbs, Donna Faulkner-Rodriguez, and John Glassman, Appellees.
    Nos. 1D10-5867, 1D11-306, 1D11-308.
    District Court of Appeal of Florida, First District.
    July 22, 2011.

      Robert 0. Beasley of Litvak Beasley & Wilson, LLP, Pensacola, for Appellant.
    Lois B. Lepp and Karen Sunnenberg of Lois B. Lepp, P.A., Pensacola, Attorneys for James Marcus Faulkner, Tammy F. Gibbs, and Donna Faulkner-Rodriguez; John Glassman of John Glassman, P.A., Pensacola, Attorney for John Glassman, for Appellees.
   WETHERELL, J.

These consolidated cases arise out of a guardianship and incapacity proceeding brought against Appellant by her children, Appellees James Marcus Faulkner, Tammy F. Gibbs, and Donna Faulkner-Rodriguez (hereafter “the children”), under Part V of Chapter 744, Florida Statutes (2010). The trial court appointed an emergency temporary guardian for Appellant, but ultimately dismissed the petition to determine incapacity. The trial court found that the petition was filed in good faith and ordered Appellant to pay the examining committee fees, as well as the fees and costs of the emergency temporary guardian, Appellee John Glassman. Appellant timely appealed the orders to this court.

We affirm without comment the trial court’s findings that the petition was filed in good faith; that the examining committee fees were reasonable; that the fees and costs awarded to Mr. Glassman were reasonable; and that Mr. Glassman’s fees and costs were properly assessed against Appellant. We write only to address Appellant’s contention that the examining committee fees should not have been assessed against her because the petition for incapacity was dismissed.

Section 744.3201 sets forth the requirements for a petition to determine incapacity. The statute allows, but does not require, a petition for appointment of a guardian or emergency temporary guardian to be filed with the petition to determine incapacity. See § 744.3201(3), Fla. Stat.; see also § 744.3031(1), Fla. Stat. (authorizing the appointment of an emergency temporary guardian prior to appointment of a guardian and after a petition for determination of incapacity has been filed). Notice of the petition to determine incapacity must be served on the alleged incapacitated person and an attorney must be appointed for the alleged incapacitated person. See § 744.331(1), (2)(b), Fla. Stat. Within five days after the petition to determine incapacity is filed, the court must appoint a three-member examining committee to examine the alleged incapacitated person to determine whether the person is incapacitated. See § 744.331(3), Fla. Stat. If the majority of the committee determines that the alleged incapacitated person is not incapacitated, the court must dismiss the petition to determine incapacity. § 744.331(4), Fla. Stat.; see also Levine v. Levine, 4 So.3d 730, 731 (Fla. 5th DCA 2009); Mathes v. Huelsman, 743 So.2d 626, 627 (Fla. 2d DCA 1999). Otherwise, the case proceeds to an adjudicatory hearing for the court to determine based on clear and convincing evidence whether the person is incapacitated. § 744.331(5)—(6), Fla. Stat.

Section 744.331 provides for the payment of the examining committee fees, as follows:

(7) FEES.—
(a) The examining committee ... are entitled to reasonable fees to be determined by the court.
(b) The fees awarded under paragraph (a) shall be paid by the guardian from the property of the ward or, if the ward is indigent, by the state....
(c) If the petition is dismissed, costs and attorney’s fees of the proceeding may be assessed against the petitioner if the court finds the petition to have been filed in bad faith.

In Ehrlich v. Severson, the Fourth District reversed an order requiring the alleged incapacitated person to pay the examining committee’s fees because “the procedural statute for determining incapacity does not make the potential ward responsible for examining committee fees where the guardianship petition is dismissed or denied.” 985 So.2d 639, 640 (Fla. 4th DCA 2008) (citing section 744.331(7), Fla. Stat.). The court noted that there was a “gap” in section 744.331(7) where a good faith petition is denied or dismissed, and it urged the Legislature to amend the statute to specify who pays the examining committee’s fees in these circumstances. Id. at 640 n. 1. Although the court did not specify the party responsible for paying the examining committee fees, the court, in a subsequent decision involving the same appellant, determined under the same statute that “any award of fees incurred by counsel appointed to represent the subject must come, if at all, from the petitioner.” Ehrlich v. Allen, 10 So.3d 1210, 1211 (Fla. 4th DCA 2009) (emphasis supplied).

In Levine, the Fifth District reversed an order requiring the petitioner to pay the examining committee fees where the petition to determine incapacity was dismissed and there was no finding that the petition was filed in bad faith. See 4 So.3d at 731. The court noted that “the statute [section 744.331(7) ] has a gap in determining responsibility for payment of the examining committee fees when a good faith petition is denied or dismissed.” Id. (citing Ehrlich ). And like the court in Ehrlich, the court in Levine urged the Legislature to address the issue. Id.

We do not disagree with Ehrlich or Levine; indeed, we agree with our sister courts that there is a “gap” in section 744.331(7) that the Legislature should address. Section 744.331(7)(b) provides that the examining committee fees are to be paid from the property of the ward, but this seems to presume that the petition for incapacity is granted and a guardian is appointed. And section 744.331(7)(c) provides that the costs of the proceeding— which, presumably, include the examining committee fees — are to be paid by the petitioner only if the court finds that the petition was filed in bad faith. The “gap” in the statute is that it does not specify who pays the examining committee fees when the petition is dismissed or denied and there is no finding that the petition was filed in bad faith or, as here, there is an express finding that the petition was filed in good faith. Requiring the petitioner to pay the fees in these circumstances would be inconsistent with section 744.331(7)(c) and requiring the guardian to pay the fee from the ward’s property under section 744.331(7)(b) would not be possible if a guardian is never appointed; however, someone has to pay the fees because section 744.331(7)(a) states that the committee are “entitled to reasonable fees” and, moreover, it is unlikely that the professionals required for the examining committee would serve if there was a risk of non-payment or if the payment was dependent upon the outcome of the proceeding. Cf. Ehrlich, 985 So.2d at 640 (acknowledging that “payment of the examining committee’s fees should not be contingent on the outcome of the competency determination”).

We need not resolve the issue in this case, however, because an emergency temporary guardian was appointed for Appellant. Thus, unlike Ehrlich, where a guardianship was apparently never established for appellant because she was characterized only as a “potential ward” (see 985 So.2d at 640) or “alleged ward” (see 10 So.3d at 1211), here, Appellant was a ward during the pendency of the incapacity proceeding because an emergency temporary guardian was appointed for her. See § 744.102(22), Fla. Stat. (defining “ward” as “a person for whom a guardian has been appointed”). The examining committee fees were incurred, and ordered, while the emergency temporary guardian had legal control over Appellant’s property and, therefore, the fees were properly assessed against her under section 744.381(7)(b). For these reasons, we affirm the trial court’s order requiring Appellant to pay the examining committee fees.

AFFIRMED.

VAN NORTWICK and ROWE, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Leo C. CHEN, Ho N. Lin and Stephanie Lin, Appellants, v. WHITNEY NATIONAL BANK, Sugar Sands Estates, LLC, Karen K. Fitzpatrick; Daniel J. Fitzpatrick; Greg A. Osland; Diane M. Osland; Banktrust; And Florida Community Services Corp. of Walton County, Inc., Appellees.
    No. 1D10-5718.
    District Court of Appeal of Florida, First District.
    July 22, 2011.

      Scott M. Work of Matthews Jones <& Hawkins LLP, Destín, for Appellant.
    Brian W.' Hoffman of Carver, Darden, Koretzky, Tessler, Finn, Blossman & Ar-eaux, LLC, Pensacola, for Appellee.
   WETHERELL, J.

Leo Chen, Ho Lin, and Stephanie Lin (Appellants) appeal the summary judgment entered in favor of Whitney National Bank (Whitney) on its complaint for foreclosure and money judgment. Appellants raise a number of claims, but only one merits discussion: whether the trial court erred in granting summary judgment against Stephanie Lin in light of her affirmative defense that Whitney’s predecessor-in-interest violated the Equal Credit Opportunity Act, 15 U.S.C. § 1691 (ECOA), in securing her personal guaranty of the loan that is the subject of the complaint. We agree with Appellants that there are disputed issues of material fact on this affirmative defense and, therefore, we reverse the judgment against Stephanie Lin. We affirm the other claims raised on appeal without discussion.

Sugar Sands Estates, LLC (Sugar Sands), executed a $2.2 million promissory note to Access Bank and Mortgage, a predecessor by merger to Whitney; the note was secured by a mortgage on commercial property in Walton County. Appellants and several others personally guaranteed the loan. When Sugar Sands and the guarantors failed to make the payments due under the note, Whitney filed a complaint for foreclosure and money judgment.

Appellants answered the complaint and raised several affirmative defenses, including, as it relates to the Lins, that the guaranties were void and unenforceable because Whitney’s predecessor-in-interest discriminated against them based on their marital status in violation of ECOA. Whitney denied the affirmative defenses and moved for summary judgment. Ho Lin filed an affidavit in opposition, asserting, in pertinent part, that he “was independently credit worthy” and that his wife, Stephanie Lin, “was required by the Bank to execute identical guaranty agreements simply because she and I are married.”

The trial court granted Whitney’s motion and entered a judgment for $2,844,143.73 against Appellants and the other guarantors. The trial court also ordered the property to be sold. Appellants timely sought review of the judgment in this court.

Appellants argue on appeal that the trial court erred in granting summary judgment because there are disputed issues of material fact on their affirmative defenses. We review the trial court’s ruling de novo. See Volusia Cnty. v. Aberdeen, 760 So.2d 126, 130 (Fla.2000).

Summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Id.; Futch v. Wal-Mart Stores, Inc., 988 So.2d 687, 690 (Fla. 1st DCA 2008) (“A summary judgment is appropriate only when there is not the slightest doubt as to any issue of material fact. The facts must be viewed most favorably to appellant.”) (internal citations omitted). The party moving for summary judgment must factually refute or disprove the affirmative defenses or establish that the defenses are insufficient as a matter of law. See Bill Williams Air Conditioning & Heating, Inc. v. Haymarket Coop. Bank, 566 So.2d 52 (Fla. 1st DCA 1990); see also Fasano v. Hicks, 667 So.2d 1033, 1034 (Fla. 2d DCA 1996) (“In the absence of some proof contradicting or opposing an affirmative defense, entry of a summary judgment is improper.”).

