author: WARNER, J. POLEN, J.,

text:
    Roman PINO, Appellant, v. The BANK OF NEW YORK MELLON, Appellee.
    No. 4D10-378.
    District Court of Appeal of Florida, Fourth District.
    March 30, 2011.

      Enrique Nieves III and Chris T. Immel of Ice Legal, P.A., West Palm Beach, for appellant.
    Nancy M. Wallace, Katherine E. Gid-dings and William P. Heller of Akerman Senterfitt, Tallahassee and Fort Lauder-dale, for appellee.
   ON MOTION FOR CLARIFICATION

WARNER, J.

We grant the motion for clarification, withdraw our previously issued opinion and substitute the following in its place.

The defendant in a mortgage foreclosure action filed by BNY Mellon appeals a trial court’s denial of his motion under Florida Rule of Civil Procedure 1.540(b) to vacate a voluntary dismissal. The notice was filed after the defendant moved for sanctions against the plaintiff for filing what he alleged was a fraudulent assignment of mortgage. Because the notice of voluntary dismissal was filed prior to the plaintiff obtaining any affirmative relief from the court, we affirm the trial court’s order.

BNY Mellon commenced an action to foreclose a mortgage against the defendant. The mortgage attached to the complaint specified another entity, Silver State Financial Systems, as lender and still another, Mortgage Electronic Registration Systems, as mortgagee. ■ The complaint alleged that BNY Mellon owned and held the note and mortgage by assignment, but failed to attach a copy of any document of assignment. At the same time, it alleged the original promissory note itself had been “lost, destroyed or stolen.” The complaint was silent as to whether the note had ever been negotiated and transferred to BNY Mellon in the manner provided by law.

The defendant initially sought dismissal for failure to state a cause of action, arguing that in light of the claim of a lost instrument, the absence of an assignment of mortgage was a critical omission. BNY Mellon responded by amending the complaint only to attach a new unrecorded assignment, which happened to be dated just before the original pleading was filed.

In response to this amendment, defendant moved for sanctions. He alleged that the newly produced document of assignment was false and had been fraudulently made, pointing to the fact that the person executing the assignment was employed by the attorney representing the mortgagee, and the commission date on notary stamp showed that the document could not have been notarized on the date in the document. The defendant argued that the plaintiff was attempting fraud on the court and that the court should consider appropriate sanctions, such as dismissal of the action with prejudice. Concurrent with the filing of this motion, the defendant scheduled depositions of the person, who signed the assignment, the notary, and the witnesses named on the document — all employees of Florida counsel for BNY Mel-Ion — for .the following day. Before the scheduled depositions, BNY Mellon filed a notice of voluntary dismissal of the action.

Five months later, BNY Mellon réfiled an identical action to foreclose the same mortgage. The new complaint no longer claimed the note was lost and attached a new assignment of mortgage dated after the voluntary dismissal. In the original, dismissed action, the defendant filed a motion under rule 1.540(b), seeking to strike the voluntary dismissal in the original action on the grounds of fraud on the court and for a dismissal of the newly filed action as a consequent sanction, requesting an evidentiary hearing. The trial court denied the motion without an evidentiary hearing, essentially holding that, because the previous action had been voluntarily dismissed under rule 1.420, the court lacked jurisdiction and had no authority to consider any relief under rule 1.540(b).

We affirm the trial court’s refusal to strike the notice of voluntary dismissal. Neither rule 1.540(b) nor the common law exceptions to that rule allow a defendant to set aside the plaintiffs notice of voluntary dismissal where the plaintiff has not obtained any affirmative relief before dismissal.

Rule 1.420(a) permits a plaintiff to dismiss an action without- order of the court “at any time” before a motion for summary judgment is heard or before retirement of the jury or submission to the court if the matter is tried non-jury. “Our courts have consistently construed this rule as meaning that, at any time before a hearing on ⅜ motion for summary judgment, a party seeking affirmative relief has nearly an absolute right to dismiss his entire action once, without a court order, by serving a notice of dismissal.” Ormond Beach Assocs. Ltd. v. Citation Mortg., Ltd., 835 So.2d 292, 295 (Fla. 5th DCA 2002); see also Meyer v. Contemporary Broadcasting Co., 207 So.2d 325, 327 (Fla. 4th DCA 1968). The courts have carved out narrow exceptions to this entitlement:

The only recognized common law exception to the broad scope of this rule is in circumstances where the defendant demonstrates serious prejudice, such as where he is entitled to receive affirmative relief or a hearing and disposition of the case on the merits, has acquired some substantial rights in the cause, or where dismissal is inequitable. See Romar Int’l, Inc. v. Jim Rothman Chevrolet/Cadillac, Inc., 420 So.2d 346 (Fla. 5th DCA 1982); Visoly v. Bodek, 602 So.2d 979 (Fla. 3d DCA 1992).

Ormond, 835 So.2d at 295. In Visoly, the court granted a motion to strike the complaint as a sham. Finding that rule 1.150(a) operated much like a motion for summary judgment, the court concluded that the plaintiff could not voluntarily dismiss his complaint pursuant to rule 1.420(a) where the tidal court had granted the motion to strike, which was equivalent to the granting of a motion for summary judgment.

The most applicable common law exception to the right to a voluntary dismissal was applied in Select Builders of Florida, Inc. v. Wong, 367 So.2d 1089 (Fla. 3d DCA 1979). There, the court affirmed the trial court’s striking of a notice of voluntary dismissal where the plaintiff sought to perpetrate a fraud by the filing of the notice of voluntary dismissal. Select Builders had filed suit to expunge an injunction against a condominium developer, granted in Federal Court in Illinois, and improperly filed in the public records of Dade County. The trial court issued an order expunging the document and enjoining the filing of any other like documents without domesticating the judgment in Florida. Latex*, it was discovei*ed that Select Builders had perpetrated a fraud upon the court in obtaining the order expunging the document. The trial court vacated its prior order, and the appellees moved for sanctions and fees. The court also ordered Select Builders to take steps to preserve the status quo and to make payment of monies it received in connection with the sale of some of the property subject to the injunction to a third party. Select Builders then filed a notice of voluntary dismissal, which the trial court struck to retain jurisdiction over the case.

The appellate court affirmed, concluding that the court correctly retained jurisdiction to prevent a fraud on the court. “The plaintiff had obtained the affirmative relief it sought, its actions in the cause in the trial court may have been fraudulent on the court and it certainly was within its inherent power (as an equity court) to protect its integrity.” Id. at 1091. The court distinguished other cases in which the plaintiffs right to take a voluntary dismissal was deemed absolute: “First, the plaintiff in the cited cases had not received affirmative relief from an equity court and, secondly, no question of fraud on the court was involved.” Id.

In Select Builders the plaintiff obtained affirmative relief by the granting of the suspect injunction, and it had obtained such relief by fraud. Comparing the facts of Select Builders to this case, we find that the BNY Mellon had not obtained any type of affirmative relief. Even if the assignment of mortgage was “fraudulent” in that it was not executed by the proper party, it did not result in any relief in favor of BNY Mellon. Select Builders is thus distinguishable from the present case. In Bevan v. D’Alessandro, 395 So.2d 1285, 1286 (Fla. 2d DCA 1981), the court likewise distinguished Select Builders on the grounds that the “plaintiff had received affirmative relief to which he was not entitled and sought to avoid correction of the trial court’s error by taking a voluntary dismissal.” No such circumstance is present in this case.

The appellant argues that rule 1.540(b) also provides a method to seek relief from a notice of voluntary dismissal. We disagree that the defendant/appellant may utilize that rule where the defendant has not been adversely affected by the voluntary dismissal. Rule 1.540(b) allows a court to relieve a party from a “final judgment, decree, order, or proceeding” based upon any of five grounds set out in the rule: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence; (3) fraud or other misconduct of an adverse party; (4) that the judgment or decree is void; or (5) that the judgment or decree has been ■ satisfied or released. A notice of voluntary dismissal constitutes a “proceeding” within the meaning of the rule. See Miller v. Fortune Ins. Co., 484 So.2d 1221, 1224 (Fla.1986). Therefore, the rule may be invoked, even though for all other purposes the trial court has lost jurisdiction over the cause. Id. Indeed, in Shampaine Industries, Inc. v. South Broward Hospital District, 411 So.2d 364, 368 (Fla. 4th DCA 1982), approved by the supreme court in Miller, we held: “Rule 1.540(b) may be used to afford relief to all litigants who can demonstrate the existence of the grounds set out in the Rule.”

The rule, however, is limited to relieving a party of a judgment, order or proceeding. “Relieve” means “[t]o ease or alleviate (pain, distress, anxiety, need, etc.) ... to ease (a person) of. any burden, wrong, or oppression, as by legal means.” The Random House Dictionary of the English Language 1212 (1967). A defendant may obtain such “relief’ when a plaintiff has obtained a ruling that has adversely impacted the defendant. Here, the defendant has not been adversely impacted by a ruling of the court. The fact that a defendant may have incurred attorney’s fees and costs is not an adverse impact recognized as meriting relief. See Serv. Experts, LLC v. Northside Air Conditioning & Elec. Serv. Inc., 2010 WL 4628567 (Fla. 2d DCA 2010),. Therefore, because the defendant has not suffered an adverse ruling or impact from the notice of voluntary dismissal, he is not entitled to seek relief pursuant to the rule.

The dissent is certainly correct that a court possesses the authority to protect judicial integrity in the litigation process. However, the cases cited in support of a court exercising such authority all involved the court granting a motion for involuntary dismissal where the plaintiff had engaged in deceitful conduct during a still pending case. See Ramey v. Haverty Furn. Co., 993 So.2d 1014, 1020 (Fla. 2d DCA 2008); McKnight v. Evancheck, 907 So.2d 699, 700 (Fla. 4th DCA 2005); Morgan v. Campbell, 816 So.2d 251, 253 (Fla. 2d DCA 2002). In each of those proceedings, the defendant moved for the sanction of .dismissal of an ongoing proceeding based upon “fraud on the court.” That term has been described as follows:

A “fraud on the court” occurs where it can be. demonstrated, clearly and convincingly, that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate a matter by improperly influencing the trier or unfairly hampering the presentation of the opposing party’s claim or defense.

Aoude v. Mobil Oil Corp., 892 F.2d 1115, 1118 (1st Cir.1989). Dismissal is a remedy to be used only in the most extreme cases, as “[gjenerally speaking, ... allegations of inconsistency, nondisclosure, and even falseness, are best resolved by allowing the parties to bring them to the jury’s attention through cross examination or impeachment, rather than by dismissal of the entire action.” Granados v. Zehr, 979 So.2d 1155, 1158 (Fla. 5th DCA 2008) (emphasis added).

