author: SWANSON, J.

text:
    Jeannie N. SULLIVAN, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION and SMG Food & Beverage, LLC, Appellee.
    No. 1D11-3545.
    District Court of Appeal of Florida, First District.
    May 15, 2012.
    Rehearing Denied July 11, 2012.
    Jeannie N. Sullivan, pro se, Appellant.
    A. Robert Whaley, General Counsel, and Amanda L. Neff, Tallahassee, for Appellee.
   SWANSON, J.

Jeannie N. Sullivan appeals an order of the Florida Unemployment Appeals Commission affirming the decision of the appeals referee that disqualified Sullivan from receiving unemployment compensation benefits because of the referee’s finding that Sullivan voluntarily resigned her employment as a condition of a workers’ compensation agreement. We reverse.

While working as a supervisor for the employer, SMG Food & Beverage, LLC, Sullivan suffered chest pains and her hands turned blue when one of her “bosses” yelled at her. Paramedics were called and she was transported to the hospital to determine whether she was suffering a cardiac arrest. When Sullivan’s medical bills reached approximately $10,000, and she filed for workers’ compensation benefits, the employer offered her a settlement agreement. Paragraph “N” of the agreement was entitled “VOLUNTARY RESIGNATION FROM EMPLOYMENT,” and contained the following stipulation:

As a result of an irreparable employer/employee relationship, it is stipulated that the Employee/Claimant will voluntarily resign her employment and will not seek re-employment with [the employer].
The agreement to voluntarily resign and not seek re-employment is not being entered into due to any disabilities the Employee/Claimant may allege and is not the sole consideration for settlement of the claim referenced herein. The Employee/Claimant hereby acknowledges that this voluntary resignation of employment was her decision alone and involved no actions by or on behalf of the Employer/Carrier/Servicing Agent.... The Employee/Claimant’s voluntary resignation from further employment with [the employer] will take place immediately upon her signature, without any further action by any party.

However; because the agreement said nothing about whether she could collect unemployment compensation benefits, Sullivan informed her attorney she would not sign it. Accordingly, her attorney added a handwritten paragraph “0” to the agreement that was initialed by Sullivan and stated: “Employer/Carrier will not contest Claimant’s application or request for unemployment benefits.” As amended, the agreement was signed by Sullivan and her attorney on October 22, 2010, and by the attorney representing the employer on November 5, 2010.

Nevertheless, after Sullivan applied for unemployment benefits, she received a Notice of Determination from the Agency for Workforce Innovation dated November 30, 2010, informing her she was disqualified because her reason for quitting “was personal” and not attributable to the employer. Sullivan appealed the determination. At a hearing held before an appeals referee, the employer did not make an appearance and only Sullivan testified. After the hearing, the referee entered a decision affirming the November 30 determination and finding that because Sullivan had been the “moving party” in the separation, she voluntarily quit. The referee elaborated, finding Sullivan had quit in order to settle a workers’ compensation claim and stated, without citation to any authority: “The courts have consistently held that a claimant who resigns as a provision of a workers’ compensation settlement is not entitled to unemployment benefits.” Accordingly, the referee concluded that Sullivan remained disqualified from the receipt of unemployment benefits. The decision was affirmed by the Unemployment Appeals Commission, which concluded that the record adequately supported' the referee’s findings and her conclusions reasonably applied the law to the facts of the case.

Section 443.101(l)(a), Florida Statutes, disqualifies an individual for unemployment compensation benefits “[f]or the week in which he or she has voluntarily left work without good cause attributable to his or her employing unit[.]” “ ‘Good cause’ is that which ‘would reasonably impel the average able-bodied qualified worker to give up his or her employment.’ ” Antonucci v. Unemployment Appeals Comm’n, 793 So.2d 1116, 1117 (Fla. 4th DCA 2001) (quoting Wall v. Unemployment Appeals Comm’n, 682 So.2d 1187, 1188 (Fla. 4th DCA 1996)). In Lake v. Unemployment Appeals Commission, 931 So.2d 1065 (Fla. 4th DCA 2006), the claimant, as a result of being injured on the job, filed a workers’ compensation claim. The employer offered her light duty work, but the claimant instead opted for a lump sum settlement providing that she would not return to work for the employer. When the claimant sought unemployment benefits, the appeals referee found she had voluntarily quit her employment in order to accept the settlement. The Unemployment Appeals Commission affirmed. On appeal, the Fourth District affirmed the denial of benefits, applying the analysis utilized in Matter of Astrom, 362 So.2d 312 (Fla. 3d DCA 1978), to conclude the claimant had “left her employment voluntarily, when she agreed to the settlement which terminated her employment!.]” Id. at 1066.

In the present appeal, the Unemployment Appeals Commission likewise relies on Matter of Astrom, and cases like it wherein the unemployment claimants were given the option of taking early retirement in light of looming job cuts or company reorganizations. In Astrom, the claimants were advised of the employer’s decision to move the company’s maintenance base to New York, and were given the choice of early retirement and increased retirement benefits, or continuing employment until an undetermined future date. Several claimants who had elected early retirement and filed for unemployment benefits, were held to be disqualified. On appeal, the Third District affirmed the Commission’s decision. In contrasting the case before it to one wherein “mandatory retirement as of a definite date is tantamount to discharge,” id. at 315, the Third District considered the question in the case before it as “one of anticipatory discharge,” id., and accordingly concluded the claimants had voluntarily left their employment without good cause attributable to the employer.

Similarly, in Calle v. Unemployment Appeals Commission, 692 So.2d 961 (Fla. 4th DCA 1997), also cited by the Commission, the employer offered an early retirement package to employees over fifty years of age. Because the claimant’s department was scheduled to close down at an undetermined future date, the employer encouraged the claimant to take advantage of the package. The claimant did so and filed for unemployment benefits. The Unemployment Appeals Commission upheld the appeals referee’s conclusion that the claimant’s acceptance of the early retirement package was a voluntary abandonment of her employment. In affirming, the Fourth District noted “[t]he record reflects no employer conduct that can be deemed to have wrongfully caused [the claimant] to retire.” Id. at 961. Citing to Astrom, the Fourth District further held, “[rjather, [the claimant] simply had a good reason to voluntarily accept an early retirement opportunity.” Id.

However, in Rodriguez v. Florida Unemployment Appeals Commission, 851 So.2d 247 (Fla. 3d DCA 2003), the Third District reversed the denial of unemployment benefits to a claimant who had signed the employer’s buyout agreement offered in anticipation of pending budget cuts and left her employment. There was no evidence that the claimant’s position would have been terminated had she not accepted the buyout, but the agreement stated “the buyout would not interfere with applications for unemployment and those who accepted the buyout would acquire layoff status.” Id. at 248. The Commission in Rodriguez also relied on Calle to argue there was a “ ‘lack of good cause attributable to the employer’ where the claimant did not show evidence to support any employer wrongdoing,” contending “that only instances of wrongdoing or bad faith on the employer’s part constitute ‘good cause attributable to the employer.’ ” Id. Yet, the Third District ruled that section 443.101 “is not so limited.” Id. at 248-49. Rather, the court emphasized “[s]ection 443.031 mandates that, ‘This chapter shall be construed liberally to accomplish its purpose to promote employment security....” Id. Accordingly, it held, “[t]he strict construction urged by [the Commission] is thus inappropriate.” Id.

In so holding, the Third District agreed with this Court’s earlier decision in Mar-tell v. State of Florida Unemployment Appeals Commission, 654 So.2d 1203 (Fla. 1st DCA 1995), wherein we held the claimant did not leave her employment without good cause where she accepted a reduction in force separation package that specifically included a provision stating the release did not include a “waiver of any rights to ... unemployment insurance that employee may have.” Id. at 1204. The claimant sought and received unemployment compensation for approximately one year and then obtained a job. However, after she was laid off from that job, she again sought unemployment benefits from her original employer, which protested. A claims examiner concluded the claimant was not entitled to unemployment benefits because her reason for quitting was not attributable to the employer. After a hearing at which the employer did not appear, the appeals referee found the claimant had voluntarily quit her job in order to accept the reduction in force separation package and, thus, her reasons for leaving her employment were personal and not attributable to the employer. The Commission affirmed without discussion. In reversing, we concluded the evidence before the appeals referee did not support his finding that the claimant’s voluntary leaving of work was not with good cause attributable to the employer. Instead, we held, “[t]he particular circumstances of this case amounted to good cause which would impel the average reasonable worker to voluntarily quit her position.” Id.

