author: SILBERMAN, Judge.

text:
    Eyal AVI-ISAAC, Appellant, v. WELLS FARGO BANK, N.A., as Trustee for the Holders of Harborview 2006-12; Garrett Byrd; _ Byrd, unknown spouse of Garrett Byrd, if married; Sarasota Palms Condominium Association, Inc.; John Doe; and Jane Doe, Appellees.
    No. 2D10-1405.
    District Court of Appeal of Florida, Second District.
    March 2, 2011.

      George J.F. Werner, Ybor City, for Appellant.
    Jack R. Reiter and Jordan S. Kosches of Yoss LLP, Miami, for Appellee Wells Fargo Bank, N.A.
    No appearance for remaining Appellees.
   SILBERMAN, Judge.

Eyal Avi-Isaac appeals the trial court’s order that grants Wells Fargo’s “Plaintiff’s Motion to Vacate Certificates of Title, Disbursements, and Sale, Set Asidé Foreclosure Sale, and Return Third Party Funds and Memorandum of Law in Support Thereof’ (motion to vacate). Because the trial court did not conduct an evidentiary hearing on Wells Fargo’s motion to vacate, we reverse and remand for further proceedings.

A final summary judgment of foreclosure determined that Wells Fargo, the mortgagee, was owed $192,664.97. The foreclosure sale was scheduled for September 9, 2008. Wells Fargo contends that during efforts to resolve the dispute with Mr. Byrd, the mortgagor, it faxed a request to cancel the sale to the court. The sale occurred despite the request. Wells Fargo was not present at the foreclosure sale, believing it had been canceled. Avi-Isaac purchased the property at the foreclosure sale for $2000. It is undisputed that at the time of the foreclosure sale, the assessed value of the property was $100,600.

On September 15, 2008, Wells Fargo served on Avi-Isaac “Plaintiffs Objection to Sale and Motion to Return Third Party Funds, Vacate Certificate of Sale and Set Aside Foreclosure Sale” (the objection). The objection was not docketed, however, until December 2, 2008. Wells Fargo contends that the document was sent directly to the presiding judge’s chambers and that it was riot docketed in accordance with Florida Rule of Civil Procedure 1.080(e). Because the clerk of court did not realize that there was a pending objection, it issued a certificate of title to Avi-Isaac. See § 45.031(5), Fla. Stat. (2008) (providing that “[i]f no objections to the sale are filed within 10 days after filing the certificate of sale, the clerk shall file a certificate of title”).

A hearing on Wells Fargo’s objection had been set for December 1, 2008, but was canceled. Wells Fargo alleges that it had been in contact with Avi-Isaac to negotiate a settlement and set aside the sale. Wells Fargo asserts that the negotiations came to a standstill, resulting in Wells Fargo filing its motion to vacate. The motion to vacate cites to Florida Rule of Civil Procedure 1.540(b) and addresses the provision which allows for relief from a proceeding based on “mistake, inadvertence, surprise, or excusable neglect.” Fla. R. Civ. P. 1.540(b). The motion also relies upon Arlt v. Buchanan, 190 So.2d 575, 577 (Fla.1966), which provides that equity may act to set aside a foreclosure sale when (1) the foreclosure sale price was grossly inadequate and (2) the inadequacy of the price resulted from a “mistake, accident, surprise, fraud, misconduct or irregularity” in connection with the sale that caused injustice to the complaining party. See also United Cos. Lending Corp. v. Abercrombie, 713 So.2d 1017, 1018 (Fla. 2d DCA 1998) (quoting Arlt, 190 So.2d at 577).

On August 18, 2009, Wells Fargo served a copy of the affidavit of Daid A. Roger on Avi-Isaac’s counsel. Ms. Roger indicated in her affidavit that she faxed the request to cancel the foreclosure sale to the clerk of court. Attached to the affidavit is a copy of the fax transaction report. Roger also indicated that she supervised the dispatch by overnight delivery of Wells Fargo’s objection to the sale. Attached to the affidavit are copies of a UPS proof of dispatch on September 16, 2008, and a copy of a UPS proof of delivery on September 17, 2008.

A hearing was held on the motion to vacate on August 21, 2009. At the hearing, Avi-Isaac argued that a certificate of title had been issued, that Wells Fargo was proceeding under rule 1.540(b), and that he was entitled to an evidentiary hearing, but that “all we have had is an affidavit filed at the last minute.” He argued that there had “been no testimony or no opportunity to cross-examine, particularly on the UPS mailing.” Avi-Isaac stated that no notice of cancellation of sale was filed with the clerk and that a Sarasota County administrative order required that the circuit judge order the cancellation of the sale. He further asserted that he could not file a counter-affidavit to Roger’s affidavit saying that the notice was faxed when the court had no record of it. Avi-Isaac argued that Wells Fargo’s counsel was a mortgage foreclosure plaintiffs firm and should have known how to cancel a sale and to follow up to check that it was done.

The trial court stated at the hearing that the problem with the foreclosure sale was not the mistake of the law firm but the mistake of the court and characterized it as an inherently defective sale. The trial court granted the motion to vacate and found that there was notice “given to the Clerk that somehow or other didn’t get to the foreclosure clerk.” The trial court further found that Wells Fargo timely filed its objection to the sale with the court but that the objection did not get to the clerk in time. In its written order, the court determined that Wells Fargo met its burden under rule 1.540 and the two-pronged test set out in the Arlt line of cases.

Our standard of review on the trial court’s determination of whether Wells Fargo made the necessary showing to set aside the foreclosure sale is for a gross abuse of discretion. See Palacios v. Fla. Funding Trust, 32 So.3d 167, 170 (Fla. 2d DCA 2010); Abercrombie, 713 So.2d at 1018. A purchaser at a foreclosure sale is entitled to notice and an opportunity to be heard on a motion to vacate the sale. See Shlishey the Best, Inc. v. CitiFinancial Equity Servs., Inc., 14 So.3d 1271, 1275 (Fla. 2d DCA 2009). And “it is reversible error for a trial court to deny a party an evidentiary hearing to which he is entitled.” Sperdute v. Household Realty Corp., 585 So.2d 1168, 1169 (Fla. 4th DCA 1991) (determining that the trial court erred in not permitting the defendants to testify regarding the subject of notice at the hearing on their motion to vacate a default final judgment of foreclosure). Of course, “[njeither the submission of affidavits nor argument of counsel is sufficient to constitute an evidentiary hearing.” Id. The court in Sperdute determined that “by denying the Sperdutes’ request to testify at the evidentiary hearing on their motion to vacate the default final judgment, the trial court effectively denied them an opportunity to be heard.” Id.

In Monsour v. Balk, 705 So.2d 968, 969 (Fla. 2d DCA 1998), this court addressed the failure to hold an evidentiary hearing on a motion for relief from judgment. This court determined that the trial court erred by not holding an evidentiary hearing to determine whether the movant could prove the facts alleged in his affidavit regarding insufficient service of process. Id.; see also Estate of Willis v. Gaffney, 677 So.2d 949, 951 (Fla. 2d DCA 1996) (reversing the denial of a motion for relief from final judgment and remanding for an evidentiary hearing so that the trial court could determine the credibility of the allegations contained in the affidavit); Depelisi v. Wishner, 15 So.3d 808, 810 (Fla. 4th DCA 2009) (determining that the plaintiff was entitled to an evidentiary hearing on his rule 1.540 motion to vacate the dismissal of his complaint in order to address whether the plaintiff had received notice of hearings).

Here, the trial court relied on Roger’s recently filed affidavit to determine that the foreclosure sale was inherently defective. Avi-Isaac objected to the trial court not conducting an evidentiary hearing and argued that he could not cross-examine the representative from the law firm regarding the matters asserted in the affidavit. Although the. trial court conducted a hearing on the motion,. Avi-Isaac did not have a meaningful opportunity to be heard when he was denied an evidentia-ry hearing where he could contest the facts alleged in . the affidavit. Therefore, we reverse the trial court’s order and remand for an evidentiary hearing on Wells Fargo’s motion to vacate.

Reversed and remanded.

NORTHCUTT and VILLANTI, JJ., Concur.


source: Caselaw Access Project

author: LAGOA, J.

license: Public Domain

text:
    CITIZENS PROPERTY INSURANCE CORPORATION, Appellant, v. Cecilio GUTIERREZ and Noemi Gutierrez, Appellees.
    No. 3D10-2134.
    District Court of Appeal of Florida, Third District.
    March 2, 2011.

      Hinshaw & Culbertson and Maureen G. Pearcy and Paul R. Wallace, Miami, for appellant.
    Alvarez, Carbonell, Feltman, Jimenez & Gomez and Paul B. Feltman, for appellees.
    Before GERSTEN, SUAREZ, and LAGOA, JJ.
   LAGOA, J.

Citizens Property Insurance Corporation appeals from an order granting the insureds’ motion to compel appraisal of a claim under a commercial property insurance policy. For the following reasons, we reverse the order.

On appeal, Citizens contends that the trial court erred in prematurely ordering the appraisal when the record establishes that a factual dispute exists as to whether the insureds complied with, the policy’s post-loss provisions. We agree. In October 2005, the insureds’ property sustained damage during Hurricane Wilma. Subsequently, they filed a claim with Citizens and payment was made to the insureds. In September 2009, the insureds retained a public adjuster, filed a supplemental claim for Hurricane Wilma damages, and demanded an appraisal. Citizens reinspected the property and the insureds provided Citizens with a contractor’s estimate and a sworn proof of loss. Citizens made numerous requests for additional information and documents, which the insureds allegedly failed to provide.

In May 2010, the insureds filed a breach of contract claim against Citizens and a motion to compel appraisal, alleging that they had complied with the post-loss policy conditions. Citizens filed its answer and response to the motion to compel, asserting that the insureds had not provided Citizens with requested information and documents related to the supplemental claim, and that the insureds’ compliance with the policy was a condition precedent to appraisal. Following a hearing on the insureds’ motion, at which the parties disputed whether the insureds were in compliance with the post-loss policy obligations, the trial court granted the motion to compel appraisal.