Here, we do not view it as an appropriate exercise' of the inherent authority of the court to reopen a ease voluntarily dismissed by the plaintiff simply to exercise that authority to dismiss it, albeit with prejudice. Only in those circumstances where the defendant has been seriously prejudiced, as noted in Romar International, should the court exercise its inherent authority to strike a notice of voluntary dismissal. The defendant in this case does not allege any prejudice to him as a result of the plaintiffs voluntary dismissal of its first lawsuit. Indeed, he may have benefitted by forestalling the foreclosure.

The appropriate procedure is to follow Rule 1.420. Upon the voluntary dismissal, Pino would be entitled to his costs and possibly his attorney’s fees. See Fleet Servs. Corp. v. Reise, 857 So.2d 273 (Fla. 2d DCA 2003). The court can require payment as a precondition to the second suit. See Fla. R. Civ. P. 1.420(d). Moreover, a referral of the appellee’s attorney fór a violation of the Code of Professional Responsibility for filing the complaint with the alleged false affidavit is in order.

We conclude that this is a question of great public importance, as many, many mortgage foreclosures appear tainted with suspect documents. The defendant has requested a denial of the equitable right to foreclose the mortgage at all. If this is an available remedy as a sanction after a voluntary dismissal, it may dramatically affect the mortgage foreclosure crisis in this State. Accordingly we certify the following question to the Florida Supreme Court as of great public importance:

DOES A TRIAL COURT HAVE JURISDICTION AND AUTHORITY UNDER RULE 1.510(b), Fla. R. Civ. P., OR UNDER ITS INHERENT AUTHORITY TO GRANT RELIEF FROM A VOLUNTARY DISMISSAL WHERE THE MOTION ALLEGES A FRAUD ON THE COURT IN THE PROCEEDINGS BUT NO AFFIRMATIVE RELIEF ON BEHALF OF THE PLAINTIFF HAS BEEN OBTAINED FROM THE COURT?

Affirmed.

GROSS, C.J., STEVENSON, TAYLOR, MAY, DAMÓORGIAN, CIKLIN, GERBER, LEVINE and CONNER, JJ„ concur.

HAZOURI, J., recused.

POLEN, J., dissents with opinion.

POLEN, J.,

dissenting.

Rule 1.420(a)(1) allows a plaintiff to voluntarily dismiss a case simply by serving a notice at any time before trial or hearing on summary judgment. Initially in Randle-Eastern Ambulance Service v. Vasta, 360 So.2d 68 (Fla.1978), the court held that such a dismissal took the case out of the power of the court for all purposes, explaining:

“The right to dismiss, one’s own lawsuit during the course of trial is guaranteed by Rule 1.420(a), endowing a plaintiff with unilateral authority to block action favorable to a defendant which the trial judge might be disposed to approve. The effect is to remove completely from the court’s consideration the power to enter an order, equivalent in all respects to a deprivation of ‘jurisdiction’. If the trial judge loses the ability to exercise judicial discretion or to adjudicate the cause in any way, it follows that he has no jurisdiction to reinstate a dismissed proceeding. The policy reasons for this consequence support its apparent rigidity.”

360 So.2d at 69. But later in Miller v. Fortune Insurance Co., 484 So.2d 1221 (Fla.1986), the court retreated from its statement in Randle-Eastern Ambulance about the “removing the cause] completely from the court’s consideration the power to enter an order.” Instead the Miller court specified an exception in rule 1.540(b) to the complete loss of jurisdiction from a voluntary dismissal:

“A trial judge is deprived of jurisdiction, not by the manner in which the ■proceeding is terminated, but by the sheer finality of the act, whether judgment, decree, order or stipulation, which concludes litigation. Once the litigation is terminated and the time for appeal has run, that action is concluded for all time. There is one exception to this absolute finality, and this is rule 1.540, which gives the court jurisdiction to relieve a party from the .act of finality in a narrow range of circumstances.” [e.s.]

484 So.2d at 1223. Miller explicitly held that “that Rule 1.540(b) may be used to afford relief to all litigants who can demonstrate the existence of the grounds set out under the rule.” In this case, defendant contends that the court had authority here to consider his motion for relief on the merits because he asserted a specific basis authorized by rule 1.540(b).

Rule 1.540(b)(3) provides:
“On motion and upon such terms as are just, the court may relieve a party :.. from a final judgment, decree, order, or proceeding for ... fraud (whether ... intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party.” [e.s.]

In Select Builders of Florida v. Wong, 367 So.2d 1089 (Fla. 3d DCA 1979), the Third District agreed that rule 1.540(b) affords a basis to strike a notice of voluntary dismissal filed to avoid sanctions for relief from the dismissal on account of fraudulent conduct. In explaining its decision, the court noted that in that instance “plaintiff had obtained the affirmative relief it sought, its actions in the cause in the trial court may have been fraudulent on the court and it certainly was within its inherent power (as an equity court) to protect its integrity.” 367 So.2d at 1091. I do not read Select Builders to explicitly hold that “affirmative relief’ is required to establish grounds under' rule 1.540(b) for relief from a voluntary dismissal done to prevent examination into an attempted fraud on the court.

In U.S. Porcelain, Inc. v. Breton, 502 So.2d 1379 (Fla. 4th DCA 1987), we tacitly recognized the Select Builders exception but found it inapplicable where “[t]here are no findings nor conclusions in this case of fraud, deception, irregularities, nor any misleading of the court.” 502 So.2d at 1380. Our agreement with the holding in Select Builders evinces no attempt to narrow the exception to traditional common law fraud, indeed adding as other forms of fraudulent conduct “deception, irregularities, [ ] or any misleading of the court.” [e.s.]

The fact that the fraud exception applied in Select Builders is now commonly recognized as valid under Miller v. Fortune Insurance is seen in the following exposition on the subject from the standard Florida legal encyclopedia:

“In exercising its inherent power to protect its integrity, the trial court is authorized to reinstate a matter and retains jurisdiction over the cause, in order to prevent a fraud on the court, where it appears the plaintiff has perpetrated fraud upon the court to obtain a voluntary dismissal. The original jurisdiction over the dismissed cause first acquired continues for the purpose of entertaining and deciding all appropriate proceedings brought to reopen the case, either by means of an independent equity suit directed against the fraudulently induced order or judgment to have it set aside or by means of a direct motion filed in the case itself praying that the order of dismissal be vacated and the cause returned to the docket of pending cases.”

1 Fla.Jur.2d, Actions § 231 (citing Select Builders); see also Roger A. Silver, The Inherent Power Of The Florida Courts, 39 U. Miami L. Rev. 257, 287 (1985) (“Florida courts have ... inherent power ... to strike a voluntary dismissal” (citing Select Builders)); Henry P. Trawick Jr., Trawicic’s Florida Practice & Procedure § 21:2 (citing Select Builders); 25 Trial Advocate Quarterly 22, 23 (discussing Select Builders). All the texts base the court’s authority to grant relief on the inherent power of the judges to protect the integrity of the court system in the litigation process.

In opposing defendant’s motion for relief under rule 1.540(b), BNY Mellon relies on Bevan v. D’Alessandro, 395 So.2d 1285 (Fla. 2d DCA 1981). There the court recognized the fraud exception to the voluntary dismissal rule but held it inapplicable where plaintiff did not obtain any relief and the act of filing the voluntary dismissal did not actually rise to the level of a fraud on the court. BNY Mellon argued that, similarly, it had obtained no relief or benefit at that point in the action from the filing of the revised assignment. In denying defendant’s motion for relief under rule 1.540(b), the trial judge appeared to rely heavily on Bevan and that argument of BNY Mellon. Curiously neither Bevan nor BNY Mellon makes any attempt to argue why, as a matter of simple jurisprudence, courts should be precluded from scrutinizing the use of a voluntary dismissal after an unsuccessful attempt to deceive, mislead or defraud a court by producing and filing spurious documents and instruments on which to base a claim in suit.

It is apparent to me that BNY Mellon actually did achieve some benefit by its dismissal. In voluntarily .dismissing the case at that point, it thereby avoided the scheduled depositions of the persons who might have direct knowledge of an attempted fraud on the court. In fact, it is fair to conclude that the only purpose in dismissing was to shelter its agents from having to testify about the questionable documents. It continued to use the voluntary dismissal to stop the trial court from inquiring into the matter, arguing the absence of jurisdiction to do so. To the extent that Miller v. Fortune Insurance can be read to require, as a precondition to relief under rule 1.540(b) from a voluntary dismissal, that the false document benefited the filer in some way, we conclude that any necessary benefit has been shown in this case.

Nor do I find the recent decision in Service Experts LLC v. Northside Air Conditioning & Electrical Service, 56 So.3d 26 (Fla. 2d DCA 2010), apposite to the issue in this case. There, plaintiff filed a voluntary dismissal of the action “after almost two years of litigation, after [defendants] served offers of judgment, after the close of discovery, and after [defendants] moved for summary judgment.” 56 So.3d 26 at 28. Defendants moved under rule 1420 to strike the voluntary dismissal, arguing that earlier in the case plaintiff had filed “fraudulent affidavits.” The trial court did not determine whether a fraud on the court had occurred. Instead it found that defendants had satisfied the common law exception to rule 1.420 allowing for voluntary dismissals by showing they “acquired substantive rights in the outcome of [the] matter by the filing of the motion for summary judgment, by making offers of judgment and by setting forth convincing allegations of fraud, all of which would be lost if the dismissal without prejudice were allowed to stand.” 56 So.3d 26 at 28. Accordingly, it gave the parties the option of going to trial or scheduling an evidentiary hearing on whether there had actually been any fraud on the court. Plaintiff thereupon appealed that order on the grounds that it infringed its right of voluntary dismissal. Because Service Experts is obviously based solely on rule 1.420, rather than on a showing of fraud for relief under rule 1.540(b), it is not dispositive of the issue presented in this case.

But, in any event, I disagree with Select Builders, Bevan and Service Experts to the extent of any holding that affirmative relief or even some other benefit is necessary for relief from a voluntary dismissal filed after an attempted fraud on the court has been appropriately raised. Nothing in the logic of Miller v. Fortune Insurance allowing rule 1.540(b) to be used to avoid a voluntary dismissal on the grounds of fraud requires that such fraud must actually achieve its purpose. The purpose served by punishing a fraud on a court does not lie in an indispensable precondition of detrimental reliance — i.e., in successfully deceiving a court into an outcome directly resulting from fraud — but in the mere effort itself to try to use false and fraudulent evidence in a court proceeding. As with criminal law, where the failed attempt itself is an offense punished by law, the power of courts to grant relief from presenting false or fraudulent evidence and imposing sanctions is not confined solely to instances when fraud directly results in an unjust, erroneous judgment.