In citing to Martell, the Third District in Rodriguez focused on the release and made the following observations:

Employers are to be held accountable for their actions and representations to employees, particularly when modifying terms of at-will employment and when seeking participation in voluntary layoffs, buyouts or other company initiated programs. Here [the claimant] received verbal and written representations from [the employer] about the uncertainty of her job and of a buyout package with a list of benefits, as well as assurances of eligibility for other benefits, i.e., unemployment compensation. These assurances by [the employer] were not wrongful but were designed to encourage or induce the acceptance of the voluntary buyout. Given the circumstances here and the liberal purpose of the statute authorizing unemployment benefits, the requirement of “good cause attributable to the employer” was satisfied.

851 So.2d at 249.

We find the foregoing analysis particularly on point in resolving the dispute in the instant case, which likewise involved an assurance from the employer in paragraph “0,” that should Sullivan accept the terms of the settlement agreement, the employer “[would] not contest Claimant’s application or request for unemployment benefits.” As in Rodriguez, that language provided the impetus for Sullivan’s acceptance of the agreement. Id. While Lake also involved a workers’ compensation settlement agreement, there is no indication in the opinion that the agreement contained similar assurances regarding unemployment benefits. Moreover, it applied the rationale of Astrom, which also underlay the decisions in Lake and Calle, as well as the Commission’s argument for affirmance in Rodriguez. Because we conclude the analysis employed in Rodriguez expresses the better view under the particular circumstances of this case, we decline to apply Astrom, Calle and Lake. In so doing, we consider it appropriate to emphasize the provisions of section 443.031, Florida Statutes, stating that chapter 443 “shall be liberally construed to accomplish its purpose to promote employment security ... [and] [a]ll doubts as to the proper construction of any provision of this chapter shall be resolved in favor of conformity with such requirements.”

The order of the Unemployment Appeals Commission is hereby REVERSED and the cause is REMANDED for further proceedings consistent with this opinion.

ROBERTS and CLARK, JJ., Concur.


source: Caselaw Access Project

author: STEVENSON, J.

license: Public Domain

text:
    Joseph VENEZIA and Vincent Gerardi, Appellants, v. SUNRISE VIEW, INC., a Florida corporation, and Cornerstone Lenders Group, Inc., a Florida corporation, Appellees.
    No. 4D11-83.
    District Court of Appeal of Florida, Fourth District.
    May 16, 2012.
    Albert J. Vitto III of Saraga & Lipshy, P.A., Delray Beach, for appellants.
    John Strohsahl and Bradford J. Beilly of Bradford J. Beilly, P.A., Fort Lauderdale, for appellee Sunrise View, Inc.
   STEVENSON, J.

Appellants, Joseph Venezia and Vincent Gerardi, challenge an order of final summary judgment in favor of Sunrise View, Inc. Sunrise View was the plaintiff in a suit against appellants, which alleged a violation of Florida’s Securities and Investor Protection Act as the result of the alleged sale of an unregistered security. See § 517.07(1), Fla. Stat. (2010) (“It is unlawful and a violation of this chapter for any person to sell or offer to sell a security within this state unless the security is exempt under s. 517.051, is sold in a transaction exempt under s. 517.061, is a federal covered security, or is registered pursuant to this chapter.”). We reverse as genuine issues of fact remain.

The evidence offered in support of summary judgment was limited to Sunrise View’s sworn motion. In it, Sunrise asserted that appellants offered them an investment opportunity whereby Sunrise would invest $300,000 with appellants, which would generate $3 million in thirty days. Sunrise had nothing to do but wait. Once Sunrise received the $3 million, it would be required to “pay back a portion of’ the $3 million to appellants over time, plus fees and interest. Pursuant to the appellants’ instruction, Sunrise wired $300,000 to a bank account but received neither a return on its investment nor the return of its investment. Appellants subsequently advised Sunrise that the money was used in an investment scheme whereby the $300,000 was wired to a third-party foreign-currency money trader. The profits generated by the trade of foreign currency were to have been provided to Sunrise, but the appellants have refused to “fully disclose how the $300,000 was used and exactly what parties were involved in the investment.”

“[W]hether a particular investment constitutes a security depends on the facts and circumstances of each individual case.” Rudd v. State, 386 So.2d 1216,1218 (Fla. 5th DCA 1980). The definition of a “security” is extensive and includes an “investment contract,” a “beneficial interest in title to property, profits, or earnings,” an “interest in or under a profit-sharing or participation agreement or scheme,” and a “note,” among other transactions. See § 517.021(21)(a)-(w), Fla. Stat. It is apparent that genuine issues of material fact remain, including whether a “sale” may have taken place within the meaning of section 517.021(20) (sale is defined as “any contract of sale or disposition ... for value”). The limited evidence offered also failed to establish, as a matter of law, that the subject transaction involved a “security” as that term is defined in chapter 517.

Reversed and Remanded.

WARNER and CONNER, JJ., concur.


author: MAY, C.J.

text:
    Joseph ROTHMAN, Petitioner, v. Daniel ROTHMAN, Jonathan Rothman, Thomas Panza, Esq., (Conservator), Respondents.
    No. 4D11-4197.
    District Court of Appeal of Florida, Fourth District.
    May 16, 2012.
    Rehearing Denied June 29, 2012.

      Terrance P. O’Connor of Morgan, Car-ratt and O’Connor, P.A., Fort Lauderdale, for petitioner.
    Richard C. Milstein and Jeffrey T. Cook of Akerman Senterfitt, Miami, for respondent.
   MAY, C.J.

An alleged incapacitated person (AIP) petitions this court for a writ of mandamus requiring the trial court to dismiss a petition to determine his capacity. He argues the trial court must dismiss the petition because two of the three members of a committee appointed to evaluate him have twice found him capacitated. § 744.331(4), Fla. Stat. (2010). We agree and grant the petition.

The AIP’s grandson initiated the guardianship along with his siblings. Pursuant to statute, the court appointed a committee to evaluate the AIP. The first evaluations were done before the AIP temporarily moved to Israel. In the first committee evaluation, a physician and a psychologist found him capacitated. The third member of the committee, a licensed social worker, recommended a limited guardianship. The second set of evaluations occurred after he returned from Israel. Two of those committee members, a psychologist and a registered nurse, concluded he is capacitated. The third member, a physician, recommended a limited guardian.

The AIP has repeatedly sought dismissal of the guardianship proceedings based on section 744.331(4), which states:

If a majority of the examining committee members conclude that the alleged incapacitated person is not incapacitated in any respect, the court shall dismiss the petition.

Id. (emphasis added).

The trial court denied the motion to terminate, finding the statute unconstitutional. The guardianship proceedings are still pending and a conservatorship is ongoing.

In his petition, the AIP argues that section 744.331(4) requires the trial court to dismiss the petition if a majority of the examining committee members find the person is not incapacitated. The AIP’s grandson, the petitioner in the guardianship proceedings, responds that if section 744.331(4) is read literally to require dismissal based solely on two of three examining reports without judicial review, it “would violate not only basic tenets of statutory construction, but also the constitutional tenants [sic] of judicial power, procedural due process, substantive due process, and access to courts.” We agree with the AIP and grant the petition.

We have held that section 744.331(4) should be strictly construed. See In re Keene, 343 So.2d 916, 917 (Fla. 4th DCA 1977) (finding no error in the trial court’s dismissal of the petition based solely on the examining committee’s report without consideration of other evidence). “Proceedings to determine the competency of a person are generally controlled by statute and where a statute prescribes a certain method of proceeding to make that determination, the statute must be strictly followed.” Id.

Other district courts of appeal have also held that the trial court need only consider the reports of the examining committee. See, e.g., Faulkner v. Faulkner, 65 So.3d 1167, 1168 (Fla. 1st DCA 2011) (“If the majority of the committee determines that the alleged incapacitated person is not incapacitated, the court must dismiss the petition to determine incapacity.”); Levine v. Levine, 4 So.3d 730, 731 (Fla. 5th DCA 2009) (rejecting a request for an evidentia-ry hearing to challenge the opinion of the examining committee); Mathes v. Huelsman, 743 So.2d 626, 627 (Fla. 2d DCA 1999) (“[OJnce the examining committee concluded that Mathes had full capacity, the trial court should have dismissed the petition to determine incapacity and the petition for appointment of a guardian.”).

We have not overlooked the mental health history of the AIP, and understand the concerns expressed. We disagree with the other constitutional arguments raised. The statute is clear on its face. If the majority of the members of the examining committee find the person is not incapacitated, the trial court “shall” dismiss the petition. This act is ministerial. We grant the petition for writ of mandamus, and direct the trial court to dismiss the petition.

Petition granted.

STEVENSON and LEVINE, JJ., concur.

