text:
    Julie WINSLOW, Appellant, v. SCHOOL BOARD OF ALACHUA COUNTY, Appellee.
    No. 1D10-1046.
    District Court of Appeal of Florida, First District.
    Oct. 15, 2010.
    Rehearing Denied Nov. 19, 2010.
    Terence J. Kann, Gainesville, for Appellant.
    David M. Delaney and Elizabeth M. Collins of Dell Graham, P.A., Gainesville, for Appellee.
   PER CURIAM.

Julie Winslow appeals a final order dismissing with prejudice her second amended complaint seeking damages from the School Board of Alachua County, appellee, for injuries suffered by her daughter, Tiffany Cháncey, when she walked into traffic at a school bus stop and was struck by a motor vehicle. Because the School Board did not have control over this student at the time of the accident, the School Board had no duty to the student. Francis v. School Bd. of Palm Beach County, 29 So.3d 441, 444-45 (Fla. 4th DCA 2010); Harrison v. Escambia County School Bd., 434 So.2d 316, 319-20 (Fla.1983). Accordingly, we affirm.

WEBSTER, DAVIS, and VAN NORTWICK, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Andrew AGNELLO, Appellant, v. LASSITER CONSTRUCTION CO., Appellee.
    No. 1D09-6231.
    District Court of Appeal of Florida, First District.
    Oct. 18, 2010.
    Rehearing Denied Nov. 19, 2010.
    Gerard M. Virga, Panama City, for Appellant.
    Edward M. Price and Elizabeth B. Glasgow of Farmer, Price, Hornsby & Wether-ford, L.L.P., Dothan, Alabama, for Appel-lee.
   PER CURIAM.

AFFIRMED. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979).

WEBSTER, LEWIS and MARSTILLER, JJ., concur.


author: DAVIS, Judge.

text:
    Ernest Henry VROOM, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-3801.
    District Court of Appeal of Florida, Second District.
    Oct. 20, 2010.
    Rehearing Denied Dec. 2, 2010.
    Joseph A. Eustace, Jr., and Anthony J. LaSpada of Anthony J. LaSpada, P.A., Tampa, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Timothy A. Freeland, Assistant Attorney General, Tampa, for Appel-lee.
   DAVIS, Judge.

Ernest Henry Vroom challenges his convictions and sentences for three counts of unlawful collection of an advance fee and one count of grand theft. We affirm the convictions on the charges for the unlawful collection of an advance fee without discussion. But we reverse the conviction and sentence on the grand theft charge because the evidence was insufficient to prove that offense.

Vroom was the principal in a business known as Funding American Mortgage Corporation (FAMC). FAMC was licensed by the State of Florida as a mortgage lender pursuant to the requirements of chapter 494 of the Florida Statutes. Vroom’s role as an agent for FAMC was to negotiate loan agreements with potential borrowers and then “sell” the transactions to the ultimate lenders. In each of the three transactions that are the subject of this prosecution, Vroom collected an advance fee as a part of the negotiations with the borrowers. Vroom, however, failed to close any of the three transactions. In two of the transactions, Vroom was able to return the advance fee to the borrower, but he failed to do so in the transaction with Mr. Thomas Coghill, Sr. This failure was the basis of Vroom’s grand theft conviction.

At jury trial, after the close of the State’s case, Vroom moved for judgment of acquittal as to the grand theft charge, arguing that the State had failed to present sufficient evidence from which the jury could infer that he had the requisite intent to commit the offense. The facts basically showed that Coghill paid to FAMC the required advance fee and that Vroom then transferred it to an attorney’s trust account in London. Upon the failure of Vroom to close the loan, he and FAMC failed to return the deposit as agreed to by a commitment letter. There was no evidence that any of the funds remained with or were returned to Vroom or FAMC by the London attorneys or any other third party. Further, there was no evidence that Vroom had any relationship with the London attorneys or other parties that eventually received the money. As such, Vroom argues on appeal that the trial court erred in denying his motion for judgment of acquittal because the State failed to prove that he had the requisite intent to commit grand theft. See § 812.014, Fla. Stat. (2003).

The State argues that the case is a circumstantial evidence case and that there was evidence that would support the inference of criminal intent. First, the State suggests that Vroom provided to Coghill a personal financial statement that demonstrated that Vroom was personally able to guarantee the repayment of the advance fee. However, the State argues that since Vroom was unable to subsequently return the fee when the loan did not close as planned, the reasonable inference is that he had provided deceptive financial information in the disclosure statement for the purpose of intentionally deceiving Coghill in an attempt to obtain Coghill’s funds.

We disagree. There was no evidence that the financial disclosure was inaccurate at the time it was made. The fact that, at some future time, Vroom could not make the repayment is not sufficient to support a conviction of grand theft. Although the facts may support the inference that Vroom was intentionally deceiving Coghill at the time he received the funds, the same facts could also support the reasonable inference that Vroom had encountered economic reversals after supplying the disclosure statement. As such, the fact that Vroom’s financial condition at the time of the requested repayment was not consistent with that represented in the financial disclosure statement he provided to Cog-hill is not enough, on its own, to support a conviction for grand theft. See Lindsey v. State, 14 So.3d 211, 215 (Fla.2009) (“ ‘Circumstantial evidence which leaves uncertain several hypotheses, any one of which may be sound and some of which may be entirely consistent with innocence, is not adequate to sustain a verdict of guilt.’ ” (quoting Ballard v. State, 923 So.2d 475, 482 (Fla.2006))).

The State also argues that because Vroom had failed .to proceed to closing on the prior two loans, he intentionally deceived Coghill as to his ability to obtain the loan and that the deception was for the purpose of unlawfully obtaining the advance fee from Coghill. Again, we reject the State’s conclusion. The record indicates that Vroom was not very successful as a mortgage lender. But the fact that he had failed to obtain the prior loans does not, on its own, support the inference that he knew he could not complete this transaction and that he was fraudulently representing his ability to do so.

We conclude that the State’s evidence failed to show that, at the time of the transaction, Vroom had the intent to obtain these funds by fraud, deception, or with an intent to deprive the borrower of the funds.

Finally, the State argues that Vroom violated the statutory requirements that apply to mortgage lenders by failing to keep the funds from Coghill’s advance fee in a federally insured bank account. The State maintains that this violation was sufficient to support the inference that Vroom intentionally attempted to deprive Coghill of his funds. Again, we reject this argument. Although Vroom did move the funds out of the country by transferring them to the trust account of an attorney in London, he did so with Coghill’s permission and knowledge. Although the placement of the funds may have violated the licensing requirements of chapter 494, the facts of this case do not support the inference that this was being done for a criminal purpose, i.e., attempting to deprive Coghill of the use of his funds.

On appeal, Vroom also challenges several of the trial court’s evidentiary rulings. Because we conclude that the State’s evidence was insufficient to support the grand theft conviction, we need not address these rulings. Additionally, Vroom challenges the trial court’s restitution award; however, we affirm that award without comment.

In conclusion, we affirm Vroom’s convictions for the three counts of collecting an advance fee but reverse his conviction for grand theft and remand with instructions to vacate that judgment and sentence and enter a judgment of acquittal as to that charge only. Because the grand theft was the primary offense on Vroom’s sentencing scoresheet, he is entitled to be resentenced on the remaining three counts using a corrected scoresheet.

Affirmed in part, reversed in part, and remanded with instructions.

KHOUZAM and MORRIS, JJ., Concur.

      . Section 812.014 provides in part:
      (1) A person commits theft if he or she knowingly obtains or uses, or endeavors to obtain or to use, the property of another with intent to, either temporarily or permanently:
      (a) Deprive the other person of a right to the property or a benefit from the property.
      (b) Appropriate the property to his or her own use or to the use of any person not entitled to the use of the property.


author: WHATLEY, Judge.

text:
    Mike WELLS, as Property Appraiser of Pasco County, Appellant, v. James HALDEOS, Appellee.
    No. 2D09-4250.
    District Court of Appeal of Florida, Second District.
    Oct. 22, 2010.
    Rehearing Denied Dec. 2, 2010.
    Loren E. Levy and Larry E. Levy of The Levy Law Firm, Tallahassee, for Appellant.
    Maurice M. Feller and Richard A. Motley of Bay Area Legal Services, Inc., New Port Richey, for Appellee.
   WHATLEY, Judge.