Indeed there are a number of reported decisions by Florida courts imposing sanctions on a party presenting false or fraudulent evidence without any affirmative relief or a final determination on the merits. See, e.g., Ramey v. Haverty Furn. Co., 993 So.2d 1014, 1019 (Fla. 2d DCA 2008) (upholding sanction of dismissal for misrepresentations in discovery about prior medical treatment “directly related to the central' issue in the case”); McKnight v. Evancheck, 907 So.2d 699, 700 (Fla. 4th DCA 2005) (affirming dismissal for fraud on the court where trial court found plaintiff “lied about his extensive medical history, which had a direct bearing on his claim for damages”); Morgan v. Campbell, 816 So.2d 251, 253 (Fla. 2d DCA 2002) (false testimony in discovery “directly related to the central issue in the case”). We are hard pressed to distinguish in substance the imposition of sanctions in those cases from the one at hand.

One federal appellate decision makes the point well. In Aoude v. Mobil Oil Corp., 892 F.2d 1115 (1st Cir.1989), the plaintiff filed a complaint based upon a bogus contract and attached that bogus document to its complaint. When the defendant became aware of the falsity of the contract sued upon, it moved to dismiss the case for the attempted fraud on court. The trial court granted the motion. When plaintiff later refiled its claim and attached the real contract, defendant again moved to dismiss, arguing that the dismissal of the first case barred the claim permanently. The trial court again granted the motion. The court of appeals affirmed both holdings. In an appeal plaintiff argued that the attempted fraud arising from the use of the bogus agreement had no effect ultimately on defendant’s ability to litigate the case or on the court’s ability to make a just decision on the merits. The court rejected the argument on appeal that the attempt to defraud the court had failed and thus could escape punishment, responding:

“The failure of a party’s corrupt plan does not immunize the defrauder from the consequences of his misconduct. When [plaintiff] concocted the agreement, and thereafter when he and his counsel annexed it to the complaint, they plainly thought it material. That being so, ‘[tjhey are in no position now to dispute its effectiveness.’ ”

892 F.2d at 1120.

So, too, BNY Mellon’s attempt to allege and file the assignment of the mortgage was undeniably based on a belief in the necessity for — and the materiality of — a valid assignment of mortgage. Defendant’s colorable showing of possible fraud in the making and filing of the assignment led to the scheduling of the depositions of those involved in making the document and the notice of depositions led directly to the voluntary dismissal to avoid such scrutiny for an attempted fraud. As Aoude forcefully makes clear, a party should not escape responsibility and appropriate sanctions for unsuccessfully attempting to defraud a court by purposefully evading the issue through a voluntary dismissal.

This issue is one of unusual prominence and importance. Recently, the Supreme Court promulgated changes to a rule of procedure made necessary by the current wave of mortgage foreclosure litigation. See In re Amendments to Rules of Civil Procedure, 44 So.3d 555 (Fla.2010). In approving one amendment, the court pointedly explained:

“[Rjule 1.110(b) is amended to require verification of mortgage foreclosure complaints involving residential real property. The primary purposes of this amendment are (1) to provide incentive for the plaintiff to appropriately investigate and verify its ownership of the note or right to enforce the note and ensure that the allegations in the complaint are accurate; (2) to conserve judicial resources that are currently being wasted on inappropriately pleaded ‘lost note’ counts and inconsistent allegations; (3) to prevent the wasting of judicial resources and harm to defendants resulting from suits brought by plaintiffs not entitled to enforce the note; and (4) to give trial courts greater authority to sanction plaintiffs who make false allegations.” [e.s.j

44 So.3d at 556. I think this rule change adds significant authority for the court system to take appropriate action when there has been, as here, a colorable showing of false or fraudulent evidence. We read this rule change as an important refutation of BNY Mellon’s lack of jurisdiction argument to avoid dealing with the issue founded on inapt procedural arcana.

Decision-making in our courts depends on genuine, reliable evidence. The system cannot tolerate even an attempted use of fraudulent documents, and false evidence in our courts. The judicial branch long ago recognized its responsibility to deal with, and punish, the attempted use of false and fraudulent evidence. When such an attempt has been colorably raised by a party, courts must be most vigilant to address the issue and pursue it to a resolution.

I would hold that the trial judge had the jurisdiction and authority to consider the motion under rule 1.540(b) on its merits and — should the court find that a party filed a false and fraudulent document in support of its claim — to take appropriate action, including (without limitation) the striking of a voluntary dismissal filed in aid of such conduct.

      . See § 673.2011(2), Fla. Stat. (2010) (if instrument is payable to an identified person "negotiation requires transfer of possession of the instrument” and endorsement by holder).

      . Notably, appellee’s attorneys on appeal, Ak-erman Senterfitt, were not involved in the proceedings giving rise to the allegations of misrepresentation and fraud upon the court.

      . This dissent was actually written by Judge Gary M. Farmer, who retired from this court December 31, 2010. As Judge Farmer can no longer participate in this matter, and since I concurred with his proposed dissent, I now adopt in total his writing. Although I thoroughly agree with this dissent, I want the record to reflect that the words are those of Judge Farmer.

      . 484 So.2d at 1224 (citing Shampaine Indus, v. S. Broward Hosp. Dist., 411 So.2d 364 (Fla. 4th DCA 1982)).

      . See also Romar Int’l., Inc. v. Jim Rathman Chevrolet/Cadillac, Inc., 420 So.2d 346, 347 (Fla. 5th DCA 1982) (recognizing “narrow exception exists where a fraud on the court is attempted [e.s.] by the filing of the voluntary dismissal'').

      . We note that Bevan was decided several years before the supreme court decided Miller v. Fortune Insurance.

      . Defendants said :that their motion to strike the notice of voluntary dismissal was not made under rule 1.540 because that rule applies to final judgments, decrees, orders, or proceedings, and the voluntary dismissal they sought to set aside was not a final judgment, decree, or order. The Second District agreed with that “procedural assessment.’’

      . See Lance v. Wade, 457 So.2d 1008, 1011 (Fla.1984) (common law fraud requires showing that defendant deliberately and knowingly made false representation actually causing detrimental reliance by the plaintiff); see also Palmas Y Bambu, S.A. v. E.I. DuPont de Nemours & Co., 881 So.2d 565, 573 (Fla. 3d DCA 2004) (when fraudulent misrepresentation is alleged direct causation can be proved only by establishing detrimental reliance).

      . See § 777.04(1), Fla. Stat. (2010) (criminalizing and punishing attempts to commit an offense prohibited by law even though the accused fails in the perpetration or is intercepted or prevented in the execution thereof); see also § 817.54 Fla. Stat. (2010) (third degree felony to — with intent to defraud — "obtain[] the signature of any person to any mortgage, mortgage note, promissory note or other instrument evidencing a debt by color or aid of fraudulent or false representation or pretenses, or obtain[] the signature of any person to a mortgage, mortgage note, promissory note, or other instrument evidencing a debt, the false making whereof would be punishable as forgery”).


source: Caselaw Access Project

author: KELLY, Judge.

license: Public Domain

text:
    Albert STEVENS, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 2D10-3978.
    District Court of Appeal of Florida, Second District.
    March 30, 2011.
   KELLY, Judge.

Albert Stevens, Jr., appeals from the order denying his motion for an extension of time to file his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. Because the order is not a final, appealable order, we dismiss the appeal. Stevens shall have sixty days after the date this opinion becomes final to file his rule 3.850 motion. The trial court can then determine the issue of timeliness and dispose of the motion on the merits, if appropriate. See Manning v. State, 28 So.3d 971, 973 (Fla. 2d DCA 2010) (holding that “when a motion for extension to file a postconviction motion is denied, the defendant should not appeal that order, but should instead file the intended motion as soon as possible, alleging the grounds for the motion to the best of the defendant’s ability and further alleging the reason why the motion is untimely”; the trial court then has discretion to dispose of the motion on the issue of timeliness or on any other dispositive issue); see also Ham v. State, 36 So.3d 189, 190 (Fla. 2d DCA 2010) (noting that the trial court’s order denying a motion for extension of time erroneously advised Ham that he could appeal that order within thirty days).

Dismissed.

DAVIS and LaROSE, JJ., Concur.


author: PER CURIAM.

text:
    In re Name Change of Imad DOUJIEJI, Appellant.
    No. 3D10-1380.
    District Court of Appeal of Florida, Third District.
    March 30, 2011.
    Gilberto R. Izquierdo, for appellant.
    Before RAMIREZ, C.J., and WELLS and CORTIÑAS, JJ.
   PER CURIAM.

This is an appeal of a denial of a Petition for Name Change filed by Imad Doujieji utilizing Florida Supreme Court Form 12.982(a). He alleges on appeal that he has satisfied all the requirements of section 68.07(3), Florida Statutes (2010). Our independent review of the record confirms this. A satisfactory background check was conducted. The trial court denied the petition without explanation and summarily denied Doujieji’s motion for reconsideration and rehearing. We reverse and remand with directions to the circuit court to grant the petition, or state a legally sufficient reason for denying same.


author: SUAREZ, J.

text:
    Kevin Robert SHIRLEY, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D10-2076.
    District Court of Appeal of Florida, Third District.
    March 30, 2011.
    Kevin Robert Shirley, in proper person.
    Pamela Jo Bondi, Attorney General, and Linda S. Katz, Assistant Attorney General, for respondent.
    Before SUAREZ, CORTIÑAS, and ROTHENBERG, JJ.
   SUAREZ, J.

Kevin Robert Shirley petitions this Court for a writ of habeas corpus alleging ineffective assistance of appellate counsel. We deny the petition. See Sheppard v. State, 17 So.3d 275 (Fla.2009).


author: TAYLOR, J.

text:
    Jason Santiago RODRIGUEZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-2146.
    District Court of Appeal of Florida, Fourth District.
    March 30, 2011.

      Carey Haughwout, Public Defender, and Ephrat Livni, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   TAYLOR, J.

Appellant Jason Santiago Rodriguez appeals his convictions and sentences for burglary of an occupied dwelling with assault or battery, kidnapping, and robbery. He contends that the trial court erred in (1) denying a motion for mistrial based on the victim’s use of the phrase “mug shots” when referring to a photo lineup and (2) admitting the prior consistent statement made by the co-defendant to the police. Because appellant failed to object when the victim first described the photos as “mug shots,” and the trial court sustained appellant’s objection to the victim’s second reference to “mug shots” and gave an appropriate curative instruction to the jury, we affirm on this point without further discussion. For the reasons explained below, we also affirm the trial court’s admission of the co-defendant’s prior consistent statement to the police.

The co-defendant, Nicole Ditullio, testified at trial and recounted how she and appellant entered the victim’s home after breaking a window. They were surprised by the victim, who returned home shortly after they arrived. Appellant ordered the victim to lie down on the floor in the living room and told her several times not to look at him. He then tied her legs with a computer cord and ransacked the home for about twenty minutes. Appellant and Ditullio took the victim’s purse, cash, jewelry, and pills. After they left, the victim managed to loosen the cord and called the police from her neighbor’s house.