      . The trial court concluded section 744.331(4) is unconstitutional because "as worded [it] results in abdication of judicial authority to two individuals of the examining committee and removes the right of the court to make the appropriate decisions for the benefit of the Alleged Incapacitated Person.” The trial court further concluded this statute "cannot delegate the Court’s authority and responsibility for decision making to a non-judicial entity and thereby summarily deny without further judicial review the rights of litigants.”


author: WELLS, Chief Judge.

text:
    Vladimir GONZALEZ and Silvana Gonzalez, Appellants, v. NAFH NATIONAL BANK, as Successor FDIC, as Receiver for Metro Bank of Dade County, Appellee.
    No. 3D11-1800.
    District Court of Appeal of Florida, Third District.
    May 23, 2012.

      Aran Correa Guarch & Shapiro, Julio C. Bertemati and Jason Bravo, for appellants.
    Sapurstein & Bloch and Bertram A. Sa-purstein, for appellee.
    Before WELLS, C.J., and SHEPHERD and ROTHENBERG, JJ.
   WELLS, Chief Judge.

Silvana Gonzalez appeals from a summary final judgment of foreclosure claiming that the court below erred in striking her sole affirmative defense which would have precluded entry of judgment against her. We affirm in part and reverse in part for the reasons that follow.

This is an action to foreclose a mortgage and to collect on a promissory note, both of which admittedly were executed by Silvana Gonzalez and her husband, Vladimir. After the Gonzalez’s initial affirmative defenses were stricken (and are not at issue here), Silvana filed a single defense claiming that NAFH National Bank, the owner and holder of the note and mortgage at issue here, was barred from enforcing these instruments because the bank had violated the anti-discrimination provisions of the Equal Credit Opportunity Act, 15 U.S.C. § 1691 (ECOA), by forcing her to sign the note and mortgage that her husband had financially qualified for:

As a First Affirmative Defense, Defendant, Silvana P. Gonzalez, asserts that the Plaintiff is barred from enforcing the Note and Mortgage against her because the Plaintiff violated the antidis-crimination provisions of the Equal Credit Opportunity Act (ECOA). The general purpose of the ECOA is to eradicate credit discrimination against any credit applicant, on the basis of sex or marital status. More particularly, the ECOA prohibits creditors from requiring “the signature of an applicant’s spouse or any other person, other than a joint applicant, on any credit instrument if the applicant qualifies under the creditor’s standards of creditworthiness.” 12 C.F.R. 202.7(d)(1). Silvana P. Gonzalez was forced to sign the Note and Mortgage by Plaintiff for no other reason than the fact that she is the spouse of Defendant, Vladimir Gonzalez. Although Defendant, Vladimir Gonzalez, qualified under the Plaintiffs standards of creditworthiness, the Plaintiff required that Silvana P. Gonzalez sign the Note and Mortgage despite not requiring, requesting or reviewing her financial statements. Clearly, the Plaintiff only required Silvana P. Gonzalez to join in the Note and Mortgage because she was married to Defendant, Vladimir Gonzalez. This is precisely the type of creditor practice that is prohibited by the ECOA and accordingly, the Plaintiff cannot enforce the Note and Mortgage against Silvana P. [Gonzalez.]

One week later, NAFH moved to strike this affirmative defense, arguing that the Gonzalezes had not provided any evidence to support it:

Defendants have offered no specific facts nor any evidence in support of their baseless and conclusory allegation that Plaintiff violated the ECOA, nor have Defendants produced any evidence demonstrating that Defendant, Vladimir Gonzalez, had qualified and was approved for the loan that is the subject of this action prior to his spouse, Silvana P. Gonzalez, being included as a co-borrower.

NAFH further claimed in its motion to strike that certain documents which were not part of the record, but which were attached to its motion, proved that the ECOA did not apply to the note and mortgage at issue. Based on these documents — a redacted copy of a joint financial statement purportedly submitted by the Gonzalez’s in connection with the loan and a letter purportedly signed by Mrs. Gonzalez asking to be included as a borrower on the loan — NAFH argued that Mr. Gonzalez’s creditworthiness had not been evaluated independently and that Mrs. Gonzalez was a co-borrower. NAFH later filed a memorandum in support of its motion to strike, wherein it again argued that “[n]o evidence has been produced by Defendants in support of this defense.” In addition to the documents attached to its prior motion, NAFH attached a copy of Mrs. Gonzalez’s deposition testimony to its memorandum, which was also not otherwise a part of the record.

The trial court entered an order striking the affirmative defense with prejudice on or about June 1, 2011, and it entered summary final judgment against both Silvana and Vladimir shortly thereafter. Silvana alone appeals from that judgment, claiming that her defense was legally sufficient and that the court below erred in considering facts outside the pleadings to justify striking it. We agree. Florida Rule of Civil Procedure 1.140(f) provides that “[a] party may move to strike or the court may strike redundant, immaterial, impertinent, or scandalous matter from any pleading at any time.” “A motion to strike a defense tests only the legal sufficiency of the defense.” Bums v. Equipase Corp., 357 So.2d 786, 787 (Fla. 3d DCA 1978). “Where ... a defense is legally sufficient on its face and presents a bona fide issue of fact, it is improper to grant a motion to strike.” Hulley v. Cape Kennedy Leasing Corp., 376 So.2d 884, 885 (Fla. 5th DCA 1979) (citations omitted); Citizens & S. Realty Investors v. Lastition, 332 So.2d 357, 358 (FI. 4th DCA 1976) (reversing an order striking an affirmative defense where “[t]he defense was legally sufficient upon its face and, as reflected, there were evident, bona fide and critical issues of fact ... created”); Pentecostal Holiness Church, Inc. v. Mauney, 270 So.2d 762, 769 (Fla. 4th DCA 1972) (finding that a Rule 1.140(f) motion to strike “should only be granted if material is wholly irrelevant, can have no bearing on the equities and no influence on the decision”). An affirmative defense may not be stricken “merely because it appears to a judge that the defendant may be unable to produce evidence at trial to sustain such a defense.” Bay Colony Office Bldg. Joint Venture v. Wachovia Mortgage Co., 342 So.2d 1005, 1006 (Fla. 4th DCA 1977).

In this case, Mrs. Gonzalez claimed that her husband alone was the borrower and that, although he was independently creditworthy, she was required to execute a note and mortgage so that he could secure the loan, all in violation of the ECOA which prohibits creditors from requiring “the signature of an applicant’s spouse or any other person, other than a joint applicant, on any credit instrument if the applicant qualifies under the creditor’s standards of creditworthiness.” 12 C.F.R. § 202.7(d). NAFH did not challenge the legal sufficiency of this defense in the lower proceedings. It neither argued that this Act cannot be asserted as an affirmative defense to an action to collect on a promissory note or to foreclose a mortgage, nor argued that this Act cannot, as a matter of law, preclude recovery on an action to collect on a note and to foreclose a mortgage. Rather, NAFH challenged only the Gonzalez’s purported lack of evidence to support their defense and then provided non-record evidence allegedly demonstrating that they could not prevail on this defense. This was not an appropriate basis for striking this defense.

Nevertheless, while we agree that the affirmative defense should not have been stricken after what amounted to a paper mini-trial, we further find that the defense is legally insufficient as it relates to NAFH’s mortgage foreclosure claim. Contrary to her suggestion, it was not discriminatory for the creditor to require her signature on the instant mortgage. As pertinent here, section 1691d of the ECOA states.that requests for a spouse’s signature “for the purpose of creating a valid lien, passing clear title, waiving inchoate rights to property, or assigning earnings, shall not constitute discrimination ” under the Act. 15 U.S.C. § 1691d(a) (emphasis added); see also 12 C.F.R. § 202.7(d)(1) (stating “[ejxcept as provided in this paragraph, a creditor shall not require the signature of an applicant’s spouse ... on any credit instrument if the applicant” is creditworthy for the amount and terms requested) (emphasis added); 12 C.F.R. § 202.7(d)(4) (confirming that with regard to “secured credit, a creditor may require the signature of the applicant’s spouse ... on any instrument necessary, or reasonably believed by the creditor to be necessary ... to make the property being offered as security available to satisfy the debt in the event of a default, for example, an instrument to create a valid lien, pass clear title, waive inchoate rights, or assign earnings”).

The property being offered as security to satisfy the debt at issue here, as the answer to the complaint admits, was jointly owned by Silvana and Vladimir Gonzalez, who are husband and wife. It was, therefore, not just reasonable but prudent for the creditor bank to have Silvana execute the mortgage so as to create a valid lien against this property to assure payment in the event of a default. Under the circumstances, even if this defense had not been stricken, the ECOA would not, as a matter of law, bar entry of judgment against Silvana on the mortgage foreclosure count. See United States v. Joseph Hirsch Sportswear, Co., No. 85-CV-1546, 1989 WL 20604, at *2 (E.D.N.Y. Feb. 28, 1989) (holding that execution of mortgages by spouses to establish valid liens is a “practice that does not violate the ECOA”) (citing 15 U.S.C. § 1691d(a)).