Mike Wells, as the Property Appraiser of Pasco County, appeals a final judgment finding that James Haldeos was entitled to receive a homestead tax exemption on his property. Mr. Haldeos has owned and permanently resided on property located in Pasco County since 2005. Mr. Hald-eos’s wife, Rosa Accomando, with whom he has been separated since 2008, owns and permanently resides on property in the state of New York, and she receives a residency-based property tax exemption in New York. Because his wife receives this property tax exemption in New York, the Property Appraiser denied Mr. Haldeos a homestead exemption based on his position that a married couple cannot receive more than one homestead exemption.

Florida’s homestead exemption derives from Article VII, Section 6(a) of the Florida Constitution, which provides that a homestead exemption extends to “[ejvery person who has the legal or equitable title to real estate and maintains thereon the permanent residence of the owner, or another legally or naturally dependent upon the owner.” However, section 6(b) directs that “[n]ot more than one exemption shall be allowed any individual or family unit or with respect to any residential unit.” Art. VII, § 6(b), Fla. Const, (emphasis added). The Property Appraiser contends that a married couple is a “family unit” and is therefore entitled to only one exemption. As noted by the trial court, there is no constitutional or statutory definition of “family unit,” and there is no case law interpreting the term.

In the final judgment, the trial court noted that all of the material facts were stipulated to by the parties and were not in dispute. Mr. Haldeos and his wife have established two separate permanent residences in good faith. Mr. Haldeos has no financial connection with his wife and they do not provide benefits, income, or support to each other. He has a Florida driver’s license and his vehicle is registered in Pasco County. At the hearing, the attorney for the Property Appraiser stated that

we agree in this case that if there isn’t an absolute [prohibition on married couples from receiving two homestead exemptions], this case would be the outlier that would surely be entitled to a homestead. We’re not trying to say that they’re trying to disprove factually a family unit, that there’s any financial aspects involved, or that there is any relationship on-going because we have nothing to surmise that or nothing has been developed.

The trial court found that it would defy logic for two people “who have no contact with one another, who don’t have any connections of a financial, emotional or any other way to call them a family unit.” Based on this reasoning, the trial court ruled that Mr. Haldeos and his wife constitute separate “family units” and may obtain two separate homestead exemptions.

The Property Appraiser argues on appeal that this interpretation of the term “family unit” is contrary to the intent of section 196.031(5), Florida Statutes (2009), which provides as follows:

A person who is receiving or claiming the benefit of an ad valorem tax exemption or a tax credit in another state where permanent residency is required as a basis for the granting of that ad valorem tax exemption or tax credit is not entitled to the homestead exemption provided by this section.

We do not agree that the trial court’s ruling is at odds with section 196.031(5), as the statute clearly prohibits an individual from receiving two residency-based tax credits. If the legislature had intended, as the Property Appraiser suggests, to prohibit a married couple from receiving two such tax exemptions, it could have included married couples in the above language.

The Property Appraiser further argues that the statute must be strictly construed against the taxpayer where “the homestead exemption provides relief from an ad valorem tax.” DeQuervain v. Desguin, 927 So.2d 232, 236 (Fla. 2d DCA 2006). While we agree with this premise, we note that “[w]here the statute’s language is clear or unambiguous, courts need not employ principles of statutory construction to determine and effectuate legislative intent.” See Fla. Dep’t of Children & Family Servs. v. P.E., 14 So.3d 228, 234 (Fla.2009). Section 196.031(5) clearly and unambiguously refers to a “person” and not a married couple or family unit.

Although there is no constitutional or statutory guidance on the issue at bar, the Florida Department of Revenue has enacted a rule instructing property appraisers that married couples may be considered separate “family units” in certain circumstances. Florida Administrative Code Rule 12D-7.007(7), provides as follows:

If it is determined by the property appraiser that separate permanent residences and separate “family units” have been established by the husband and wife, and they are otherwise qualified, each may be granted homestead exemption from ad valorem taxation under Article VII, Section 6, 1968 State Constitution. The fact that both residences may be owned by both husband and wife as tenants by the entireties will not defeat the grant of homestead ad valorem tax exemption to the permanent residence of each.

In determining whether Mr. Haldeos was entitled to a homestead exemption, the Property Appraiser was required to follow rule 12D-7.007(7): “The Department of Revenue shall prescribe reasonable rules and regulations for the assessing and collecting of taxes, and such rules and regulations shall be followed by the property appraisers, tax collectors, clerks of the circuit court, and value adjustment boards.” § 195.027(1), Fla. Stat. (2009).

In a case involving the protection of a homestead from a judgment, the Fourth District held that when a married couple is separated, the husband can claim a homestead exemption for a residence in which he resides and owns, even though he still owns a home with his estranged wife for which they claim a homestead tax exemption. Law v. Law, 738 So.2d 522, 524 (Fla. 4th DCA 1999). In that case, the argument was made that the husband’s home could not be homestead because the home he owned with his wife was, as a matter of law, his homestead, and a person cannot have two homesteads. Id. The Fourth District held:

We see nothing inconsistent with our public policy if we extend a homestead exemption to each of two people who are married, but legitimately live apart in separate residences, if they otherwise meet the requirements of the exemption. When we say “legitimately” we mean that there is no “fraudulent or otherwise egregious act” by the beneficiary of the homestead exemption.

Id. at 525.

The court agreed that the husband could not have two homesteads and that a husband and wife in an intact marriage could not have two homesteads. However, the court held that the husband’s homestead could be different from the wife’s homestead “where their separation was bona-fide,” and it was the intent of the husband to live in his separate home. Id.; see generally Judd v. Schooley, 158 So.2d 514, 517 (Fla.1963) (holding that the wife could claim a permanent home in Florida and receive a homestead exemption even though her husband was legally domiciled in another state).

Although opinions of the Florida Attorney General are not binding on this court, we note that they have favored the granting of two separate homestead exemptions to a husband and wife where they establish separate permanent residences. 75 Op. Att’y Gen. 146 (1975); 05 Op. Att’y Gen. 60 (2005).

The Property Appraiser urges that if married couples can be considered separate “family units” in these circumstances, such a result would make his job in reviewing homestead exemptions virtually administratively unworkable, because no property appraiser will have the staff and available resources to verify whether a married couple is, in fact, maintaining two separate permanent residences. While we recognize that property appraisers will be required to review the financial information of separated couples in these unique circumstances, we note that the person claiming the homestead exemption has the burden of proving that he or she qualifies for such. Schooley v. Judd, 149 So.2d 587, 590 (Fla. 2d DCA 1963), reversed on other grounds, 158 So.2d 514 (Fla.1963).

Accordingly, we conclude that in the unique circumstances presented in this case, where the husband and wife have established two separate permanent residences in good faith and have no financial connection with and do not provide benefits, income, or support to each other, each may be granted a homestead exemption if they otherwise qualify.

Affirmed.

SILBERMAN, J., Concurs.

KELLY, J., Concurs in result only.

      . Because the facts are undisputed, the issue on appeal involves solely a question of law to which a de novo standard of review is applied. Reinish v. Clark, 765 So.2d 197, 203 (Fla. 1st DCA 2000).


text:
    Eileen JACKSON-JESTER and R. Jester, Husband and Wife, as individuals, Appellants, v. Abdul Q. AZIZ and Coral Springs Restoration Group, Inc., a Florida corporation, Appellees.
    No. 2D09-3175.
    District Court of Appeal of Florida, Second District.
    Oct. 22, 2010.
    Rehearing Denied Dec. 3, 2010.

      Eileen Jackson-Jester and James R. Jester, pro se.
    Eric A. Jacobs of Jacobs/Offir, PL, Hollywood, for Appellee Coral Springs Restoration Group, Inc.
    No appearance for Appellee Aziz.
   DAVIS, Judge.

Eileen Jackson-Jester and her husband, James R. Jester, challenge the June 22, 2009, final judgment imposing an equitable lien against their real property in favor of Coral Springs Restoration Group, Inc. (CSRG), and granting foreclosure of that lien. They specifically challenge the partial summary judgment on liability entered against them on January 7, 2009, by which the trial court determined that an equitable lien should be imposed. They also challenge the subsequent determination of damages that established the judgment amount secured by the lien and resulted in entry of the final judgment of foreclosure of that lien. We conclude that the summary judgment on liability was improperly entered because genuine issues of material fact exist as to the claims. We therefore reverse the final judgment of foreclosure and remand for the trial court to deny the motion for partial summary judgment on liability and readdress any motions and claims left pending as a result of that denial.