Based on the authority of Citizens Property Insurance Corp. v. Mango Hill Condominium Ass’n, 54 So.3d 578 (Fla. 3d DCA 2011), and Citizens Property Insurance Corp. v. Galeria Villas Condominium Ass’n, 48 So.3d 188 (Fla. 3d DCA 2010), we hold that the trial court erred in both granting the motion to compel appraisal and in failing to conduct the requested evidentiary hearing concerning the insureds’ compliance with the policy’s post-loss conditions. See Citizens Prop. Ins. Corp. v. Maytin, 51 So.3d 591 (Fla. 3d DCA 2010) (holding that the trial court must conduct an evidentiary hearing to determine whether the insured complied with the policy’s post-loss conditions); Sunshine State Ins. Co. v. Corridori, 28 So.3d 129, 131 (Fla. 4th DCA 2010) (“[W]here the ‘insured cooperates to some degree or provides an explanation for its noncompliance, a fact question is presented’ regarding the necessity or sufficiency of compliance.... Whether [insured’s] compliance with the policy terms was necessary or sufficient is a dispute of fact.”) (citation omitted); see also U.S. Fid. & Guar. Co. v. Romay, 744 So.2d 467, 471 (Fla. 3d DCA 1999) (holding that “[t]he insured must comply with all of the policy’s post-loss obligations before the appraisal clause is triggered”). Accordingly, the order compelling appraisal is reversed and we remand for an evidentiary hearing on the issue of the insureds’ compliance with the policy’s post-loss conditions.

Reversed and remanded.


author: PER CURIAM.

text:
    James OWENS, Appellant, v. CCJ AUTO TRANSPORT and Fleet Car Carriers and Pinnacol Assurance and Argonaut Insurance, Appellees.
    No. 1D10-1278.
    District Court of Appeal of Florida, First District.
    March 2, 2011.
    Rehearing Denied April 6, 2011.
    Joshua C. Nelson of Smith, Feddeler, Smith & Miles, P.A., Lakeland, Susan W. Fox of Fox & Loquasto, P.A., Tampa, and Wendy S. Loquasto of Fox & Loquasto, P.A., Tallahassee, for Appellant.
    Kevin E. Leisure and Hillarey A. McCall of the Law Offices Harbsmeier DeZayas, LLP, Lakeland, for Appellee Fleet Car Carriers; Brian C. Dowling of Goodman, McGuffey, Lindsey & Johnson, LLP, Orlando, for Appellee Argonaut Im surance; and Timothy A. Dunbrack and Richard Heinzman of Kelley, Kronenberg, Gilmartin, Fichtel, Wander, Bamdas, Es-kalyo & Dunbrack, P.A., Orlando, for Ap-pellee Pinnacol Assurance.
   PER CURIAM.

In this workers’ compensation appeal, James Owens (Claimant), an individual injured in Georgia, challenges an order of the Judge of Compensation Claims (JCC) that concludes his contract of employment with the Employer was formed in Utah, not Florida, thereby removing his claims from coverage under the Florida Workers’ Compensation Law. Because the facts as found by the JCC establish that Claimant’s contract of employment was formed while Claimant was residing in Florida — albeit for work to be performed mostly outside of Florida — and Claimant’s acceptance of the Employer’s offer (the last act necessary to form the contract) occurred in Florida, we reverse.

Section 440.09(l)(d), Florida Statutes (2007), provides that the Florida Workers’ Compensation Law covers accidents occurring under a contract of employment formed in Florida. See § 440.09(l)(d), Fla. Stat. (2007). Here, the JCC found that Claimant, while residing in Florida, was offered, and he accepted, employment with the Employer (CCJ Auto Transport, Inc.), the terms of which required Claimant to drive the Employer’s truck throughout the United States. Under this agreement (reached in Florida), Claimant was required to follow certain rules, and would be paid a negotiated amount for the work he agreed to perform. To begin performance under this contract, Claimant was required to travel to Utah to pick up the Employer’s truck, and the Employer paid for and sent Claimant an airline ticket for his travel from Florida to Utah.

Significantly, the JCC found that the Employer did not condition Claimant’s hire upon his arrival in Utah, but rather found the agreement was reached while Claimant was in Florida. Nevertheless, the JCC, relying on the supreme court’s decision in Ray-Hof, Inc. v. Petersen, 123 So.2d 251 (Fla.1960), concluded the last act necessary to form the contract occurred when Claimant arrived in Utah, because Claimant could not begin work until he arrived in Utah. In Ray-Hof, however, the express terms of the offer of employment provided that the employee would not be hired (and no contract of employment would be formed) until or unless the employee arrived in at the employer’s place of business in Georgia. 123 So.2d at 251.

In contrast, here Claimant was hired in Florida, the agreement for employment was formed in Florida, and Claimant’s travel to Utah was undertaken in performance of the contract, not for the purpose of forming the contract. That Claimant could not begin his employment until he arrived in Utah did not negate the formation of the Florida contract for the performance of work elsewhere — or coverage under the Florida Workers’ Compensation Law. See George A. Fuller Co. v. Chastain, 388 So.2d 284 (Fla. 1st DCA 1980) (concluding Claimant’s travel to New York “to facilitate claimant’s departure for Saudi Arabia” did not nullify contract for foreign employment formed in Florida, making workers’ compensation claim for injury in Saudi Arabia actionable under Florida Workers’ Compensation Law). Accordingly, the JCC erred by concluding she did not have jurisdiction over this claim.

Because of the JCC’s ruling on the jurisdictional matter, she did not reach any conclusions or make any findings regarding Claimant’s employment status (independent contractor vs. employee), and likewise did not dispose of the claims for compensation filed against the various entities named as parties responsible for compensation. Accordingly, we REVERSE and REMAND this case for further proceedings to determine Claimant’s entitlement (if any) to benefits under the Florida Workers’ Compensation Law.

PADOVANO and CLARK, JJ., and SCHWARTZ, ALAN R., Senior Judge, concur.


text:
    Angela Aquino HELVEY, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION and Bloomings Landscape and Lawn Management, Inc., Appellees.
    No. 1D10-5700.
    District Court of Appeal of Florida, First District.
    March 2, 2011.
    Rehearing Denied April 6, 2011.
    Angela Aquino Helvey, pro se, for Appellant.
    A. Robert Whaley, General Counsel, for Appellee Florida Unemployment Appeals Commission, Tallahassee.
   PER CURIAM.

Having considered the appellant’s response to this Court’s order of November 9, 2010, the appeal is hereby DISMISSED. See Fla. R.App. P. 9.110(c). The appellant’s notice of appeal filed on October 25, 2010, failed to timely invoke the Court’s jurisdiction to review the final administrative order rendered on July 23, 2010.

The Court notes that the agency entered two additional nonfinal orders, both entitled “Decision of Appeals Referee,” that were mailed on September 3, 2010. These nonfinal orders determined the appellant is eligible for receipt of benefits and modified and reversed an agency determination of July 30, 2010. It is not clear from the limited record before the Court whether either of these nonfinal orders was entered upon a request by the appellant seeking further review of the agency’s determination of ineligibility rendered on July 23, 2010, which could have been treated as a timely notice of appeal. See generally Thompson v. Park Place of Venice, Inc., 888 So.2d 47, 48 (Fla. 1st DCA 2003); Jackson v. State, 834 So.2d 305 (Fla. 1st DCA 2002). However, in light of this possibility, the dismissal of this appeal is without prejudice to the appellant’s right to petition the agency for relief. See Reich v. Dep’t of Health, 868 So.2d 1275 (Fla. 1st DCA 2004) (reversing denial of motion to vacate administrative order); Durando v. Palm Beach County, 719 So.2d 1258 (Fla. 1st DCA 1998) (dismissing untimely appeal without prejudice to appellant’s right to petition agency for relief).

KAHN, DAVIS, and HAWKES, JJ., concur.


author: TAYLOR, J. HAZOURI, J.,

text:
    Lazaro GONZALEZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-3648.
    District Court of Appeal of Florida, Fourth District.
    March 9, 2011.

      Carey Haughwout, Public Defender, and Richard B. Greene, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   TAYLOR, J.

In this appeal from the denial of a motion to suppress evidence, the defendant contends that the trial court erred in finding that he voluntarily consented to a search of his home because he was handcuffed on the- ground when the police officer obtained his consent. We find no error in the trial court’s ruling that the defendant’s consent was voluntary, rather than mere acquiescence to police authority, based on the totality of circumstances, and affirm denial of defendant’s motion to suppress.

The defendant entered a plea of no contest to trafficking in cannabis and possession of drug paraphernalia, reserving the right to appeal the denial of his dispositive motion to suppress evidence. At the hearing on the motion to suppress, the state called one witness, Detective Wilbert Brown of the Miramar Police Department. Detective Brown testified that on November 15, 2008, his partner, Detective Hans-man, was conducting surveillance on the defendant’s residence, based on an anonymous tip. Hansman advised Brown that there was some movement going on at the front of the house, so Brown went to that location. When Brown arrived, he and Hansman, dressed in plain clothes, made contact with the defendant, his girlfriend, and her friend. As Brown approached, he saw the defendant standing in front of the house. The front door was open; he could smell the odor of cannabis emitting from the house. After advising the defendant that they were narcotics detectives conducting an investigation, Hansman handcuffed the defendant and placed him on the ground. The defendant stated that there were cannabis plants in the house. When Hansman asked for consent to go into the house, the defendant said “yes.” The officers then picked him up and moved him to the police car. They removed the handcuffs to allow the defendant to sign a consent form. Both officers witnessed the defendant initial and sign the consent form.

Detective Brown testified that before the defendant signed the form, he first gave the officers oral consent to enter. He said the defendant was not forced or threatened in any way to give his oral consent, and he was not promised anything in return for signing the consent form. The officer stated that the defendant was very cooperative. On cross-examination, however, the officer acknowledged that before the defendant gave oral consent to enter his home, he was handcuffed. The officers removed the handcuffs immediately before the defendant signed the consent form. Later, three uniformed officers arrived in separate cars. They entered the house through the front door and found fifty-two cannabis plants on the second floor.

The defendant and his girlfriend, who was present during the incident, also testified at the suppression hearing. The defendant testified that the police came to his house at 9:10 a.m. and approached him as he was standing about five feet from his front door. He said that Detective Hans-man put a gun to his head, told him to get down, and handcuffed him behind his back. He said the police told him to sign the consent form or they would get a search warrant. He testified that he only signed it because they threatened to arrest his girlfriend if he did not. The defendant’s girlfriend corroborated the defendant’s testimony, but she said she did not hear the defendant give permission to search or see the police enter the house.

At the end of the suppression hearing, the defendant argued that his consent to search was not validly obtained. The trial court denied the motion, finding that the defendant’s consent was freely and voluntarily given. The court rejected the defendant’s evidence that Detective Hansman had a weapon drawn, and found that the defendant “was never threatened in any way, shape, or form with anything.” The court likewise found that the defendant’s girlfriend was not threatened. The court further found that the officers were five or six feet from the open front door and could smell marijuana emitting from the house. The court stated that the defendant “was cooperative, with regards to everything,” and gave consent freely and voluntarily.