Appellant and Ditullio were arrested. Ditullio gave a taped statement to Deputy Michael Tramonte of the Palm Beach County Sheriffs Office, which was consistent with her trial testimony. Before trial, she entered into a plea agreement with the state, which required her to serve four years in prison, followed by two years on probation, and to testify at trial.

During cross-examination, defense counsel questioned Ditullio about her agreement to testify against appellant in exchange for reduced sentences on lesser charges, noting particularly her avoidance of a life sentence. He also asked her about the effect of her drug usage on her ability to recall events and the fact that she was wearing the victim’s jewelry at the time of her arrest. At the end of cross-examination, defense counsel asked Ditul-lio if she had lied about anything to the police. She replied, “I don’t think I lied, I think I was quite honest.”

Deputy Tramonte testified about his investigation at the burglary scene and his arrest and interview of Ditullio. When the state sought to introduce Ditullio’s entire taped statement, defense counsel objected on the ground of hearsay. The state responded that the defense’s cross-examination suggested that Ditullio had recently fabricated her testimony based on a plea deal she made with the state. Agreeing that the state offered the witness’s prior statement to rebut an implied charge of improper influence or motive, the trial court admitted it under section 90.801(2)(b), Florida Statutes (2009).

The standard of review for the trial court’s decision to admit a prior consistent statement is abuse of discretion. Tumblin v. State, 29 So.3d 1093, 1100 (Fla.2010). Prior consistent statements are generally inadmissible to bolster or corroborate a witness’s trial testimony, as the statements are usually hearsay. Id. To be admissible, the prior consistent statement must qualify as a hearsay exception, or otherwise meet the requirements of non-hearsay under section 90.801(2)(b). Bradley v. State, 787 So.2d 732, 743 (Fla.2001). Section 90.801(2)(b) provides that “[a] statement is not hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement and the statement is: ... (b) Consistent with the declarant’s testimony and is offered to rebut an express or implied charge against the declarant of improper influence, motive, or recent fabrication.” Both elements must be met in order to qualify as non-hearsay. Peterson v. State, 874 So.2d 14, 17 (Fla. 4th DCA 2004).

Here, all the above conditions were met: Ditullio testified at trial and was subject to cross-examination concerning the statement; her statement was consistent with her trial testimony, and it was offered to rebut the defense’s suggestion, on cross-examination, that her plea agreement to a reduced sentence improperly influenced her testimony at trial. Further, Ditullio’s statement was made prior to her plea agreement, which the defense implied provided a motive to falsify. See Anderson v. State, 574 So.2d 87, 92-93 (Fla.1991) (finding that a witness’s prior consistent statements were admissible to rebut defense counsel’s suggestion that she fabricated her trial testimony after negotiating a favorable plea); Kellam v. Thomas, 287 So.2d 733, 734 (Fla. 4th DCA 1974) (explaining that the corroborating consistent statement must be shown to have been made prior to the existence of a fact said to indicate bias, interest, corruption, or other motive to falsify).

Affirmed.

WARNER and MAY, JJ., concur.


text:
    R.J. REYNOLDS TOBACCO COMPANY, Philip Morris U.S.A. Inc., and Lorillard Tobacco Company, Appellants, v. Dana E. FERRELL, individually, and Priscilla A. Ferrell, his wife, Appellees.
    No. 3D10-2823.
    District Court of Appeal of Florida, Third District.
    March 30, 2011.

      Greenberg Traurig, and Elliot H. Scherker, David Ross, Sabrina Ferris, Ju-lissa Rodriguez, Brigid F. Cech Samóle, Miami; Carlton Fields, and Benjamin Reid, Alina Alonso, and Olga M. Vieira, Miami; Jones Day, and Stephanie E. Parker, John F. Yarber, and John M. Walker, Atlanta; Carlton Fields, and Gary L. Sas-so and Joseph H. Lang, Jr., Tampa; Boies, Schiller & Flexner, and Stephen N. Zack, Steven W. Davis, Mark J. Heise, and Pedro M. Allende, Miami, for appellants.
    James Louis Ferraro, and Melissa D. Visconti and Allan B. Kaiser, for appellees.
    Before GERSTEN, WELLS, and SALTER, JJ.
   PER CURIAM.

Affirmed. Brown & Williamson Tobacco Corp. v. Young, 690 So.2d 1377 (Fla. 1st DCA 1997).


text:
    Lilian BREZINER, Appellant, v. POINT EAST THREE CONDOMINIUM CORPORATION, INC., Appellee.
    No. 3D10-3093.
    District Court of Appeal of Florida, Third District.
    March 30, 2011.
    Lilian Breziner, in proper person.
    Glazer & Associates, and Scott R. Shapiro, Hollywood, for appellee.
    Before SHEPHERD, SUAREZ, and SALTER, JJ.
   PER CURIAM.

Lilian Breziner appeals the November 15, 2010, order of the trial court granting a motion to direct appellant to show cause and to compel appellant’s compliance with the court’s final summary judgment. We affirm because there is no basis on this record to conclude that the court committed reversible error in entering this order.

We understand that the appellant’s real concern is the enforcement of the judgment requiring her to remove her pet from her condominium unit, as the continued presence of the pet violates the rules of the condominium association. However, the final summary judgment requiring the removal of the pet was not appealed. We have no jui'isdiction to consider this issue. Robinson v. City of Tampa, 573 So.2d 1024 (Fla. 2d DCA 1991).

Affirmed.


author: SHEPHERD, J.

text:
    B.S., Appellant, v. DEPARTMENT OF CHILDREN & FAMILY SERVICES, Appellee.
    No. 3D10-3383.
    District Court of Appeal of Florida, Third District.
    March 30, 2011.

      Joseph P. George, Jr., Criminal Conflict and Civil Regional Counsel, Third Region of Florida, Richard F. Joyce, Chief Assistant Regional Counsel and Kevin Coyle Colbert, for appellant.
    Karla Perkins, Appellate Counsel for the Department of Children & Families; Hillary Kambour, Appellate Counsel for the Guardian Ad Litem Program.
    Before SHEPHERD and EMAS, JJ., and SCHWARTZ, Senior Judge.
   CONFESSION OF ERROR

SHEPHERD, J.

The mother, B.S., appeals from a trial court order terminating her parental rights by “consent,” pursuant to section 39.801 (3)(d) of the Florida Statutes (2010). The statute reads as follows: .

If the person served with notice under this section fails to personally appear at the advisory hearing, the failure to personally appear shall constitute consent for termination of parental rights by the person given notice. If a parent appears for the advisory hearing and the court orders that parent to personally appear at the adjudicatory hearing for the petition for termination of parental rights, stating the date, time, and location of said hearing, then failure of that parent to personally appear at the adjudicatory hearing shall constitute consent for termination of parental rights.

§ 39.801(3)(d), Fla. Stat. (2010) (emphasis added).

At an advisory hearing held on October 18, 2010, the trial court advised B.S. a hearing for the petition for termination of parental rights was set for November 22, 2010. However, the court did not advise B.S. that if she failed to personally appear at the November 22nd hearing, her failure to appear would constitute consent to the termination of parental rights. On the hearing date, B.S. appeared by telephone from Fort Lauderdale. The Department of Children and Family Services moved for a constructive consent for B.S.’s failure to personally appear at the hearing. The trial court granted the petition for termination of parental rights, finding B.S. failed to obey the court’s October 18th order, thereby statutorily consenting to the termination.

Upon proper confession of error by the Department of Children and Family Services, we find the trial court reversibly erred by failing to provide the statutorily required warning to the mother. See § 39.801(3)(d), Fla. Stat.; J.M. v. Dep’t of Children & Families, 9 So.3d 34, 36 (Fla. 4th DCA 2009) (finding the trial court should not have entered a consent to the petition when the trial court' failed to expressly warn the mother of her required presence at the previous hearing). Accordingly, the termination of parental rights order must be reversed for a new adjudicatory hearing.

Reversed and remanded for proceedings in compliance herewith.


author: LAGOA, J.

text:
    Sandra P. CASTILLO, Appellant, v. DEUTSCHE BANK NATIONAL TRUST COMPANY, etc., Appellee.
    No. 3D11-232.
    District Court of Appeal of Florida, Third District.
    March 30, 2011.

      Jimenez, Milian & Associates and Robert R. Jimenez, for appellant.
    Smith Hiatt & Diaz and Diana B. Mat-son, Ft. Lauderdale, for appellee.
    Before SHEPHERD and LAGOA, JJ., and SCHWARTZ, Senior Judge.
   LAGOA, J.

Appellant, Sandra P. Castillo (“Castillo”), appeals from two separate orders: (1) the trial court’s order denying appellant’s motion for summary judgment; and (2) the trial court’s order granting appellee Deutsche Bank National Trust Company’s motion for summary judgment. For the following reasons we dismiss both appeals for lack of jurisdiction.

With regard to the order denying summary judgment, interlocutory appeals of non-final orders denying motions for summary judgment are not permitted under the rules of appellate procedure. See Fla. R.App. P. 9.130(a)(3); Taggart v. Morgan, 943 So.2d 250 (Fla. 3d DCA 2006).

Additionally, with regard to the order granting summary judgment, the order appealed “is merely authorization for a final judgment. It does not constitute a final judgment, nor is it an order from which an interlocutory appeal could properly lie.” Shupack v. Allstate Ins. Co., 356 So.2d 1298, 1299 (Fla. 3d DCA 1978).

Accordingly, for the reasons stated above, the appeal is dismissed for lack of jurisdiction.

Appeal dismissed.


text:
    3618 LANTANA ROAD PARTNERS, LLC, a Florida limited liability company, Appellant, v. PALM BEACH PAIN MANAGEMENT, INC., a Florida corporation, Appellee.
    No. 4D09-4294.
    District Court of Appeal of Florida, Fourth District.
    March 30, 2011.

      Robert W. Wilkins of Jones, Foster, Johnston & Stubbs, P.A., West Palm Beach, for appellant.
    Gary W. Roberts of Gary Roberts <& Associates, P.A., West Palm Beach, and James H. Calkins, III, West Palm Beach, for appellee.
   PER CURIAM.

The issue presented in this appeal is whether the trial court erred by involuntarily dismissing with prejudice appellant’s claims for eviction and breach of contract at the close of appellant’s case-in-chief. We find that the trial court erred, and we reverse.

Appellant is a partnership of several physicians who own two commercial office buildings. Dr. Rogers, one of the partners, owns appellee Palm Beach Pain Management, which is a tenant in one of the buildings under an eighty-four-month lease executed in February 2003. Under the lease, rent was due to appellant on the first day of the month, and the tenant’s failure to pay by the tenth day of the month constituted a default.

Appellee failed to pay its rent in March, April, or May 2006. Appellee eventually paid the rent for these three months in late May, but payment was tendered after the partnership exercised its remedies under the lease by declaring appellee in default, voting to accelerate appellee’s rent obligation, and seeking eviction.