We therefore affirm that portion of the final summary judgment against Mrs. Gonzalez foreclosing the mortgage at issue. However, we reverse that portion of the judgment against her on the promissory note claim and remand for reinstitution of her affirmative defense as to that claim without prejudice to the bank to raise any avoidances available under the law.

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

      . The same cannot be said about the judgment against Mr. Gonzalez. Because he has not appealed from the judgment as to him, it stands.

      . A mortgage by definition is a “written instrument providing security for performance of a duty or payment of a debt” which, when recorded, gives rise to a lien on the mortgaged property. See Transcon Trailers, Inc. v. Northland. Ins. Co., 436 So.2d 380, 382 (Fla. 5th DCA 1983) (quoting Black’s Law Dictionary at 911); see Guaranty Title & Trust Co. v. Thompson, 93 Fla. 983, 113 So. 117 (1927).


author: THOMAS, J.

text:
    Anthony ROGERS, Appellant, v. VULCAN MANUFACTURING COMPANY, INC., Appellee.
    No. 1D11-3927.
    District Court of Appeal of Florida, First District.
    June 1, 2012.
    Rehearing Denied Aug. 14, 2012.

      John R. Stiefel, Jr., of Holbrook, Akel, Cold, Stiefel & Ray, P.A., Jacksonville, for Appellant.
    M. Scott Thomas and Cristine M. Russell of Rogers Towers, P.A., Jacksonville, for Appellee.
   THOMAS, J.

In this appeal, we review the trial court’s order finding that Appellant was entitled to attorney’s fees as the prevailing party under a non-compete contract, but awarding him $0. The trial court based its decision on the fact that Appellant did not personally pay his attorney’s fees. Appellant contends this was error and he was entitled to attorney’s fees for two reasons: 1) pursuant to section 542.335(l)(k), Florida Statutes; and 2) pursuant to the terms of the non-compete agreement. We reject Appellant’s first argument because it was not preserved. For the reasons explained below, we agree with Appellant’s second point, and reverse.

Factual Background,

Appellee sued Appellant, alleging he accepted a job with a new employer, Ther-modyne, thereby breaching the Non-Solicitation and Non-Competition Agreement (“Agreement”). Ultimately, the lawsuit was involuntarily dismissed for lack of prosecution, and Appellant filed a renewed motion for fees based on the fee provision in the parties’ Agreement. A hearing ensued on the issue of entitlement, after which the court ruled that, pursuant to the Agreement, Appellant was entitled to fees and costs as the prevailing party. A subsequent hearing addressed the amount of fees and costs.

During that hearing, Appellant’s attorney acknowledged that, although he appeared as attorney of record on behalf of Appellant, he was retained by Thermo-dyne, to which he submitted his bills. There was no evidence presented regarding Appellant’s obligation, if any, for the fees and costs paid by the law firm Ther-modyne retained to defend him in the action.

The contractual provision at issue provided:

(c) In any action to enforce any term, condition, or provision of this agreement, the prevailing party shall be entitled to recover the reasonable attorney’s fee incurred to enforce same.

(Emphasis added.)

Under this provision, the trial court awarded Appellant $0 in attorney’s fees, effectively denying his entitlement to fees. The trial court found that “the evidence at the hearing revealed that [Appellant] had not paid his attorney any attorney’s fees, nor was he obligated to do so, and had paid no costs associated with this case either. Instead, [Appellant’s] new employer paid all of the attorney’s fees and costs on behalf of [Appellant].” The court explained that Florida courts have considered “similar contractual attorney’s fee provisions as agreements to indemnify the prevailing party that are strictly limited to the amount of fees actually paid or charged to the prevailing party.” Thus, the court reasoned, because Appellant did not “actually” pay or was not “actually” obligated to pay attorney’s fees, he did not “incur” such fees and was not entitled to payment under the contractual fee provision.

The court further opined that, had the agreement provided that the prevailing party was entitled to fees incurred “by or on behalf of’ the party, “or otherwise supply language reflecting an intent on the part of the parties to extend the prevailing party attorney’s fee provision to third parties who were not part of the agreement,” Appellant would have been entitled to payment of attorney’s fees. In what the court considered as further evidence that the parties did not intend for third parties to “benefit” from the Agreement’s fee provision, it pointed to the non-assignability clause in the Agreement, which provides, “The rights, duties, obligations, and privileges of the Employee shall not be assignable without the prior written consent of [Appellee] and shall not accrue to the benefit of the Employee’s heirs, executors, personal representatives and assigns.”

As discussed below, we disagree with the trial court’s conclusions.

Analysis

Because this matter involves questions of contract interpretation, our review is de novo. See Jenkins v. Eckerd, Corp., 913 So.2d 43, 49 (Fla. 1st DCA 2005) (“The trial court’s interpretation of a contract is a matter of law, subject to a de novo standard of review.”).

We begin with the attorney’s fee provision at issue. The trial court found that the Agreement lacks any language evincing an intent for the prevailing party to be entitled to fees when the prevailing party itself did not personally incur those fees; however, neither does the Agreement include any language limiting entitlement to such a situation. Rather, the clause provides that “the prevailing party shall be entitled to recover the reasonable attorney’s fee incurred to enforce ” “any term, condition, or provision” of the Agreement. The Agreement does not say the prevailing party is entitled to the attorney’s fees “it” incurred; it says entitlement is to “the” fees incurred as a result of prevailing in any enforcement action brought under the Agreement.

The clear intent of this provision is that the loser pays, and the winner does not. That a non-party may be the initial source of funds for prosecuting or defending an enforcement action is not disposi-tive. If the parties had intended to limit entitlement to situations in which the prevailing párty was the one who actually paid attorney’s fees and was seeking reimbursement, or incurred an obligation to pay such fees, the Agreement could have so provided. But it did not, and the trial court erroneously read such a limitation into the Agreement.

The trial court also relied on the Agreement’s non-assignability clause in support of its interpretation of the fee provision. This clause, the court opined, evinced an intention to keep third parties from “bene-fitting” from the attorney’s fee provision. Again, however, the only “benefit” attendant to the fee provision is that the loser pays and the winner does not, and it is irrelevant whether a third party is reimbursed for advancing attorney’s fees on the prevailing party’s behalf. Appellant did not seek to “assign” this benefit to anyone; he demanded it as his right under the Agreement.

To interpret this Agreement otherwise would result in an unwarranted windfall for the non-prevailing party, something the courts of this state greet with disapproval. See, e.g., Hough v. Huffman, 555 So.2d 942, 945 (Fla. 5th DCA 1990) (holding: “Failure to allow a cost award to a prevailing defendant who is insured, because of the fact of insurance coverage alone, gives the plaintiff, and/or the plaintiffs insurance carrier, an undeserved windfall.”); Hart v. City of Groveland, 919 So.2d 665, 667 (Fla. 5th DCA 2006) (applying the Hough “windfall” rationale in a case in which various individuals contributed to the prevailing party’s attorney’s fees); Aspen v. Bayless, 564 So.2d 1081, 1083 (Fla. 1990) (quoting the Hough “windfall” language with approval).

Because Appellant was the prevailing party in an action instituted by Appellee to enforce the parties’ Non-Solicitation and Non-Competition Agreement, Appellant was entitled to the attorney’s fees incurred to defend against that action, regardless of whether his new employer paid for the legal services rendered on Appellant’s behalf.

Conclusion

We reverse the trial court’s award of $0 in attorney’s fees, and remand for further proceedings consistent with this opinion.

REVERSED and REMANDED.

BENTON, C.J., and SANTURRI, Associate Judge, concur.


author: PER CURIAM. TORPY, J., ORFINGER, C.J.,

text:
    BILL KASPER CONSTRUCTION COMPANY, INC., Petitioner, v. Theresa MORRISON, Ashley Russell Rowland and the Carpenter’s Workers Inc., Respondents.
    No. 5D12-672.
    District Court of Appeal of Florida, Fifth District.
    June 8, 2012.

      Michael R. D’Lugo, of Wicker, Smith, O’Hara, McCoy & Ford, P.A. Orlando, for Petitioner.
    Margaret E. Kozan, of Margaret E. Ro-zan, P.A., Winter Park, and Anthony F. Sos, of Dellecker Wilson King Mckenna Ruffier & Sos, Orlando, for Respondent.
   PER CURIAM.

Bill Kasper Construction Company, Inc. (KCC), has filed a petition seeking a writ of certiorari regarding the trial court’s order striking its amended witness list. Determining that certiorari relief is not warranted, we deny the petition.

The underlying litigation in this matter is a personal injury action involving injuries suffered by respondents while on a residential construction site. Numerous continuances of the trial were granted, and the order granting the last continuance provided that no additional discovery would be allowed.

Thereafter, KCC filed an amended witness list containing the names of three new expert witnesses. The respondents filed a motion to strike the amended witness list and, after a hearing, the trial court granted the motion.