A ruling on a motion to suppress is a mixed question of fact and law. Navamuel v. State, 12 So.3d 1283, 1285 (Fla. 4th DCA 2009) (citing Smith v. State, 997 So.2d 499, 500 (Fla. 4th DCA 2008)). “We review orders on motions to suppress to determine whether the trial court’s factual findings are supported by competent substantial evidence and review legal issues de novo.” State v. Young, 971 So.2d 968, 971 (Fla. 4th DCA 2008) (citing Thomas v. State, 894 So.2d 126, 136 (Fla.2004)). “ A trial court’s ruling on a motion to suppress is clothed with a presumption of correctness on appeal, and the reviewing court must interpret the evidence and reasonable inferences and deductions derived therefrom in a manner most favorable to sustain in the trial court’s ruling.’” Kurecka v. State, — So.3d -, -, 2010 WL 3766727 (Fla. 4th DCA 2010) (quoting State v. Hebert, 8 So.3d 393, 395 (Fla. 4th DCA 2009)). “When considering a motion to suppress, a court is required to consider the ‘totality of [the] circumstances’ that led to the discovery of evidence.” State v. Hendrex, 865 So.2d 531, 533 (Fla. 2d DCA 2003) (citing State v. Butler, 655 So.2d 1123, 1128 (Fla.1995)).

. Entry into a home is permissible only by a warrant, consent, or exigent circumstances. Steagald v. United States, 451 U.S. 204, 211-12, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981). Here, the state relies on the defendant’s voluntary consent as justification for the warrantless search of his home. Whether consent is voluntary is a question of fact to be determined by the trial judge, based on the totality of the circumstances. Taylor v. State, 855 So.2d 1, 17 (Fla.2003) (citing Norman v. State, 379 So.2d 643, 646-47 (Fla.1980)); Reynolds v. State, 592 So.2d 1082, 1086 (Fla.1992) (citing United States v. Mendenhall, 446 U.S. 544, 557, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980); Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973)). The trial court’s finding will not be overturned if there is sufficient evidence to support it. Chesnut v. State, 404 So.2d 1064, 1065 (Fla.1981).

“ ‘[W]here the validity of a search rests on consent, the State has the burden of proving that the necessary consent was obtained and that it was freely and voluntarily given, a burden that is not satisfied by showing a mere submission to a claim of lawful authority.’” Reynolds, 592 So.2d at 1086 (quoting Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983)) (alteration in original). Further, “[w]here there is an illegal detention or other illegal conduct on the part of the police, a consent will be found voluntary only if there is clear and convincing evidence that the consent was not a product of the illegal police action. Otherwise, the voluntariness of the consent must be established by a preponderance of the evidence.” Id. (citations omitted). In this case, the defendant argues that the officer’s conduct in handcuffing him and forcing him to the ground constituted an illegal seizure of his person, thus rendering his consent involuntary. He contends that the state failed . to meet its burden under Reynolds to show voluntariness.

In Reynolds, the Florida Supreme Court held that the police may properly handcuff a person whom they are temporarily detaining when circumstances reasonably justify the use of such restraint. Id. at 1085. The court further held that a person’s consent may be considered voluntary when such consent is given while the person is handcuffed during detention. Id. at 1087.. It declined to hold “that consent given while handcuffed .can never be voluntary under any circumstances.” Id.

Contrary to the defendant’s contention, the police did not illegally detain or seize the defendant when they handcuffed him and placed him on the ground. The record reflects that the officer had sufficient facts to form the probable cause necessary to justify detaining or even arresting the defendant during their initial encounter. The trial court found credible the officer’s testimony that he smelled the odor of marijuana emitting from the house when, he first approached the defendant outside his house. See State v. Garcia, 374 So.2d 601 (Fla. 3d DCA 1979) (holding that officers smelling “the odor of marijuana smoke” at the front door of a residence was one factor supporting a finding of probable cause). See also State v. T.P., 835 So.2d 1277 (Fla. 4th DCA 2003) (holding that odor of marijuana justified officer’s detention and search of defendant and his car); State v. K.V., 821 So.2d 1127 (Fla. 4th DCA 2002) (same); State v. Drysdale, 770 So.2d 301 (Fla. 4th DCA 2000) (holding that odor of marijuana detected by officer in home warranted belief that seeds found on living room floor were marijuana seeds and provided probable cause for their seizure). Moreover, the defendant’s spontaneous admission that he had cannabis plants growing inside the house furnished additional support for his seizure. Thus, handcuffing the defendant and securing him on the ground under these circumstances did not constitute unreasonable or unlawful conduct on the part of the police.

Ordinarily, where there was no prior unlawful seizure or other police misconduct, the state need prove voluntariness of the defendant’s consent by only a preponderance of the evidence. Reynolds, 592 So.2d at 1086; Alvarez v. State, 515 So.2d 286, 288 (Fla. 4th DCA 1987). But, as Reynolds recognized, the inherently coercive nature of handcuffing imposes a higher burden on the state to establish that the defendant’s consent was voluntary and not mere acquiescence to a show of police authority. 592 So.2d at 1086. Moreover, because this search was of the defendant’s home, the factors bearing on the voluntariness of his consent to search required more scrutiny. See Kutzorik v. State, 891 So.2d 645, 648 (Fla. 2d DCA 2005) (citing Gonzalez v. State, 578 So.2d 729, 732 (Fla. 3d DCA 1991)). Here, other than the defendant’s being handcuffed on the ground during a lawful detention, the trial court found that there were no other coercive circumstances which affected the defendant’s ability to give free and voluntary consent. The defendant does not point to any other factors — such as his age, education, intelligence, or mental condition— that suggest he was vulnerable and unable to freely consent to a search.

Generally, the fact that a defendant has been taken, into custody or otherwise detained is not sufficient to constitute coercion and render consent involuntary as a matter of law. I.R.C. v. State, 968 So.2d 583, 586 (Fla. 2d DCA 2007) (citing United States v. Watson, 423 U.S. 411, 424, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976)); Grimes v. State, 244 So.2d 130, 133 (Fla.1971); Davis v. State, 226 So.2d 257, 260 (Fla. 2d DCA 1969); Rinehart v. State, 114 So.2d 487, 489 (Fla. 2d DCA 1959). Other factors must be considered in determining whether consent to a search is voluntary, including whether there were other coercive circumstances and conduct by law enforcement that would lead a court to conclude that a reasonable person in the defendant’s position would not have felt free to decline the officers’ request to search. See Kutzorik, 891 So.2d at 647 (citing Bostick, 501 U.S. at 439, 111 S.Ct. 2382, 115 L.Ed.2d 389) (“stating that totality of the circumstances surrounding the encounter must be analyzed”)). Further, “[tjhese factors should not be applied me-chanieally and no single factor is dispositive or controlling.” Wilson v. State, 952 So.2d 564, 570 (Fla. 5th DCA 2007) (citing United States v. Ponce, 8 F.3d 989, 997 (5th Cir.1993)).

Based on the totality of the circumstances in this case, we cannot say that the trial court’s ruling on the motion to suppress was erroneous. First, as discussed above, the detention of the defendant while handcuffed was not unlawful; thus his consent to search was free of the taint of prior illegal police action. Second, there were no other coercive or threatening circumstances present, such as an unreasonable display of police presence outside the defendant’s house or weapons drawn. Only two officers in plain clothes approached the defendant as he stood during daylight hours in front of his home. In addition, the officers did not display any weapons, threaten the defendant or his girlfriend, or make any promises or repeated requests for consent. Finally, the defendant reinforced his oral consent with a signed written consent. See Wilson, 952 So.2d at 570 (upholding trial court’s finding that defendant’s consent to a search of his property was voluntary even though defendant had been accosted at gunpoint by multiple officers where, among other things, nothing indicated that the defendant was mentally deficient or intoxicated; he was on his own property during daytime hours and not in a coercive environment; the encounter was relatively, short; defendant was not threatened or promised anything to induce his consent; and the defendant executed a written consent form); State v. C.S., 632 So.2d 675, 675 (Fla. 2d DCA 1994) (holding that state proved by clear and convincing evidence that juvenile’s consent to officer’s search of his vehicle was voluntary where “the initial stop was lawful; only one officer approached [juvenile]; the officer’s weapon was not drawn; the officer advised [him] that he had the right to refuse consent; and the officer made no threats or misrepresentations”). Although. the record in this case does not show that the officer advised the defendant of his right to refuse consent, this fact alone is not dispositive and does not render consent involuntary; '“[K]nowledge of a right to refuse is not .a prerequisite of a voluntary consent.” Schneckloth, 412 U.S. at 234, 93 S.Ct. 2041.

In concluding that the defendant’s consent was voluntary, the trial court found that the defendant was very cooperative throughout the encounter. It deemed noteworthy the fact that the defendant gave consent to search after he had already volunteered the information that marijuana plants were growing in the house. It is generally recognized that consent to a search may be considered valid when preceded by incriminatory statements, there being no reason to assume that the defendant would not voluntarily consent to a search for evidence if he has already confessed that the evidence is in fact located in the place which the police seek to search. See United States v. Boukater, 409 F.2d 537, 539 (5th Cir.1969) (finding that defendant’s consent to search was voluntary where the defendant acknowledged that he was carrying counterfeit bills in his briefcase before he gave his consent); Saldivar v. State, 209 S.W.3d 275, 284-85 (Tex.App.2006) (defendant’s consent to search found valid where consent given after defendant had told officer that there was cocaine in the glove compartment of his car); State v. Guest, 118 S.C. 130, 110 S.E. 112, 112-13 (1921) (search of defendant’s automobile for whis-ky deemed voluntary where defendant admitted he had whisky in automobile before giving officers the key to the rear compartment where whisky was stored).

In sum, even though the state has a heavy burden to overcome in establishing the voluntariness of consent when a defendant is handcuffed, the record in this case reflects that the state met its burden. We conclude that the trial court did not err in finding that, based on the totality of circumstances, the defendant’s consent was voluntary, rather than mere acquiescence to police authority. Accordingly, we affirm denial of the defendant’s motion to suppress.

Affirmed.

CIKLIN, J., concurs.

HAZOURI, J., concurs specially with opinion.

HAZOURI, J.,

concurring specially.

Although I am constrained to concur because the trial court is the trier of fact in a suppression hearing, I consider it very questionable that Gonzalez voluntarily consented to the search of his residence. Having handcuffed Gonzalez, the detectives could have secured the residence and then obtained a search warrant. Instead, having chosen not to seek a search warrant, the detectives relied upon voluntary consent. I find it odd that the detectives found it necessary to handcuff Gonzalez and place him on the ground, especially since there was no testimony that Gonzalez resisted or posed a threat to officer safety. I express the same concern that Chief Judge Gross expressed in Ruiz v. State, 50 So.3d 1229 (Fla. 4th DCA 2011):

[A]s an appellate court, we must defer to the express finding of credibility made by the trial court. We were not there. We did not see the witnesses testify. If believed, the detectives’ testimony supports the court’s ruling. This case demonstrates the importance of an independent judiciary. This case involves the search of a person’s home, but were the factors bearing on the vol-untariness of the consent scrutinized “with special care?” Without an unbiased and objective evaluation of testimony, judges devolve into rubber stamps for law enforcement. The judge may have punctiliously performed the duties of his office in this case, but, when considering the large number of “consent” cases that have come before us, the finding of “consent” in so many curious circumstances is a cause for concern.