The court held a non-jury trial on the eviction claim. Dr. Rogers claimed that he had a rent credit of over $18,000 from the partnership’s decision to adjust each tenant’s monthly rent retroactive to January 2005. Thus, he could not have been late in paying his rent in March or April, as the amount of the credit exceeded his rent obligation for those two months. By contrast, two other partners, Dr. Kugler and Dr. Simon, testified that the credit was to be applied as a monthly reduction rather than as a lump sum, and appellee’s obligation to tender rent on a monthly basis had not changed.

After appellant presented its evidence, appellee moved to dismiss the case involuntarily under Rule 1.420(b). The trial court found that the rent adjustment left appellee with a rent credit of over $18,720. Because the credit exceeded the amount of rent due, appellee was not late in paying its rent and appellee was not in default. The trial court concluded that it could not “accept the testimony of everybody who had a dog to fight and an interest to obtain,” and the court dismissed the case with prejudice as “a bunch of garbage.”

“We review de novo the trial court’s order on a motion to dismiss.” Wright v. Emory, 41 So.3d 290, 292 (Fla. 4th DCA 2010). Any party may move for dismissal after the plaintiff finishes presenting its evidence in a non-jury trial'. Fla. R. Civ. P. 1.420(b). “An involuntary dismissal is properly entered only where the evidence considered in the light most favorable to the non-moving party fails to establish a prima facie case.” Perez v. Perez, 973 So.2d 1227, 1231 (Fla. 4th DCA 2008). “It is inconceivable that a trial judge can fairly find for a defendant after hearing nothing more than testimony from a plaintiff establishing a prima facie case in that plaintiffs favor.” Tillman v. Baskin, 260 So.2d 509, 511-12 (Fla.1972). Thus, the trial judge may not make findings of fact and dismiss a case at this juncture “even though he is the trier of the facts.” Lake Charleston Maint. Ass’n v. Farrell, 16 So.3d 182, 185 (Fla. 4th DCA 2009) (quoting Tillman, 260 So.2d at 511).

Eviction of a non-residential tenant is governed by section 83.20, Florida Statutes. Under section 83.20(2), appellant was required to offer evidence of the following elements to establish a prima facie claim for eviction:

1) the parties had an agreement requiring the Tenant to pay the Landlord rent for the use of the property; 2) the Tenant defaulted in the payment of this rent; 3) three days’ notice requiring the payment of the rent or the possession of the property was served on the Tenant; and 4) the Tenant failed to pay the rent or deliver possession of the property within three days.

Dream Closet, Inc. v. Palm Beach Mall, LLC, 991 So.2d 910, 911-12 (Fla. 4th DCA 2008) (quoting Boudreau v. M & H Food Corp., 895 So.2d 501, 503 (Fla. 2d DCA 2005)). At trial, the first element was not in dispute. Thus, appellant was required to demonstrate appellee’s default in payment, service of notice, and a failure to cure the default.

We find that appellant presented sufficient evidence at trial to establish a prima facie claim for eviction. Appellee did not tender its March, April, or May rent to appellant by the tenth day of the month. Instead, those funds were placed into an escrow account, and appellant did not receive payment for those months until May 17. This failure was sufficient evidence of a default to allow the case to continue. The trial court’s, finding that appellee had a lump-sum credit for overpayment of its rent required the court to weigh the credibility of Drs. Rogers, Ku-gler, and Simon, who presented conflicting testimony regarding how the credit would be applied to appellee’s rent obligation. Such a weighing of witness credibility was improper at this stage.

As for notice, the parties waived their right to receive notice of the default and a demand for payment in the lease. The notice requirement is set by section 83.20(2), Florida Statutes, and may be waived by the parties in the lease if expressly stated. See A.Z.3, Inc. v. Tampa Westshore Assocs. Ltd. P’ship, 869 So.2d 42, 44 (Fla. 2d DCA 2004). Here, the lease states that, upon a default, appellant had the option “without any notice or demand” to seek eviction. We find this language a sufficient expression of the parties’ intent to waive the service of notice requirement.

Considering the evidence in the light most favorable to appellant, we find that appellant established a prima facie claim for eviction, and issues of material fact precluded involuntary dismissal of the claim. Based on the foregoing, we reverse and remand for further proceedings.

Affirmed in part, reversed in part, and remanded.

MAY, DAMOORGIAN and LEVINE, JJ., concur.

      . Appellant also challenges certain rulings made by the trial court involving appellee’s affirmative defenses. We affirm these orders without further comment.

      . As in Wright, "we suggest that the trial court, in its discretion, may recommence proceedings from the point at which the motion for involuntary dismissal was granted, provided that the same trial judge is available to hear the case on remand." 41 So.3d at 293 n. 2.


author: STEVENSON, J.

text:
    Marc Corey CHANCELOR and Marlon Chancelor, Appellants, v. BWC INVESTMENTS, a Florida corporation, and Brian Calvert, individually, James Chancelor, an individual, Linda Walden, an individual, David J. Crumbaugh and Deborah S. Crumbaugh, Appellees.
    No. 4D09-4626.
    District Court of Appeal of Florida, Fourth District.
    March 30, 2011.
    Rehearing Denied April 28, 2011.

      Marc Anthony Douthit of Douthit Law, LLC, Coral Gables, for appellants.
    Bruce A. Goodman and Ellen B. Goodman of Moore & Goodman, P.A., Fort Lauderdale, for appellees David J. Crum-baugh and Deborah S. Crumbaugh.
   STEVENSON, J.

Marc and Marlon Chancelor appeal an order denying their Rule 1.540(b) motion to vacate the final judgment entered against them. The appellants assert, as they did in their motion, that the judgment was void as to them because they were never properly served with the summons and complaint. We find merit in their argument and reverse.

In 2005 and 2006, BWC Investments and Brian Calvert were involved in litigation arising out of a real estate deal; Marc and Marlon Chancelor and their father, James Chancelor, were among the defendants in the litigation. The litigation terminated with a settlement agreement, requiring that sums of money be paid to BWC in installments. In December of 2007, BWC and Calvert filed a new lawsuit against the same defendants, including Marc and Marlon Chancelor, asserting they had breached the settlement agreement by failing to make the required payments. Several weeks later, a motion to dismiss was filed. The motion was filed by counsel and purported to be filed on behalf of all the named defendants, including James, Marc and Marlon Chancelor. Thereafter, counsel withdrew and a default and final money judgment were entered against the defendants.

Nine months later, Marc and Marlon Chancelor filed a 1.540(b) motion, seeking to vacate the final judgment as to them, asserting they were never properly served with the complaint, they had been unaware of the suit until the plaintiffs attempted to execute on the judgment, and the motion to dismiss had been filed without their knowledge or consent. Affidavits from Marc, Marlon and James Chancelor were filed, attesting that the complaint was served on James Chancelor, but, at the time, neither Marc nor Marlon Chancelor resided with their father; that neither Marc nor Marlon Chancelor had retained counsel, or authorized anyone to do so on their behalf to respond to the suit; and that James Chancelor alone had retained counsel. When, in their response, the plaintiffs continued to insist the filing of the motion to dismiss had served to waive defects in service and to permit the exercise of personal jurisdiction, the defendants filed the affidavit of the attorney who filed the motion to dismiss. Counsel attested the firm had prepared the motion “on behalf of the defendants” and the firm “spoke to, and dealt with James Chancelor, who instructed us how to proceed on behalf of the defendants in the case.” Based on this evidence, the trial court denied the motion to vacate the final judgment as to Marc and Marlon Chancelor.

We must reverse since, given the evidence presented, the trial court had no choice but to find that Marc and Marlon Chancelor were not properly served. Section 48.031(l)(a), Florida Statutes, provides that a copy of the summons and complaint may be left with anyone who is fifteen years of age or older and who lives at the defendant’s “usual place of abode.” “Usual place of abode” means “the place where the defendant is actually living at the time of service.” Shurman v. Atl. Mortg. & Inv. Corp., 795 So.2d 952, 954 (Fla.2001) (citing State ex rel. Merritt v. Heffeman, 142 Fla. 496, 195 So. 145, 147 (1940)). The affidavits filed by Marc and> Marlon Chancelor established that, while the complaint and summons were served on their father, they were not residing with him at the time of service. The plaintiffs presented no evidence to the contrary. ■

A defect in service of process and a claim of lack of personal jurisdiction must be raised in a party’s first filing in the case and the failure to raise the issue constitutes a waiver. See Fla. R. Civ. P. 1.140(b), (h); see also Scott-Lubin v. Lubin, 49 So.3d 838, 840 (Fla. 4th DCA 2010). The question here is whether the motion to dismiss filed by the attorney retained by James Chancelor served to waive defects in service and result in the court’s acquisition of personal jurisdiction over Marc and Marlon Chancelor. “Generally, there is a presumption that an attorney, as an officer of the court, is duly authorized to act for a client whom he professes to represent” and “[i]n the absence of some pleading questioning the attorney’s acts upon the ground of fraud, or otherwise, the presumption is conclusive.” Mendelsund v. Southern-Aire Coats of Fla., Inc., 210 So.2d 229, 231 (Fla. 3d DCA 1968). Where, however, a party is able to demonstrate he did not, in fact, retain counsel or authorize counsel to act on his behalf, the filings by counsel cannot support a waiver and the exercise of personal jurisdiction. See Gonzalez v. Totalbank, 472 So.2d 861 (Fla. 3d DCA 1985); Allbritton v. Stahlman, 683 So.2d 536 (Fla. 2d DCA 1996). Based on the evidence presented, that is the case here.

Marc and Marlon Chancelor attested they did not hire counsel, nor authorize their father to do so, and were unaware of the litigation until the plaintiffs attempted to execute on the judgment. James Chancelor attested that he, and he alone, had retained counsel and the attorney acknowledged the firm had spoken to, and dealt with, only James Chancelor. Under these circumstances, the filing of the motion to dismiss could not have served to waive any defects in the service of process on Marc and Marlon Chancelor and could not have served as a basis for the exercise of personal jurisdiction over them. The order denying the 1.540(b) motion to vacate the judgment as to Marc and Marlon Chancelor is thus reversed. See Miller v. Preefer, 1 So.3d 1278, 1282 (Fla. 4th DCA 2009) (recognizing a judgment entered in absence of jurisdiction over the subject matter or the person is void and may be attacked at any time).

Reversed and Remanded.

GROSS, C.J., and GERBER, J., concur.


text:
    Brandon BURKS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-2348.
    District Court of Appeal of Florida, Third District.
    March 30, 2011.
    Rehearing Denied April 20, 2011.
    Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Linda S. Katz, Assistant Attorney General, for appellee.
    Before RAMIREZ, C.J., and SHEPHERD, J, and SCHWARTZ, Senior Judge.
   PER CURIAM.