Eileen Jackson-Jester and her brother inherited the instant property after their mother’s death in 1987. Mrs. Jackson-Jester was the personal representative of her mother’s estate; however, the estate never transferred title to the property to the siblings. Mrs. Jackson-Jester’s brother resided at the property until 2001, when he had to move for physical care. After that time, the vacant property fell into a state of disrepair.

In February 2005, CSRG purchased the property from AQA Rehab, LLC, a limited liability company for which Abdul Aziz was the managing partner. Aziz was a man who falsely held himself out as the owner of the property based on his having recorded several forged deeds professing that the property was transferred to him from various owners. • CSRG used a title search company, LandCastle Title, LLC, to perform a title search, record the new transfer of title, and issue a guarantee of that title. CSRG then rehabilitated the previously uninhabitable property with plans to sell it. Mrs. Jackson-Jester, as personal representative of the estate, discovered that someone else was claiming title to the property and filed an action to quiet title. CSRG filed a counterclaim seeking, among other claims, an equitable lien based on unjust enrichment to recover the money it had invested into the rehabilitation of the property and a cross-claim against LandCastle for damages incurred due to LandCastle’s negligence in searching the title.

The trial court entered summary judgment on the estate’s quiet title claim and vested title to the property in the estate. Based on a stipulation entered by CSRG, the trial court found that all of the deeds of record after the death of Mrs. Jackson-Jester’s mother were void as they were forged and fraudulently recorded on the public records. The estate then transferred title of the property to Mrs. Jackson-Jester as the surviving heir of the estate, and she deeded the property to herself and her husband.

CSRG filed a motion for partial summary judgment on liability based on its remaining counterclaims of constructive trust, unjust enrichment, and equitable lien. The trial court granted this motion, leaving the determination of damages pending. CSRG then filed a motion for partial summary judgment on damages. In granting this motion, the trial court entered an order of foreclosure by which a lien for the amount of determined damages was entered against the property, the lien was foreclosed, and the property was set for public sale.

Mrs. Jackson-Jester and Mr. Jester allege that the trial court erred in entering the partial summary judgment on liability when genuine issues of material fact existed on the record and that the trial court also erred in the subsequent calculation of damages. We agree that genuine issues of material fact remain to be resolved as to whether an equitable lien should have been imposed.

The trial court’s order does not spell out the basis upon which it entered summary judgment on the equitable lien claim. But because no fraud or misrepresentation on the part of Mrs. Jackson-Jester is alleged, summary judgment had to be based on the elements of the unjust enrichment claim as pleaded. See Spridgeon v. Spridgeon, 779 So.2d 501, 502 (Fla. 2d DCA 2000) (“[Ejquitable circumstances other than fraud or misrepresentation, including the prevention of unjust enrichment, are proper grounds for imposing equitable liens .... ”); see also Della Ratta v. Della Ratta, 927 So.2d 1055, 1060 (Fla. 4th DCA 2006) (“The unjust enrichment claim in count I of the complaint was an action at law. The same grounds that would support a claim for unjust enrichment as a contract implied in law would also justify the imposition of an equitable lien.” (footnote omitted)).

For a trial court to properly grant a motion for summary judgment, the court must find that there are no genuine issues of material fact in the record regarding the elements of the cause of action. Gomes v. Stevens, 548 So.2d 1163, 1164 (Fla. 2d DCA 1989).

A motion for summary judgment may only be granted if the pleadings, depositions, answers to interrogatories, and admissions on file together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. The burden, furthermore, is on the movant to demonstrate conclusively that the nonmoving party cannot prevail. If the record reflects the existence of any genuine issue of material fact, or the possibility of any issue, or if the record raises even the slightest doubt that an issue might exist, summary judgment is improper.

Id, (citations omitted).

The essential elements that must be proven under a theory of unjust enrichment are a benefit conferred upon a defendant by the plaintiff, the defendant’s appreciation of the benefit, and the defendant’s acceptance and retention of the benefit under circumstances that make it inequitable for him to retain it without paying the value thereof.

Swindell v. Crowson, 712 So.2d 1162, 1163 (Fla. 2d DCA 1998); see also Golden v. Woodward, 15 So.3d 664, 670 (Fla. 1st DCA 2009).

Here, it is undisputed that CSRG conferred a benefit on the property at issue that is owned by Mrs. Jackson-Jester and Mr. Jester. However, in order to prove that they were unjustly enriched by the benefit, it must be shown that they either requested that CSRG confer the benefit or that they knowingly and voluntarily accepted the benefit. See Coffee Pot Plaza P’ship v. Arrow Air Conditioning & Refrigeration, Inc., 412 So.2d 883, 884 (Fla. 2d DCA 1982) (“Where unjust enrichment is asserted, a party is liable for services rendered only when he requests the other party to perform the services or knowingly and voluntarily accepts their benefits.”).

The trial court concluded that whether Mrs. Jackson-Jester knew of the ongoing repair work was not dispositive of the issue. However, because the record is clear that Mrs. Jackson-Jester did not request that CSRG perform the repairs, in order to properly grant summary judgment based on unjust enrichment, the trial court had to find that she knowingly accepted and retained the repairs. See id. The record that was before the trial court simply does not support such a conclusion as a matter of law. Whether Mrs. Jackson-Jester knew of the work and purposely delayed in notifying CSRG of the title issues on the property, as CSRG argues, is a question of fact not subject to determination on a summary judgment motion. See Gomes, 548 So.2d at 1164-65.

Although the trial court’s order granting partial summary judgment recites the absence of Mrs. Jackson-Jester for many years prior to December 2004, the real time frame at issue is the date of commencement of the remodeling project through June 1, 2005, the date CSRG asserts the remodeling was completed. Although the record is not clear as to exactly when construction commenced, the record indicates that the work began sometime between February 4 and May 5, 2005.

After learning of the title problem, Mrs. Jackson-Jester, who was residing in Georgia, contacted the police department in December 2004 to complain that someone was trying to “steal” her property. She also contacted the state attorney’s office with the same complaint. She then retained an attorney, who began to prepare the quiet title action.

The trial court’s order states that Mrs. Jackson-Jester’s deposition indicates that she was aware that someone was working on the property prior to the filing of her complaint. But the only record evidence of when Mrs. Jackson-Jester became aware that improvements were being made to the home is her statement that her attorney contacted her with the news in September 2005, almost four months after the filing of the initial quiet title action and after the completion of the remodeling. Thus a factual question remains regarding whether she appreciated that the benefit was being bestowed on the property and knowingly accepted and retained that benefit.

There are also unresolved factual issues regarding the last element of the unjust enrichment and equitable lien claims, i.e., whether it would be inequitable for the owners of the property to retain the benefit without the imposition of the lien. At the time the trial court entered summary judgment, CSRG maintained a cause of action against LandCastle for professional negligence. If CSRG successfully recovers damages in that action as well as in the instant action, CSRG could be unjustly enriched by recovering twice for the same injury. The trial court’s determination that it would be unjust for Mrs. Jackson-Jester and Mr. Jester to retain the benefit conferred on the property and that equity required granting the equitable lien in favor of CSRG was premature.

Because the trial court improperly granted summary judgment on liability, we reverse the final judgment of foreclosure and remand with instructions that the trial court deny the motion for partial summary judgment on liability and proceed on the motions and claims left pending as a result of the denial. Our reversal as to liability renders moot Mrs. Jackson-Jester and Mr. Jester’s arguments regarding the amount of damages awarded.

Reversed and remanded.

WHATLEY and MORRIS, JJ., Concur.

      . The trial court used the terms "liability” and "damages” to distinguish between the issues considered at the two separate hearings. Because the value of the lien was only determined at the second hearing, the establishment of "liability” did not actually impose a lien. Accordingly, only the judgment entered after the second hearing was a final judgment subject to appellate review.

      . Although Mrs. Jackson-Jester also listed herself as the personal representative of the estate for the purposes of this appeal, the estate is closed and is no longer a party to these proceedings.

      .The record includes a deed purportedly signed by Mrs. Jackson-Jester’s mother some twelve years after her death, a deed purportedly signed by Mrs. Jackson-Jester's brother the day before he died, and a personal representative’s deed purportedly signed by Mrs. Jackson-Jester.