With respect to the ECOA affirmative defense, Whitney argued below and on appeal that the defense was inadequate as a matter of law because the language of ECOA does not allow voiding a guaranty as an affirmative defense; rather, the Lins could seek only an affirmative remedy for the alleged ECOA violation. Whitney further argued that, if the defense was intended to be an affirmative claim, it was barred by the two-year statute of limitations in 15 U.S.C. § 1691e(f). Appellants argue on appeal, as they did below, that the alleged ECOA violation may be raised as an affirmative defense in an action to enforce the guaranty, even after the expiration of the statute of limitations. We agree with Appellants for the reasons that follow.

ECOA prohibits a creditor from discriminating against any applicant with respect to any aspect of a credit transaction “on the basis of race, color, religion, national origin, sex or marital status, or age....” 15 U.S.C. § 1691(a)(1) (emphasis added). To implement this prohibition, the Federal Reserve Board has promulgated the following regulation:

[A] creditor shall not require the signature of an applicant’s spouse or other person, other than a joint applicant, on any credit instrument if the applicant qualifies under the creditor’s standards of creditworthiness for the amount and terms of the credit requested.

12 C.F.R. § 202.7(d)(1). A guarantor falls within the definition of “applicant” under ECOA. See 12 C.F.R. § 202.2(e); but see Moran Foods, Inc. v. Mid-Atlantic Mkt. Dev. Co., 476 F.3d 436, 441 (7th Cir.2007) (expressing doubt that “applicant” includes a guarantor because even though the federal regulations included guarantor within the definition of applicant, the statutory term was unambiguous).

ECOA provides that an applicant aggrieved by a violation of the act may bring a federal civil action against the creditor to recover actual damages, punitive damages, and attorney’s fees. See 15 U.S.C. § 1691e(a), (b), (d). ECOA does not expressly authorize an aggrieved applicant to raise an alleged ECOA violation as an affirmative defense to a claim by a creditor on the debt, and there is a split of authority in the federal and state courts as to whether this remedy is available.

The only court in Florida to have directly considered the issue is Matsco v. Clermont Center for Comprehensive Dentistry, P.A., 2010 WL 746709 (M.D.Fla. Mar.2, 2010). In that case, the federal district court struck the defendant spouses’ affirmative defenses that Matsco, through its predecessors, violated the ECOA by having them execute personal guaranties solely in their capacity as spouses. Id. at *1. The court concluded that ECOA did not provide for the invalidation of a guaranty or the underlying obligation as an available remedy or as an affirmative defense. Id. at *3 (citing other federal district court cases).

We do not find Matsco persuasive because it did not even acknowledge the conflicting ease law, apparently because the defendant spouses in that case did not submit any decisional authority or argument to the court. Id. Indeed, there are a number of federal and state cases holding contrary to Matsco that ECOA can be used defensively after the statute of limitations has run on an affirmative claim. See, e.g., LOL Finance Co. v. F.J. Faison, Jr. Revocable Trust, 2010 WL 3118630, at *8 (citing cases from the First Circuit, Third Circuit, federal district courts, and state supreme courts), adopted by 2010 WL 3118583 (D.Minn. Aug.4, 2010). The split of authority on this issue was recently canvassed by the Iowa Supreme Court in Bank of the West v. Kline, 782 N.W.2d 453 (Iowa 2010).

The court explained in Kline that courts have “staked out three general positions” on the use of an alleged violation of the ECOA after the statute of limitations has run: (1) a debtor can only assert an ECOA violation as a counterclaim; (2) a debtor can assert an ECOA violation as an affirmative defense in the nature of recoupment; and (3) a debtor can assert an ECOA violation as an affirmative defense based on the defense of illegality. Id. at 458-61. After analyzing each position in detail, the court adopted the position allowing a debtor to assert an ECOA violation as an affirmative defense to void an obligation made in contravention to ECOA. Id. at 463.

The court reasoned that it would frustrate the purpose of ECOA and be contrary to public policy to enforce an obligation that violated ECOA, such as a guaranty required of the spouse of an independently creditworthy debtor. Id. The court further reasoned that a creditor should not benefit from its discriminatory practices and that releasing the spouse from liability under a guaranty made in violation of ECOA would deter discriminatory practices. Id. Finally, the court reasoned that allowing a guarantor to assert an ECOA violation as a defense to the creditor’s claim, even after the statute of limitations had run on an affirmative claim under ECOA, best protected victims of credit discrimination because most debtors would not know about ECOA’s provisions against discrimination until they consulted an attorney or until the creditor sought to enforce the guaranty. Id.

We find this analysis persuasive. It is also consistent with Florida law, which recognizes that the illegality of a contract may be raised as an affirmative defense. See Harris v. Gonzalez, 789 So.2d 405 (Fla. 4th DCA 2001). Similar to Iowa law discussed in Kline, the Florida Supreme Court has expressed that “where a statute pronounces a penalty for an act, a contract founded upon such act is void, although the statute does not pronounce it void or expressly prohibit it.” Town of Boca Raton v. Raulerson, 108 Fla. 376, 146 So. 576, 577 (1933).

Here, Ho Lin asserted in his affidavit that he was independently creditworthy and that his spouse, Stephanie Lin, was required to personally guarantee the loan simply because she was married to him. This affidavit raises genuine issues of material fact as to the legality of the guaranty executed by Stephanie Lin under ECOA, which, as discussed above, is a legally sufficient affirmative defense. Accordingly, the trial court erred in granting summary judgment against Stephanie Lin.

The affidavit has no effect on the validity of the separate guaranty signed by Ho Lin. There is no dispute that Ho Lin would have executed the guaranty and incurred personal liability notwithstanding the alleged violation of ECOA concerning his wife. See Silverman v. Eastrich Multiple Investor Fund, L.P., 51 F.3d 28, 33 (3rd Cir.l995)(noting that if a spouse’s guaranty is voided, “this would not void the underlying debt obligation nor any other guaranties”); Integra Bank/Pittsburgh v. Freeman, 839 F.Supp. 326, 329-30 (E.D.Pa.1993) (explaining that an ECOA violation does not void the underlying credit transaction, but “an offending creditor should not be permitted to look for payment to parties who, but for the ECOA violation, would not have incurred personal liability on the underlying debt in the first instance” and, thus, concluding that the wife could assert a defense that the ECOA violation bars recovery from her on a guaranty but the husband could only recover any damages for the ECOA violation by way of recoupment); Still v. Cunningham, 94 P.3d 1104, 1113-15 (Alaska 2004) (affirming judgment voiding guaranty required of wife in violation of ECOA, and rejecting husband’s claim that his guaranty should also have been voided because husband’s guaranty was permissibly required); and cf. Suntrust Bank, 2010 WL 146858, at *7 (“Integra, like Silveivnan, does not absolve the applicant debtor from liability under a guaranty due to an ECOA violation; only the spouse is released from liability.”). Accordingly, the ECOA affirmative defense raised by Ho Lin was insufficient as a matter of law and did not preclude the grant of summary judgment against him.

Based upon the foregoing, we reverse the final judgment insofar as it grants summary judgment against Stephanie Lin and remand for further proceedings on her affirmative defense alleging a violation of ECOA. We affirm the grant of summary judgment in all other respects.

AFFIRMED in part; REVERSED in part; REMANDED for further proceedings.

VAN NORTWICK, and ROWE, JJ„ concur.

      . The other guarantors were Karen and Daniel Fitzpatrick, Diane and Greg Osland, Roy McCarty, and Jeanne Carter. Neither the Fitzpatricks nor the Oslands have challenged the grant of summary judgment in this appeal; they are Appellees by operation of Florida Rule of Appellate Procedure 9.020(g)(2). Whitney did not pursue its money judgment claim against Mr. McCarty and Ms. Carter because they filed bankruptcy while the case was pending below.

      . In Suntrust Bank v. Hamway, 2010 WL 146858, at *7 (S.D.Fla. Jan.ll, 2010), the court stated that an applicant debtor is not absolved from liability under a guaranty due to an ECOA violation. The discussion of ECOA was in the context of the court's ruling on a motion to dismiss the creditor’s complaint for failure to state a cause of action, id. at *5-6; the court did not consider whether the ECOA violation could be raised by the applicant debtor (or his spouse) as an affirmative defense to the complaint.

      . F.D.I.C. v. 32 Edwardsville Inc., 873 F.Supp. 1474, 1480 (D.Kan.1995) ("ECOA does not provide for the invalidation of a guaranty as a remedy for an ECOA violation, and defensive use of the ECOA in this case is therefore impermissible."); Silverman v. Eastrich Multiple Investor Fund, L.P., 857 F.Supp. 447, 453 (E.D.Pa.1994) (same); Resolution Trust Corp. v. Schonacher, 844 F.Supp. 689, 696 (D.Kan. 1994) ("courts interpreting [the ECOA] have concluded that this language does not grant courts the power to invalidate underlying obligations.”); Riggs Nat'l Bank of Washington, D.C. v. Linch, 829 F.Supp. 163, 169 (E.D.Va. 1993) (holding that ECOA violation cannot be asserted as affirmative defense); CMF Virginia Land, L.P. v. Brinson, 806 F.Supp. 90, 95 (E.D.Va.1992) (The ECOA does not "afford relief by way of an affirmative defense. A counterclaim certainly can be premised upon a violation of the ECOA, but such a violation cannot be alleged to avoid basic liability on the underlying debt.”); Diamond v. Union Bank & Trust, 776 F.Supp. 542, 544 (N.D.Okla.1991) ("[T]here is no authority, in statutory language or case law, for the proposition that a violation of the ECOA renders an instrument void.”).


author: PER CURIAM.

text:
    Carl LINEBERGER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-1162.
    District Court of Appeal of Florida, First District.
    July 22, 2011.
    Carl Lineberger, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Brooke Poland, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the order denying motion to correct illegal sentence rendered December 28, 2010, in Bay County Circuit Court case numbers 03-3235-H and 03-3236-H, is granted. Upon issuance of mandate, a copy of this opinion shall be furnished to the clerk of the lower tribunal for treatment as a notice of appeal.