Appellant Brandon Burks argues in this appeal that defense counsel’s failure to object and move for a mistrial when the prosecutor asked the arresting officer whether the defendant made any statements when he had not, constituted ineffective assistance of counsel cognizable on direct appeal. For a claim to be cognizable on direct appeal, the ineffectiveness must be apparent on the face of the record, such that “it would be a waste of judicial resources to require the trial court to address the issue.” Blanco v. Wainwright, 507 So.2d 1377, 1384 (Fla.1987); see also Eure v. State, 764 So.2d 798, 801 (Fla. 2d DCA 2000). We do not agree that the one question and answer, although clearly improper, rises to that level, where it was never repeated nor referred to in the State’s closing argument.

Affirmed.


author: WELLS, Judge.

text:
    Jerry CAMON a/k/a/ Kevin Davis, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-2949.
    District Court of Appeal of Florida, Third District.
    March 30, 2011.

      Carlos J. Martinez, Public Defender, and Daniel Tibbitt, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Nicholas Merlin, Assistant Attorney General, for appellee.
    Before GERSTEN, WELLS, and SALTER, JJ.
   WELLS, Judge.

Jerry Camón appeals the denial of his Florida Rule of Criminal Procedure 3.850 motion. We reverse.

On December 27, 2006, while Camon’s Florida Rule of Criminal Procedure 3.170(i) motion to withdraw plea was still pending, he filed a pro se Rule 3.850 motion for post-conviction relief. Thereafter, the 3.850 motion was dismissed because denial of Camon’s 3.170(i) motion was on appeal. After the order on the 3.170(Z) motion was reversed by this court, counsel was appointed for Camón and Camon’s 3.170(Z) motion was set for hearing. See Camón v. State, 994 So.2d 491, 491-92 (Fla. 3d DCA 2008).

At that hearing, the trial court noted, “we are here on two motions,” the Rule 3.170(¿) and a Rule 3.850 motion. The court then explained, ‘Til do them in order. I’ll do your motion to withdraw plea first. Depending on the outcome of that, then I’ll move to the 3.850.” After listening to Camon’s testimony and reviewing the record, the trial court denied Camon’s motion to withdraw his plea. The judge then asked Camón if he wanted to reinstate the 3.850 motion. Camón initially responded that he did not. The judge indicated that the court could “leave it,” but expressed some concern as to whether that could put the motion outside the two-year filing window. The judge explained that he could not advise Camón and that it was Camon’s “call.”

Defense counsel then indicated that his client “would ask the Court to vacate the dismissal, to allow the motion to be heard. Or in the alternative to file it, refile it again, today.” The trial court thereafter immediately denied the 3.850 motion con-eluding “based upon the reasons I heard, from all the testimony, I’ve already heard. I will use the same testimony, for the denial of the 3.850.”

Both motions were denied on the same day, May 29, 2009, and separate, signed, written orders were entered on June 12, 2009. The order denying the 3.170 motion indicated that the motion was “insufficient to support the relief prayed” and was: “Denied. With Evidentiary Hearing, As to Reason Stated on the Record.” Similarly, the order denying the 3.850 motion noted that Camon’s allegations “were insufficient in substance to support the relief prayed” and therefore was “denied.” Here, Camón appeals the denial of his 3.850 motion.

Camón argues that his timely 3.170(0 motion to withdraw his plea delayed rendition of his judgment and sentence until the trial court filed a signed, written order disposing of that motion. Thus, he maintains, the court should not have heard and ruled on his 3.850 motion when it did. See Brigham v. State, 950 So.2d 1274, 1275 (Fla. 2d DCA 2007) (“In pertinent part, rule 3.850(b) states that ‘[a] motion to vacate a sentence that exceeds the limits provided by law may be filed at any time. No other motion shall be filed or considered pursuant to this rule if filed more than 2 years after the judgment and sentence become final in a noncapital case.... ’ Implicit in the rule is the requirement that the judgment and sentence be final before the motion is filed.”); see also Clemons v. State, 3 So.3d 364, 365 (Fla. 2d DCA 2009) (“A timely motion to withdraw plea delays rendition of a defendant’s judgment and sentence until the trial court files a signed, written order disposing of the motion.”); Haber v. State, 961 So.2d 1098, 1099 (Fla. 2d DCA 2007) (“Because Mr. Haber’s judgment and sentence apparently never became final, Mr. Haber’s rule 3.850 motion was premature. See Brigham v. State, 950 So.2d 1274, 1276 (Fla. 2d DCA 2007). Therefore, the circuit court should have dismissed rather than denied the motion. Id”).

We agree that under the facts as outlined herein, it was premature to consider Camon’s 3.850 motion until the underlying judgment was final — in this case that being when the denial of Camon’s 3.170(i) motion was filed. Accordingly, the order under review is reversed and the case remanded.

      . The motion alleged that: (1) Camón had entered into an illegal plea; (2) defense counsel had rendered ineffective assistance; and (3) the sentence Camón received was vindictive.

      . This analysis makes it unnecessary to consider Camon's argument that the trial court violated principles of judicial neutrality by inserting itself into the decision-making process.


text:
    DEPARTMENT OF REVENUE o/b/o Barbara RODRIGUEZ, Appellant, v. Ulises RODRIGUEZ, Appellee.
    No. 3D10-456.
    District Court of Appeal of Florida, Third District.
    March 30, 2011.
    Pamela Jo Bondi, Attorney General, and William H. Branch, Assistant Attorney General, for appellant.

      Anthony Dieguez, Miami Lakes, for ap-pellee.
    Before CORTINAS, ROTHENBERG, and LAGOA, JJ.
   PER CURIAM.

Affirmed. See Lawrence v. Hershey, 890 So.2d 350 (Fla. 4th DCA 2004); Taylor v. Bonsall, 875 So.2d 705 (Fla. 5th DCA 2004); Brown v. Brown, 714 So.2d 475 (Fla. 5th DCA 1998).


text:
    T.J., Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-461.
    District Court of Appeal of Florida, Third District.
    March 30, 2011.

      Carlos J. Martinez, Public Defender, and Joanna G. Ingalls, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Lunar Claire Alvey, Assistant Attorney General, for appellee.
    Before GERSTEN, SUAREZ, and CORTIÑAS, JJ.
   SUAREZ, J.

On the Court’s own motion we withdraw the prior opinion issued March 30, 2011 and substitute the following in its place.

T.J., the juvenile defendant, seeks to reverse his adjudication of delinquency and commitment. We reverse and remand for a new adjudicatory hearing.

T.J. was charged by amended petition for delinquency with burglary of an unoccupied dwelling, third degree grand theft and criminal mischief. On the morning of the adjudicatory hearing, the State listed two new witnesses: Officer Antenor, the crime scene investigator, and Officer Sumner, the latent fingerprint analyst and expert witness. The defense objected to their classification as “B” witnesses and the late submission of them as witnesses. The trial court agreed with the State’s classification of them as “B” witnesses and allowed them to testify. The court adjudicated T.J. delinquent and committed him to the Department of Juvenile Justice for placement at a moderate risk facility followed by conditional release.

The State admits that its late submission of the two testifying witnesses was error but argues that the error is harmless because the defense had the names of both witnesses in a supplemental discovery report. We disagree. The State’s failure to strictly comply with Florida Rule of Juvenile Procedure 8.060(a)(2) is not harmless as these witnesses were key State witnesses with direct and relevant knowledge of the investigation. Furthermore, pursuant to Florida Rule Juvenile Procedure 8.060, both of these witnesses should have been classified as “A” witnesses; Detective Antenor was the crime scene investigator and Officer Sumner testified as an expert witness fingerprint analyst. See supra n. 1. The rule’s strict requirement of listing the names of “A” witnesses is not satisfied by having the names included in reports as was argued by the State. As “A” witnesses, the defense was entitled to take their depositions.

When a discovery violation occurs, the trial court is required to hold a Richardson inquiry. The trial court failed to hold an adequate Richardson inquiry in this case upon the State’s admittedly late disclosure of the two witnesses on the day of the adjudicatory hearing. The court failed to inquire whether the discovery violation was willful or inadvertent, whether it was substantial or trivial, and whether the violation had a prejudicial effect on the defense’s trial preparation. See Richardson, 246 So.2d at 775. We cannot say beyond a reasonable doubt that no prejudice to the defense resulted from this discovery violation, and therefore the trial court’s failure to make an adequate inquiry is not harmless error. See State v. Schopp, 653 So.2d 1016 (Fla.1995). We reverse T.J.’s adjudication of delinquency and remand for a new adjudicatory hearing.

Reversed and remanded for further proceedings consistent with this opinion.

      . Fla. R. Juv. P. 8.060(a)(2): Within 5 days of service of the child's notice of discovery, the petitioner shall serve a written discovery exhibit which shall disclose to the child or the child’s counsel and permit the child or the child’s counsel to inspect, copy, test, and photograph the following information and material within the petitioner’s possession or control:
      (A) A list of the names and addresses of all persons known to the petitioner to have information which may be relevant to the allegations, to any defense with respect thereto, or to any similar fact evidence to be presented at trial under section 90.402(2), Florida Statutes. The names and addresses of persons listed shall be clearly designated in the following categories:
      (i) Category A. These witnesses shall include

      (d) investigating officers;

      (g) expert witnesses who have not provided a written report and a curriculum vitae or who are going to testify to test results or give opinions that will have to meet the test set forth in Frye v. United States, 293 F. 1013 (D.C.Cir.1923).

      . Richardson v. State, 246 So.2d 771 (Fla.1971). The supreme court enunciated the following test to determine whether a Richardson violation is harmless, i.e., whether there is a reasonable possibility that the discovery violation procedurally prejudiced the defense:
      [T]he defense is procedurally prejudiced if there is a reasonable possibility that the defendant’s trial preparation or strategy would have been materially different had the violation not occurred. Trial preparation or strategy should be considered materially different if it reasonably could have benefited the defendant. In making this determination every conceivable course of action must be considered. ‘ If the reviewing court finds that there is a reaspnable possibility that the discovery violation prejudiced the defense or if the record is insufficient to determine that the defense was not materially affected, the error must be considered harmful. In other words, only if the appellate court can say beyond a reasonable doubt that the defense was not procedurally' prejudiced by the discoveiy violation can the error be considered harmless.

        Schopp, 653 So.2d at 1020-21.


author: EMAS, J.

text:
    TP ORLANDO 504, LLC, Appellant, v. SEYMOUR INTERNATIONAL, INC. and Roth, Rousso, Katzman, LLP, Appellees.
    No. 3D10-1946.
    District Court of Appeal of Florida, Third District.
    March 30, 2011.
    Serber & Associates, and Alexandra J. Sanchez, Aventura, and Sabrina Smule-vich, Miami, for appellant.
    Katzman Garfinkel & Berger, and Scott D. Newsom, Maitland, for appellees.
    Before GERSTEN, SALTER, and EMAS, JJ.
   EMAS, J.