      . The deed transferring title was dated February 4, 2005, but the record indicates that the title company improperly recorded it and that CSRG was delayed in obtaining the building permits. The deed was not actually recorded until May 5, 2005. Assuming that the recording was a prerequisite to obtaining the permit, the work may not have begun until that date.

      . The trial court’s order cites to the following excerpt from the deposition of Mrs. Jackson-Jester:
      Q. So you found out before your brother passed away in January 2005 that something strange was going on with your mom’s property?
      A. That was in 11/04.
      Q. November 04?
      A. Uh-huh (affirmative).
      In the deposition, Mrs. Jackson-Jester explained that it was at this time that she learned that someone else was claiming title to the property. The "something strange’’ reference did not necessarily relate to construction being undertaken by CSRG, which did not, in fact, even obtain title to the property until February 2005. Thus the trial court’s basis for finding that Mrs. Jackson-Jester knew of the construction at an early date is unfounded.


text:
    Debbie SPOONER, Appellant, v. POMPYS TYPESETTING & PRINT & RISK ENTERPRISE MANAGEMENT, Appellees.
    No. 1D10-1535.
    District Court of Appeal of Florida, First District.
    Oct. 25, 2010.
    Rehearing Denied Nov. 23, 2010.
    Kimberly A. Hill of Kimberly A. Hill, P.L., Fort Lauderdale, for Appellant.
    Henry J. Roman of Vernis & Bowling of Broward, P.A., Hollywood, for Appellees.
   PER CURIAM.

Claimant, Debbie Spooner, challenges an order of the Judge of Compensation Claims (JCC) which provided alternative grounds for denying her claims for disability benefits. In the order on appeal, the JCC determined that Claimant was not entitled to permanent total disability benefits because Claimant failed to prove that her injury was catastrophic under the definition provided by section 440.02(34)(f), Florida Statutes (1997). The JCC also determined that Claimant was not entitled to temporary disability benefits because Claimant reached maximum medical improvement prior to the periods for which benefits were sought. Because these findings are supported by competent, substantial evidence, we affirm the denial of Claimant’s request for benefits. However, the JCC’s alternative findings that Claimant failed to establish major contributing cause were an improper application of the law. Accordingly, we AFFIRM the denial of the claim for benefits and REMAND with directions to strike the findings concerning major contributing cause in the order.

WOLF, DAVIS, and WETHERELL, JJ., concur.


text:
    Fernando Augusto GUSMAO, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-3439.
    District Court of Appeal of Florida, Fifth District.
    Oct. 29, 2010.
    Rehearing Denied Dec. 2, 2010.
    Fernando A. Gusmao, Windermere, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Fernando Augusto Gusmao appeals from his conviction and sentence on a charge of grand theft of over $100,000. We have carefully considered each issue raised on appeal, and find no error. With respect to Gusmao’s hearsay arguments, the challenged documents were properly admitted under the hearsay exception for business records, section 90.803(6), Florida Statutes (2008), and the other challenged statements as admissions by a party opponent. § 90.803(18)(a), Fla. Stat. (2008). Next, Gusmao complains that the trial court erred by allowing checks that he wrote in the amounts of $130,000 and $160,000 to be referred to as “worthless.” Not only was there no objection to this characterization at trial, but the evidence clearly supported the description. Gus-mao’s banking records showed that he did not have sufficient funds in the accounts on which the checks were written to cover them. Finally, Gusmao argues that the State did not present sufficient evidence of his intent to commit the crime, so that his motion for judgment of acquittal should have been granted. We agree with the State that there would have been sufficient circumstantial evidence of Gusmao’s criminal intent to submit the case to the jury even without Gusmao’s admission. See Brewer v. State, 413 So.2d 1217 (Fla. 5th DCA 1982) (en banc), rev. denied, 426 So.2d 25 (Fla.1983). Given Gusmao’s out-of-court admission to the crime, this argument completely lacks merit.

AFFIRMED.

ORFINGER, LAWSON, and EVANDER, JJ., concur.

      . On appeal, Gusmao also cites Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), as did his trial counsel below, as a basis for prohibiting testimony as to his own out-of-court admissions during trial. Since there is apparently at least one attorney who views this as a valid argument, we note that the Sixth Amendment's Confrontation Clause is in no way implicated when the state offers a defendant’s own out-of-court statements as evidence at trial.

      . Although Gusmao testified to a more innocent explanation of events at trial, in deciding the motion for judgment of acquittal the trial court properly viewed the evidence "in the light most favorable to the state.” L.R.W. v. State, 848 So.2d 1263, 1265-66 (Fla. 5th DCA 2003).


author: VILLANTI, Judge.

text:
    Ian MANUEL, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-3494.
    District Court of Appeal of Florida, Second District.
    Oct. 29, 2010.
    Rehearing Denied Dec. 3, 2010.

      Bryan A. Stevenson and Marc R. Shapiro of Equal Justice Initiative of Alabama, Montgomery, Alabama; and Brittney Horstman of Kubiliun & Associates, P.A., Miami, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Patricia A. McCarthy, Assistant Attorney General, Tampa, for Appel-lee.
   VILLANTI, Judge.

Ian Manuel appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. In that motion, he raised only a single issue — that his two sentences of life in prison without the possibility of parole constituted cruel and unusual punishment under the Eighth Amendment to the United States Constitution because he was a juvenile when he committed the nonhomicide offenses at issue. The post-conviction court properly denied Mr. Manuel’s motion based on the law in effect when it made its ruling. However, while this case was pending on appeal, the United States Supreme Court granted certiora-ri to review Graham v. State, 982 So.2d 43 (Fla. 1st DCA 2008). See Graham v. Florida, — U.S. —, 129 S.Ct. 2157, 173 L.Ed.2d 1155 (2009). Like here, the sole issue in that case was whether a sentence of life without the possibility of parole imposed on a juvenile offender for a non-homicide crime constituted cruel and unusual punishment under the Eighth Amendment. We stayed review of Mr. Manuel’s case pending the Supreme Court’s decision in Graham, and now based on the decision in Graham v. Florida, — U.S. —, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), we must vacate Mr. Manuel’s sentences and remand for resen-tencing.

The record in this case is somewhat limited. However, it does reveal that Mr. Manuel was charged with one count of robbery with a firearm, one count of attempted robbery with a firearm, and two counts of attempted first-degree murder with a firearm for events that occurred on July 27, 1990. Mr. Manuel pleaded guilty as charged to these offenses in an open plea to the court. When he committed these offenses, Mr. Manuel was only thirteen years old.

Mr. Manuel’s robbery with a firearm conviction was a first-degree felony punishable by life, see § 812.13(2)(a), Fla. Stat. (1989), which subjected Mr. Manuel to sentencing for “a term of imprisonment not exceeding 30 years or, when specifically provided by statute, by imprisonment for a term of years not exceeding life imprisonment,” § 775.082(3)(b), Fla. Stat. (1989). The trial court chose to sentence Mr. Manuel to a term of “natural life” for this offense.

Mr. Manuel’s two attempted murder convictions were each life felonies. See §§ 775.087(l)(a), 777.04(4)(a), Fla. Stat. (1989); § 782.04(l)(a), Fla. Stat. (Supp. 1990). These life felonies were punishable by “a term of imprisonment for life or by a term of imprisonment not exceeding 40 years.” § 775.082(3)(a). On the first attempted murder conviction, the trial court sentenced Mr. Manuel to a term of “natural life.” On the second attempted murder conviction, the trial court sentenced Mr. Manuel to a concurrent term of forty years in prison.

Under the sentencing guidelines in effect at the time Mr. Manuel committed his crimes, a sentence of “natural life” rendered Mr. Manuel ineligible for parole. See Wemett v. State, 567 So.2d 882, 884 (Fla.1990); Dolan v. State, 618 So.2d 271, 272 (Fla. 2d DCA 1993) (noting that defendants convicted of a noncapital felony committed on or after October 1, 1983, are subject to “true life sentences” without eligibility for parole); Saint-Fleur v. State, 840 So.2d 261, 262 (Fla. 3d DCA 2002) (noting that sentence of natural life under the same sentencing guidelines under which Mr. Manuel was sentenced “is for a term of natural life without the possibility of parole”). In addition, Mr. Manuel was not eligible for either gain time or conditional release. See §§ 921.001(11), 944.275(2)(a), 947.1405, Fla. Stat. (1989). Accordingly, Mr. Manuel’s two sentences of “natural life” were, in fact, just that.