VAN NORTWICK, WETHERELL, and ROWE, JJ., concur.


text:
    Charlie J. BURROUGHS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-3464.
    District Court of Appeal of Florida, First District.
    July 22, 2011.
    Charlie J. Burroughs, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

For the third time, Charlie Burroughs petitions the court for relief on the theory that his appellate counsel was ineffective for failing to challenge the sufficiency of the evidence. Burroughs’ first petition raising this claim was untimely and denied as such. His second petition was likewise untimely, failed to allege any meritorious basis for an exception to the time limitation, and in addition was determined to be impermissibly successive. Burroughs has now presented the same claim again, and as with his last petition, we determine that this claim is procedurally barred both as untimely under rule 9.141(d)(5) and imper-missibly successive under rule 9.141(d)(6)(C). Petitioner is cautioned that the filing of any further procedurally barred petitions claiming that appellate counsel was ineffective in this case may result in the imposition of sanctions, including but not limited to an order prohibiting petitioner from filing any further pro se pleadings in this court.

Petition alleging ineffective assistance of appellate counsel DENIED and DISMISSED.

VAN NORTWICK, WETHERELL, and ROWE, JJ., concur.


text:
    Billy Ray CHANCE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-3489.
    District Court of Appeal of Florida, First District.
    July 22, 2011.
    Billy Ray Chance, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

By motion mailed from his place of confinement on June 6, 2011, Billy Ray Chance seeks an enlargement of time to file a petition asserting that he was denied the effective assistance of counsel in his direct appeal. We have treated the motion as a petition alleging ineffective assistance of appellate counsel for purposes of exercising our jurisdiction in the matter.

Mandate in petitioner’s direct appeal issued on May 26, 2009. Florida Rule of Appellate Procedure 9.141(d)(5) provides that with one exception not implicated here, a petition alleging ineffective assistance of appellate counsel shall not be filed more than two years after the judgment and sentence becomes final on direct review. Thus, petitioner’s last day for timely raising a claim of ineffective assistance of appellate counsel was May 26, 2011.

In the analogous context of motions for postconviction relief under Florida Rule of Criminal Procedure 3.850, which also are subject to a two-year time limitation, a court may extend the time for filing a motion under that rule upon a showing of good cause if the request for an extension is made before the expiration of the two-year period specified in rule 3.850. See State v. Boyd, 846 So.2d 458 (Fla.2003). Assuming for present purposes that an appellate court can likewise extend the time for filing a petition alleging ineffective assistance of appellate counsel, we conclude that petitioner has nonetheless failed to demonstrate an entitlement to that relief. Petitioner’s motion was filed after expiration of the time for filing of a petition asserting that appellate counsel was ineffective, and more to the point, we conclude that petitioner has failed to establish good cause to extend the time, even if his request had been timely made.

Accordingly, petitioner’s request for an enlargement of time is denied, and to the extent his motion has been treated as a petition alleging ineffective assistance of appellate counsel, we conclude that it is procedurally barred by rule 9.141(d)(5), and deny it as such.

VAN NORTWICK, WETHERELL, and ROWE, JJ., concur.


text:
    Yeshuwa YISRAEL, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-3029.
    District Court of Appeal of Florida, First District.
    July 22, 2011.
    Nancy A. Daniels, Public Defender, and Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Magaly Rodriguez, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Yeshuwa Yisrael seeks review of his sentence for familial or custodial sexual battery. We vacate the 30-year sentence and remand for sentencing before a different judge because the trial court’s remarks before pronouncing the sentence are reasonably construed as impermissible comments on charges for which Yisrael has not been tried, amounting to a denial of due process and fundamental error.

Fundamental error occurs where a trial court considers constitutionally impermissible factors when imposing a sentence. See, e.g., Nawaz v. State, 28 So.3d 122, 124-25 (Fla. 1st DCA 2010) (finding fundamental error where trial court appeared to base sentence partly on defendant’s national origin); Jackson v. State, 39 So.3d 427 (Fla. 1st DCA 2010) (finding fundamental error where court appeared to be punishing the defendant for failure to show remorse for a crime in which he denied involvement). Consideration of pending or dismissed charges during sentencing results in a denial of the defendant’s due process rights. See Gray v. State, 964 So.2d 884 (Fla. 2d DCA 2007) (trial court improperly considered pending charges during sentencing); Seays v. State, 789 So.2d 1209, 1210 (Fla. 4th DCA 2001) (trial court improperly considered pending attempted murder charge, of which the defendant was ultimately acquitted); cf. State v. Potts, 526 So.2d 63 (Fla. 1988) (“The state through its criminal process may not penalize someone merely for the status of being under indictment or otherwise accused of a crime, as it has attempted to do here.”).

At the sentencing hearing, the trial court questioned Yisrael about two other charges for sexual battery (one pending and the other dismissed because, according to the prosecution, the victim would not testify):

THE COURT: Okay. Well, what do you have to say about yourself, about these other children too that didn’t want to testify against you, are they just lying or something?
THE DEFENDANT: Yes, Your Honor, they will lie for whatever reasons, disciplinary actions or whatever.
THE COURT: All right. So you didn’t rape these other children?
THE DEFENDANT: No, sir.
THE COURT: What about the jury found you guilty of the rape of the mid-die child, what do you have to say about that?

Shortly after questioning Yisrael, the court imposed the maximum authorized sentence of 30 years with the following additional remark on the other charges:

There [are] other victims apparently that don’t want to testify. So the Court is going to sentence you to 30 years’ Florida State Prison with mandatory court costs.

The court’s remark that there were “other victims apparently that don’t want to testify,” made immediately before pronouncing sentence, and his question to Yisrael whether he “rape[d] these other children” strongly indicate that the dismissed and pending charges were a factor in the court’s determination to impose the maximum allowable sentence.

Although the evidence in this ease may provide more than ample justification for the sentence imposed on Yisrael, and our remand in no way precludes this or some equivalent sentence, we are not convinced that the trial court would have imposed the same sentence absent consideration of these impermissible factors. We are required, therefore, to reverse the sentence and remand for resentencing before a different judge.

REVERSED and REMANDED with instructions.

VAN NORTWICK, WETHERELL, and ROWE, JJ., concur.

      . Because Yisrael asserts fundamental error during the sentencing process and not an error in the sentencing order itself, he was not required to file a motion pursuant to Florida Rule of Criminal Procedure 3.800(b) before raising fundamental error in this appeal. See Nawaz v. State, 28 So.3d at 124-25 (finding that although a defendant challenging a sentencing error must generally file a motion under rule 3.800(b) in order to raise fundamental error on appeal, the rule only applies if the alleged error is in the sentencing order; the rule does not apply to an alleged error in the sentencing process).


author: COHEN, J.

text:
    C.K., Mother of S.K., a Child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D11-482.
    District Court of Appeal of Florida, Fifth District.
    July 22, 2011.
    E. Juan Lynum of Lynum & Associates, PLLC, Orlando, for Appellant.
    Deborah Anne Schroth, Appellate Counsel, Children’s Legal Services, Department of Children and Families, Orange Park, for Appellee.
    Laura E. Lawson, Appellate Counsel, Guardian ad Litem Program, Tavares, for Guardian ad Litem Program.
   COHEN, J.

C.K., the mother of S.K., appeals the final judgment terminating her parental rights to S.K., who was originally sheltered at age fourteen months following allegations of substance abuse and domestic violence.

S.K. was adjudicated dependent in October of 2009 and a case plan was entered with a goal of reunification. Although the mother failed to complete her case plan, the father, while residing with his grandparents, was reunited with the child in August 2010 following his substantial compliance with the case plan, which included substance abuse counseling. One month later, however, the child was returned to shelter following an incident of domestic violence between the father and the paternal great-grandmother in the child’s presence. The child was twenty-seven months of age.

The Department sought termination of parental rights, alleging that both parents had failed to substantially comply with the case plan. It argued that neither parent had a stable home or source of income, neither contributed toward the child’s support, and both continued to use drugs. The father lived in a homeless shelter when he was not living on the streets. The mother had no stable residence and had almost no contact with the child.

Perhaps because of an outstanding warrant for her arrest, the mother failed to appear at the hearing, but she participated by telephone. The trial court made various findings, all of which were supported by clear and convincing evidence. The mother’s tasks under the case plan consisted of substance abuse counseling, a parenting class, a bio-psychological assessment and necessary follow-up, stable income and housing, and a co-dependency program. The mother’s compliance was negligible. Of primary concern was her lack of visitation with the child and continued drug use. As the trial court found:

[C.K.]’s case plan expired in May of 2010. It is now January of 2011, and after an additional 8 months she still has not completed, nor is she in substantial compliance with, her case plan tasks to address the issues that caused the child’s removal from her care 17 months ago. The mother has been terminated from drug treatment counseling on at least two occasions for failure to attend the meetings. She has two other children currently in the custody of relatives in Pinellas County. [C.K.]’s failure to successfully address her drug problem and complete her tasks places the child at significant risk of harm if the child is returned to her.

We find no error in the trial court’s findings.

The mother questions the Department’s failure to pursue the least restrictive means of protecting the child in the context of its efforts to assist the father in complying with his case plan. However, the father did not appeal the termination of his parental rights. The mother does not have standing to raise that issue. See Brodfuehrer v. Estate of Brodfuehrer, 833 So.2d 784, 787 (Fla. 3d DCA 2002). We conclude that there is no merit to the mother’s argument that there was insufficient evidence to terminate her parental rights.

AFFIRMED.

SAWAYA and LAWSON, JJ., concur.


author: HAWKES, J.

text:
    A.G., Father of N.G., Minor Child, Petitioner, v. FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES, Respondent.
    No. 1D11-2298.
    District Court of Appeal of Florida, First District.
    July 26, 2011.

      Lara A. Mason, Jacksonville, for Petitioner.
    Ward L. Metzger, Jacksonville, for Respondent.
   HAWKES, J.

Petitioner (the father) appeals a shelter order placing his child in the care of the maternal grandmother. The father argues the order was entered in violation of his due process rights as the trial court did not honor his right to counsel during the shelter hearing. We agree with the father and, on this basis, grant the petition for writ of certiorari.

Facts

The child who was the subject of this proceeding was born on March 29, 2011, while the mother and the father were under protective supervision, and was taken into protective custody the following day. Following the filing of a shelter petition, the trial court held a hearing on the petition during which the mother’s attorney was present but the father’s attorney was not. The trial court did not ask the father if he had secured representation. Nor did the trial court clarify whether the father wished to waive his right to counsel.

At the conclusion of the hearing, the trial court directed that the child be placed with the maternal grandmother and granted the father supervised visitation. At this point, just prior to closing the hearing, the trial court appointed counsel to represent the father in any future proceedings regarding the child.