Appellant, the plaintiff below, seeks review of an order denying its motion impartial final summary judgment on one count of its six-count complaint. That count alleged that appellee, Seymour International, Inc., violated the Interstate Land Sales Full Disclosure Act, 15 U.S.C. §§ 1701-1720.

The order denying appellant’s motion for summary judgment is a non-final order. Nat’l Assur. Underwriters, Inc. v. Kelley, 702 So.2d 614 (Fla. 4th DCA 1997). Appeals of non-final orders are strictly limited to those specifically listed in Florida Rule of Appellate Procedure 9.130(a)(8). An order denying summary judgment is not appealable pursuant to Rule 9.130(a)(3), and this court lacks jurisdiction to entertain this appeal. Id.

Appeal dismissed for lack of jurisdiction.

      . Rule 9.130(a)(3) does permit appeals of a non-final order which, for example, concerns venue; grants, denies, or modifies injunctive relief; or determines the right to immediate possession of property. The instant order contains no findings or conclusions, other than its one-word ruling that tire motion is "denied.” Appellant has failed to provide a transcript of the hearing on the motion. In the absence of an adequate record, we are unable to determine the basis for the trial court’s ruling and therefore, are unable to determine whether the trial court’s order made findings or determinations that would provide this court with jurisdiction under the limited scope of Rule 9.130(a)(3). See e.g., Barber v. Wonderland Greyhound Park, 656 So.2d 961 (Fla. 5th DCA 1995) (holding appellate court did not have jurisdiction to review non-final order under 9.130(a)(3)(B) where record failed to establish that trial court had considered whether injunctive relief should be granted).


author: JACOBUS, J.

text:
    Frank Ralph SEAVEY, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-3430.
    District Court of Appeal of Florida, Fifth District.
    April 1, 2011.

      Frank R. Seavey, Mayo, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   JACOBUS, J.

Frank Seavey timely appeals the final order denying his motion for postconviction relief, filed pursuant to Florida Rule of Criminal Procedure 3.850. For reasons we will explain, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

Seavey was convicted by a jury of aggravated battery of a pregnant person and false imprisonment. After his direct appeal was per curiam affirmed by this court, Seavey v. State, 942 So.2d 897 (Fla. 5th DCA 2006), he timely filed a motion for postconviction relief. In that motion, Seavey claimed his attorney was ineffective because she failed to: (1) conduct an adequate pretrial investigation into whether the victim was pregnant at the time of the battery; (2) request a Frye hearing regarding the victim’s pregnancy test; (3) move for a judgment of acquittal on the crime of aggravated battery on a pregnant person; (4) object to certain jury instructions; and (5) move to quash Count II of the amended information, which did not allege a victim of the crime of false imprisonment. The lower court granted an evi-dentiary hearing on Seavey’s first claim, but summarily denied the remaining four claims. The court also denied Seavey’s motions requesting appointment of counsel. After holding an evidentiary hearing on ground one, the lower court denied his claim.

We conclude that the summary denial of grounds two, three and five of Seavey’s postconviction motion was proper, but ground four should not have been summarily denied. We also find that this is a case in which the appointment of postcon-viction counsel should have been granted.

Ground four of Seavey’s postcon-viction motion, in which he asserted counsel was ineffective for failing to object to two improper jury instructions, was a facially sufficient claim. The first part of this claim — which was based on an allegation that the jury was not instructed on the lesser-included offense of simple battery — was conclusively refuted by the record and was properly denied. However, the second part of this claim, regarding the false imprisonment instruction, was not refuted by the record. In fact, the record confirms that the jury instruction given on false imprisonment was incomplete. To establish the crime of false imprisonment, the state is required to prove two elements beyond a reasonable doubt: (1) the defendant forcibly, secretly, or by threat confined, abducted, imprisoned or restrained the victim against his or her will; and (2) the defendant had no lawful authority to do so. § 787.02(l)(a), Fla. Stat. (2006); Fla. Std. Jury Instr. (Crim.) 9.2. The instruction given in Seavey’s case omitted the portion requiring that the offense be committed “forcibly, secretly, or by threat.” The failure to give a complete or accurate jury instruction constitutes fundamental error if the omission is pertinent or material to what the jury must consider in order to convict. State v. Delva, 575 So.2d 643, 645 (Fla.1991). In summarily denying postconviction relief,, the lower court concluded the omission was not material to what the jury had to consider in order to convict Seavey. The documents attached to the summary denial, however, do not reveal which elements were in dispute at trial. They therefore do not conclusively refute Seavey’s claim that counsel was ineffective for failing to object to the incomplete instruction on false imprisonment. The matter is remanded to attach the documents that refute Seavey’s claim, or grant an evidentiary hearing.

It seems apparent to us from the record in this case that.Seavey should have received the assistance of postconviction counsel at the evidentiary hearing on his fust claim. Seavey was clearly unaware of rudimentary legal procedure, including that he carried the burden of proof and needed to present evidence to support his claims. He reads at a third-grade level and functions at a fombh-grade level. His lack of understanding caused his claim to quickly fail for lack of evidence. For these reasons, it was error to deny Seavey’s request for legal representation at the hearing. See Williams v. State, 472 So.2d 738 (Fla.1985); Graham v. State, 372 So.2d 1363 (Fla.1979).

In conclusion, we affirm the summary denial of grounds two, three and five of Seavey’s postconviction, motion. We reverse the denial of ground one and we remand for a new evidentiary hearing on that claim. We reverse the summary denial of ground four with instructions that the trial court either attach records to conclusively l-efute the claim or grant an evidentiary hearing. We direct the lower court to appoint postconviction counsel to represent Seavey at that evidentiary hearing.

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

TORPY and EVANDER, JJ., concur.

      . Seavey’s direct appeal was an Anders appeal. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

      . Frye v. United States, 293 F. 1013 (D.C.Cir.1923).


author: DAVIS, Judge.

text:
    Cynthia J. McKINNEY, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-2810.
    District Court of Appeal of Florida, Second District.
    April 1, 2011.

      Cynthia J. McKinney, pro se.
   DAVIS, Judge.

Cynthia McKinney challenges the post-conviction court’s order denying in part and dismissing in part her motion filed pursuant to Florida Rule of Criminal Procedure 3.850. McKinney filed the motion more than two years after her convictions and sentences became final. The postcon-viction court dismissed the rule 3.850 claims as untimely and treated part of one claim as a motion to correct illegal sentence pursuant to rule 3.800(a). The court, however, failed to address McKinney’s attempt to allege an exception to the two-year time limit for filing the motion. We therefore reverse the portion of the order dismissing McKinney’s rule 3.850 claims and remand for the postconviction court to make a factual determination regarding McKinney’s claim that she requested counsel to timely file a rule 3.850 motion and that counsel failed to do so. Regarding the single portion of one claim that was treated as a motion to correct illegal sentence, the postconviction court properly denied the claim and we affirm that portion of the order without further comment.

On February 22, 2007, McKinney pleaded no • contest to one count of second-degree murder and one count of attempted first-degree murder. The crimes occurred in 2001 when McKinney was a minor, and from that time throughout at least a portion of the extended period leading up to the entry of her plea, she apparently was not competent to proceed. In her postcon-viction motion, she alleged that after entry of her plea, she requested her counsel to file a direct appeal and that she continued to write him letters requesting postconviction motions. She also .alleged that counsel failed to contact her or file the motions. In November 2009, McKinney discovered that no appeal or postconviction motions had been filed on her behalf, and she submitted the instant, pro se motion on January 25, 2010.

The postconviction court concluded that because no rule 3.850 motion was filed within the two-year time limit and because McKinney failed to allege an exception to that time limit under rule 3.850(b), the claims should be dismissed. However, McKinney’s claims that she wrote letters to her attorney asking him to file a post-conviction motion and that it was November 2009 before she discovered that counsel had failed to do so may be an exception to the two-year time limit. See Fla. R. Crim. P. 3.850(b)(3) (setting forth as an exception to the two-year time limit situations in which “defendant retained counsel to timely file a 3.850 motion and counsel, through neglect, failed to file the motion”). As such, McKinney’s claims merit further review by the postconviction court.

Furthermore, even if her allegations are merely taken as a motion to file a belated postconviction motion pursuant to rule 3.850(h),

when a defendant claims that his attorney failed to file a timely rule 3.850 motion as requested and that he was therefore precluded from exercising his right to collaterally attack his conviction under rule 3.850, the postconviction court would be required to grant a hearing to assess the truth of the defendant’s representations.

Harris v. State, 989 So.2d 4, 5 (Fla. 2d DCA 2008).

Accordingly, we reverse the order dismissing McKinney’s rule 3.850 motion as untimely and remand for the postconviction court to consider whether she has alleged an exception to the two-year time limit under rule 3.850(b)(3) or is entitled to a belated consideration of her claims pursuant to rule 3.850(h). We note that on remand the postconviction court must necessarily address the facial sufficiency of McKinney’s claim that she retained counsel to timely file a rule 3.850 motion but that he failed to do so. If the claim is deemed facially insufficient, McKinney should be given one opportunity to amend her motion if she is able to do so. See Spera v. State, 971 So.2d 754 (Fla.2007).

Affirmed in part, reversed in part, and remanded.

ALTENBERND and KHOUZAM, JJ., Concur.


text:
    NATIONWIDE INSURANCE COMPANY OF FLORIDA, Petitioner, v. Cookie Roberta DEMMO, Trustee of the Sonia E. Dann Trust, Respondent.
    No. 2D10-4104.
    District Court of Appeal of Florida, Second District.
    April 1, 2011.

      Michael A. Packer and Stephen J. Pol-jak of Marshall, Dennehey, Warner, Coleman & Goggin, Fort Lauderdale, for Petitioner.
    Andrew P. McDonald of Freemon & Miller, P.A., Tampa, for Respondent.
   DAVIS, Judge.

Nationwide Insurance Company of Florida seeks certiorari review of the trial court’s interlocutory order granting Cookie Roberta Demmo’s motion to compel production of Nationwide’s claims notes, activity logs, property loss notice information, and property loss notice forms in Demmo’s first-party breach of contract action against Nationwide. We grant the petition and quash the order.

On January 22, 2008, Demmo filed an insurance claim with Nationwide after her home sustained damage caused' by a sinkhole. Nationwide approved and paid out oh that claim. On May 4, 2009, Demmo filed a second claim with Nationwide for water intrusion that she alleged was related to the sinkhole. After investigating, Nationwide denied that claim on May 28, 2009. Demmo subsequently filed suit against Nationwide, alleging one count of breach of contract. In conjunction with that action, Demmo filed discovery requests. In response, Nationwide identified certain of the documents sought by Demmo as work product and refused to produce them. Demmo then filed a motion to compel, in which she noted that Nationwide “has. served a privilege log in the instant case claiming work-product privilege for approximately sixty-six pages of claims documents from January 22, 2008, through November 30, 2009.”