Id. at 1283.

      . The defendant does not. contend that the officer’s detection of the odor of marijuana emanating from his home while standing in front of his home was an invasion of the defendant’s privacy protected by the Fourth Amendment. See State v. Jardines, 9 So.3d 1, 8 (Fla. 3d DCA 2008) (holding that there is no reasonable expectation of privacy at the entrance to property which is open to the public, including the front porch (citing State v. Pereira, 967 So.2d 312, 314 (Fla. 3d DCA 2007))).


author: ROTHENBERG, Judge.

text:
    William P. WALKER III and Gemma M. Walker, his wife, Appellants, v. Jaime A. FIGAROLA, Appellee.
    No. 3D09-2342.
    District Court of Appeal of Florida, Third District.
    March 9, 2011.
    Rehearing and Rehearing En Banc Denied May 5, 2011.

      Arthur J. Morburger, Robert I. Spiegel-man, Miami, for appellants.
    John H. Schulte, Miami, for appellee.
    Before RAMIREZ, C.J., and ROTHENBERG, J., and SCHWARTZ, Senior Judge.
   On Motion for Rehearing

ROTHENBERG, Judge.

We grant Jaime A. Figarola’s (“Figaro-la”) motion for rehearing, withdraw this Court’s opinion dated October 27, 2010, and issue the following opinion in its stead.

William P. Walker III and Gemma M. Walker, his wife (“the Walkers”), appeal the trial court’s order granting Figarola’s motion for judgment on the pleadings. Because we agree with the trial court that the Walkers’ second amended complaint fails to state a cause of action against Figarola for civil theft or conversion, we affirm.

Initially, the Walkers filed a two-count complaint against Figarola for breach of contract and civil theft, alleging that they loaned Figarola $25,000 which he failed to pay as promised. When it became clear that the Walkers’ claim for breach of contract was time barred by the four-year statute of limitations, the Walkers filed an amended and then a second amended complaint for civil theft and conversion. In their one-count second amended complaint, the Walkers again alleged they loaned Fi-garola $25,000 based on an oral promise to repay the loan within three weeks; at the time Figarola made the promise, he had no intention of repaying the loan, and the loan remains unpaid; and the money the Walkers loaned Figarola was converted to Figa-rola’s own use.

A judgment on the pleadings may be granted only if the moving party is clearly entitled to judgment as a matter of law, McKinzie By & Through McKinzie v. Hollywood, Inc., 421 So.2d 606, 607-08 (Fla. 4th DCA 1982), and our standard of review is de novo. Martinez v. Fla. Power & Light Co.; 863 So.2d 1204, 1205 (Fla.2003).

The law in Florida is clear—a simple monetary debt generally cannot form the basis of a claim for conversion or civil theft. See Gasparini v. Pordomingo, 972 So.2d 1053, 1055 (Fla. 3d DCA 2008) (“It is well-established law in Florida that a simple debt which can be discharged by the payment of money cannot generally form the basis of a claim for conversion or civil theft.”). But, as recognized in Gas-parini, the general rule does not foreclose a claim for civil theft or conversion under certain limited circumstances.

This is not to say that there can never be a claim for civil theft or conversion if there is a contractual relationship between the parties, but rather that the civil theft or conversion must go beyond, and be independent from, a failure to comply with the terms of a contract. See Ginsberg v. Lennar Fla. Holdings, Inc., 645 So.2d 490, 495 (Fla. 3d DCA 1994) (“[A] plaintiff may not circumvent the contractual relationship by bringing an action in tort.”).

Id. (emphasis added). This is not such a case.

First, in order for there to be a conversion where money is involved, “‘there must be an obligation to keep intact or deliver the specific money in question, so that money can be identified.’” Id. at 1056 (quoting Futch v. Head, 511 So.2d 314, 320 (Fla. 1st DCA 1987)); see also Masvidal v. Ochoa, 505 So.2d 555, 556 (Fla. 3d DCA 1987) (specifying that civil theft and conversion can be asserted where a party embezzles funds from an escrow account). Here, as in Gasparini, the parties did not contemplate that Figarola would keep the $25,000 loan in a separate account or hold the funds in a trust or escrow account. There is no allegation that the Walkers in any way directed how the money would be used by Figarola, and the second amended complaint clearly reflects no such intent. Thus, it is clear that the Walkers’ complaint failed to state a cause of action for conversion.

Similarly, their complaint failed to state a cause of action for civil theft. As this Court explained in Ginsberg, 645 So.2d at 494, “Where damages sought in tort are the same as those for breach of contract a plaintiff may not circumvent the contractual relationship by bringing an action in tort.” The Walkers seek to recast their simple breach of contract claim into a tort claim to avoid the reality that the statute of limitations has run on their contract claim. But the allegations are for a simple breach of an oral contract — Figaro-la borrowed $25,000 from the Walkers which he promised to repay within three weeks, and the loan remains unpaid. The complaint thus alleges a failure to comply with the terms of the contract. The Walkers had four years to bring a breach of contract action against Figarola, but they failed to do so. They cannot now seek a remedy in tort for a debt which could have been discharged by the payment of money by simply alleging that Figarola never intended to keep his promise to repay the debt. See Hotels of Key Largo v. RHI Hotels, Inc., 694 So.2d 74, 78 (Fla. 3d DCA 1997) (holding that “[misrepresentations relating to the breaching party’s performance of a contract do not give rise to an independent cause of action in tort”).

Affirmed.


author: SUAREZ, J.

text:
    Jessie SAAVEDRA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-3025.
    District Court of Appeal of Florida, Third District.
    March 9, 2011.
    Rehearing Denied March 30, 2011.

      Jessie Saavedra, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before GERSTEN, SUAREZ, and CORTINAS, JJ.
   SUAREZ, J.

Jessie Saavedra appeals from a final order denying his petition for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse.

The denial of Saavedra’s rule 3.850 motion as untimely was improper. The two-year time limitation for filing motions for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850 does not begin to run until appellate proceedings have concluded and the court issues a mandate or thirty days after the judgment and sentence become final if no direct appeal is filed. See Gust v. State, 535 So.2d 642 (Fla. 1st DCA 1988). Because the appellant did not file a direct appeal, his July 31, 2007, conviction and sentence became final and the two-year time limitation began to run on August 30, 2007. Two years from that date was Saturday, August 30, 2009. Florida Rule of Criminal Procedure 3.040 specifically provides that the last date of the period so computed shall be counted, unless it is Saturday, Sunday or a legal holiday, in which event the period shall run until the end of the next day which is neither a Saturday, Sunday or a legal holiday. The record shows that Saavedra placed his 3.850 petition into the correctional facility’s hands for mailing on Monday, August 31, 2009, and thus Saavedra’s motion was timely filed. See Thompson v. State, 761 So.2d 324 (Fla.2000) (holding that under the mailbox rule, the date that a motion is placed into the hands of prison officials for filing is the date that the motion is considered filed). We reverse for consideration of Saavedra’s petition on the merits.

Saavedra raises an issue regarding the alleged failure of the trial court to award credit for time served as part of his probation violation plea agreement. Although this issue is more appropriately raised via a rule 3.800 petition, the order on appeal concluded that the defendant was sentenced based only on receiving credit from his last booking date of May 8, 2009, citing to the sentencing transcript.

A defendant who is sentenced to incarceration because he violated the probationary portion of a split sentence is entitled to receive credit for time served in prison before being placed on probation. See Hines v. State, 906 So.2d 1137 (Fla. 3d DCA 2005); Fulcher v. State, 875 So.2d 647, 648 (Fla. 3d DCA 2004); Ryan v. State, 837 So.2d 1075 (Fla. 3d DCA 2003); Cozza v. State, 756 So.2d 272 (Fla. 3d DCA 2000). Although a defendant can waive credit for time served in prison on the original sentence as part of a negotiated plea agreement, such waiver must be clearly shown on the record and cannot be presumed. See Agharaumunna v. State, — So.3d -, 2010 WL 3766776 (Fla. 3d DCA 2010) (reversing and remanding because the attached documents do not conclusively refute the defendant’s claim that he is owed credit for time served); Isaac v. State, 992 So.2d 304, 305 (Fla. 3d DCA 2008) (holding that although a defendant can waive credit for time served in prison on the original sentence as part of a negotiated plea agreement, such waiver must be clearly shown on the record and cannot be presumed).

Although the transcript of defendant’s probation violation hearing and sentencing is in the record, it does not show that Saavedra was informed that he would not receive credit for time served as a result of his plea, nor does it show that Saavedra explicitly waived any credit for time served. His sentencing record is not in the record before us. If Saavedra did not clearly waive his right to credit for time served during the incarcerative portion of the split sentence, then he is entitled to such credit. Because the present record does not conclusively refute Saave-dra’s claim to credit for the incarcerative portion of his split sentence, the order must be reversed and the cause remanded for further proceedings. See Fla. R. App. P. 9.141(b)(2)(D); Fla. R. App. P. 9.140(i).

Reversed and remanded.


text:
    Charles PAUL, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-2255.
    District Court of Appeal of Florida, Fourth District.
    March 16, 2011.
    Rehearing Denied May 16, 2011.
    Charles Paul, Raiford, pro se.
    No brief filed for appellee.
   PER CURIAM.

We affirm the trial court’s denial of appellant’s untimely and successive postcon-viction motion. Although appellant raised a claim of an illegal sentence in his motion, which could have been considered under Rule 3.800(a), that claim was rejected on direct appeal and lacks merit.

Appellant was convicted under section 790.19, Florida Statutes (2001), of shooting into an occupied vehicle and sentenced as a prison releasee reoffender (PRR). He again argues that his offense does not qualify under the forcible felony catch-all provision of the PRR statute. § 775.082(9)(a)l.o., Fla. Stat. (2001) (providing that the provisions of the PRR statute may apply to those convicted of “[a]ny felony that involves the use or threat of physical force or violence against an individual”).

Applying the strict statutory elements analysis required by State v. Hearns, 961 So.2d 211 (Fla.2007), this offense necessarily includes the use of force or violence against an individual. To commit a violation of section 790.19, a vehicle must be occupied. This case is distinguishable from Paul v. State, 958 So.2d 1135, 1136-38 (Fla. 4th DCA 2007), and Hudson v. State, 800 So.2d 627 (Fla. 3d DCA 2001), which involved shooting into a building. Under section 790.19, a building may be occupied or unoccupied. A conviction under that aspect of the statute does not necessarily require the use of force against an individual.