Following the hearing, the trial court issued a shelter order adopting the allegations in the petition. The father challenged the order in a motion for rehearing in which he argued, among other things, that the trial court failed to honor his due process right to counsel at the shelter hearing. The trial court denied the motion for rehearing without comment.

The father has now filed the instant petition for writ of certiorari, requesting that the shelter order be quashed because, in part, it was entered in violation of his right to counsel. We recognize that the father has raised other arguments in his petition, but write only to address this due process violation.

Standard of Review

To obtain certiorari jurisdiction over a non-final, non-appealable order, such as the shelter order in the instant case, a petitioner must demonstrate that the order: (1) caused harm so irreparable that it cannot be remedied on appeal following final judgment; and (2) departed from the essential requirements of the law. See Dep’t of Children & Families v. L.D., 840 So.2d 432, 435 (Fla. 5th DCA 2003) (citing Belair v. Drew, 770 So.2d 1164, 1166 (Fla.2000)); see also Smithers v. Smithers, 743 So.2d 605, 606 (Fla. 4th DCA 1999). A petitioner can show irreparable harm by demonstrating either that the injury cannot be redressed in a court of law or that there is no adequate legal remedy. See Egan v. City of Miami, 130 Fla. 465, 178 So. 132, 133 (1938); Kellar v. Moore, 820 So.2d 1015, 1016 (Fla. 1st DCA 2002). A petitioner can demonstrate a departure from the essential requirements of the law by showing “that the trial court made an error so serious that it amounts to a miscarriage of justice.” State v. Smith, 951 So.2d 954, 958 (Fla. 1st DCA 2007).

The denial of the father’s right to counsel meets both prerequisites of certiorari review

Regarding the first prerequisite for cer-tiorari review, the father’s argument that he was denied the right to counsel concerns harm which will be irreparable if not immediately addressed. Assuming the father’s allegation to be true, any ensuing litigation in this dependency proceeding will be based on a denial of his due process rights. We cannot allow this to occur. See In re A.W.P., Jr., 10 So.3d 134, 135-36 (Fla. 2d DCA 2009) (finding the failure to address the right to counsel in a dependency proceeding constitutes the type of fundamental due process violation justifying a writ of certiorari).

Regarding the second prerequisite, an allegation that a trial court has violated a parent’s right to counsel during a shelter hearing constitutes a departure from the essential requirements of the law. The statutes and rules governing shelter hearings are replete with language requiring counsel at this critical stage of the dependency process:

• Section 39.013(1), Florida Statutes (2010) — requiring that all Chapter 39 hearings — including shelter hearings— be construed under the Florida Rules of Juvenile Procedure unless otherwise provided by law, and that the trial court inform parents of their right to counsel “at each stage of the dependency process”
• Florida Rule of Juvenile Procedure 8.305(b)(6)(A) (2010) — requiring that a trial court advise each parent present at shelter hearing of his/her right to counsel
• Section 39.013(9)(a), Florida Statutes (2010) — requiring the trial court at every proceeding under Chapter 39 to (1) advise parents of their right to counsel; (2) appoint counsel for indigent parents; (3) ascertain whether the right to counsel is understood; and (4) determine whether any waiver of counsel is knowing and intelligent • Section 39.402(8)(c)(2), Florida Statutes (2010) — requiring the trial court at a shelter hearing to “[i]nform the parents or legal custodians of their right to counsel to represent them at the shelter hearing [and] the right of the parents to appointed counsel”

In addition, caselaw has strictly enforced a parent’s right to counsel during all dependency proceedings. See In re A.G., 40 So.3d 908, 909 (Fla. 3d DCA 2010) (finding a due process right to counsel exists in any Chapter 39 proceeding, whether it is for dependency or termination, and regardless of whether it is for an offending parent or non-offending parent); In re A.W.P., Jr., 10 So.3d at 135-36.

Here, the trial court should have advised the father of his right to counsel and, depending on his response, should have appointed counsel or obtained a knowing and intelligent waiver before proceeding. Its failure to do so violated the father’s due process rights and constituted a clear departure from the essential requirements of the law amounting to a miscarriage of justice.

Conclusion

The father had a due process right to counsel during the shelter hearing. Because the trial court violated this right, we extend a writ of certiorari to quash the shelter order and remand the matter for further proceedings on whether the child should be detained. We emphasize that our decision addresses only the manner in which the proceeding was held, not the merits of the trial court’s findings or decision. Whether there were grounds to shelter the child should be determined on remand in a full evidentiary hearing where the parents have been afforded their right to counsel. The petition for writ of certio-rari is GRANTED.

BENTON, C.J., and ROWE, J., concur.

      . The Department has argued that the father failed to preserve arguments concerning the right to counsel as he did not request counsel during the shelter hearing. However, the statutory scheme and rule cited above indicate it is the responsibility of the trial court to ensure the parent’s right to counsel is respected, not the parent. Moreover, violations of the right to counsel are considered fundamental error which can be addressed for the first time on appeal. See State v. DiGuilio, 491 So.2d 1129, 1137 (Fla.1986) (stating "[d]enial of counsel is always harmful, regardless of the strength of admissible evidence, and can be properly categorized as per se reversible [error]”); see also Gonzalez v. State, 838 So.2d 1242, 1243 (Fla. 1st DCA 2003).


text:
    Antonio Lamar GRIFFIN, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-5986.
    District Court of Appeal of Florida, First District.
    July 26, 2011.
    Nancy A. Daniels, Public Defender, and Kathleen Stover, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Therese A. Savona, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Antonio Lamar Griffin, appeals his judgment and sentence for possession of a firearm by a convicted felon entered after he pled nolo contendere to that charge. We reverse.

After a search of his residence, appellant was charged with a trafficking offense and two counts of possession of a firearm by a convicted felon. The jury convicted him of the lesser included offense of possession, acquitted him of one of the firearms offenses and failed to reach a decision on the other. With respect to the latter, he subsequently pled nolo contendere and was given a concurrent sentence. The State concedes that it erred in charging appellant with two counts of possession of a firearm by a convicted felon. Hill v. State, 711 So.2d 1221, 1224-25 (Fla. 1st DCA 1998) (finding that double jeopardy precludes “more than one conviction for the possession at the same time of multiple firearms by a convicted felon.”). Although not raised below, appellant’s double jeopardy claim may be raised for the first time on appeal even though the conviction is the result of a plea. State v. Johnson, 483 So.2d 420, 422 (Fla.1986). Because only one conviction was permitted, and only one acquittal required, the acceptance of the plea to the second charge of possession of a firearm by a convicted felon violated double jeopardy.

REVERSED and REMANDED for further proceedings consistent with this opinion.

VAN NORTWTCK, WETHERELL, and ROWE, JJ., concur.


text:
    Todd SCHULTHEIS, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-5041.
    District Court of Appeal of Florida, First District.
    July 26, 2011.
    Todd Schultheis, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Joshua R. Heller, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Todd Schultheis appeals the order denying his motion for post-conviction relief after an evidentiary hearing. The State concedes the case must be reversed because the trial court failed to set forth findings of fact and conclusions of law either on the record or in its order denying post-conviction relief. Fla. R.Crim. P. 3.850(d) (“If an evidentiary hearing is required, the court shall ... determine the issues, and make findings of fact and conclusions of law with respect thereto.”); Thomas v. State, 954 So.2d 56, 57 (Fla. 1st DCA 2007) (“[T]he trial court erred by failing to make any findings of fact — either orally or in writing.”); see also Kornegay v. State, 826 So.2d 1081 (Fla. 1st DCA 2002).

REVERSED and REMANDED.

VAN NORTWICK, WETHERELL, and ROWE, JJ., concur.


author: MAY, C.J.

text:
    Robert ADAMS, Appellant, v. Mauricio SAAVEDRA, Appellee.
    No. 4D08-4891.
    District Court of Appeal of Florida, Fourth District.
    July 27, 2011.
    Randy Rosenblum of Freidin & Dobrin-sky, P.A., Miami, and Lauri Waldman Ross of Ross & Girten, Miami, for appellant.
    James P. Waczewski of Luks, Santaniel-lo, Perez, Petrillo, Gold & Jones, Tallahassee, for appellee.
   MAY, C.J.

The plaintiff appeals a remittitur entered after he received a favorable verdict in his claim arising from a collision between his motorcycle and a car driven by the defendant. He argues the trial court erred in remitting the verdict. We agree and reverse. In the cross-appeal, the defendant argues the trial court erred in denying his motion for new trial. We disagree and affirm the order denying his motion for new trial.

The nineteen-year-old plaintiff and his passenger were travelling eastbound on a motor scooter when they collided with a car driven by the defendant. According to the scooter passenger, the defendant backed out of his driveway, through the westbound lanes, and into the eastbound lane of traffic about three to four feet ahead of the scooter. It had been raining, and the plaintiff was unable to avoid the accident.

According to the defendant and his girlfriend, who was a passenger in the car, the accident occurred as they were turning into their driveway. The car passenger testified that the plaintiff was speeding. A neighbor and the first responder’s records contradicted the car passenger’s testimony concerning the time of the accident. In fact, the neighbor, who was sitting outside her home at the time of the accident, also conflicted with the defendant’s testimony concerning his direction of travel. Unfortunately, the neighbor only heard, but did not see, the accident.

United Auto Insurance originally filed a subrogation action for property damage against the plaintiff. The plaintiff answered and counterclaimed for personal injuries he sustained. By agreement, the case was transferred to circuit court, where the counterclaim was severed, and the caption restyled to reflect the scooter driver as the plaintiff and the car driver as the defendant.

Both parties presented testimony from accident reconstructionists. The defendant’s expert testified that the scooter’s maximum speed was 31 miles per hour, and he saw no evidence to suggest the scooter was speeding or in the westbound lane of traffic. Based on photographs, the defense expert opined that both the car and scooter were traveling eastbound and the car was in the process of making a left turn into a driveway when the collision occurred. The expert did concede, however, that the damage was also consistent with the car backing out of a driveway.

The plaintiff was taken to the hospital with swelling and bruising around the right eye. A CT scan of his face indicated a right lateral wall orbit fracture. The plaintiff also sustained a comminuted fracture of the right femur. The plaintiff underwent surgery to insert a rod in his leg, which was stabilized with locking screws. He underwent a second surgery to repair his facial fractures with a titanium plate and screws. He spent one week in the hospital, two months on bed-rest, six weeks on crutches, and underwent rehabilitation therapy.