KCC filed the instant certiorari petition challenging the trial court’s ruling, contending that it constitutes a departure from the essential requirements of law, causing material injury that cannot be remedied on appeal. See Fifth Third Bank v. ACA Plus, Inc., 73 So.3d 850, 852 (Fla. 5th DCA 2011). We disagree.

This court has previously denied certiorari relief in similar circumstances due to the availability of post-judgment appellate relief. For example, in Ali Investments, Inc. v. First American Title Insurance, 929 So.2d 1154 (Fla. 5th DCA 2006), this court held that the petitioner failed to demonstrate that the harm caused by an order limiting testimony at trial could not be remedied on final appeal. Similarly, in Sardinas v. Lagares, 805 So.2d 1024 (Fla. 3rd DCA 2001), the Third District refused to review by certiorari an order striking a witness.

We acknowledge there are three cases from our court that are inconsistent with this case law. First, in Premark International, Inc. v. Pierson, 823 So.2d 859 (Fla. 5th DCA 2002), our court quashed a trial court order striking the defendant’s sole expert witness in a personal injury case. Similarly, in Heathrow Master Ass’n v. Zulia, 52 So.3d 811 (Fla. 5th DCA 2011), we quashed a trial court order striking the defendant’s expert witness. In so ruling, we reasoned:

[I] t is difficult to understand how striking the testimony of a material witness can be remedied on appeal since there is no meaningful way to determine, after judgment, what the testimony would have been or how it would have affected the result.

Id. at 813. See also Travelers Indem. Co. v. Hill, 388 So.2d 648, 650 (Fla. 5th DCA 1980) (reasoning similarly).

We find this reasoning unpersuasive. When an order striking testimony is entered, the aggrieved party can proffer the stricken testimony, thereby enabling this court, on final appeal, to determine how the testimony could have affected the result of the trial. Indeed, we have routinely reviewed a trial court’s decision to strike an expert witness when considering cases on direct appeal. See Cooper v. Lewis, 719 So.2d 944 (Fla. 5th DCA 1998); Brinkerhojf v. Linkous, 528 So.2d 1318 (Fla. 5th DCA 1988). As such, we recede from Premark, Heathrow, and Travelers to the extent that they are inconsistent with this opinion.

PETITION DENIED.

GRIFFIN, SAWAYA, PALMER, MONACO, TORPY, LAWSON, EVANDER, COHEN and JACOBUS, JJ., concur.

TORPY, J., concurs and concurs specially, with opinion in which LAWSON, EVANDER and COHEN, JJ., concur.

ORFINGER, C.J., concurs in part and dissents in part, with opinion.

TORPY, J.,

concurring and concurring specially.

I agree that certiorari is not available to review a non-final order striking an expert witness in a civil case. I write primarily to address the dissent and discuss the conflicting cases that address non-final orders involving the exclusion of evidence or the denial of discovery. Unlike the dissent, which explains these inconsistent holdings as a simple difference of opinion on where to draw the irreparable harm line, I think the inconsistent holdings cannot be reconciled. I see no principled basis for accepting jurisdiction in some of these cases and rejecting it in others. Our jurisdictional determination is not a mere semantic exercise. What constitutes “irreparable” injury in this context is capable of precise determination by application of established legal principles.

In the context of reviewing non-final orders of the nature discussed here, all agree that certiorari is only available when a plenary appeal does not afford an adequate remedy. Allstate Ins. Co. v. Langston, 655 So.2d 91, 94 (Fla.1995). An adequate remedy does not mean an immediate, convenient, or economical remedy. See Jaye v. Royal Saxon, Inc., 720 So.2d 214, 215 (Fla.1998) (increased burden, added expense, and concomitant delay has no bearing on “adequacy” of plenary appeal). Nor does the gravity of the error justify the relaxation of the irreparable harm prerequisite to certiorari relief. Id. (even deprivation of constitutional right does not confer certiorari jurisdiction). An adequate remedy simply means that a plenary appeal can cure the error. In the vast majority of cases, a successful appeal and new trial provide a cure for the error. Were this not the rule, certiorari review of pretrial and trial rulings would be unlimited. The classic example of irreparable harm in the civil context is where a trial court erroneously orders the production of privileged material. The harm is irreparable because the “cat is out of the bag” once the privileged material is produced. Id. An example of irreparable harm in the criminal context is where the trial court grants a pretrial motion to exclude important state’s evidence. In this circumstance, the harm is irreparable because the state cannot obtain relief in a plenary appeal due to double jeopardy principles. State v. Gerry, 855 So.2d 157 (Fla. 5th DC A 2003). The instant case is not analogous to either example. Here, even assuming that the excluded testimony is critical to the Petitioner’s defense, the availability of a direct appeal is not legally impeded. Assuming error, a new trial provides a complete cure.

The dissent comingles the denial of discovery cases with the exclusion of evidence cases, bulwarking its argument with a handful of decisions from our sister courts. Although these cases acknowledge the general rule, they announce a purported exception to the rule premised on the assumption that an adequate plenary appeal is not available when discovery is denied because the aggrieved litigant cannot show that the discovery would have made a difference to the outcome. An obvious fallacy in this logic is that the rationale for the so-called “exception” applies in every circumstance where discovery is erroneously denied or restricted. Indeed, any discovery request might uncover a key piece of evidence. A not-so-obvious fallacy is that these cases are based on a false legal premise — that the burden to demonstrate harm lies with the aggrieved litigant. In fact, the burden is on the beneficiary of the erroneous ruling to demonstrate that the error did not cause harm. Gownley v. GTE Prods. Carp., 587 So.2d 455, 459 (Fla. 1991); Special v. Baux, 79 So.3d 755, 766-67 (Fla. 4th DCA 2011). Thus, the so-called “practicality” dilemma identified by the dissent does not in any way impede the aggrieved litigant in a plenary appeal. Quite the contrary is true: an appellee will be hard-pressed to meet its burden to show harmlessness when the record does not reveal the substance of the requested discovery. What these decisions really represent is a minority view, rather than a bona fide “exception” grounded in a logical, factual distinction. These cases should be overruled in favor of the approach taken by the majority of courts that have confronted this issue. See, e.g., Power Plant Entm’t, LLC v. Trump Hotels & Casino Resorts Dev. Co., 958 So.2d 565, 566 (Fla. 4th DCA 2007) (en banc) (certiorari not available from denial of discovery due to adequate remedy on plenary appeal); Neeley v. CW Roberts Contracting, Inc., 948 So.2d 844 (Fla. 1st DCA 2007) (orders denying discovery almost invariably not reviewable by certiorari because of absence of irreparable harm); Chavarria v. Bautista, 922 So.2d 245 (Fla. 3d DCA 2006) (denial of discovery not reviewable by certiorari).

Assuming for the sake of argument that the dissent’s handful of cited cases are correct, the dissent fails to acknowledge the distinction that the majority identifies. Where already discovered evidence is excluded or limited, an adequate plenary appeal is clearly available because the importance of the excluded evidence can be demonstrated. In fact, its importance can only be properly gauged when viewed in the context of all the other evidence introduced during a trial on the merits. This distinction made by the majority really addresses the issue of preservation of error, rather than resulting harm. Whether an error was preserved for appellate review presents a different issue than whether an error, though preserved, was nonetheless harmless. An aggrieved litigant has the burden to preserve an error, whereas the burden to show harmlessness lies with the other party. Where already discovered evidence is excluded or limited, a proffer of that evidence is necessary to preserve the error, but the burden to show that the exclusion or limitation was harmless still rests with the beneficiary of the error. If the aggrieved litigant fails to preserve the error, certiorari should not be available to save the litigant from the consequence of the self-inflicted impediment to a plenary appeal. By contrast, where discovery is denied or limited, a proffer of the evidence is obviously not necessary to preserve the error. One cannot proffer that which he does not have through no fault of his own.

Trial courts make numerous rulings on discovery and evidence before and during trial. Pretrial rulings often take place shortly before trial. As a consequence, aggrieved litigants often seek and receive an expedited review of certiorari petitions. Every petitioner necessarily argues that the trial court’s ruling eviscerates his or her claim or defense. Respondents often controvert that assertion. Thus, we are asked to assess the gravity of the harm based on a hurried review of an abbreviated record before all of the evidence is presented in a trial. Our appellate system is simply not staffed to handle the burden of piecemeal appeals. Judicial economy mandates that we consider all claims of error in one proceeding. The issues we are asked to consider might become moot due to settlement, a verdict in favor of the aggrieved party, or a change in the ruling by the trial court. In the case of excluded evidence, other cumulative evidence might be admitted. Even when we address an issue on the merits, because of the varying standards of review, we may be put to the redundant task of revisiting the same issue on direct appeal. For all of these reasons, appellate courts should jealously guard this narrow rite of passage. When we let these cases slip through as so-called “exceptions,” we simply compound the problem by encouraging many more such petitions, thereby increasing the burden on the courts and the litigants.