When conducting the statutory elements analysis required by Hearns, although a court may not look to the facts of the case in deciding whether the use of force is involved, a court is not required to ignore the elements of the particular provision of the statute under which appellant is charged. Appellant’s PRR sentence is not illegal on this ground because his offense necessarily required the use of force or violence against an individual. We recognize and certify that this decision directly conflicts with the decision in Crapps v. State, 968 So.2d 627 (Fla. 1st DCA 2007).

The trial court’s order denying appellant’s postconviction motion is affirmed.

WARNER, MAY and CIKLIN, JJ., concur.


text:
    Donnell JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-1481.
    District Court of Appeal of Florida, Fourth District.
    March 16, 2011.
    Rehearing Denied May 10, 2011.
    Donnell Johnson, Milton, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. With respect to the first ground for relief, see State v. Boatwright, 559 So.2d 210 (Fla.1990) (holding it was within the discretion of the sentencing court to impose consecutive twenty-five-year mandatory minimum terms for multi-pie counts of capital sexual battery, though committed on single victim at same location and closely connected in time).

WARNER, STEVENSON and MAY, JJ., concur.


text:
    Donneco R. KING, Petitioner, v. Edwin G. BUSS, Secretary, Fla. Dept. of Corrections, Respondent.
    Nos. 4D10-3278, 4D10-3387.
    District Court of Appeal of Florida, Fourth District.
    March 16, 2011.
    Rehearing Denied May 10, 2011.
    Donneco R. King, South Bay, pro se.
    No appearance for respondent.
   PER CURIAM.

Donneco King has petitioned this court for a writ of certiorari seeking review of an order denying his petition for writ of habeas corpus in Case No. 4D10-3278. He has also appealed the same circuit court order in Case No. 4D10-3387. We sua sponte consolidate the cases, and treat the petition as the initial brief. We affirm.

Mr. King is serving a number of fifteen and ten-year sentences for various felony convictions arising out of Pinellas County. He filed an emergency petition for writ of habeas corpus in the Fifteenth Judicial Circuit because he is currently incarcerated in South Bay Correctional Institute. In that petition, he challenged a post-conviction order entered in the Sixth Judicial Circuit on March 20, 2002.

King now argues that his conviction and sentences in case numbers 97-7686 and 96-21331 are void. He suggests that he should be released because the sentences in those cases should have run concurrent with his new plea and resentencing on other cases that occurred in 2003. After a long and protracted history, suffice it to say, King failed to include these two cases in his appeal to the Second District, which led to the new plea and resentencing in the other case numbers. See King v. State, 870 So.2d 69 (Fla. 2d DCA 2003). The fact that King failed to timely challenge in the Second District appeal the post-conviction order as it related to case numbers 97-7686 and 96-21331 prevents him from now collaterally attacking the convictions and sentences in these cases. Even if the March 20, 2002 order should also have been vacated as to ease numbers 97-7686 and 96-21331, King would be in a pretrial posture in these cases and would not be entitled to immediate release.

Affirmed.

WARNER, MAY and DAMOORGIAN, JJ., concur.


text:
    Takoya CRINER, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-6211.
    District Court of Appeal of Florida, First District.
    March 16, 2011.
    Bernard F. Daley, Jr., Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Charlie McCoy, Senior Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant seeks review of an order denying his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. The time period for filing a timely rule 3.850 motion was due to expire on December 27, 2008. On December 26, 2008, the appellant filed a motion for an extension of time, and, on March 23, 2009, the appellant filed the instant rule 3.850 motion raising several claims of ineffective assistance of counsel. The trial court, in its discretion, denied the appellant’s motion to extend and subsequently denied the appellant’s rule 3.850 motion as untimely. We reverse.

An “appellate court will review the denial of the motion to extend, if need be, when it reviews the order disposing of the postconviction motion.” Carroll v. State, — So.3d —, 2010 WL 5381851 (Fla. 3d DCA 2010) (quoting Manning v. State, 28 So.3d 971, 973 (Fla. 2d DCA 2010)). The time period for filing rule 3.850motions may be extended for good cause. State v. Boyd, 846 So.2d 458, 459 (Fla.2003). Because the determination of good cause is based on the peculiar facts and circumstances of each case, the trial court’s exercise of discretion in weighing the equities involved will be overruled only upon a showing of abuse. Id.

Here, the trial court did not determine whether the appellant had shown good cause for an extension. Rather, the trial court’s sole stated reason for denying the motion to extend was that the appellant had filed a previous rule 3.850 motion and, therefore, a subsequent motion would be proeedurally barred as successive. We disagree.

In his previous rule 3.850 motion, the appellant raised nine claims of trial court error and one claim alleging seven distinct grounds of ineffective assistance of counsel. The trial court denied the motion based on the fact that all of the issues were proeedurally barred as issues which could have and should have been litigated before the trial court or on direct appeal. The court apparently overlooked that claim ten involved assertions of ineffective assistance of counsel—claims the appellant was unable to litigate on direct appeal. Criner v. State, 943 So.2d 224 (Fla. 1st DCA 2006) (holding that Defendant’s claims of ineffective assistance of counsel were not cognizable on direct appeal, where such claims were not apparent on the face of the record); see also McKinney v. State, 579 So.2d 80, 82 (Fla.1991) (holding that “[c]laims of ineffective assistance of counsel are generally not reviewable on direct appeal, but are properly raised in a motion for posteonviction relief ’).

We have held that the denial of a rule 3.850motion as successive is proper, provided that “the prior determination was on the merits.” Fla. R. Crim. P. 3.850(f); Freeman v. State, 589 So.2d 368, 369 (Fla. 1st DCA 1991); Williams v. State, 561 So.2d 1349, 1350 (Fla. 1st DCA 1990). The appellant’s postconviction claims of ineffective assistance’ of counsel were never decided on the merits. Thus, a subsequent rule 3.850 motion would not be procedurally barred as successive, and the trial court’s reason for denying the appellant’s motion to extend would be erroneous. A trial court’s ruling which is “based on an erroneous view of the law or on clearly erroneous assessment of the evidence” constitutes an abuse of discretion. Salazar v. State, 991 So.2d 364, 373 (Fla.2008).

We note that in the appellant’s motion to extend, he alleged that his previous rule 3.850motion was fraudulent and that he spent the remainder of his two-year time period attempting to get his previous motion nullified as such. If true, these alter gations may constitute good cause for needing additional time to file a proper motion. Therefore, we conclude that the trial court erred in summarily denying the appellant’s motion as untimely without considering the grounds for the extension. See Boyd, 846 So.2d at 460.

Accordingly, we remand for further proceedings, which may include an evidentiary hearing to determine the merits of the allegations set forth in the motion to extend.

REVERSED AND REMANDED.

ROBERTS, CLARK, and WETHERELL, JJ., concur.


author: LaROSE, Judge. VILLANTI, Judge,

text:
    Edward J. ALLARD, Appellant/Cross-Appellee, v. AL-NAYEM INTERNATIONAL, INC., Appellee/Cross-Appellant.
    No. 2D09-4065.
    District Court of Appeal of Florida, Second District.
    March 16, 2011.

      Martin S. Awerbach and Michael A. Cohn of Awerbach & Cohn, P.A., Clear-water, for Appellant/Cross-Appellee.
    Marion Hale and Sharon E. Krick of Johnson, Pope, Bokor, Ruppel & ‘Burns, LLP, Clearwater, for Appellee/Cross-Ap-pellant.
   LaROSE, Judge.

Edward J. Allard appeals the trial court’s order granting Al-Nayem International, Inc., a new trial as to damages suffered by Al-Nayem for Mr. Allard’s breach of a warranty deed. See Fla. R.App. P. 9.130(a)(4); 9.110(a)(4). Al-Nayem cross-appeals, challenging an earlier final order involuntarily dismissing its damages case. See Fla. RApp. P. 9.110(g). We affirm as to the involuntary dismissal but reverse the order granting rehearing.

Al-Nayem purchased commercial property from Mr. Allard for $1,650,000. The property had a restaurant and paved parking lot on its west side. A thirty-foot-wide drainage ditch crossed an unimproved portion on the east side. Al-Nayem later discovered that the Florida Department of Transportation (DOT) actually owned the ditch.

Al-Nayem sued Mr. Allard for breach of the warranty deed. It also sued the title company for breach of the title policy. The trial court entered an order finding Mr. Allard and the title company in breach. The trial court recognized that

[t]he loss of the 30 foot swale decreases the plaintiffs ability to develop the property as it limits the size of any building which could be constructed to replace the decrepit and now closed ... restaurant. In addition, the loss of the swale strands a small sliver of the property which also affects how the property can be developed.

The trial court then held a nonjury trial on damages. Al-Nayem relied on Burton v. Price, 105 Fla. 544, 141 So. 728 (1932), apparently the only Florida Supreme Court case addressing the measure of damages for breach of the covenant of seisin. The supreme court addressed whether the buyer could recover for breach. Id. at 728-29. Burton held that:

the vendee may recover, if there be a failure of seizin as to a part of the premises described in the deed, and in such case the measure of damages is such fractional part of the whole consideration paid as the value at the time of the purchase of the part to which the title failed bears to the whole block purchased ....

Id. at 729. Burton did not explain how to apply its measure of damages. Nor did it indicate how improvements on property might impact value.

Al-Nayem reasoned that Burton required a simple arithmetic approach: divide the square footage of the DOT-owned ditch by the total square footage of the property and then multiply that number by the total purchase price. Mr. Allard argued that a different formulation of Burton applied, especially when dealing with improved property. He contended that Hillsboro Cove, Inc. v. Archibald, 322 So.2d 585 (Fla. 4th DCA 1975), clarified that damages are based on the proportionate value of the excluded land, not its proportionate area. In that case, Hills-boro Cove discovered that a thirty-foot strip in a parcel of property it purchased belonged to someone else. Id. Hillsboro Cove had planned to construct part of a condominium there. It spent over $50,000 to secure title to the strip. Id. The trial court awarded Hillsboro Cove only $6011.88 in damages. Id. The Fourth District affirmed, holding that Burton’s “value at the time of the purchase of the part to which the title failed bears to the whole block purchased” means "the proportionate value of the strip, not the proportionate area....” Id. at 586 (emphasis added). The Fourth District observed that “[t]he trial court as the trier of fact could find from the evidence that the 30-foot strip of property was not of any greater value per square foot than the major piece.” Id. (also citing Williams v. Azar, 47 So.2d 624 (Fla.1950) (holding that grantor should pay costs of clearing title not to exceed the original proportionate value of the land at the time of purchase)).