The plaintiff is able to walk, but continues to have problems with his leg. In cold weather, he experiences a sharp, stabbing pain throughout the leg, which prevents him from engaging in sports activities. He is unable to run. Prior to the accident, the plaintiff suffered from headaches, but four to five months after the accident, he began to suffer migraines in the area of the right orbital injury. According to the mortality tables, the plaintiff is anticipated to live another 54.2 years.

Approximately a year and a half after the accident, the plaintiff was involved in another car accident where he hit the opposite side of his head. He testified the second collision did not affect the frequency or severity of his migraines.

More than a year after the first accident, and three months before the second accident, the plaintiff became employed. His employer testified that the plaintiff suffered from severe headaches during his employment. The employer observed multiple physical manifestations of the plaintiffs migraines, resulting in the plaintiff missing approximately one day a week from work.

However, the plaintiff did not report his headaches to any doctor until the day he was involved in the second accident, nearly two years after the first accident. During the defense medical expert’s evaluation, the plaintiff reported nearly constant headaches in the area of his orbital surgery.

The plaintiff returned to the facial surgeon approximately seven months after the second accident, complaining of right-sided headaches focused around the orbit and temple area. The surgeon opined there was a correlation between the facial injury and headaches, which could potentially last for years or a lifetime. The surgeon explained that the plaintiff sustained a permanent injury from the accident. Despite the surgery, his face would never be like it was before the accident. The plaintiff would need approximately fifteen thousand dollars of future medical care for the facial injury.

The defendant had the plaintiff examined by a dentist, board certified in cranial facial pain. The dentist opined the plaintiffs orbital fracture and subsequent surgery was causing the headaches. The dentist felt that the headaches were classic for the injuries sustained. The dentist considered this a soft-tissue injury that might be reduced by injections at a future cost of two thousand dollars, but there was no guarantee the injections would be effective.

A neurologist retained by the defense also examined the plaintiff. The neurologist opined that the plaintiffs headaches were not causally related to the accident. Nevertheless the neurologist conceded the plaintiff suffered trauma, lost consciousness, and amnesia — all relevant signs of a severe head injury.

The plaintiffs orthopedic surgeon opined that he had suffered a permanent injury to his right leg and that fractures of the femur do not heal exactly the same as before the accident. The defense expert found the victim suffered five-percent impairment to his body from the leg fracture, but he found no functional limitation. He agreed that the plaintiffs past medical expenses were reasonable, necessary, and related to the accident.

The jury returned a special interrogatory verdict in favor of the plaintiff, finding the defendant was negligent and one hundred percent at fault. It awarded the plaintiff $18,992.86 in past medical expenses, $1,595.00 in past lost earnings, and $45,000.00 for future medical expenses. The jury also found the plaintiff sustained a permanent injury and awarded $200,000.00 in past, and $375,000.00 in future, pain and suffering. The total amount of the award was $640,587.56.

Following the verdict, the plaintiff sought entry of a final judgment. The defendant moved for a new trial, mistrial, judgment in accordance with the motion for directed verdict, and remittitur. The plaintiff acknowledged the award of future medical expenses was too high and should be reduced to $17,000.00, but opposed any remittitur for the intangible damage awards. The court denied the defendant’s motions for new trial, mistrial, and renewed motion for directed verdict. It remitted the award of future medical expenses to $17,000 per agreement, and also remitted the intangible damage awards by forty percent. The plaintiff rejected the remittitur and filed this appeal. The defendant cross-appealed the order denying the defendant’s motion for new trial.

After the appeal was filed, the defendant sought and obtained an order relinquishing jurisdiction to the trial court to articulate findings in support of the remittitur. The trial court rendered an order with the following findings:

(a) the amount awarded is indicative of prejudice or compassion on the part of the jury not necessarily against the parties but against Defendant’s counsel;
(b) it appeared to this court that the trier of fact misconceived the merits of the case relating to the amounts of damages recoverable, including but not limited to the long duration of the Plaintiff in seeking medical treatment for such damages; (c)the amount awarded did not bear a reasonable relation to the amount of damages proved and the injury suffered.

The plaintiff supplemented the record to include, among other things, the order entered during relinquishment.

We review orders of remittitur for an abuse of discretion. Weinstein Design Grp., Inc. v. Fielder, 884 So.2d 990, 1002 (Fla. 4th DCA 2004).

The plaintiff argues the record does not support, and the trial court failed to make, the requisite findings to support the entry of a remittitur. The defendant responds that the plaintiff cannot demonstrate an abuse of the trial court’s discretion. Further, the defendant suggests that any argument concerning the lack of findings in the original remittitur is now moot because of the order entered during the relinquishment period. We find not only the original remittitur failed to contain the requisite findings, but the record does not support, and the order entered on relinquishment fails to justify, a remittitur in this case.

Section 768.74, Florida Statutes (2010), governs remittiturs and additurs.

(1) In any action ... it shall be the responsibility of the court, upon proper motion, to review the amount of [an] award to determine if such amount is excessive or inadequate in light of the facts and circumstances which were presented to the trier of fact.
(2) If the court finds that the amount awarded is excessive or inadequate, it shall order a remittitur or additur, as the case may be.
(5) In determining whether an award is excessive or inadequate in light of the facts and circumstances presented to the trier of fact and in determining the amount, if any, that such award exceeds a reasonable range of damages or is inadequate, the court shall consider the following criteria:
(a) Whether the amount awarded is indicative of prejudice, passion, or corruption on the part of the trier of fact;
(b) Whether it appears that the trier of fact ignored the evidence in reaching a verdict or misconceived the merits of the case relating to the amounts of damages recoverable;
(c) Whether the trier of fact took improper elements of damages into account or arrived at the amount of damages by speculation and conjecture;
(d) Whether the amount awarded bears a reasonable relation to the amount of damages proved and the injury suffered; and
(e) Whether the amount awarded is supported by the evidence and is such that it could be adduced in a logical manner by reasonable persons.

§ 768.74, Fla. Stat. (2010). Trial courts are required to state their reasons justifying a remittitur. Winn-Dixie Stores, Inc. v. Robinson, 472 So.2d 722, 725 (Fla.1985) (citing Wackenhut Corp. v. Canty, 359 So.2d 430, 434 (Fla.1978)).

Here, the motion for remittitur spoke in general “buzz” words: “grossly excessive,” “contrary to the manifest weight of the evidence,” “shocks the judicial conscience,” and “clearly demonstrates that the jury was unduly influenced by passion or prejudice.” The motion contained virtually no facts to support those characterizations with the exception that it claimed the plaintiff had failed to establish that his headaches were caused by the accident or the amount of future medical expenses. The original order of remittitur failed to include any reason for its entry.

On relinquishment, the trial court entered a new order. It too repeated the “buzz” words, but did not give much more factual support for its conclusions. The order, while offering only conclusory justifications, found the verdict reflected: (1) prejudice against defense counsel; (2) the jury misconceived the case because the plaintiff took a long time to seek medical treatment; and (3) the verdict did not bear a reasonable relation to the damages proved. Noticeably absent from the order was any factual basis for those findings. The conclusions merely mimicked the statutory factors, but did not provide record support for the remittitur.

At various times throughout the trial, plaintiffs counsel objected to certain strategies and tactics of defense counsel resulting in the trial court’s admonishment of the attorney, but the record fails to reflect the existence of jury prejudice against defense counsel. While the plaintiff may have taken some time to seek medical treatment for his migraines, he was otherwise immediately treated and underwent two surgeries to repair the facial and leg fractures. Experts testified to the plaintiffs migraines having been caused by the facial injury. Other testimony reflected the effect of the plaintiffs injuries on his ability to enjoy life. And, plaintiffs counsel stipulated to the only jury finding that was unsupported by record evidence — future medical expenses — which was reduced to $17,000 by agreement.

Neither the motion for remittitur nor defense counsel’s argument at the post-trial hearings provided any factual support for a remittitur of the intangible damages found by the jury. On the contrary, the record supported the jury’s verdict. “In tort cases damages are to be measured by the jury’s discretion. The court should never declare a verdict excessive merely because it is above the amount which the court itself considers the jury should have allowed.” Ashcroft v. Calder Race Course, Inc., 492 So.2d 1309, 1314 (Fla.1986). “A jury is accorded wide latitude in determining the amount of non-economic damages.” Hendry v. Zelaya, 841 So.2d 572, 575 (Fla. 3d DCA 2003). The verdict should not be disturbed “unless the record affirmatively shows the impropriety of the verdict or there is an independent determination by the trial judge that the jury was influenced by considerations outside the record.” Kaine v. Gov’t Emps. Ins. Co., 735 So.2d 599, 600-01 (Fla. 3d DCA 1999).

There simply is no justification for this remittitur. The trial court abused its discretion in ordering the remittitur. We reverse and remand the case for entry of a final judgment in accordance with the jury’s verdict, excluding the stipulated amount in future medical expenses with “all interest ... computed from the date of the verdict.” Green v. Rety, 616 So.2d 433, 435 (Fla.1993).

Reversed and Remanded.

DAMOORGIAN and CONNER, JJ., concur.

      . Because we reverse the remittitur, the plaintiffs argument concerning the manner in which the order was entered is moot.


author: VILLANTI, Judge.

text:
    Pedro F. LAURENCIO; Esteves Pedro a/k/a Adelaida Laurencio; Accredited Home Lenders, Inc., Successor by Merger to Aames Funding Corporation d/b/a Aames Home Loan; City of Cape Coral; Tenant # 1 n/k/a Adalaeida Laurencio; and Tenant # 2 n/k/a Pedro Laurencio, Appellants, v. DEUTSCHE BANK NATIONAL TRUST COMPANY, as Indenture Trustee of the Aames Mortgage Investment Trust 2005-1, Appellee.
    No. 2D10-2448.
    District Court of Appeal of Florida, Second District.
    July 27, 2011.
    Jon B. Lindeman, Jr., Carlos M. Ferrey-ros, Carlos D. Grande, and Jennifer N. Hernandez of Advocate Law Groups of Florida, P.A., Miami Lakes, for Appellants Pedro F. Laurencio and Esteves Pedro.
    No appearance for remaining Appellants.
    James John Spanolio and Erin M. Berger of Florida Default Law Group, P.L., Tampa, for Appellee.
   VILLANTI, Judge.