In his current motion for postconviction relief, Mr. Manuel relied on the Supreme Court’s decision in Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005), to argue that his sentences of life in prison with no possibility of parole were in violation of the Eighth Amendment. In Roper, the Supreme Court held that death sentences imposed on juvenile offenders were prohibited by the Eighth Amendment. Id. at 568, 125 S.Ct. 1183. Mr. Manuel argued that his sentence of life without the possibility of parole, which he termed a “death in prison” sentence, was unconstitutional under the reasoning, if not the holding, of Roper. Mr. Manuel also contended that Roper constituted a fundamental shift in constitutional law that rendered his rule 3.850 motion timely since his motion was filed within two years of the Roper decision. The problem with this argument is that the Roper decision, on its facts, did not apply to Mr. Manuel because Mr. Manuel was not sentenced to death. Thus, the postconviction court correctly denied Mr. Manuel relief under the law in effect at the time of that court’s ruling.

However, while Mr. Manuel’s appeal of that ruling was pending, the Supreme Court granted review in Graham. In Graham, the Supreme Court directly addressed the constitutionality of imposing a life-without-parole sentence on a juvenile who commits a nonhomicide offense. After a thorough review of state practice throughout the United States and an analysis of the purposes of imprisonment, the Supreme Court held that “for a juvenile offender who did not commit homicide the Eighth Amendment forbids the sentence of life without parole.” Graham, 130 S.Ct. at 2080. In thereby extending the reasoning of the Roper decision to juveniles sentenced to life in prison without the possibility of parole for nonhomicide offenses, the Court stated,

This clear line is necessary to prevent the possibility that life without parole sentences will be imposed on juvenile nonhomicide offenders who are not sufficiently culpable to merit that punishment. Because “[t]he age of 18 is the point where society draws the line for many purposes between childhood and adulthood,” those who were below that age when the offense was committed may not be sentenced to life without parole for a nonhomicide crime.

Id. (quoting Roper, 543 U.S. at 574, 125 S.Ct. 1183). In so holding, the Graham Court extended the “death is different” rationale to a discrete subset of noncapital crimes, i.e., “life without parole for juvenile nonhomicide offenders is different,” and the Court established a bright-line rule excluding life-without-parole sentences for juveniles who commit nonhomicide offenses, regardless of how heinous the underlying crime. Accordingly, in keeping with this new bright-line rule, Mr. Manuel’s sentences of “natural life” are unconstitutional as a violation of the Eighth Amendment to the United States Constitution because those sentences do not allow for the possibility of parole.

In its supplemental briefing, the State contends that Graham does not apply to Mr. Manuel because his convictions for attempted murder should be considered homicide offenses, not nonhomicide offenses. We disagree. The Florida Supreme Court has stated that under the definition of homicide, “[i]t is necessary for the act to result in the death of a human being.” Tipton v. State, 97 So.2d 277, 281 (Fla.1957). And as the Graham Court explained, “ ‘[l]ife is over for the victim of the murderer,’ but for the victim of even a very serious nonhomicide crime, ‘life ... is not over and normally is not beyond repair.’ ” Graham, 130 S.Ct. at 2027 (quoting Coker v. Georgia, 433 U.S. 584, 598, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977) (plurality opinion)). The Coker decision, relied upon in Graham, also stated that while other very serious crimes may be “deserving of serious punishment; ... in terms of moral depravity and of the injury to the person and to the public, [they do] not compare with murder, which does involve the unjustified taking of human life.” 433 U.S. at 598, 97 S.Ct. 2861 (plurality opinion). Hence, simple logic dictates that attempted murder is a nonhomicide offense because death, by definition, has not occurred.

We do not discount the seriousness of the offenses committed by Mr. Manuel. However, his actions did not result in the death of a human being. Thus, we are compelled to conclude that Mr. Manuel’s attempted murder conviction is a “nonho-micide” offense under both Tipton and Graham. Accordingly, Graham’s holding forbidding a sentence of life without parole for a juvenile nonhomicide offender applies to Mr. Manuel and requires us to vacate his life-without-parole sentences.

For these reasons, we vacate Mr. Manuel’s sentences of natural life for his conviction for robbery with a firearm and attempted first-degree murder with a firearm pursuant to Graham, and we remand for resentencing as to those two convictions. On remand, the trial court may resentence Mr. Manuel to any legal sentence available to it at the time of the commission of Mr. Manuel’s offenses.

Sentences vacated and remanded for further proceedings in accordance with this opinion.

ALTENBERND and KHOUZAM, JJ., Concur.

      . We requested supplemental briefing from the parties on the effect of the Graham decision on Mr. Manuel’s sentences. We commend counsel for both parties for their excellent presentations.

        . The attempted robbery with a firearm conviction was a second-degree felony punishable by up to fifteen years in prison. Mr. Manuel has fully served this sentence and did not challenge it in his postconviction motion.

      . We note that Mr. Manuel’s sentence of forty years in prison on the second conviction for attempted murder with a firearm is unaffected by the Graham decision. Graham held only that sentences of life without the possibility of parole imposed on juveniles for non-homicide offenses are unconstitutional — not that lengthy prison sentences imposed on juveniles for a term of years less than life are unconstitutional. Graham, 130 S.Ct. at 2030 (noting that the Eighth Amendment does not "foreclose the possibility that persons convicted of nonhomicide crimes committed before adulthood will remain behind bars for life”). Therefore, Mr. Manuel is not entitled to be resentenced on the attempted murder conviction that currently carries a sentence of a term of forty years.

      . Although Mr. Manuel’s sentencing guidelines scoresheet is not in the record, it is possible that his scoresheet carried a recommended sentence of life due to the seriousness of his offenses. How the trial court is to handle that issue, and whether Graham effectively creates a valid basis for a downward departure sentence, are not questions we must resolve today.


author: WARNER, J.

text:
    Jesse Lee STONE, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-4882.
    District Court of Appeal of Florida, Fourth District.
    Nov. 3, 2010.
    Rehearing Denied Dec. 21, 2010.
    Jesse Lee Stone, Okeechobee, pro se.
    No appearance required for appellee.
   WARNER, J.

In denying appellant’s motion to correct an illegal sentence, which alleged that he was improperly sentenced as a habitual offender, the trial court found: “Contrary to the defendant’s allegations, he was clearly sentenced as a habitual offender and given minimum mandatory sentences. This motion is frivolous and abusive. See State v. Spencer, 751 So.2d 47, 48 (Fla.1999).” The court further ordered that a certified copy of the order be forwarded to appellant’s warden “for consideration of sanctions under Florida Statute sections 944.279(1), 944.28, and 944.09.”

On appeal, the appellant argues that the trial court erred in imposing sanctions without affording him an evidentiary hearing. We affirm, as the trial court did not impose sanctions but referred the case to the Department of Corrections to consider statutory sanctions. The DOC, not the circuit court, holds a due process hearing, prior to the imposition of sanctions. See Spencer v. Fla. Dep’t of Corrections, 828 So.2d 752, 754 (Fla.2002) (“The department’s rules specifically provide for discipline when a court finds that an inmate has filed a frivolous lawsuit. The rules also provide that an inmate charged with such a rule violation is entitled to a due process hearing before discipline is imposed. These rules specify how the due process hearing should be conducted, how the findings of fact should be determined, how the discipline should be determined, and how to appeal that decision.”) (internal citations omitted). The trial court is not required to provide an additional hearing to appellant prior to making its finding of frivolousness, which can be made strictly from the filings in the case.

Affirmed.

POLEN and LEVINE, JJ., concur.


text:
    Robert BUHRMAN, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-553.
    District Court of Appeal of Florida, Fourth District.
    Nov. 3, 2010.
    Rehearing Denied Dec. 22, 2010.
    Robert Buhrman, Jasper, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Ilkanic v. City of Fort Lauderdale, 705 So.2d 1371 (Fla.1998); Cruz v. State, 742 So.2d 489 (Fla. 3d DCA 1999).

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


text:
    Howard A. GOOKOOL, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-2852.
    District Court of Appeal of Florida, First District.
    Nov. 8, 2010.

      Howard A. Gookool, Petitioner.
    Bill McCollum, Attorney General, and Edward C. Hill, Jr., Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Munn v. Florida Parole Commn, 807 So.2d 733 (Fla. 1st DCA 2002).