Mr. Allard presented the trial court with cases from other jurisdictions to support his interpretation of Burton. See Edwards v. Johnson, 227 Ark. 345, 298 S.W.2d 336, 337 (1957) (“[Where] [t]here is nothing to indicate that the parties dealt in terms of a fixed price per acre without reference to the improvements^] ... the purchaser’s loss is equitably determined by first deducting the value of the improvements from the purchase price and then calculating the damage attributable to the shortage of acreage.”); Wiedeman v. Brown, 307 Ky. 231, 210 S.W.2d 764, 764-66 (1948) (determining that measure of damages for a small portion of a substantial tract separable from the part enhanced by the improvements was the average value of the land without the improvements); Anzalone v. Strand, 14 Mass.App.Ct. 45, 436 N.E.2d 960, 963 n. 1 (1982) (holding that the trial court improperly calculated the buyer’s damages by prorating the purchase price in direct proportion to the diminution in square footage without deducting the value of improvements; listing cases from numerous jurisdictions rejecting strict prorating formula when dealing with improved property); Tinsley v. Hearn, 136 Tenn. 586, 191 S.W. 127, 128 (1917) (holding that damages must be calculated by multiplying the number of acres of the deficiency by the average value per acre of the whole without the improvements).

Mr. Allard agreed that Burton applied. But, he argued that Al-Nayem’s methodology was flawed for failing to account for improvements on the property. Al-Nay-em insisted that Burton required the arithmetical calculation it presented, regardless of any improvements. Al-Nayem’s expert testified that the DOT property comprised 7.65 percent of the total property; 7.65 percent of the purchase price was $126,225. Adding the stranded portion of the property increased the percentage to 13.5, putting damages at $222,750. The parties agreed that the amount of the title company settlement would be a setoff to any damages award. At the close of Al-Nayem’s case, the trial court granted Mr. Allard’s motion for an involuntary dismissal because Al-Nayem failed to present competent, substantial evidence of damages.

I. INVOLUNTARY DISMISSAL

We review the judgment granting the motion for involuntary dismissal at the close of Al-Nayem’s case de novo. See Brundage v. Bank of Am., 996 So.2d 877, 881 (Fla. 4th DCA 2008).

In granting Mr. Allard’s motion, the trial court noted that Burton did not address the effect of property improvements on the damages calculation. It reasoned that Al-Nayem’s method would unjustly award Al-Nayem the proportionate value, if any, of the restaurant improvements to which its use and enjoyment were unimpaired. The trial court ruled that the correct measure of damages must account for the value of improvements. If Al-Nayem’s interpretation of Burton is to apply, “the calculation should occur after deduction of the value of substantial unaffected improvements to the property from the purchase price.” We agree. Burton refers to “value,” which, in our view, requires more than the simple calculation advanced by Al-Nayem.

Involuntary dismissal is proper where there is inadequate proof at trial on the correct measure of damages. See Fla. R. Civ. P. 1.420(b); Teca, Inc. v. WM-TAB, Inc., 726 So.2d 828, 830 (Fla. 4th DCA 1999) (noting that dismissal would have been appropriate at trial because buyer incorrectly presented only evidence of lost profits where- proper measure of damages was difference between represented value and actual value or between purchase price and actual value); Platel v. Maronda Homes Inc., of Fla., 423 So.2d 627, 629 (Fla. 5th DCA 1982) (stating that plaintiff who fails to establish damages in nonjury trial is subject to involuntary dismissal). Al-Nayem’s damages evidence was insufficient under Burton and the trial court properly granted Mr. Allard’s motion for involuntary dismissal.

II. MOTION FOR REHEARING

Al-Nayem moved for a rehearing, arguing that because Florida case law is unsettled as to the measure of damages, it should have an opportunity to present evidence of damages based on the method approved by the trial court. The trial court agreed and stated that it was granting the motion to avoid the injustice of a potential windfall to Mr. Allard.

The applicable standard of review is abuse of discretion. Campagna v. Cope, 971 So.2d 243, 251 (Fla. 2d DCA 2008). However, we apply this standard in a restricted manner because the reason for granting the rehearing involves a question of law. See Krolick v. Monroe, 909 So.2d 910, 913-14 (Fla. 2d DCA 2005); Bulkmatic Transp. Co. v. Taylor, 860 So.2d 436, 444 (Fla. 1st DCA 2003).

The trial court relied on MCI WorldCom Network Services, Inc. v. Mastec, Inc., 995 So.2d 221, 223 (Fla.2008), for the proposition that “[generally, a person or entity injured by either a breach of contract or by a wrongful or negligent act or omission of another is entitled to recover a fair and just compensation that is commensurate with the resulting injury or damage.” The Eleventh Circuit certified MCI WorldCom to our supreme court because the case raised unsettled questions of Florida law as to the proper measure of damages for Mastec’s severing of an MCI underground fiber-optic cable. Id. at 222-23. MCI claimed damages for repairs, loss of use, and punitive damages. Id. The supreme court held that MCI could not recover loss-of-use damages because it was able to redirect telecommunications traffic to other cables in its system and thus suffered no disruption of service. Id. However, MCI could still recover damages for repairs performed on the damaged cable. Id. at 225.

Even if we accept Al-Nayem’s argument that, as in MCI WorldCom, the proper measure of damages is an unsettled question of Florida law, that case is distinguishable. In contrast to the MCI Worldcom plaintiff, Al-Nayem persisted that its interpretation of Burton was the only correct measure of damages, despite considerable debate below about the correct measure of damages and Mr. Allard’s argument that improvements must be considered. Al-Nayem “consciously elected to proceed upon ... what was ultimately determined to be an invalid theory of damages.” See St. Petersburg Hous. Auth. v. J.R. Dev., 706 So.2d 1377, 1378 (Fla. 2d DCA 1998).

The trial court improperly granted a rehearing. “[A] party’s failure to prove damages is not a proper ground for rehearing....” Id. “Rehearing is not intended as a device to present additional evidence that was available, although not presented, at the original trial.” Id. Accordingly, the rehearing was improperly granted and we reverse as to that issue.

Affirmed in part and reversed in part.

NORTHCUTT, J., Concurs.

VILLANTI, J., Dissents with opinion.

VILLANTI, Judge,

Dissenting.

I respectfully dissent from the majority opinion because, in my view, the trial court’s order granting the motion for involuntary dismissal was erroneous. Because of this, I would reverse that order or, in the alternative, affirm the order granting Al-Nayem a new trial on damages. In addition, because the majority opinion passes on a question of statewide importance, I would certify a question of great public importance to the Florida Supreme Court.

This case was bifurcated for trial. At the bench trial on liability, the trial court found that Mr. Allard had breached the warranty deed he provided to Al-Nayem. Specifically, the court found that Mr. Al-lard breached the covenant of seisin when he purported to transfer property to Al-Nayem that Mr. Allard did not, in fact, own in its entirety.

At the subsequent bench trial on damages, Al-Nayem presented admissible evidence of its damages, relying on the supreme court’s decision in Burton v. Price, 105 Fla. 544, 141 So. 728, 729 (1932), which held that the measure of damages for breach of the covenant of seisin is “such fractional part of the whole consideration paid as the value at the time of the purchase of the part to which the title failed bears to the whole block purchased.... ” This determination of the measure of damages was reaffirmed in Williams v. Azar, 47 So.2d 624, 626 (Fla.1950), and Hillsboro Cove, Inc. v. Archibald, 322 So.2d 585, 586 (Fla. 4th DCA 1975) (limiting .buyer to damages for breach of covenant of seisin based on “the proportionate cost of the 30-foot strip as of the date of conveyance” rather than the costs actually expended at a later date by the buyer to obtain the strip of land from a third party). Under Burton, Williams, and Hillsboro Cove, Al-Nayem was entitled to recover as damages the value of the land that it thought it purchased but which was actually not conveyed. Al-Nayem presented evidence of its damages based on the proportionate cost of the unconveyed land as of the date of conveyance. This was one estimate of value that is seemingly supported by the plain language of Burton, Williams, and Hillsboro Cove.

After Al-Nayem rested its case, Mr. Allard moved for an involuntary dismissal, arguing that Burton required Al-Nayem to present evidence of the value of the land without any improvements before it calculated the proportionate value of the unconveyed land. He contended that the evidence of the proportionate cost of the unconveyed land was legally insufficient. Mr. Allard also argued that, even if the Burton decision did allow for evidence of proportionate cost, it did so only in cases involving raw land, not improved land. This argument led to Mr. Allard’s foray into out-of-state case law concerning the prop.er measure of damages under this circumstance.

Unfortunately, the trial court accepted the latter of Mr. Allard’s arguments. In an effort to distinguish Burton, the trial court engaged in unfounded fact-finding about the facts of the Burton case, stating:

Although the factual context of Burton is not fully fleshed out in the opinion, there are a couple of reasons to believe that the case concerned raw land, as opposed to improved property. First of course is the historical context of Pasco County in the early 1930’s. Sfecondly is the court’s reference to the property to which the formula was to apply as “lands”. Despite the Plaintiffs suggestion that the case is controlling in all instances when there is a partial failure of seisin, this court finds nothing in the language of the opinion that compels that conclusion when the unaffected portions of the entire property sold contain substantial improvements.

Based on this logic, the trial court concluded that Burton was not controlling and that it was free to follow the out-of-state law on damages brought forth by Mr. Al-lard. In doing so, the trial court determined that Al-Nayem’s evidence of damages based on the proportionate cost of the unconveyed land was legally insufficient, and it granted the involuntary dismissal on this basis. The flaw in this logic is twofold.

First, as noted above, the trial court’s attempt to distinguish Burton was based on unsupported speculation about the facts underlying that decision. The Burton decision itself contains no facts concerning whether the land at issue was improved or unimproved. More importantly, the holding in Burton makes no such distinction. Even if it did not like it, the trial court had no discretion to write into Burton qualifications that do not exist in the language of the opinion itself.

Second, contrary to Mr. Allard’s argument and the .trial court’s conclusion, Al-Nayem did, in fact, introduce legally sufficient evidence of its damages. Even if, as Mr. Allard contends, Burton requires that damages be calculated based on the value of the unconveyed land rather than its cost, Al-Nayem’s evidence of the proportionate cost of the unconveyed land was, in fact, some evidence of the value of that land. Mr. Allard was free to put on opposing evidence supporting a different value. He was free to argue that Al-Nayem’s evidence of value should not be deemed worthy of belief. But he could not argue that Al-Nayem had wholly failed to introduce evidence of its damages or that Al-Nayem’s evidence was not legally sufficient. This is particularly true given that Hillsboro Cove specifically refers to calculating damages based on “the proportionate cost of the [unconveyed land] as of the date of conveyance.” 322 So.2d at 586. Thus, in my view, this court should reverse the trial court’s order granting the motion for involuntary dismissal and remand for further proceedings.