At the hearing on Demmo’s motion to compel, the trial, court made the finding that any documents created prior to Nationwide’s May 28, 2009, denial of Dem-mo’s claim were not work product because they were not prepared in anticipation of litigation. As such, the trial court entered a written, nonfinal order giving Nationwide forty-five days to “produce the subject documents (i.e., claims notes/activity log, property loss notice information, and property loss notice forms) from the date of the loss until the date the claim was denied, May 28, 2009.”

With regard to common law certio-rari review of nonfinal trial court orders, the petitioner must demonstrate that the challenged order departs from the essential requirements of law and that unless relief is granted he or she will suffer an injury for which he or she will have no adequate remedy on appeal. Parkway Bank v. Fort Myers Armature Works, Inc., 658 So.2d 646 (Fla. 2d DCA 1995). We conclude that Nationwide has met its burden here.

It appears, however, that the trial court focused on the question of what is and what is not work product with regard to the documents sought. But that is not the determinative issue. Rather, the issue turns on what type of action Demmo has brought. Here she is not pursuing a bad faith claim, but rather seeks relief for breach of contract. “A trial court departs from the essential requirements of the law in compelling disclosure of the contents of an insurer’s claim file when the issue of coverage is in dispute and has not been resolved.” Seminole Cas. Ins. Co. v. Mastrominas, 6 So.3d 1256, 1258 (Fla. 2d DCA 2009) (emphasis added). “Further, requiring the disclosure of claim file materials during the litigation of coverage issues would result in irreparable harm that cannot be adequately addressed on appeal.” Id.

Accordingly, we grant the petition and quash the discovery order.

NORTHCUTT and WALLACE, JJ., Concur.

      . The Nationwide policy at issue in this case was for a house owned in trust by Sonia E. Dann. When Ms. Dann passed away, Demmo became the successor trustee.

      . As this court did in Mastrominas, 6 So.3d at 1258 n. 2, we emphasize that [o]ur opinion should not be read as precluding appropriate discovery to the extent specific materials are discoverable. See [Am. Home Assur. Co. v.] Vreeland, 973 So.2d [668,] 672 [ (Fla. 2d DCA 2008) ]. Although a claims file is generally not discoverable, to the extent that materials contained therein are relied on at trial, those items may be discoverable. See Northup v. Acken, 865 So.2d 1267, 1271 (Fla.2004) (holding that materials reasonably expected or intended to be used at trial are subject to discovery).


author: LAWSON, J.

text:
    Tommie G. HORN, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-887.
    District Court of Appeal of Florida, Fifth District.
    April 1, 2011.

      Mark S. Blechman, Orlando, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and L. Charlene Matthews, Assistant Attorney General, Daytona Beach, for Appellee.
   LAWSON, J.

Tommie G. Horn appeals an order denying his motion to withdraw no contest pleas that he entered to three alleged probation violations on underlying charges of DUI manslaughter and DUI with serious bodily injury. In his sworn motion to withdraw pleas, Horn alleged that his counsel misinformed him that the maximum sentence he could receive if he admitted the violations was fifteen years in prison,'and that he would not have entered the pleas if he understood that he faced a more severe sentence. Counsel admits that he did misadvice Horn as to the potential sentence,. and the plea transcript supports the claim as well. In fact, during the plea hearing, the trial court relied on defense counsel’s erroneous statement as to the maximum penalty, and also told Horn that he faced a maximum penalty of fifteen years in prison. In reality, Horn scored 390.25 months (more than 32 years) as a maximum sentence. And, after Horn admitted the violations, the trial court ultimately imposed a sentence of 234.15 months (more than 19 years) in prison.

In light of the misadvice given to Horn as to the potential sentence he faced upon entry of his pleas, the trial court should have granted Horn’s motion and allowed him to withdraw the pleas- See, e.g., Leto v. State, 658 So.2d 1108, 1109-10 (Fla. 4th DCA 1995) (“The cases hold that erroneous advice by defense' counsel as to the probable length of confinement may affect voluntariness where the defendant can show that the plea would hot have been made without the erroneous advice.”) (citations omitted); Small v. State, 600 So.2d 518 (Fla. 5th DCA 1992) (holding that a defendant must be allowed to withdraw a plea entered based upon the misadvice of counsel regarding potential penalties to be faced upon entry of the plea); Mantle v. State, 592 So.2d 1190, 1193 (Fla. 5th DCA 1992) (“[I]f the record reveals a reasonable basis to conclude that a defendant was misled by a statement at the plea hearing made by the judge or by one or both of the attorneys (defense counsel or prosecutor) he should be permitted to withdraw his plea and go to trial.”); Huot v. State, 516 So.2d 1140, 1141 (Fla. 4th DCA 1987) (“Failure to advise a defendant of a maximum possible sentence prevents the defendant from being properly apprised of the significance of his plea and is therefore error for which the defendant must be afforded the opportunity to withdraw a plea of guilty.”) (citation omitted).

Accordingly, we reverse the order on appeal and remand with directions that Horn be allowed to withdraw his no contest pleas to the probation violations.

REVERSED and REMANDED with directions.

SAWAYA and JACOBUS, JJ., concur.


text:
    Obtravies Andre WATKINS, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-1771.
    District Court of Appeal of Florida, Fifth District.
    April 1, 2011.
    James S. Purdy, Public Defender, and Michael S. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Appellant challenges the order designating him a sexual predator. Appellant was adjudicated guilty under section 847.0135(3) and (4), Florida Statutes (2009). As the State properly concedes, neither of these violations are qualifying offenses under the Florida Sexual Predators Act, section 775.21, Florida Statutes. Thus, the trial court erred in designating Watkins a sexual predator because he does not qualify for such a designation under the plain language of the Act.

Although conceding error, the State urges that we remand with instructions that Appellant be designated a sexual offender pursuant to section 943.0435, Florida Statutes. However, that section “contains no provision for a court order designating offenders as sexual offenders; they attain that status merely by virtue of then’ convictions.” Harvey v. State, 17 So.3d 890, 891 n. 2 (Fla. 4th DCA 2009).

Accordingly, we reverse that portion of the order that designates Appellant a sexual predator and remand with instructions that the designation be stricken from the judgment.

REVERSED AND REMANDED.

PALMER, TORPY and COHEN, JJ., concur.


text:
    Patrick R. FEELEY, Petitioner, v. STATE of Florida, Respondent.
    No. 5D11-490.
    District Court of Appeal of Florida, Fifth District.
    April 1, 2011.

      Patrick R. Feeley, Milton, pro se.
    Pamela J. Bondi, Attorney General, Tallahassee and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion will be filed with the trial court and be treated as the notice of appeal from the judgments and sentences in Case Nos. 05-2009-CF-044238-A and 05-2009-CF-055176-A, in the Circuit Court in and for Brevard County. See Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

TORPY, LAWSON and COHEN, JJ., concur.


author: BLACK, Judge.

text:
    In re ESTATE OF Charles Henry WARNER. Herbert Y. Holcomb, III, as the Grand Secretary of Grand Lodge A.F. & A.M. of Maryland, the sole residuary beneficiary of Decedent, Appellant, v. Lee County, Appellee.
    No. 2D10-1411.
    District Court of Appeal of Florida, Second District.
    April 1, 2011.

      Michael J. Farrar, Miami, for Appellant.
    David M. Owen, Lee County Attorney, and Jack N. Peterson, Assistant County Attorney, Fort Myers, for Appellee.
   BLACK, Judge.

The estate of Charles Henry Warner challenges a February 26, 2010, order denying its petition for alternative writ of mandamus. The estate filed the petition as a result of the Lee County Clerk of Court’s denial of its request for payment of excess funds resulting from a tax deed sale of real property. Because we conclude that the estate has an available remedy at law, we affirm the trial court’s denial of the petition.

“ ‘A party petitioning for a writ of mandamus must establish a clear legal right to performance of the act requested, an indisputable legal duty, and no adequate remedy at law.’ ” Radford, v. Brock, 914 So.2d 1066, 1067 (Fla. 2d DCA 2005) (quoting Smith v. State, 696 So.2d 814, 815 (Fla. 2d DCA 1997)). “ ‘When a trial court receives a petition for writ of mandamus, its initial task is assessing the petition to determine whether it is facially sufficient. If it is not facially sufficient, the court may dismiss the petition.’ ” Id. at 1067-68 (quoting Davis v. State, 861 So.2d 1214, 1215 (Fla. 2d DCA 2003)). However, “[i]f the petition is facially sufficient, the court must issue an alternative . writ of mandamus requiring the respondent to show cause why the writ should not be issued.” Id. at 1068 (citing Moore v. Ake, 693 So.2d 697, 698 (Fla. 2d DCA 1997); Conner v. Mid-Florida Growers, Inc., 541 So.2d 1252, 1256 (Fla. 2d DCA 1989)).

On September 23, 2008, the estate filed its petition for alternative writ of mandamus with the circuit court. The petition sought- to h.ave Lee County perform the ministerial duty of issuing a check to the estate, pursuant to a March 18, 2008, ancillary summary administration order of the probate court. On February 26, 2010, the circuit court denied the petition. Although the court denied the petition on the merits, it noted that the estate failed to allege that it had no other adequate legal remedy.

Pursuant to the statutes governing disbursement of excess funds from tax deed sales, sections 197.582 and 197.473, Florida Statutes (2008), the money retained by the clerk for the benefit of a decedent is the personal property of the decedent, and an asset of the estate, payable to the personal representative of the estate. See Fla. Admin. Code R. 12D-13.065(8); Op. Att’y Gen. Fla. 84-59 (1984). Thus, the personal representative of the estate may file a civil lawsuit seeking return of personal property. See Bronson v. Bd. of Cnty. Comm’rs of Brevard Cnty., 394 So.2d 575, 576 (Fla. 5th DCA 1981). The personal representative of Mr. Warner’s estate still has time to file such a lawsuit. See § 95.11(3)(i), Fla. Stat. (2008).

Without discussing whether the circuit court correctly interpreted the law at issue, because the estate’s petition was facially insufficient in that it failed to allege the estate had no other adequate legal remedy — and because the petition could not be amended to establish no other adequate legal remedy — we affirm the circuit court’s denial. See Dade Cnty. Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 644 (Fla.1999). However, we note that in denying the estate’s facially insufficient petition on its merits, the circuit court exceeded its authority. Therefore, the court’s ruling on the substantive law is not binding and is to be given no effect in any future proceedings. Cf. Reynolds v. State, 590 So.2d 1043, 1044 (Fla. 1st DCA 1991) (“The court’s ruling on the merits is to be accorded no binding force or effect, as the appellant did not properly invoke the court’s authority to consider the merits of the claim.”).

ALTENBERND and LaROSE, JJ., Concur.