KAHN, VAN NORTWICK, and THOMAS, JJ., concur.


text:
    Frederick L. SNELL, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-5475.
    District Court of Appeal of Florida, First District.
    Nov. 8, 2010.
    Frederick L. Snell, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

KAHN, VAN NORTWICK, and THOMAS, JJ., concur.


text:
    Adrian GRAY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-5149.
    District Court of Appeal of Florida, First District.
    Nov. 8, 2010.
    Adrian Gray, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Fla. R.App. P. 9.141(c)(4)(B).

KAHN, VAN NORTWICK, and THOMAS, JJ., concur.


text:
    Smith PAGET, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-6271.
    District Court of Appeal of Florida, First District.
    Nov. 10, 2010.

      Nancy Daniels, Public Defender, and Archie F. Gardner, Jr., Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We affirm the appellant’s convictions and sentences but remand for the trial court to strike the reference to “775.087” from the appellant’s written judgment as that statutory section is inapplicable to the appellant’s case.

AFFIRMED and REMANDED with instructions.

PADOVANO, ROBERTS, and MARSTILLER, JJ., concur.


text:
    Leroy BROOKS, Petitioner, v. Walter A. McNEIL, Secretary, Florida Department of Corrections, Respondent.
    No. 1D10-3400.
    District Court of Appeal of Florida, First District.
    Nov. 10, 2010.
    Leroy Brooks, pro se, Petitioner.
    Bill McCollum, Attorney General, and Joe Belitzky, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

We hereby grant the petition for writ of mandamus. The circuit court shall rule on the pending petition for writ of mandamus within a reasonable time, not to exceed 30 days from issuance of mandate in this cause. Because we are confident that the circuit court will issue a ruling, we withhold issuance of the formal writ.

WOLF, DAVIS, and WETHERELL, JJ., concur.


text:
    Therence CROOKS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-4091.
    District Court of Appeal of Florida, First District.
    Nov. 10, 2010.
    Therence Crooks, pro se, Petitioner.
    Bill McCollum, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and Therence Crooks is hereby afforded belated appeal from the order of the Circuit Court for Okaloosa County which denied postconviction relief in case numbers 08-CF-449 and 08-CF-450. Upon issuance of mandate in this cause, a copy of the opinion will be provided the clerk of the circuit court who shall treat it as a notice of appeal. Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

BENTON, PADOVANO, and CLARK, JJ., concur.


text:
    Asa HARRIS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-4224.
    District Court of Appeal of Florida, First District.
    Nov. 10, 2010.
    Asa Harris, pro se, Petitioner.
    Bill McCollum, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner’s direct criminal appeal was dismissed when counsel failed to file the initial brief. We grant the instant petition alleging ineffective assistance of appellate counsel and hereby reinstate case number 1D08-6144. Jurisdiction in that proceeding is relinquished to the trial court for 30 days with directions to consider the appointment of the public defender if petitioner so qualifies. In addition, the clerk of the circuit court shall return the record in that case to this court within 30 days.

WOLF, DAVIS, and WETHERELL, JJ., concur.


text:
    Troy D. MAJOR, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-4237.
    District Court of Appeal of Florida, First District.
    Nov. 10, 2010.
    Troy D. Major, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is hereby granted a belated appeal of the judgments and sentences rendered on October 1, 2008, in Escambia County Circuit Court case numbers 2008-CF-000841-A and 2008-CF-001726-A. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R.App. P. 9.141(c)(5)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

PETITION GRANTED.

WOLF, DAVIS, and WETHERELL, JJ., concur.


text:
    Ronald PALMER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-4589.
    District Court of Appeal of Florida, First District.
    Nov. 10, 2010.
    Ronald Palmer, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner Ronald Palmer seeks belated appeal from an order denying his motion to withdraw plea made pursuant to Florida Rule of Criminal Procedure 3.170(£). However, that motion postponed rendition of the judgment and sentence pursuant to Florida Rule of Appellate Procedure 9.020(h). The order denying the motion is not separately appealable. Palmer is currently seeking belated appeal from judgment and sentence in this court’s case number 1D10-3036. We therefore deny the instant petition without prejudice to Palmer’s right to pursue belated appeal in 1D10-3036. Petitioner may challenge the order denying motion to withdraw plea in the direct appeal that will follow if belated appeal is granted in 1D10-3036.

PETITION DENIED.

BENTON, PADOVANO, and CLARK, JJ., concur.


author: FARMER, J.

text:
    Richard DENTON, Cynthia Bell, Kevin Bell, Kenneth L. Groves, Appellants, v. GOOD WAY OIL 902 CORP., and 512 Development Corp., Appellees.
    Nos. 4D08-4923, 4D08-5006, 4D09-3517.
    District Court of Appeal of Florida, Fourth District.
    Nov. 10, 2010.
    Rehearing Denied Dec. 21, 2010.

      Bruce E. Loren and Cara F. Barrick of Bruce Loren & Associates, West Palm Beach, for appellants.
    Robert E. Pershes, L.A. Perkins, and Jennifer E. Simpson of Buckingham, Doolittle & Burroughs, L.L.P., Boca Raton, for appellees.
   FARMER, J.

This contract to sell commercial real estate failed to close. The buyer sued the seller for specific performance and other equitable relief. It also sued other defendants for intentional interference with the contract and slander of title. The claims were tried simultaneously to a jury (money damages) and the judge (equitable claims). As Murphy’s law would predict, the jury went one way and the trial judge the other. Buyer won the money damages claims; seller prevailed on the equitable claims. Both sides appeal. We reverse the money damages but affirm the trial judge’s decision on the equitable claims.

We sketch the facts. Denton (seller) and Good Way (buyer) entered into a contract for the sale of commercial property, a trailer park, in June 2003. The agreed price was $400,000. There were then two mortgages on the property. Buyer was given a lengthy “investigation period” to ascertain suitability for certain purposes: changing the use as a trailer park to a gas station/convenience store. No closing date was initially specified; but at the end of the investigation period, which could be extended, a closing date would be fixed.

Nine months later (March 2004) the parties modified the agreement and provided that buyer could record a memorandum of contract in the public records disclosing the following terms. Buyer’s investigation period was extended for 90 days. Buyer agreed to pay off the second mortgage, in return for which seller gave buyer a second mortgage. The purchase price was reduced by the amount of the second mortgage given to buyer.

Nearly 22 months after contracting and an extensive additional period for buyer’s investigation, seller invoked the “time-is-of-the-essence” clause and set the closing date for April 11, 2005, at the offices of a designated closing agent. Seller warned that the contract must be fully closed that day. Buyer appeared for the closing and tendered partial payment to the closing agent at that time. Buyer failed to tender the balance of $844,000 due on the purchase price by the close of business that day. Buyer attempted to tender the balance on the following day in the afternoon, but seller rejected it on grounds the contract was terminated for non-performance at the closing.

Also on the following day, seller quit-claimed title on the property to a land trust, which in turn conveyed it to a pension trust, both having the same trustee. The mortgagees on the first and third mortgages also transferred their interests to the trust.

Buyer sued seller, the third mortgagee and her husband, as well as both trusts and the trustee, making different claims against different defendants. Against the seller, buyer sought specific performance of the sale contract, to foreclose the second mortgage, and a declaratory judgment in its favor. As against the third mortgagee and the trustees of both trusts, buyer sued for tortious interference with the sale contract. Buyer also sued the third mortgagee and her spouse for slander of title to the land.

On both tort claims, the jury found in favor of buyer and. awarded substantial money damages. Defendants moved for directed verdicts and for judgment in accordance with prior motions for directed verdict (JNOV). They also moved to set aside the damages verdicts on all money damages claims for lack of critical evidence on specific factual elements.

The trial judge made separate rulings on the motions. As to liability on the tortious interference claims, the court denied a directed verdict. As to damages on the tortious interference claims, the court granted directed verdicts on all claims for lost profits and increased construction costs. As to damages for the loss of any increase in the value of the property, the court granted both a limited directed verdict as well as a new trial and remittitur by which it reduced such damages to $100,000. On liability for the slander of title claims the court granted a directed verdict, concluding that buyer lacked standing to claim slander of title for land it did not own.