To the trial court’s credit, it ultimately recognized its error when it granted Al-Nayem’s motion for rehearing and ordered a new trial on damages, stating that it was doing so “to arrive at a just result and not produce injustice as a result of procedural disadvantage.”. Unquestionably, the un-conveyed land included in the sale from Mr. Allard to Al-Nayem had some value. To paraphrase Will Rogers, “it’s land— they’re not making it anymore.” Once the trial court found that Mr. Allard breached the warranty of seisin, Al-Nayem was entitled to some measure of damages for the loss of that land. The trial court’s earlier ruling granting the motion for involuntary dismissal denied Al-Nayem an award of damages to which it was entitled, and the trial court rectified that error by granting Al-Nayem a new trial on damages. It was within the trial court’s discretion to render such a ruling, see Fla. R. Civ. P. 1.580(d) (permitting the court, on its own initiative, to order a new trial for any reason for which it could have granted a new trial on the motion of a party if it does so within the time for ruling on a timely motion for rehearing or new trial made by a party), and I see no abuse of discretion in this ruling.

Contrary to the majority’s opinion, I see nothing in the record to support the conclusion that Al-Nayem “consciously elected to proceed upon” an invalid theory of damages. Aside from the fact that Al-Nayem’s theory of damages was not invalid, nothing in the record before this court shows that Al-Nayem was on notice of Mr. Allard’s disagreement with Burton or its measure of damages at any time before Mr. Allard made his motion for involuntary dismissal after Al-Nayem had rested its damages case. And, significantly, the court did not rule at the end of the bench trial. Instead, it took the matter under advisement and then issued a written ruling approximately a week later. Thus, the first notice Al-Nayem had of the trial court’s disagreement with Burton was after the bench trial had concluded. At that point, Al-Nayem immediately sought a new trial by way of a motion for rehearing so that it could meet the trial court’s newly adopted evidentiary standard. Under these circumstances, the trial court was absolutely within its discretion to grant a new trial on damages to allow Al-Nayem to meet this new standard.

I recognize that, as a general proposition, “a party’s failure to prove damages is not a proper ground for rehearing.” St. Petersburg Hous. Auth. v. J.R. Dev., 706 So.2d 1377, 1378 (Fla. 2d DCA 1998). This is based on the presumption that “litigants who have concluded a trial on the merits have presented all available, competent, material evidence in support of their case.” Id. However, this general rule does' not contemplate the situation in which the court decides posttrial to adopt an out-of-state measure of damages rather than to apply long-standing Florida law. In that instance, to refuse to allow Al-Nayem to attempt to meet the evidentiary requirements newly adopted by the trial court would result in a miscarriage of justice. Therefore, I would also affirm the trial court’s order granting a new trial on the issue of damages.

Finally, I specifically dissent from the majority’s refusal in its opinion on rehearing to certify a question of great public importance to the Florida Supreme Court. The proper measure of damages arising from a breach of the covenant of seisin is an issue with statewide implications, and the majority is interpreting, and perhaps rewriting, supreme court precedent that has been unchanged for over seventy-five years. In my view, fairness dictates on these facts that we accommodate Al-Nay-em’s ability to seek review in the supreme court. Accordingly, I would certify the following question as one of great public importance:

DOES THE MEASURE OF DAMAGES SET FORTH IN BURTON V. PRICE, 105 Fla. 544, 141 So. 728 (Fla.1932), APPLY ONLY TO UNDEVELOPED PROPERTY, OR IS A PROPER MEASURE OF DAMAGES FOR BREACH OF THE COVENANT OF SEISIN CONCERNING DEVELOPED PROPERTY THE FRACTIONAL PART OF THE WHOLE CONSIDERATION PAID AS THE COST AT THE TIME OF THE PURCHASE OF THE PART OF THE PROPERTY TO WHICH TITLE FAILED BEARS TO THE WHOLE TRACT PURCHASED?

        .See also Bowen v. Willard, 340 So.2d 110, 112 (Fla.1976) (“[Ajppeals taken from new trial orders shall be treated as appeals from final judgments to the extent possible, and ... appellate courts of this state have the authority to deal with other appealable issues.”); City of Tampa v. Jorda, 445 So.2d 699, 700 n. 1 (Fla. 2d DCA 1984) (noting that, pursuant to Bowen, City was entitled to argue in appeal from order granting new trial that directed verdict was error); Hill v. Am. Med. Affiliates, Inc., 387 So.2d 1056, 1058 (Fla. 2d DCA 1980) (explaining that because reversal of order granting new trial renders entry of final judgment a purely ministerial act, reviewing court should go ahead and consider other issues raised that could be raised on appeal from final judgment); Seaboard Coastline R.R. Co. v. Dennard, 399 So.2d 490, 492 (Fla. 3d DCA 1981) (noting jurisdiction to entertain cross-appeal where appeal was taken from new trial order).

      . Al-Nayem settled with the title company for $90,000.

      . The covenant of seisin is “an assurance that the grantor has the very estate in quantity and quality which he purports to convey.” Burton v. Price, 105 Fla. 544, 141 So. 728, 729 (Fla.1932). Seisin is breached when the buyer acquires no title or possession by a deed of conveyance containing covenants of seisin. Williams v. Azar, 47 So.2d 624, 626 (Fla.1950).

      . After a party seeking affirmative relief in an action tried by the court without a jury has completed the presentation of evidence, any other party may move for a dismissal on the ground that on the facts and the law the party seeking affirmative relief has shown no right to relief, without waiving the right to offer evidence if the motion is not granted.

      . At trial, Al-Nayem offered no alternative methodology. Prior to trial, it did not attempt to secure a ruling from the trial court on the appropriate measure of damages.

      . " 'In civil jurisprudence it too often happens that there is so much law, that there is no room for justice, and that the claimant expires of wrong in the midst of right, as mariners die of thirst in the midst of water.’ ” Hous. Auth. of City of Tampa v. Burton, 874 So.2d 6, 13 (Fla. 2d DCA 2004) (Villanti, J., dissenting) (quoting Caleb Charles Colton, available at http://www.theotherpages.org/ unsort05.html (last visited Oct. 12, 2010)).


text:
    Larry MOREE, Appellant, v. Sheila MOREE, Appellee.
    No. 2D09-5018.
    District Court of Appeal of Florida, Second District.
    March 16, 2011.
    Rehearing Denied May 4, 2011.

      Virginia R. Vetter, Tampa, for Appellant.
    Allison M. Perry of Law Office of Allison M. Perry, P.A., Tampa, for Appellee.
   SILBERMAN, Judge.

Larry Moree (the Husband) appeals a final judgment of dissolution of marriage which incorporated the provisions of a mediated settlement agreement (MSA) that he entered into with Sheila Moree (the Wife). We affirm the final judgment insofar as it dissolves the parties’ marriage. However, we reverse the trial court’s ruling denying the Husband’s objection to and motion to set aside or reform the MSA and remand for further proceedings.

This case involves a long-term marriage of nearly thirty-two years. The parties had accumulated substantial assets including the marital home and various financial accounts. Before the final dissolution hearing, the parties and their counsel participated in mediation. They entered into the MSA on August 26, 2009. Nine days later, the Husband filed an objection to the MSA and a verified motion to set aside or to reform the MSA.

In his motion, the Husband claimed that negotiations before and during the mediation focused on equal distribution of the marital assets and liabilities. He stated that the parties expected to receive equivalent net value' with some adjustment to settle the Husband’s alimony claim. He alleged that due to the parties’ mutual mistake, the MSA contained errors and did not accurately reflect the value of some accounts due to tax implications. He asserted that the errors adversely affected him by over $200,000. The Husband requested reformation of the agreement to reflect the true intentions of the parties. Alternatively, he asked that the MSA be set aside because it did not reflect or achieve the parties’ intent and because he entered into it as a result of undue influence and pressure in the mediation process. The Husband’s counsel also filed a motion to withdraw and a motion to continue the final hearing scheduled for September 18, 2009. He stated that the motion to set aside or to reform the MSA caused a conflict. He asserted that he would likely be a witness and that his interests may not be aligned with the Husband’s interests.

At the start of the final hearing, the Husband’s attorney asked that the trial court allow him to withdraw and continue the trial. This would enable another attorney to represent the Husband on the motion to set aside or to reform the MSA at a later hearing. The trial court asked the attorneys to address the legal implications of the Husband’s motion to set aside or to reform the MSA. The Wife’s attorney stated that the motion did not meet the standard for duress or coercion and did not sufficiently state a claim for mutual mistake. He added that there was no mutual mistake by the parties. The Husband’s attorney argued that the motion to set aside or to reform the MSA was not scheduled to be heard that day. He asserted that an evidentiary hearing would be necessary for the court to determine whether a mutual mistake had, in fact, occurred. He stated that the Husband would testify that the MSA did not properly reflect the parties’ intentions as to valuation and tax implications.- The Wife’s attorney indicated that the Wife would testify that there had been no mutual mistake.

After the trial court expressed concern as to sufficiency of the Husband’s motion to reform or to set aside, the Husband’s attorney asked for leave to amend the motion to include additional facts. The court denied leave to amend and the mo: tion for continuance, noting that the final hearing date had been scheduled months earlier. Over the Husband’s objection, the court proceeded with the final hearing and accepted the MSA into evidence.

In its final judgment, the court stated that the Husband’s objection to the MSA and his motion to set aside- or to reform the MSA failed to allege fraud, misrepresentation in discovery, coercion, or allegations sufficient under Florida Family Law Rule of Procedure 12.540. The court denied the Husband’s motion seeking relief from the MSA and denied counsel’s motion to withdraw and to continue the final hearing. The court approved the MSA, incorporated it into the final judgment, and dissolved the marriage.

On appeal, the Husband argues that his due process rights were violated because the trial court ruled on the motion to set aside or to reform the MSA when that motion was not scheduled for hearing. He next argues that the trial court erred by denying his motion without an eviden-tiary hearing. And he asserts that the court erred by denying the motion for continuance so that the motion to set aside or to reform the MSA could be resolved before the final hearing. The Wife agrees that the Husband’s motion to set aside or to reform the MSA was not noticed for hearing. But she argues that the Husband understood that the motion would have to be considered because the case was set for final hearing. She further argues that the trial court correctly denied the motion as facially insufficient. Because we conclude that the trial court erred in denying as facially insufficient the Husband’s motion to set aside or to reform the MSA based on mutual mistake, we reverse and remand for an evidentiary hearing on the motion. In light of our decision, we do not address the other issues raised by the Husband.