In this mortgage foreclosure action, Pedro F. Laurencio and Esteves Pedro appeal the trial court’s order granting summary judgment in favor of Deutsche Bank National Trust Company. Laurencio argues, among several things, that Deutsche Bank failed to meet a condition precedent to filing the complaint and filed suit prematurely, without giving them adequate notice and an opportunity to cure the alleged default. Laurencio also argues that the trial court erred in denying the motion to amend the answer and affirmative defenses. We agree on both issues and reverse.

On December 9, 2008, Deutsche Bank’s attorneys sent Laurencio a letter stating that, pursuant to the terms of the Note and Mortgage, Deutsche Bank had “accelerated all sums due and owing, which means that the entire principal balance and all other sums recoverable under the terms of the promissory Note and Mortgage are now due.” The letter stated that the amount owed was $200,715.27. The letter also informed Laurencio: “This law firm is in the process of filing a Complaint on the promissory Note and Mortgage to foreclose on real estate.” Two days later, the bank filed a mortgage foreclosure complaint and attached this letter to the complaint.

Paragraph 22 of Laurencio’s mortgage set forth presuit requirements, including a requirement that Deutsche Bank give Lau-rencio thirty days’ notice and an opportunity to cure the default prior to filing suit:

Acceleration; Remedies. Lender shall give notice to Borrower prior to acceleration following Borrower’s breach of any covenant or agreement in this Security Instrument (but not prior to acceleration under Section 18[] unless Applicable Law provides otherwise). The notice shall specify: (a) the default; (b) the action required to cure the default; (c) a date, not less than 30 days from the date the notice is given to Borrower, by which the default must be cured; and (d) that failure to cure the default on or before the date specified in the notice may result in acceleration of the sums secured by this Security Instrument, foreclosure by judicial proceeding and sale of the Property. The notice shall further inform Borrower of the right to reinstate after acceleration and the right to assert in the foreclosure proceeding the non-existence of a default or any other defense of Borrower to acceleration and foreclosure. If the default is not cured on or before the date specified in the notice, Lender at its option may require immediate payment in full of all sums secured by this Security Instrument without further demand and may foreclose this Security Agreement by judicial proceeding. Lender shall be entitled to collect all expenses incurred in pursuing the remedies provided in this Section 22, including, but not limited to, all attorneys’ fees and costs of title evidence.

(Underline emphasis added.) Clearly, Deutsche Bank’s letter did not comply with paragraph 22.

Laurencio filed a pro se answer on December 31, 2008, which did not assert any affirmative defenses. When Deutsche Bank filed a motion for summary judgment on March 11, 2009, Laurencio’s newly retained counsel filed a response in opposition to summary judgment asserting, inter aha, that Deutsche Bank had not complied with conditions precedent before filing suit because it had not complied with paragraph 22.

Laurencio changed attorneys in November 2009. On April 14, 2010, two days before the summary judgment hearing scheduled by Deutsche Bank, Laurencio’s new counsel sought leave of court to file an amended answer and affirmative defenses. Attached to the motion was a proposed amended answer and affirmative defenses which included an allegation that Deutsche Bank had improperly and prematurely accelerated the mortgage without complying with paragraph 22. Laurencio also filed an affidavit specifically asserting that Deutsche Bank had not provided notice of acceleration prior to initiating the foreclosure lawsuit.

At the summary judgment hearing Lau-rencio’s counsel raised the issue of Deutsche Bank’s improper acceleration of the mortgage. Nevertheless, the trial court denied Laurencio’s motion for leave to file an amended answer and affirmative defenses and granted summary judgment of foreclosure in favor of Deutsche Bank. This was error.

We review a summary judgment de novo. Estate of Githens ex rel. Seaman v. Bon Secours-Maria Manor Nursing Care Ctr., Inc., 928 So.2d 1272, 1274 (Fla. 2d DCA 2006). “A movant is entitled to summary judgment ‘if the pleadings, depositions, answers to interrogatories, admissions, affidavits, and other materials as would be admissible in evidence on file show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ ” Id. (quoting Fla. R. Civ. P. 1.510(c)). The moving party bears the burden of showing conclusively the absence of any genuine issue of material fact. Moore v. Morris, 475 So.2d 666, 668 (Fla. 1985). Because the trial court must draw every possible inference in favor of the nonmoving party, Estate of Githens, 928 So.2d at 1274, “summary judgment should not be granted unless the facts are so crystallized that nothing remains but questions of law,” Moore, 475 So.2d at 668.

In this case, Deutsche Bank failed to meet its summary judgment burden because the record before the trial court reflected a genuine issue of material fact as to whether Deutsche Bank had complied with conditions precedent to filing the foreclosure action. In a case with nearly identical facts, this court recently reversed a summary judgment of foreclosure. See Konsulian v. Busey Bank, N.A., 61 So.3d 1283 (Fla. 2d DCA 2011). In Konsulian, we concluded that the bank was not entitled to summary judgment because it had not established that it had met the conditions precedent to filing suit. Id. at 1285. The record in that case did not establish that the bank had given the defendant the notice which the mortgage required. Id. We reach the same conclusion in this case.

The trial court also erred in denying Laurencio’s motion for leave to file an amended answer and affirmative defenses. Leave of court to amend a pleading shall be given freely when justice so requires. Fla. R. Civ. P. 1.190(a). Public policy favors the liberal amendment of pleadings, and courts should resolve all doubts in favor of allowing the amendment of pleadings to allow cases to be decided on their merit. S. Developers & Earth-moving, Inc. v. Caterpillar Fin. Servs. Corp., 56 So.Sd 56, 62 (Fla. 2d DCA 2011). A trial court’s refusal to permit an amendment of a pleading is an abuse of discretion unless it is clear that: (1) the amendment would prejudice the opposing party, (2) the privilege to amend has been abused, or (3) the amendment would be futile. Id. at 62-63. “Courts should be especially liberal when leave to amend ‘is sought at or before a hearing on a motion for summary judgment.’ ” Gate Lands Co. v. Old Ponte Vedra Beach Condo., 715 So.2d 1132, 1135 (Fla. 5th DCA 1998) (quoting Bill Williams Air Conditioning & Heating, Inc. v. Haymarket Co-op. Bank, 592 So.2d 302, 305 (Fla. 1st DCA 1991)).

Here, the record does not show that Deutsche Bank established any of the three exceptions to amendment of pleadings. There is no basis for concluding that Laurencio abused the privilege to amend or that Deutsche Bank would be prejudiced by the amendment which alleges, inter alia, the bank’s failure to comply with its own documents. And the amendment clearly would not be futile considering the unrefuted allegations that Deutsche Bank failed to comply with conditions precedent to suit. See Wayne Creasy Agency, Inc. v. Maillard, 604 So.2d 1235, 1236 (Fla. 3d DCA 1992) (“A denial of leave to amend a pleading is an abuse of discretion where the proffered amendment indicates that a plaintiff can state a cause of action. The same holds true where a defendant demonstrates he could prevail with the assertion of a properly available defense.” (citation omitted)). Therefore, the trial court should have granted Laurencio leave to file an amended answer and affirmative defenses.

Reversed and remanded.

DAVIS and MORRIS, JJ., Concur.

      . The appellants are a married couple. For purposes of this opinion, we will refer to them as Laurencio.

      . Because we decide this appeal based on the two issues discussed in the opinion, we do not reach the merits of Laurencio’s other arguments.

      .Paragraph 18 addressed transfer or sale of the property without the lender's prior written consent and is not applicable to this case.

      . Because we decide this appeal based on the two issues discussed herein, we do not reach the merits of any of Laurencio's other affirmative defenses.


author: GERBER, J.

text:
    POSNER & SONS, INC., GMR Development Corp., and Ronald C. Posner, Appellants, v. TRANSCAPITAL BANK, a Florida corporation, Leonard E. Zedeck, P.A., and Leonard Zedeck, individually, Appellees.
    Nos. 4D09-4139, 4D09-4687, 4D10-756, 4D10-1163.
    District Court of Appeal of Florida, Fourth District.
    July 27, 2011.

      Louis C. Arslanian, Hollywood, for appellants.
    Stuart M. Gold of Sax, Willinger & Gold, Miami Lakes, for appellee Transcapital Bank.
    Richard H. Bergman of Bergman & Jacobs, P.A., Hollywood, for appellees Leonard E. Zedeck and Leonard E. Zedeck, P.A.
   GERBER, J.

In these consolidated foreclosure cases, the borrower and related parties primarily appeal from an order dismissing the borrower’s counterclaim and third-party claim for fraud against the bank and the bank’s attorney. The borrower argues that the circuit court erred by concluding that the fraud claim was barred under M/I Schottenstein Homes, Inc. v. Azam, 813 So.2d 91 (Fla.2002). We agree with the borrower and reverse in all cases.

We state the facts in favor of the borrower as pled in the four corners of its fraud claim. See Scarfone v. P.C.-Plantation, LLLP, 59 So.3d 371, 372 (Fla. 4th DCA 2011) (“This court’s review is limited to the four corners of the complaint, all facts must be accepted as true and all reasonable inferences must be drawn in favor of the pleader.”). Our review is de novo. Id.

In 2003, the borrower sought a loan from the bank to purchase a performing arts playhouse. The bank required the borrower to use the bank’s attorney to perform the title work in connection with the transaction. The borrower alleged that it dealt with the bank and the bank’s attorney during prior transactions and had no reason to believe that the bank or the bank’s attorney would be anything but forthright in this transaction.

The borrower allegedly communicated to the bank and the bank’s attorney that the borrower had no intention of purchasing the property to operate the playhouse, but instead was purchasing the property for development and investment purposes. The bank and the bank’s attorney, however, knew from the title work which the bank’s attorney performed for the transaction that the city’s original deed of the property contained a restrictive covenant requiring that the property be used as a playhouse or else title would revert back to the city.

The borrower alleged that, despite the bank’s and the bank’s attorney’s knowledge of the restrictive covenant, the bank’s attorney informed the borrower that the property could be used for development and investment purposes and that the property was not limited to use as a playhouse. In reliance on that representation, the borrower closed on the property.

Three years later, in 2006, the borrower entered into a contract to sell the property to a buyer. The city, however, filed a lawsuit to enjoin the sale based on the restrictive covenant. The borrower alleged that it first learned of the restrictive covenant when the city filed the lawsuit. Because of the lawsuit, the buyer refused to close, and the borrower lost the profit of the sale. The profit allegedly would have provided the borrower with sufficient funds to pay off the loan on the playhouse property as well as another loan which the borrower had with the bank for which the borrower had mortgaged the playhouse property and other properties.