Later the trial judge entered final judgment on the equitable and declaratory judgment claims. Finding that buyer failed to deliver the balance due on the purchase price on the date of closing, the court denied specific performance of the contract. The court found no evidence of any mutual agreement to extend the closing until the next day. Buyer was entitled to foreclose the second mortgage, but it should not recover pre-judgment interest or attorneys fees because it failed upon demand to provide the seller-mortgagor with the necessary information as to those sums for a payoff. Finally the court found that the third mortgage was valid and enforceable.

In sum, buyer was entitled to recover $100,000 on the tortious interference claim from the trustees. In equity buyer could foreclose the second mortgage only as to the principal sum of $51,000 but could have no other relief.

Trial judges may grant directed verdicts and JNOV when there is utterly no evidence in the record supporting an essential element of a claim or defense which the jury might lawfully have accepted. Because these motions present a purely legal issue, appellate judges owe no deference to the trial court’s decision. Review is de novo.

As to the motion for directed verdict on liability for tortious interference with the contract, the trustee contends that evidence clearly shows the quit-claim deeds were given only after buyer failed to close on the day fixed for closing. Nor is there any evidence of interfering before the closing. He argues that when buyer failed to tender the price at closing, the contract was breached by buyer, and seller could now sell his land to someone else. Because the contract was no longer execu-tory, he contends, there could be no tor-tious interference with it.

Buyer offered no competent evidence of any tortious conduct by any defendant until the day after the contract failed to close. Even then the substance of its evidence is merely that the trustee offered to buy the property on the same terms and conditions. Because the circumstances could be reasonably understood by the trustee as making the property once again available when the closing failed to consummate, the trustee’s offer on the day after is not competent to prove an act capable of interfering with an executory contract. We therefore hold that evidence of any attempt to interfere is lacking. Hence it was error to deny seller’s motion for a directed verdict as to liability on the intentional interference with contract claims.

As to the equitable claims, we find no error by the trial judge. In his findings of fact, he found no evidence of a mutual agreement to extend the closing until the following day. The issue of extending the closing until the following day involves buyer’s contention that the closing agent appeared to acquiesce in such an extension. The real question, though, is whether seller ever manifested any assent to such an extension or ever gave authority to the closing agent to do so.

There is no testimony offered by anyone of any representation or acknowledgement by seller that the closing agent was authorized to act on his behalf at closing. After an “investigation period” that extended beyond the specific provisions of the contract even as modified, seller was entitled to set a closing date. In doing so, seller expressly invoked the “time-is-of-the-essence” provision and specified April 11th as the closing date. Although seller himself did not personally attend the closing on April 11th, he had previously notified the closing agent that he would present himself to deliver the required deed when such a transfer of title was ready at closing on April 11th. Buyer failed to tender the full balance of the sale price at the April 11th closing.

On appeal buyer contends that the closing agent agreed to extend the closing until the following day for the purpose of buyer tendering the funds necessary to close. It argues that the closing agent was acting on behalf of the seller in so doing and that he had at least apparent authority to do so.

The supreme court has explained that:

“The authority of an agent to bind a principal may be real or it may be apparent only, and members of the public acting in good faith may rely on either, unless in the case of apparent authority the circumstances are such as to put a reasonable person on inquiry. By apparent authority is meant, such authority as the principal wrongfully permits the agent to assume or which the principal by his actions or words holds the agent out as possessing. Apparent authority rests on the doctrine of estoppel and arises from the fact of representations or actions by the principal and a change of position by a third person who in good faith relies on such representations or actions.” [e.s., c.o.]

Apparent authority of an agent must necessarily rest, therefore, on some representation or assertion by the principal.

Buyer argues evidence showing that the closing agent, who is a lawyer, had previously represented the seller in other transactions. It acknowledges, however, that another lawyer was representing seller in connection with this contract. Nevertheless, buyer urges that it could reasonably take the closing agent’s willingness to accept a tender of closing funds on the following day as impliedly authorized by the seller, who in fact selected the closing agent for this transaction.

A closing agent generally owes a duty to both contracting parties only to supervise the closing in a reasonably prudent manner. Here buyer argues essentially that conduct of the closing agent supports the appearance of the requisite authority. But in comparable factual circumstances, one court rejected functionally the same argument as follows:

“Although the bank seemingly relied on Turner’s representations with regard to the loans, these were not Safeco’s representations concerning Turner’s agency for Safeco. Rather, Turner made these representations in his capacity as counsel for Neder and for himself as a borrower. He did not hold these positions because he could issue title insurance for Safeco. The record reflects that the bank made the written loan commitments prior to Turner’s use of his Safeco agency to issue title commitments and policies.”

Sec. Union Title Ins. v. Citibank Fla., 715 So.2d 973, 975-76 (Fla. 1st DCA 1998). We accept this reasoning as establishing that a closing agent does not, as such, become an agent of either contracting party for purposes of enforcing the rights of that party under the contract.

The evidence shows that any representation about extending the closing to the following day was made by the closing agent, not by seller. As we have seen, the closing agent had only the authority to conduct the closing. A closing agent with only such authority cannot reasonably be understood to be empowered by a contracting party to negotiate changes to the terms of the contract in the absence of specific representations by that party to that effect. To repeat, buyer cites no such express representation by seller.

Moreover, in this case the evidence is not disputed that the day of closing was made essential by the seller. Because the seller insisted on enforcing the deadline, it is not reasonable to expect that the closing agent would be apparently authorized to extend it. The trial judge was well within the law to reject buyer’s evidence as legally insufficient to demonstrate an agreement to extend closing until the next day and instead to deny specific performance on account of the failure of the buyer to tender the funds required by contract on the day specified for closing.

The equitable claim for specific performance — tried only to the judge and not to the jury — shares a common fact with the jury’s tort claim: namely, whether the closing date was extended to the following day for buyer to tender the balance of funds due on the contract. Buyer argues error for the trial judge to refuse to accept the jury’s implicit finding that the closing agent had authorizedly extended the closing date. In making that finding, the jury had been instructed with the familiar civil standard of proof: the “greater weight of the evidence.”

Seller argues that the chancellor was required to employ a more exacting burden than the jury in considering the specific performance claim. As the supreme court has explained:

“In this jurisdiction the rule is settled beyond question ‘that in a suit for specific performance of an alleged contract for the sale of real estate the plaintiff must do more than merely prove his case by a preponderance of the evidence; ... he must prove the contract as alleged in his complaint by competent and satisfactory proof which must be clear, definite and certain.” [e.s.]

The trial judge found no clear, definite and certain proof of an extension of the closing. We agree that the record fails to suggest any such evidence, and certainly none with that high degree of reliability. Because of the difference in the burden of proof, the chancellor was able to reach a different finding on this factual issue than the jury did.

For the foregoing reasons, the foreclosure of the second mortgage is affirmed, but we reverse the award of money damages to the buyer and direct the entry of judgment in favor of the seller on all tort claims.

GROSS, C.J., and STEVENSON, J., concur.

      . See Goldschmidt v. Holman, 571 So.2d 422, 424 n. 5 (Fla.1990) (holding it essential to existence of agency relationship that principal make representation or acknowledgment of agent’s authority to act); Orlando Exec. Park, Inc. v. Robbins, 433 So.2d 491, 494 (Fla.1983), receded from on other grounds, Mobil Oil Corp. v. Bransford, 648 So.2d 119 (Fla.1995) (same).

      . Stiles v. Gordon Land Co., 44 So.2d 417, 421-22 (Fla.1950).

      . Fidelity & Cas. Co. v. D.N. Morrison Constr. Co., 116 Fla. 66, 156 So. 385, 387, appeal dismissed, Fidelity & Cas. of N.Y. v. Coley & Peterson Inc. of Va., 293 U.S. 534, 55 S.Ct. 348, 79 L.Ed. 642 (1935).

      . Florida Bar v. Hines, 39 So.3d 1196, 1200 (Fla.2010); Land Title of Cent. Fla., LLC v. Jimenez, 946 So.2d 90, 93 (Fla. 5th DCA 2006); Sommers v. Smith & Berman P.A., 637 So.2d 60 (Fla. 4th DCA 1994); Askew v. Allstate Title & Abstract Co., 603 So.2d 29 (Fla. 2d DCA 1992).

      . See MasTec Inc. v. TJS. LLC, 979 So.2d 285, 291-92 (Fla. 2d DCA 2008) (in the absence of buyer’s tender of purchase price at closing, seller never obligated to convey title).