A marital settlement agreement may be set aside when it is entered into as a result of mutual mistake, coercion, or duress. See Barber v. Barber, 878 So.2d 449, 451 (Fla. 3d DCA 2004) (rescinding marital settlement agreement entered into as a result of mutual mistake); Hieber v. Hieber, 151 So.2d 646, 649 (Fla. 3d DCA 1963) (recognizing that the issue of mutual mistake is a factual matter to be resolved based on evidence with .the burden on the party who seeks to prove “fraud, deceit, duress, coercion, or mutual mistake in the execution of the agreement”). A mutual mistake is one “where the parties agree to one thing and then, due to either a scrivener’s error or inadvertence, express something different in the written instrument.” Feldman v. Kritch, 824 So.2d 274, 277 (Fla. 4th DCA 2002).

Here, although the Husband’s motion was clearly insufficient to obtain relief based on “undue influence and pressure,” the motion adequately alleged a claim for relief, based on mutual mistake. Thus, the trial court erred in denying the motion as facially insufficient. Further, because the Wife disputed the Husband’s claim, the issue must be resolved by evidentiary hearing. See Hieber, 151 So.2d at 649.

Accordingly, we affirm the dissolution of marriage but reverse the denial of the Husband’s motion to set aside or reform the MSA and remand for further proceedings.

Affirmed in part, reversed in part, and remanded.

WALLACE and MORRIS, JJ., Concur.

      . We note that as to the trial court's denial of the Husband’s oral request for leave to amend the motion to set aside or to reform the MSA, the Husband did not argue error in his initial brief and made only a passing reference to that ruling in his reply brief.


text:
    FARAH REAL ESTATE AND INVESTMENT, LLC, Petitioner, v. The BANK OF MIAMI, N.A., Respondent.
    Nos. 3D10-2602, 3D10-2603.
    District Court of Appeal of Florida, Third District.
    March 16, 2011.
    Rehearing Denied April 28, 2011.
    Bales & Bales and Matt E. Bales, Jr., for petitioner.
    Isicoff, Ragatz & Koenigsberg and Eric D. Isicoff, Miami, and Carolina A. Latour, for respondent.
    Before SUAREZ, ROTHENBERG, and LAGOA, JJ.
   LAGOA, J.

Farah Real Estate and Investment, LLC (“Farah” or “Mortgagor”) petitions this Court for certiorari review of two orders requiring Farah to make monthly-payments to The Bank of Miami (“Bank” or “Mortgagee”) for the pendency of the Bank’s foreclosure proceedings or, failing which, to vacate the mortgaged commercial properties. For the reasons stated below, we deny Farah’s petitions.

I. FACTUAL HISTORY

In August 2007, the Bank loaned Farah $8,768,000.00. To secure repayment of the loan, Farah executed a mortgage encumbering three commercial properties in Miami-Dade County. The Bank subsequently filed an action seeking to foreclose the mortgage and, pursuant to section 702.10(2), Florida Statutes (2010), the trial court entered an order requiring Farah to make monthly payments in the amount of $61,180.91 to the Bank during the pendency of the litigation. (“September 23 Order”). Farah seeks certiorari review of the September 23 Order in case number 3D10-2603.

Approximately four months later, in December 2007, the Bank loaned Farah another $1,105,000.00. To secure repayment of the loan, Farah executed a second mortgage encumbering different commercial property in Miami-Dade County. The Bank subsequently filed an action seeking to foreclose the mortgage and, pursuant to section 702.10(2), on September 15, 2010, the trial court entered an order requiring Farah to make monthly payments in the amount of $10,479.00 to the Bank during the pendency of the litigation. (“September 15 Order”). Farah seeks certiorari review of the September 15 Order in case number 3D10-2602.

Farah subsequently moved to stay enforcement of the Orders while it sought certiorari review. The trial court denied Farah’s motions. On October 8, 2010, this Court stayed the Orders below pending further order of the Court.

II. ANALYSIS

In an action to foreclose a mortgage encumbering non-residential real estate, “the mortgagee may request that the court enter an order directing the mortgagor defendant to show cause why an order to make payments during the pendency of the foreclosure proceedings or an order to vacate the premises should not be entered.” § 702.10(2). Specifically, section 702.10(2)(d) provides as follows:

[T]he court shall, at the hearing on the order to show cause, consider the affidavits and other showings made by the parties appearing and make a determination of the probable validity of the underlying claim alleged against the mortgagor and the mortgagor’s defenses. If the court determines that the mortgagee is likely to prevail in the foreclosure action, the court shall enter an order requiring the mortgagor to make the payment described in paragraph (e)[] to the mortgagee and provide for a remedy as described in paragraph (f).[] However, the order shall be stayed pending final adjudication of the claims of the parties if the mortgagor files with the court a written undertaking executed by a surety approved by the court in an amount equal to the unpaid balance of the mortgage on the property, including all principal, interest, unpaid taxes, and insurance premiums paid by the mortgagee.

This statutory provision is the subject of Farah’s petitions for certiorari review.

Farah contends that it will suffer irreparable harm if forced to comply with the Orders because (1) if Farah ultimately prevails on its loan modification defense, it will be unable to recoup funds paid pursuant to the Orders, and (2) if Farah fails to make any one of the payments mandated in the Orders, the Bank is entitled to immediate possession of the mortgaged properties and “[ojnce the property is out of the mortgagor’s possession and subsequently is transferred through [the means] of a clerk’s sale, there is no way for [Farah] to get it back”

With respect to Farah’s first argument, the Orders make clear that all funds paid to the Bank are to be “credited against the amount due in accordance with the terms of the Note and Mortgage^]”

With respect to Farah’s second argument, the Orders speak only to possession of the mortgaged properties during the pendency of the foreclosure proceeding. Farah’s obligation to make payments pursuant to the Orders terminates when “title is passed or the Case is dismissed.” Thus, the terms of the Orders expressly contemplate a final adjudication on the merits of the Bank’s claim; if Farah prevails, the Bank’s actions will be dismissed and Farah will retain ownership of the mortgaged properties. Title to the mortgaged properties will not pass unless the Bank prevails in its foreclosure actions, and Farah is entitled to appeal the entry of a final judgment of foreclosure. The fact that the Bank may come into possession of the mortgaged properties for some time during the pendency of litigation does not work a transfer of title.

Further, the Bank will only come into possession of the mortgaged properties if Farah fails to make a payment within five days of the due date. Farah’s petitions assume (and Farah argued below) that it is unable to timely make the payments mandated in the Orders; thus, loss of possession of the mortgaged properties is imminent. For example, at the September 14, 2010, hearing oh the trial court’s order to show cause, counsel for Farah argued:

[A]s a result of the filing of this instant action the tenants that are remaining there some have threatened to stop making payments and some have stopped making payments altogether[,] therefore(,] my client as a result of the filing doesn’t even have the cash flow to service the mortgage.

Farah, however, may avoid enforcement of the Orders by posting a surety bond. See. § 702.10(2)(d), Fla. Stat. (2010). Assuming, however, Farah is unable to post the requisite surety bond, Farah’s nonpayment under the Orders will result in a transfer of possession — not ownership — pending final adjudication.

In sum, because neither Farah’s payment of funds pursuant to the Orders nor any imminent transfer of possession of the mortgaged properties imposes a material injury leaving no adequate remedy on appeal, we deny Farah’s petitions.

Petitions denied.

      . The Petitions have been consolidated.

      . The September 23 Order and the September 15 Order are referred to collectively herein as the “Orders.”

      . "Certiorari review is appropriate where the underlying order departs from the essential requirements of the law, resulting in a material injury that cannot be corrected on appeal.” Sorena v. Tobin, 47 So.3d 875, 877 (Fla. 3d DCA 2010).

      .Section 702.10(2)(e) provides: "In the event the court enters an order requiring the mortgagor to make payments to the mortgagee, payments shall be payable at such intervals and in such amounts provided for in the mortgage instrument before acceleration or maturity...."

      . Section 702.10(2)(f) provides: "In the event the court enters an order requiring payments the order shall also provide that the mortgagee shall be entitled to possession of the premises upon the failure of the mortgagor to make the payment required in the order unless at the hearing on the order to show cause the court finds good cause to order some other method of enforcement of its order.”

      . In both foreclosure proceedings, Farah filed affirmative defenses, including among others, the following loan modification defense: "Fa-rah Real Estate asserts as an affirmative defense that subsequent to the alleged default under the terms of the - note, the Bank of Miami, through its officers, proposed a modification to cure the default and reinstate the loan. On April 7, 2010, and May 17, 2010, in reliance on the representations that the loan modification was pending, Farah Real Estate made payments of $51,000.00 to the Bank of Miami.”

      . See, e.g., Brown v. Reynolds, 872 So.2d 290, 296 (Fla. 2d DCA 2004) (interpreting Florida’s replevin statute, § 78.067(2), Fla. Stat. (1997), and holding that "the trial court’s ruling [on the propriety of granting a prejudgment writ of possession] has no bearing on the rights of the parties when the matter is tried on the merits, nor does it bind the court at the final hearing or preclude a subsequent final adjudication dissolving the writ and ordering the return of the property”) (internal quotations omitted); see also JB Int’l, Inc. v. Mega Flight, Inc., 840 So.2d 1147 (Fla. 5th DCA 2003).

      . Thus, we also note that Farah's petitions are premature because it has yet to miss any payment mandated in the Orders and consequently, the Bank is not entitled to possession of the mortgaged properties under the terms of the Orders. The Orders provide: "In the event the [first payment] or any subsequent monthly payment is not made after allowing for a 5 day grace period, [the Bank] shall be entitled to immediate possession of the Property.”

      . Farah argues that its "ownership and [] concomitant right to possession of real property” is entitled to the same protection afforded petitioners in the context of "cat out of the bag” discovery and construction liens. See Allstate Ins. Co. v. Langston, 655 So.2d 91, 94 n. 2 (Fla.1995) (noting that certiorari review of order requiring disclosure of sensitive information is appropriate where there are “no means by which on appeal this court could extract such knowledge, once gained, from the mind of the defendant”); Phx. Walls, Inc. v. Liberty Pasadena, LLC, 980 So.2d 1286 (Fla. 2d DCA 2008) (granting certiorari and quashing order dismissing subcontractor’s claim of lien against property owner where trial court resolved factual disputes regarding the validity of the claim at a non-evidentiary hearing). These cases are inapposite where the Legislature has expressly abrogated a borrower’s right to possession of mortgaged property during the pendency of a foreclosure suit, provided the statutory prerequisites are satisfied. See § 702.10(2)(d), (f), Fla. Stat. (2010).

      .We do not address Farah’s alternative argument as we find that the Orders below do not constitute a departure from the essential requirements of law.