In 2008, the borrower defaulted on the loan for the playhouse property and the loan covering the other mortgaged properties. The bank filed separate foreclosure actions against the borrower as to the playhouse property and the other mortgaged properties.

In response to the foreclosure action as to the playhouse property, the borrower filed a counterclaim and third-party claim for fraud against the bank and the bank’s attorney. In addition to the facts alleged above, the borrower alleged that: (1) the bank and the bank’s attorney misrepresented that the property could be used for development and investment purposes with the intention of inducing the borrower to close on the property; (2) the borrower relied on that misrepresentation; (3) the borrower’s reliance under all of the circumstances was reasonable; and (4) the borrower sustained damages as the proximate result of the misrepresentation. The borrower’s answer in each foreclosure action also contained an affirmative defense alleging that the borrower was entitled to a setoff by virtue of the matters set forth in the fraud claim.

The bank and the bank’s attorney filed separate motions to dismiss the fraud claim. Both motions argued that because the restrictive covenant was a matter of the public record in the playhouse property’s chain of title, knowledge of the restrictive covenant was imputed to the borrower. The bank’s attorney’s motion quoted the following sentence from Schottenstein: “Knowledge of clearly revealed information from recorded documents contained in the records constituting a parcel’s chain of title is properly imputed to a purchasing party, based upon the fact that an examination of these documents prior to a transfer of the real property is entirely expected.” 813 So.2d at 95.

The circuit court granted the motions. The court’s order quoted the same sentence from Schottenstein which the bank’s attorney quoted in his motion to dismiss. Because the fraud claim was the only action involving the bank’s attorney, the court entered a final judgment in favor of the bank’s attorney shortly thereafter.

The borrower filed a motion for rehearing. The borrower argued that the circuit court’s reading of Schottenstein was contrary to the supreme court’s holding. In support of that argument, the borrower quoted the following other paragraphs from Schottenstein:

... [W]e hold that the question of whether a cause of action for fraudulent misrepresentation exists where the putatively misrepresented information is contained in the public record is one of fact that should not be resolved through a motion to dismiss and the use of a bright-line rule of preclusion.
In pursuing this case-by-case consideration of the facts, courts should be mindful of the type of information that the purchaser asserts was fraudulently misrepresented. The question ... is whether the recipient of the misrepresentation is justified in relying upon its truth. For if the recipient knows that it [the statement] is false or its falsity is obvious to him, his reliance is improper, and there can be no cause of action for fraudulent misrepresentation. Thus, this factual examination is indeed a consideration of the totality of the circumstances surrounding the type of information, the nature of the communication between the parties, and the relative positions of the parties.

Id. at 94-95 (internal citations and quotations omitted).

The circuit court denied the borrower’s motion for rehearing. The court’s order referred to the same sentence from Schot-tenstein which it had quoted in the orders granting the motions to dismiss.

The borrower at that point appealed the final judgment in favor of the bank’s attorney. While that appeal was pending, the bank obtained final summary judgments of foreclosure as to the playhouse property and the other mortgaged properties. The borrower then appealed those final judgments. We consolidated the appeals.

The borrower argues that the circuit court erred by concluding that the fraud claim was barred under Schottenstein. The borrower further argues that its setoff defenses were properly alleged in each foreclosure action and that the circuit court therefore erred by entering summary final judgments of foreclosure in each action while the setoff defenses were pending.

We agree with the borrower’s arguments. Our reasoning requires a lengthy examination of Schottenstein in its full context.

In Schottenstein, the plaintiff home purchasers filed an action against the defendant developer. The purchasers asserted that the county prepared a site plan to build a school on a parcel of land near the properties which they purchased. The purchasers alleged that the site plan was on file at the county offices and that the developer knew of the site plan. The purchasers further asserted that the developer, despite knowing of the site plan, represented to them, for the purpose of inducing them to purchase the properties, that the nearby parcel was a natural preserve, and that the parcel would be left permanently in that state. The purchasers also alleged that they purchased their homes in reliance upon the developer’s false representations. When the purchasers discovered that the parcel was not going to be a natural preserve, they sued the developer. The purchasers’ complaint alleged three counts — fraud in the inducement of the contracts, rescission of the contracts, and negligent misrepresentation with respect to the contracts.

The developer filed a motion to dismiss the complaint with prejudice. The developer asserted that the purchasers had constructive notice of the site plan in the county’s public records, and thus they could not rely upon the developer’s representations regarding the parcel. The circuit court granted the motion and dismissed the action on the basis of the following statement contained in Pressman v. Wolf, 732 So.2d 356 (Fla. 3d DCA 1999): “Statements concerning public record cannot form the basis for a claim of actionable fraud.” Id. at 361.

The purchasers appealed to this court. We affirmed the dismissal of the negligence and rescission claims, but we reversed the dismissal of the fraud claim. Azam v. M/I Schottenstein Homes, Inc., 761 So.2d 1195 (Fla. 4th DCA 2000). In reaching our decision, we disagreed with the broad prohibition stated in Pressman. Id. at 1196. We instead held that “whether a fraud claim may lie with respect to statements about matters outside the property being sold, the status of which matters can be determined from a public record, is a factual question.” Id. The developer appealed our decision to the supreme court.

The supreme court approved our decision and disapproved the broad prohibition stated in Pressman. In reaching that conclusion, the court first considered its previous decisions which impacted the case, including Besett v. Basnett, 389 So.2d 995 (Fla.1980), and Gilchrist Timber Co. v. ITT Rayonier, Inc., 696 So.2d 334 (Fla. 1997). The court explained that in Besett, it “[made] clear that when faced with a choice between a fraudulently misrepresenting seller and a negligently inattentive purchaser, it would prefer to favor the negligent conduct as less objectionable than fraud.” Schottenstein, 813 So.2d at 93 (citing Besett, 389 So.2d at 998). The court also noted that in Gilchrist, it stated that the policy behind Besett “ ‘is to prohibit one who purposely uses false information to induce another into a transaction from profiting from such wrongdoing.’ ” Schottenstein, 813 So.2d at 94 (quoting Gilchrist, 696 So.2d at 336-37).

After considering its previous decisions, the court approved our decision and disapproved the broad prohibition stated in Pressman. 813 So.2d at 94. The court reasoned:

Clearly, the question of whether a cause of action for fraudulent misrepresentation exists in the instant case is one of fact that cannot be resolved based exclusively upon the parties’ pleadings. The complaint states a cause of action which is not negated by the attached exhibit. While there may be some unanswered questions, such as ... whether the purchasers’ reliance was justifiable under the totality of the circumstances, a cause of action has been stated. For these reasons, we hold that the question of whether a cause of action for fraudulent misrepresentation exists where the putatively misrepresented information is contained in the public record is one of fact that should not be resolved through a motion to dismiss and the use of a bright-line rule of preclusion.
In pursuing this case-by-case consideration of the facts, courts should be mindful of the type of information that the purchaser asserts was fraudulently misrepresented. The question, to refer back to this Court’s decision in Besett, is whether the recipient of the misrepresentation is justified in relying upon its truth. For if the recipient knows that it [the statement] is false or its falsity is obvious to him, his reliance is improper, and there can be no cause of action for fraudulent misrepresentation. Thus, this factual examination is indeed a consideration of the totality of the circumstances surrounding the type of information, the nature of the communication between the parties, and the relative positions of the parties.
In addition, we reach the decision in this case with the understanding that where recorded information which is clearly contained in the chain of title of the parcel purchased is asserted as the basis for an action for misrepresentation by the purchaser, a distinct and very different matter than the situation discussed herein exists. Knowledge of clearly revealed information from recorded documents contained in the records constituting a parcel’s chain of title is properly imputed to a purchasing party, based upon the fact that an examination of these documents prior to a transfer of the real property is entirely expected. For this reason, it may often be the case that where fraud regarding information contained in and clearly revealed through a parcel’s chain of title is alleged, reliance is not justified and a cause of action will not exist. It is also plain that there may be situations in which a party’s allegations of fraudulent misrepresentation fail to state a cause of action. Where the pleadings of the parties make it evident that reliance on the part of a purchaser was not justified as a matter of law, a trial court may certainly be correct in ruling as a matter of law that no cause of action exists.
... This Court expressly recognized in Besett that there may be cases in which the falsity of a statement is obvious, and under those circumstances no cause of action could be stated.... This situation may exist when the presence of information within a parcel’s chain of title renders certain misrepresentations so obviously false that reliance thereupon would not be justified. In this situation, it would be entirely proper for a trial court to rule against the plaintiff as a matter of law.
... In accordance with Besett, we simply hold that the trial court must always evaluate the facts of the situation before it, and resolve the issues on a case-by-case fashion.

Id. at 94-96 (emphasis added; internal citations, quotations, and footnotes omitted).

Here, it appears that the bank and the bank’s attorney relied on one sentence from Schottenstein to convince the circuit court that recorded information within a parcel’s chain of title can never form the basis of a claim of actionable fraud. However, our supreme court made no such holding in Schottenstein. While the court pointed out that recorded information contained in the chain of title is “a distinct and very different matter,” id. at 95, the court did not state that such information can never be asserted as the basis for an action for misrepresentation. Rather, the court stated in five different sentences that where fraud regarding information contained in a parcel’s chain of title is alleged, reliance may not be justified and a cause of action may not exist. Id. In other words, the information’s presence within the chain of title is merely a factor to consider and is not dispositive. Thus, the supreme court ultimately held, in accordance with Besett, that a court “must always evaluate the facts of the situation before it, and resolve the issues on a case-by-case fashion.” Id. at 95-96.

Evaluating the facts which the borrower alleged in this case, we conclude that the borrower stated a cause of action for fraud even though the restrictive covenant was contained in borrower’s chain of title. We base our conclusion on the following allegations: (1) the bank required the borrower to use the bank’s attorney to perform the title work in connection with the transaction; (2) the borrower dealt with the bank and the bank’s attorney during prior transactions and had no reason to believe that the bank or the bank’s attorney would be anything but forthright in this transaction; (3) as a result of the title work which the bank’s attorney performed, the bank and the bank’s attorney knew of the restrictive covenant; (4) despite the bank’s and the bank’s attorney’s knowledge of the restrictive covenant, the bank and the bank’s attorney informed the borrower that the property could be used for development and investment purposes; and (5) the borrower suffered damages by acting in reliance on the representation. See Butler v. Yusem, 44 So.3d 102, 105 (Fla. 2010) (“[T]here are four elements of fraudulent misrepresentation: (1) a false statement concerning a material fact; (2) the representor’s knowledge that the representation is false; (3) an intention that the representation induce another to act on it; and (4) consequent injury by the party acting in reliance on the representation”) (citation, internal quotations, and emphasis omitted).