LAWSON, EVANDER and COHEN, JJ., concur.

ORFINGER, C.J.,

concurring in part and dissenting in part.

Certiorari relief is appropriate where the lower court takes an action that departs from the essential requirements of law, which, if left unremedied, will cause material injury to the petitioner throughout the remainder of the proceedings below and an appellate remedy would be inadequate. Brooks v. Owens, 97 So.2d 693, 695 (Fla.1957); Travelers Indem. Co. v. Hill, 388 So.2d 648, 649 (Fla. 5th DCA 1980).

In the overwhelming majority of cases, I agree that the erroneous denial of a discovery motion or the striking of a witness is generally correctable upon review of the final judgment. However, some, admittedly few, denials of such actions can cause irreparable harm due to the absence of any practicable way to determine post-judgment how the evidence affected the outcome of the trial. Hill, 388 So.2d at 650; see Heathrow Master Ass’n v. Zulia, 52 So.3d 811, 813 (Fla. 5th DCA 2011); Premark Int’l, Inc. v. Pierson, 823 So.2d 859, 860 (Fla. 5th DCA 2002).

The majority correctly observes that we have cases that both grant and deny cer-tiorari relief when trial courts deny discovery or strike witnesses. This is not surprising because deciding what is “irreparable harm,” just like determining what constitutes an “abuse of discretion” or proof “beyond a reasonable doubt” is an inherently imprecise, subjective standard, which requires an appellate court to draw lines. That the lines are not always precisely drawn is not a sufficient basis to remove this important tool from an appellate court’s toolbox. And, our Court is certainly not alone in granting certiorari in such instances. See, e.g., Baldwin v. Shands Teaching Hosp. & Clinics, Inc., 45 So.3d 118, 122 (Fla. 1st DCA 2010) (granting certiorari where trial court denied petitioner’s motion to compel non-party to produce adverse documents, which were material with no available substitutes and there was no way to make post-judgment determination as to how absence of documents affected outcome of case); Nucci v. Simmons, 20 So.3d 388, 390 (Fla. 2d DCA 2009) (quashing order denying defense motion to depose plaintiffs attorney when trial court applied wrong analysis and error could not be corrected on plenary appeal); Sabol v. Bennett, 672 So.2d 93, 94-95 (Fla. 3d DCA 1996) (granting certiorari and quashing discovery order that denied motion to compel testimony from material witness as harm could not be corrected on appeal since there was no practicable way to determine after judgment what testimony would be or how it would affect result).

The rule adopted by the majority is attractive because it is easy to apply. However, ease of application should not trump the parties’ right to a fair trial if in the reviewing court’s judgment, it would be impracticable to determine post-judgment the effect of the evidence (or more accurately, the lack of evidence) on the trial’s outcome.

For that reason, although I would not grant certiorari relief in this case, I would not recede from Heathrow, Premarlc, or Travelers, and therefore, respectfully dissent, from that part of the opinion.

      . Where critical evidence is excluded, an aggrieved litigant may hasten the entry of final judgment to mitigate the expense of a futile trial and concomitant delay. For example, in a malpractice case, if the trial court erroneously strikes the only standard-of-care witness, the plaintiff may voluntarily dismiss the suit, obtain a final order, and appeal the pretrial ruling, which becomes final when the judgment is entered.

      . I acknowledge that rare circumstances involving the denial of discovery might justify certiorari relief. For example, if a litigant is denied the right to perpetuate the testimony of a terminally-ill material witness by deposition, certiorari might be appropriate because the discovery will probably be unavailable after a plenary appeal. The cases cited by the dissent do not involve this rare circumstance.


author: PER CURIAM.

text:
    Michael Nathaniel WOODS, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-5658.
    District Court of Appeal of Florida, Second District.
    June 15, 2012.
    James Marion Moorman, Public Defender, and Kevin Briggs, Assistant Public Defender, Bartow, for Appellant.
    Michael Nathaniel Woods, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

In this Anders appeal Michael Nathaniel Woods, pro se and through counsel, raised two potential issues for review that have not been preserved by a motion to withdraw plea as to one issue and by a motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b) as to the other issue. We affirm without prejudice to any right Woods may have to raise the issues in a postconviction motion.

SILBERMAN, C.J., and NORTHCUTT and VILLANTI, JJ., Concur.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


author: GROSS, J.

text:
    Lawrence JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-4025.
    District Court of Appeal of Florida, Fourth District.
    June 20, 2012.
    Rehearing Denied Aug. 22, 2012.

      Carey Haughwout, Public Defender, and Tom Wm. Odom, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   GROSS, J.

The main issue we address on this appeal is whether admission of evidence about a gun recovered at the time of a defendant’s arrest was error, where the gun was not the one used in the crime charged. We hold that admission of the gun was relevant; it was connected to the homicide charged because it directly corroborated material testimony of a key witness about what happened to the murder weapon.

Lawrence Johnson was convicted of first degree murder and armed robbery with a firearm. The victim was a clerk at a gas station; he was shot three times. Shell casings from a nine millimeter gun were recovered from the gas station. After the police released a surveillance camera’s images of the robbery, witness Joy James came forward. She identified one suspect as Johnson and the other as “Block.”

James provided a number of details implicating “Block” and Johnson in the murder. She testified that Johnson had confessed to her that he had been involved in the incident at the gas station; he asked the victim for cigarettes and all the money, ripped off the victim’s chain, and shot the victim after he resisted and tried to fight. Johnson told James that he had shot the victim a total of three times. Significant to this case, James testified that on the day she talked with Johnson, he had a 45 caliber gun, but that he told her he had used a nine millimeter gun at the gas station. She said that Johnson showed her the 45 caliber gun and explained the difference between the two guns to her. She said that Johnson sold the nine millimeter gun and purchased the 45 caliber gun in its place. She told the police that Johnson fled to Alabama after the news broadcast of the information about the robbery.

Florida detectives travelled to Alabama to arrest Johnson with the help of the United States Marshal’s Office. They found him at his mother’s house hiding under a sink. A search of the house also uncovered a 45 caliber firearm. Johnson denied his involvement in the robbery and stated that his only relationship with James was that he sold drugs for her and owed her money. He further claimed that he had moved to Alabama to avoid the debt he owed to James.

Johnson argues that the trial court improperly admitted photographs of the 45 caliber handgun and ammunition found at his mother’s house in Alabama where he was arrested. He contends that because the murder weapon was a nine millimeter and not a 45 caliber, the evidence of the gun found in Alabama was irrelevant and unduly prejudicial under section 90.403, Florida Statutes (2010).

Photographs of the 45 caliber gun were admissible at trial; “some part of the evidence at trial linked the seized item to the crime charged.” O’Connor v. State, 835 So.2d 1226, 1230 (Fla. 4th DCA 2003). The evidence corroborated James’s testimony that Johnson told her he had sold the nine millimeter gun and obtained a 45 caliber gun. James was a crucial state witness; she provided many facts implicating Johnson in the murder. Her testimony explained what happened to the murder weapon and why it was not recovered. The recovery of the 45 caliber gun at the time of Johnson’s arrest supported that testimony about the murder weapon.

The direct corroboration of a material fact contained in James’s testimony is what distinguishes this case from cases like O’Connor, Downs v. State, 65 So.3d 594 (Fla. 4th DCA 2011), and Agatheas v. State, 77 So.3d 1232 (Fla.2011). For example, in O’Connor, there was nothing to connect the evidence of a certain gun to the crime at issue. 835 So.2d at 1231. There the “murder was by a handgun with nine millimeter ammunition, not a shotgun, and nothing in the evidence connected the shotgun to the homicide.” Id. Without any connection to the underlying crime, the defendant’s possession of a shotgun 36 days after the shooting was not relevant to prove any material fact. Id.

Similarly, in Agatheas the state introduced evidence of a 45 caliber revolver recovered from a defendant at the time of his arrest five years after a homicide. 77 So.3d at 1234-35. The murder weapon was likely a 38 caliber revolver. The key state witness, the defendant’s former girlfriend, came forward five years after the homicide and identified the defendant as the perpetrator. Id. at 1234. She testified that the defendant had “bragged” about murdering the victim. Id. at 1235. She said nothing about the murder weapon. She did not testify that the defendant talked to her about the murder weapon and what he did with it. Nothing in her testimony explained why no murder weapon had ever been recovered. The former girlfriend knew only that the defendant “owned a gun that he always kept in a backpack in her closet.” Id. at 1234.