The borrower’s allegation that the bank required the borrower to use the bank’s attorney to perform the title work may be the most important of these allegations. If the borrower proves that the bank required the borrower to use the bank’s attorney to perform the title work, then the borrower reasonably can argue to the trier of fact that it should not be imputed with knowledge of the restrictive covenant because the bank and the bank’s attorney allegedly misrepresented the results of that title work to the borrower. See Schottenstein, 813 So.2d at 93 (“[W]hen faced with a choice between a fraudulently misrepresenting seller and a negligently inattentive purchaser, [the court] would prefer to favor the negligent conduct as less objectionable than fraud.”) (citing Be-sett, 389 So.2d at 998). However, if the borrower is unable to prove that the bank required the borrower to use the bank’s attorney to perform the title work, then the bank and the bank’s attorney reasonably can argue to the trier of fact that the borrower should be imputed with knowledge of the restrictive covenant because it is “entirely expected” that the borrower should have hired its own counsel to perform the title work. Schottenstein, 813 So.2d at 95.

The bank argues that even if the borrower stated a cause of action for fraud, we should affirm on the alternative ground that the borrower released the bank from any claims when the borrower entered into loan modification agreements with the bank in 2007 and 2008. We reject this argument because it would require us to

consider other pleadings beyond the four corners of the borrower’s fraud claim. See Scarfone, 59 So.3d at 372 (this court’s review of a trial court’s decision on a motion to dismiss is limited to the four corners of the complaint).

In sum, because the borrower has stated a cause of action for fraud against the bank and the bank’s attorney, we remand for the circuit court to: (1) vacate the summary final judgment in circuit case no. 08-58831(08); (2) reinstate the borrower’s fraud claim in that action; (3) vacate the summary final judgments in circuit case nos. 08-59637(08) and 08-59638(08); and (4) stay further action in circuit case nos. 08-59637(08) and 08-59638(08) pending the resolution of the borrower’s fraud claim in circuit case no. 08-58831(08).

Reversed and remanded.

STEVENSON and GROSS, JJ„ concur.


author: TAYLOR, J.

text:
    Max MORENBERG, Appellant, v. Laura MORENBERG a/k/a Avis Morenberg, Appellee.
    No. 4D09-4216.
    District Court of Appeal of Florida, Fourth District.
    July 27, 2011.

      Mitchell Haymes of the Law Offices of Glantz & Glantz, P.A., Plantation, for appellant.
    Jeanne C. Brady of Brady & Brady, P.A., Boca Raton, and Joel H. Feldman of Feldman & Schneiderman, PL, Boca Ra-ton, for appellee.
   TAYLOR, J.

The husband, Max Morenberg, appeals the trial court’s amended final judgment of dissolution of marriage. He raises several issues on appeal, but we reverse only as to that portion of the amended final judgment which requires the husband to share with the wife royalties he earns post-dissolution from the fourth edition of his book, Doing Grammar.

On August 20, 2008, Laura Morenberg filed for divorce after nearly forty-six years of marriage to Max Morenberg. Intending for each party to receive one-half of the parties’ combined incomes, the trial court ordered the parties to equally divide all of the husband’s royalties from two books he wrote while working as an English professor. On appeal, the husband contends that the trial court abused its discretion by including in the equitable distribution plan his future book royalties, which he testified he earned after the wife filed her petition for dissolution of marriage. He argues that because he began working on the fourth edition of one of his books after his wife filed the petition for dissolution, she is not entitled to income from his post-dissolution labor.

The wife filed for divorce on August 20, 2008. The husband testified that he began working on the fourth edition of Doing Grammar sometime around December 2008 or January 2009 — a few months after his wife filed for divorce and about six months prior to the start of the trial. According to the husband, he finished the fourth edition of Doing Grammar on June 23, 2009 — one day before the trial. The wife, however, argues that there is no evidence of any post-dissolution labor concerning any of the husband’s books; rather, all of the husband’s labor occurred prior to trial and the final judgment of dissolution.

“A former spouse is not entitled to receive benefits that accrue after the dissolution of the parties’ marriage.” Rivero v. Rivero, 963 So.2d 934, 937 (Fla. 3d DCA 2007). Section 61.075, Florida Statutes (2008), provides that in a proceeding for dissolution of marriage, the court shall equally distribute the marital assets and liabilities between the parties. The statute defines “marital assets” as “assets acquired ... during the marriage, individually by either spouse or jointly by them.” This encompasses assets that have been enhanced or appreciated in value “resulting either from the efforts of either party during the marriage or from the contribution to or expenditure thereon of marital funds or other forms of marital assets, or both.” § 61.075(6)(a)1.a.—b., Fla. Stat. (2008). See also Boyett v. Boyett, 683 So.2d 1140, 1141 (Fla. 5th DCA 1996) (holding that it is not permissible for the former wife to benefit from the former husband’s labor after the divorce); Brown v. Minning, 757 So.2d 628, 630 (Fla. 5th DCA 2000) (holding that “current law provides that a spouse should not receive benefits accrued after dissolution of the parties’ marriage”).

Section 61.075(7), Florida Statutes (2008), “provides that the date of filing of the petition for dissolution is generally the latest date for identifying and classifying marital assets, but the court may value marital assets on a date that the court determines is just and equitable.” Leonardis v. Leonardis, 30 So.3d 568, 571 (Fla. 4th DCA 2010) (citing § 61.075(6), Fla. Stat. (2006); Byers v. Byers, 910 So.2d 336, 344 (Fla. 4th DCA 2005)). Here, the wife’s petition for dissolution of marriage, filed on August 20, 2008, was the “cut-off date” for determining the marital assets between the parties. Moreover, pursuant to the statute, royalties on new book editions written during the marriage would be considered a marital asset and thus divided equally, but newer editions of books written post-dissolution would not be considered a marital asset.

Here, the Amended Final Judgment for Dissolution ordered that the “Husband be required to provide documentation of all royalty payments he receives within (15) days of receipt and to provide a check to Wife for one-half of the royalties received with that documentation.” Based on the wording of the court order, the husband is required to equally share not only the royalties received from the two books he wrote and revised during the marriage, but also the royalties received on the fourth edition of Doing Grammar, which he revised after the petition for dissolution. Because the record reflects that the fourth edition of Doing Grammar was started, completed, and submitted after the petition for dissolution, any future royalties from such work should be considered income from post-dissolution labor and excluded from the income to be split with the wife. Accordingly, we reverse this portion of the amended final judgment and remand to the trial court to exclude future royalties from the fourth edition of Doing Grammar from the income to be shared with the wife.

Affirmed in part; Reversed in part and Remanded.

WARNER and CIKLIN, JJ., concur.

      . These royalties are paid twice a year and the sum royalties consist of fifteen percent of what each publisher charges the book stores. In other words, for every new edition that the husband releases, the husband receives fifteen percent of the money paid to the publisher for each new edition of the book.


author: KELLY, Judge.

text:
    Spiro Chris IOANNIDES, Appellant, v. Martha ALONZO, Appellee.
    No. 2D10-1544.
    District Court of Appeal of Florida, Second District.
    July 27, 2011.
    Spiro Chris Ioannides, pro se.
    Robert C. Rogers of Castle Law Group, P.A., Tampa, for Appellee.
   KELLY, Judge.

Spiro Chris Ioannides appeals a final summary judgment of ejectment entered in favor of Martha Alonzo. Because Ms. Alonzo did not meet her burden to establish that there was no issue of material fact and that she was entitled to judgment as a matter of law, we reverse and remand for further proceedings.

Ms. Alonzo sued in county court to evict Mr. Ioannides from a home titled in her name but occupied by Mr. Ioannides. The county court determined the action should have been brought as one for ejectment, it allowed Ms. Alonzo to amend her complaint accordingly, and then it transferred the case to the circuit court. Before Mr. Ioannides filed an answer, Ms. Alonzo moved for summary judgment. Her motion was bereft of facts, and she did not file an affidavit in support of her motion. In response, Mr. Ioannides filed an affidavit alleging facts that could have provided a defense to the action. Ms. Alonzo did nothing to refute Mr. Ioan-nides’ factual allegations. The trial court nevertheless granted Ms. Alonzo’s motion and entered a final judgment for ejectment in her favor.

“A movant is entitled to summary judgment ‘if the pleadings, depositions, answers to interrogatories, admissions, affidavits, and other materials as would be admissible in evidence on file show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ ” Estate of Githens ex rel. Seaman v. Bon Secours-Maria Manor Nursing Care Ctr., Inc., 928 So.2d 1272, 1274 (Fla. 2d DCA 2006) (citing Fla. R. Civ. P. 1.510(c)). Additionally, when, as was the case here, a plaintiff moves for summary judgment before the defendant files an answer to the complaint, the burden is on the plaintiff to establish that no answer the defendant might serve or affirmative defense he might raise could present a genuine issue of material fact. See W. Fla. Cmty. Builders, Inc. v. Mitchell, 528 So.2d 979, 980 (Fla. 2d DCA 1988). Ms. Alonzo failed to meet this burden. We therefore reverse the final summary judgment and remand to the trial court for further proceedings.

Reversed and remanded.

WHATLEY and LaROSE, JJ„ Concur.


text:
    M.Y., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-2030.
    District Court of Appeal of Florida, Third District.
    July 27, 2011.
    Carlos J. Martinez, Public Defender, and Howard K. Blumberg, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Heidi Milan Caballero, Assistant Attorney General, for appellee.
    Before RAMIREZ and SHEPHERD, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

ON CONFESSION OF ERROR

Based upon the State’s proper and commendable confession of error, we reverse the adjudication of delinquency for reckless driving and remand with directions to the trial court to vacate the adjudication of delinquency as to that offense. See Nesbitt v. State, 889 So.2d 801, 802 (Fla.2004); V.C. v. State, 63 So.3d 831 (Fla. 3d DCA 2011); S.J. v. State, 831 So.2d 1288, 1289 (Fla. 5th DCA 2002); Fla. Std. Jury Instr. (Crim.) 28.4.

Reversed and remanded with directions.