The Supreme Court held that evidence of the gun recovered from the defendant’s backpack at the time of his arrest, which was not related to the crime, was both irrelevant and unduly “confusing and misleading” under section 90.403. Id. at 1237, 1240. The gun “was indisputably not connected to the crime.” Id. at 1234. While the former girlfriend’s credibility was in dispute, evidence that the defendant “carried a gun that could not possibly be the murder weapon in his backpack five years after the crime simply [was] not relevant to either the crime or [the girlfriend’s] credibility.” Id. at 1237. Such “extrinsic evidence was unrelated to her testimony or to the matters on which she was impeached.” Id. at 1238.

In contrast, in this case, evidence of the 45 caliber gun was related to a central fact in James’ testimony — that Johnson had told her he sold the nine millimeter gun used to commit the homicide and purchased a 45. The testimony about the 45 caliber gun explains the absence of the murder weapon at trial and corroborates James’ story. The “danger of unfair prejudice, confusion of the issues [or] misleading the jury” did not “substantially outweigh” the probative value of this evidence. Unlike the situation in Agatheas, the evidence was not confusing or misleading because the state offered the recovered gun to explain the absence of the murder weapon, not to suggest generally that the defendant had possessed the murder weapon because he was a gun owner.

Johnson also argues that the trial court erred in allowing a detective to testify that Johnson was the person depicted in the gas station surveillance video and still photographs extracted from it. This detective had an extensive opportunity to observe Johnson in person in Alabama shortly after the crime was committed. After his arrest, Johnson changed his appearance by gaming weight and bleaching his skin. Under these circumstances, the detective’s testimony was properly admitted, because how Johnson looked at the time of the crime was outside the realm of the jurors’ knowledge and experience and the detective’s special familiarity with Johnson was of assistance to the jury. See Hardie v. State, 513 So.2d 791 (Fla. 4th DCA 1987) (finding no error in officers’ identification on videotape based on “their prior knowledge and contacts” with the defendant); cf. Ruffin v. State, 549 So.2d 250 (Fla. 5th DCA 1989) (holding that officers’ identification of the defendant on a videotape of the crime invaded “the province of the jury”). Also, unlike Hardie, there was not the danger that the detective’s knowledge of Johnson came from criminal conduct unrelated to the ease; she was one of the officers present for the Alabama arrest, a matter properly before the jury. 513 So.2d at 793-94.

Affirmed.

POLEN and LEVINE, JJ., concur.

      . This case is distinguishable from Charles v. State, 79 So.3d 233 (Fla. 4th DCA 2012) on its facts. Charles did not involve a defendant who had changed his appearance since the time of the crime. The detective making the identification in Charles had no “special familiarity” with the defendant and initially was not able to identify the defendant on the videotape. Id. at 235.


author: DAMOORGIAN, J.

text:
    Barbara L. LANGER, individually, and as Co-Personal Representative of the Estate of Edward B. Walton, deceased, and as Co-Trustee of the Edward B. Walton Second Restated and Amended Revocable Trust Agreement dated October 10th, 2007; and Judith Ann Wolfe, individually, and as Co-Personal Representative of the Estate of Edward V. Walton, deceased, and as Co-Trustee of the Edward B. Walton Second Restated and Amended Revocable Trust Agreement dated October 10th, 2007, Appellants, v. Richard FELS, as attorney in fact for and on behalf of Irene Felsenfeld, Appellee.
    No. 4D11-1215.
    District Court of Appeal of Florida, Fourth District.
    June 20, 2012.
    Rehearing Denied Aug. 17, 2012.
    Stephen Rakusin of The Rakusin Law Firm, A Professional Association, Fort Lauderdale, for appellants.
    John J. Pankauski and Allison R. Sabo-cik of Pankauski Law Firm, P.L.L.C., West Palm Beach, for appellee.
   DAMOORGIAN, J.

Barbara L. Langer and Judith Ann Wolf, the defendants below, appeal several orders in connection with the entitlement to and amount of attorney’s fees (collectively referred to as “Fee Orders”) awarded to Richard Fels, plaintiff below. Fels cross-appeals the order setting forth the amount of fees, claiming error in the trial court’s failure to award interest. We reverse the Fee Orders. In so doing, the cross appeal is rendered moot.

In the case underlying the ultimate fee award, Fels, on behalf of Irene Felsenfeld, prevailed on his claims for declaratory relief and conversion arising out of a dispute regarding ownership of a particular bank account. Before an appeal was filed, Fels filed a motion for attorney’s fees and costs pursuant to Florida Rule of Civil Procedure 1.442 and sections 768.79 and 733.106(3), Florida Statutes (2009). While the appeal was pending, the trial court conducted a hearing on the fee motion. During this hearing, Fels argued entitlement to fees on the grounds listed in his motion as well as under sections 733.609 and 733.619, Florida Statutes (2009), which were not discussed in his motion. At the conclusion of the hearing, the trial court denied the fee request under Rule 1.442 and section 768.79, pertaining to offers of settlement. However, it deferred ruling on the remaining grounds to allow Fels time to file an amended motion for fees in order to articulate a basis for fees on the new grounds raised at the hearing.

In his amended motion, Fels argued that he was entitled to fees under the following sections: (i) section 733.106(3), authorizing fees when services have been rendered to an estate; (ii) section 733.609(1), allowing for fees in actions for breach of fiduciary duty or improper exercise of a personal representative’s powers; and (iii) section 733.619(2), establishing individual liability against a personal representative for obligations arising from ownership or control of the estate or for torts committed in the course of administration of the estate if personally at fault. §§ 733.106(3), 733.609(1) and 733.619(2), Fla. Stat. (2009). After a second hearing, the trial court concluded that Fels was entitled to fees pursuant to sections 733.609(1) and 733.619(2), but denied fees under section 733.106(3).

In the midst of the fee proceedings occurring at the trial court level, an appeal was filed in the underlying action. As part of that appeal, Fels moved for an award of appellate attorney’s fees pursuant to sections 733.106, 733.609 and 733.619, Florida Statutes (2009), the same grounds raised in the trial court. On appeal, this Court per curiam affirmed the trial court’s summary final judgment on the conversion claim and the trial court’s final judgment on the declaratory relief claim. Longer v. Fels ex rel. Felsenfeld, 46 So.3d 1014 (Fla. 4th DCA 2010). We also denied Fels’ motion for appellate fees.

Based on this Court’s denial of appellate attorney’s fees in the underlying merits appeal, Appellants filed a motion in the trial court, requesting that the trial court reconsider its ruling on entitlement to fees. They based this motion on the law of the case doctrine, in light of our ruling denying Fels’ motion for appellate fees in his claims for declaratory relief and conversion. Ultimately, the reconsideration motion was denied by the trial court. The trial court then held a hearing to determine the amount of fees and costs and a final judgment on the fee motions was subsequently entered. This appeal and cross-appeal follow.

Appellants argue that our decision to deny Fels his attorney’s fees in the merits appeal constitutes the law of the case. Therefore, since the trial court’s award of fees was based on the same grounds raised by Fels in his motion for appellate fees and rejected by this Court, the award was contrary to the law of the case. Fels counters that the law of the case doctrine is not applicable in this scenario because the denial of the appellate fees was the law of the case as to the appellate fees, but not as to the trial level fees. He also submits that the trial court correctly reasoned that “the law of the case doctrine ought not to be applied where it cannot be readily ascertained that the same identical legal issue was considered ‘on the merits’ in both cases being reviewed.” Thus, because this Court’s order did not articulate the reasons for the denial of the fee award on appeal, the trial court can only speculate what this Court decided.

Under the law of the case doctrine, questions of law that have actually been decided on appeal “must govern the case in the same court and the trial court, through all subsequent stages of the proceedings.” Fla. Dep’t of Transp, v. Juliano, 801 So.2d 101, 105 (Fla.2001) (citing Greene v. Massey, 384 So.2d 24, 28 (Fla. 1980)). This doctrine includes not only issues explicitly ruled upon by the court, but also those issues which were “implicitly addressed or necessarily considered by the appellate court’s decision.” Juliano, 801 at 106 (citations omitted).

Appellants rely on Salta Investment, Inc. v. Silva, 584 So.2d 172 (Fla. 3d DCA 1991) (“Salta II ”) and Salta Investment, Inc. v. Silva, 573 So.2d 1091 (Fla. 3d DCA 1991) (“Salta I ”), rev. dismissed, 581 So.2d 166 (FIa.1991) to support a reversal. In Salta II, the Third District issued a per curiam opinion stating:

We reverse the final judgment awarding Orlando G. Silva attorney’s fees and costs. Silva had filed a claim for declaratory relief against landowner Salta Investment, Inc. This court affirmed the trial court’s decision ordering Salta to remove a fence along an ingress/egress easement. See Salta Inv., Inc. v. Silva, 573 So.2d 1091 (Fla. 3d DCA 1991), review dismissed, 581 So.2d 166 (Fla. 1991). At that time, both parties’ motions for attorney’s fees made to this court were denied. This denial of fees is conclusive as to that issue and, controls as to the fees awarded in the instant case. Accordingly, the order granting Silva fees and costs is reversed.

Id. at 172 (emphasis added) (internal citations omitted); see also Crouch v. Pub. Serv. Comm’n, State of Fla., 993 So.2d 148, 148 (Fla. 1st DCA 2008) (holding that an appellate court’s award of appellate fees under an offer of judgment statute during an original appeal on the merits became law of the case prohibiting a party from arguing that the offer of judgment statute did not apply to whistleblower actions at the trial court level). Salta II is disposi-tive of the issue under consideration. Like Salta II, appellate attorney’s fees in this case were denied during the original appeal on the merits under the same statutory provisions that the trial court determined would entitle Fels to a fee award at the trial level. As such, we reverse the Fee Orders under consideration in this appeal.

Reversed.

WARNER and CONNER, JJ., concur.

      . The claims were part of the same complaint, but were bifurcated by the trial court. The declaratory relief count proceeded to a bench trial, resulting in a final judgment in favor of Fels. The conversion count was resolved by way of a motion for summary judgment, which was granted in favor of Fels. A final judgment on the conversion count was then entered. Appellants had also filed counterclaims. Three notices of appeal were filed with this Court, but the three cases were ultimately consolidated on appeal.


text:
    Derrick Lamar BUCKINS, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-5196.
    District Court of Appeal of Florida, Fourth District.
    June 20, 2012.
    Rehearing Denied Aug. 22, 2012.

      Derrick Lamar Buckins, Wewahitchka, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda Melear, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See State v. Gutierrez, 10 So.3d 158, 159 (Fla. 3d DCA 2009) (where sentence is a result of a plea agreement for a specific sentence, the trial court does not have authority to circumvent that through a motion to mitigate); Right v. State, 784 So.2d 396, 401 (Fla.2001) (court rejects claims of disparate sentencing where co-defendant’s lesser sentence was a result of plea agreement or prosecutorial discretion).

WARNER, POLEN and GROSS, JJ., concur.


author: SILBERMAN, Chief Judge.

text:
    WELLS FARGO BANK, N.A., as Trustee for the Certificateholders of Soundview Home Loan Trust 1007-OPT5, Asset-Backed Certificates, Series 2007-OPT5, Appellant, v. Arthur TABOADA; JPMorgan Chase Bank, National Association as Trustee of Centrex Home Equity Loan Trust 2000-C, under the pooling and servicing agreement dated as of September 1, 2000; Carillon Property Owners Association, Inc.; Asset Acceptance, LLC; Royal Publishing, Inc. d/b/a Prestige Printers; Unknown Parties in Possession # 1, if living, and all Unknown Parties claiming by, through, under and against the above named Parties who are not known to be dead or alive, whether said Unknown Parties may claim an interest as Spouse, Heirs, Devisees, Grantees, or Other Claimants, Appellees.
    No. 2D11-2961.
    District Court of Appeal of Florida, Second District.
    June 22, 2012.
    Rehearing Denied Aug. 3, 2012.

      Barbara A. Couture of Shapiro, Fishman & Gaché, LLP, Tampa, for Appellant.
    Mark P. Stopa of Stopa Law Firm, Tampa, for Appellee Taboada.
    No appearance for remaining Appellees.
   SILBERMAN, Chief Judge.

Wells Fargo Bank, N.A., seeks review of the trial court’s order dismissing its amended mortgage foreclosure complaint without prejudice but without leave to amend. We reverse for two reasons. First, the trial court erred in determining that the amended complaint’s verification language did not comport with Florida Rule of Civil Procedure 1.110(b). Second, the trial court erred in determining that the amended complaint was untimely filed without considering the grounds asserted by Wells Fargo’s counsel regarding the delay in filing.

In January 2010, Wells Fargo filed a mortgage foreclosure complaint against Arthur Taboada that contained pleading deficiencies relating to the issue of Wells Fargo’s standing. On December 22, 2010, the trial court entered an order dismissing the complaint and granting Wells Fargo leave to amend within forty-five days. Among other things, the order instructed Wells Fargo to verify the amended complaint as “true and correct,” as opposed to “true and correct ‘to the best’ of the affi-ant’s ‘information and belief.’ ”

Wells Fargo filed a timely motion for extension of time to file its amended complaint and set its motion for hearing on April 27, 2011. Prior to the hearing, Wells Fargo filed its amended complaint. But the amended complaint did not contain the specific verification language referenced in the court’s order. Instead, its verification stated that the facts set forth “therein are true and correct to the best of my knowledge and belief.”

On the day of the hearing, Taboada served a motion to dismiss in which he contended that the amended complaint should be dismissed as untimely filed and as noncompliant with the oath requirement in the court’s prior order. Taboada’s counsel argued against the motion for extension of time and in support of dismissal on those grounds. Wells Fargo’s counsel informed the court that the filing delay resulted from the illnesses of both counsel and her assistant and the subsequent relocation of her office. Counsel also asserted that dismissal was improper because the oath complied with the plain language of rule 1.110(b). ' The court expressed its frustration regarding the heavy foreclosure caseload in general and the delays precluding resolution of those cases. The court then ruled as follows:

So I’m now denying the motion for extension of time. Enough time has certainly passed to comply with the order.
Counsel doesn’t appear to be sick and I’m glad that you’re no longer as ill as you were back then. But at any rate, I will dismiss it for failure to comply with the order regarding verification. So that’s the issue here.

Intending to appeal, Wells Fargo’s attorney then asked the court if it would make it clear it was “dismissing it because we didn’t have this language in there versus I didn’t do it timely.” The court responded, “No. But I’m not going to change my ruling. I’ve denied the motion for extension of time. If the Second wants to take up that issue, if you choose to appeal that issue too, you can appeal that issue also.” The court clarified, “I’m denying the motion for extension of time. I think it was too long. But I’m also dismissing this complaint for failure to comply with the December 22nd, 2010, order. Because I believe that what we need is we need affiance asserting and verifying that the amended complaint or the complaint itself is true and correct.”

The court thereafter entered orders dismissing the amended complaint and denying Wells Fargo’s motion for extension of time. Both orders state that dismissal is required based on the amended complaint’s noncompliance with rule 1.110(b)’s oath requirement. But the order of dismissal also states that “there was no good cause for an extension of time.”

As to the verification issue, rule 1.110(b) provides in pertinent part as follows:

When filing an action for foreclosure of a mortgage on residential real property the complaint shall be verified. When verification of a document is required, the document filed shall include an oath, affirmation, or the following statement: “Under penalty of perjury, I declare that I have read the foregoing, and the facts alleged therein are true and correct to the best of my knowledge and belief.”

This court has recently rejected the contention that rule 1.110(b) requires verification of mortgage foreclosure complaints as true and correct, as opposed to true and correct based on the affiant’s information and belief. See Trucap Grantor Trust 2010-1 v. Pelt, 84 So.3d 369 (Fla. 2d DCA 2012). Thus, the trial court erred in dismissing Wells Fargo’s amended complaint on this basis.

Taboada argues that regardless of our disposition of the verification issue, we should affirm based on Wells Fargo’s delay in filing the amended complaint. We reject that argument because we are uncertain that the trial court actually considered the merits of the grounds asserted by Wells Fargo as good cause for an extension of time to file the amended complaint.

We recognize that the trial court’s order of dismissal finds that “there was no good cause for an extension of time.” But the court’s orders focus heavily on the verification requirement as did the court’s oral rulings at the hearing on the motion for extension of time. While the court also discussed the length of the delay, it failed to determine the reasonableness of the explanation for the delay in filing except to say that the delay was “too long.” Florida Rule of Civil Procedure 1.090(b) provides a trial court with discretion to enlarge the time for amending a complaint for cause if the request therefor is made before the expiration of the extended time period. See also Morales v. Sperry Rand Corp., 601 So.2d 538, 540 (Fla.1992) (observing that rule 1.090(b) requires a showing of reasonable grounds for the delay), superseded by rule on other grounds, Amendment to Fla. R. Civ. P. 1.070(j), 746 So.2d 1084 (Fla.1999). Although the trial court commented that counsel did not appear to be as ill as she had been, it is unclear that the court was rejecting counsel’s explanation as to the cause for the delay. Rather, the court discussed at length its concerns regarding the general problem of delay in concluding foreclosure cases and the heavy foreclosure caseload. Because it appears that the trial court did not consider the validity of the reasons counsel offered in support of Wells Fargo’s motion for extension of time, we reverse and remand for reconsideration of the motion.

Reversed and remanded.

NORTHCUTT and CRENSHAW, JJ., Concur.

      . Because such an order effectively dismisses the complaint and precludes refiling under the same case number, it is a final order for purposes of appeal.