      . Miller v. Murray, 68 So.2d 594, 596 (Fla.1953); accord Invego Auto Parts Inc. v. Rodriguez, 34 So.3d 103, 104 (Fla. 3d DCA 2010).


text:
    JVA ENTERPRISES, I, LLC and Enterprises, Inc., Appellants, v. James S. PRENTICE, Appellee.
    Nos. 4D08-4661, 4D08-5013, 4D09-1686.
    District Court of Appeal of Florida, Fourth District.
    Nov. 10, 2010.

      Neil E. Bayer and Marc D. Sarnoff of Sarnoff & Bayer, Coconut Grove and Elliot H. Scherker, Brigid F. Cech Samóle and Kerri L. McNulty of Greenberg Traurig, P.A., Miami, for appellants.
    David R. Canning of Karcher, Canning & Karcher and Nancy Little Hoffmann of Nancy Little Hoffmann, P.A., Fort Laud-erdale, for appellee.
   KEYSER, JANIS BRUSTARES, Associate Judge.

JVA Enterprises I, LLC and Enterprises, Inc. appeal a judgment in favor of James S. Prentice. We affirm the trial court’s denial of the appellants’ motion to dismiss for fraud on the court. However, because the trial court erred in excluding certain evidence which the appellants sought to introduce concerning claims for prior injuries suffered by Prentice, we reverse the judgment and remand for a new trial.

James Prentice (Prentice) served as chief engineer on the yacht Enterprise V, which is owned by Enterprises, Inc. (Enterprise) and operated by JVA Enterprises I, LLC (JVA) from September 2003 through May 2004. Prentice sued JVA and Enterprise for injuries allegedly suffered in December 2003 and March 2004. He asserted claims for unseaworthiness against Enterprise, maintenance and cure under admiralty law against both of the defendants, and negligence against JVA. Prentice alleged that, as a result of JVA’s negligence, he herniated a disc in his neck at the C6-C7 level and tore his right rota-tor cuff, both of which required surgical repair.

In answers to interrogatories, Prentice denied that he was seeking compensation for exacerbation of any pre-existing injury. He did, however, disclose that he had filed a workers’ compensation claim and a personal injury suit in California in the 1980s.

Prior to Prentice’s deposition, a paralegal at the law firm representing JVA and Enterprise discovered that Prentice’s name and social security number appeared three times in workers’ compensation files in California. At his deposition, the defense counsel asked Prentice about the earlier claims in California. Prentice admitted to one prior workers’ compensation claim, but did not remember the other two. Prentice stated that he had been working as an ironworker when he strained his lower back and hurt his knee in the mid-1980s. He was out of work for four or five months, during which time he received physical therapy. He settled that workers’ compensation claim for a minimal amount. When asked if he had ever filed a workers’ compensation claim where he sustained neck, head, shoulder and back injury, Prentice answered “no.”

The workers’ compensation claim records revealed that Prentice was injured on January 10, 1991, while working for a crane company in Los Angeles. The claim indicated that Prentice was drilling holes when he hit a rebar and “pulled his back out.” He injured his back, neck and shoulder. When Prentice saw his physician on January 15, 1991, the doctor’s medical report described his symptoms as follows: “[plain in his upper back radiating into left arm, stiffness in both sides of neck, hard to turn head and use his arm.” The doctor diagnosed him as suffering from “Cervieo-brachial Syndrome, Brachial Neuritis/Ra-diculitis, Thoracic strain sprain, [plain in thoracic spine.”

In February 1991, Prentice was seen by two separate physicians who diagnosed cervical sprain and thoracic sprain. His complaints were constant sharp, throbbing pain in his upper back that traveled to his neck and both shoulders. He also complained of throbbing, aching bilateral shoulder pain that traveled down his right arm to his right hand.

X-rays taken in 1991 showed a slight decrease in the C5-6 disc space with a slight degree of left neural foraminal sten-osis at C4-5. An MRI performed in 1991 revealed “the presence of small far right lateral disc bulges at C3-4 and C4-5 with moderate right neural foraminal stenosis at both levels.”

In 1991, Prentice was diagnosed with “chronic cervical myofascial strain superimposed upon degenerative disc disease at C5-6 and 1.5 to 2 millimeter right lateral disc bulges at C3-4 and C4-5 with moderate right neural foraminal stenosis at both levels.” Prentice’s physician found, for the purposes of a disability rating, that Prentice’s condition be considered “permanent and stationary.” He felt that Prentice should “not engage in occupations requiring heavy lifting as defined by the Guidelines for Work Capacity” and felt that if Prentice were to engage in occupations exceeding those guidelines, he would be liable to have significant lasting exacerbation of his symptoms and a possible worsening of his underlying condition. The physician believed that fifty percent of Prentice’s injuries were from the natural progression of pre-existing degenerative disease and the remaining fifty percent was attributable to the injury which occurred on January 10, 1991. Prentice settled the January 10, 1991, workers’ compensation claim for $16,000.

Approximately one month prior to trial, in May of 2008, JVA and Enterprise filed a motion for sanctions, including dismissal, against Prentice for concealing his 1991 injuries. Prentice defended against that motion, arguing that his earlier injury had been dissimilar to the present injury. Prentice relied on a report of Dr. Coats which indicated the present injury — a C6-7 disc herniation — was not related to the earlier 1991 accident which dealt with a degenerative disc disease at C5-6 and disc bulges at C3-4 and C4-5.

The trial court denied JVA and Enterprise’s motion for sanctions, finding the temporal distance of the 1991 injury to the 2008 trial to be compelling. In denying the motion, the trial court indicated this might be an appropriate area for cross-examination or impeachment.

On the same day the trial court denied JVA and Enterprise’s motion for sanctions, Prentice filed a motion in limine, asking the trial court to preclude admission of the 1991 workers’ compensation records because they were unrelated to the 2003 and 2004 injuries. Prentice argued that the old records were for a wholly different injury, which was totally unrelated to this claim. The trial court granted the motion in limine and found that JVA could not “bring up this California injury in any way, shape, or form during trial.”

JVA and Enterprise filed a motion for reconsideration and proffered evidence of an affidavit of Dr. Lichtblau, a rehabilitation physician expert, who opined that a patient must give a truthful past medical history before a doctor can provide a full, fair, and honest evaluation. JVA also proffered the deposition testimony of Dr. Cohen, who had examined the 1991 California case and noted that the MRI revealed disc abnormalities at C3-4, C4-5, C5-6, which were just above the location where Prentice had his current injury at C6-7. Dr. Cohen noted that the 1991 injury had been “permanent,” thus suggesting it was material to the diagnosis and evaluation of Prentice’s current condition. Dr. Cohen further testified that the disc bulges that were diagnosed in 1991 would “[ujsually” worsen over time and that the heavy lifting would exacerbate Prentice’s condition. Although the prior injury was in 1991, Dr. Cohen stated the passage of time is “pretty much wholly irrelevant” because the injury is permanent and “it doesn’t go away.” JVA and Enterprise’s motion for reconsideration was denied by the trial court.

At trial, Prentice testified that in December 2003, the captain instructed him to open a valve in the waste-disposal system and, while trying to pry it open using a bar as a lever, the valve released, causing the bar to strike him in his ear and left shoulder. (Prentice contended this caused his herniated disc.) The second injury occurred in March 2004, when he was tightening bolts on the waste-disposal system. Prentice had his hands over his head and felt something in his right shoulder pop. (Prentice contended this caused his torn right rotator cuff.) Prentice was diagnosed with a possible tear in his right rotator cuff and a herniated disc at the C6-7 level. Dr. Coats, Prentice’s treating neurosurgeon, performed a spinal fusion of C6-7 and was of the opinion that the injury to the C6-7 disc was due to the December 2003 accident.

This appeal follows the jury’s subsequent substantial award of damages to Prentice for lost wages and benefits, medical expenses, and for physical and emotional pain.

We find no abuse of discretion in the trial court’s refusal to dismiss the case for fraud on the court. In Arzuman v. Saud, 843 So.2d 950, 952 (Fla. 4th DCA 2003), this court held the trial court has the inherent authority, within the exercise of sound judicial discretion, to dismiss an action when a plaintiff has perpetrated a fraud on the court. The requisite fraud on the court occurs where “it can be demonstrated, clearly and convincingly, that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate a matter by improperly influencing the trier of fact or unfairly hampering the presentation of the opposing party’s claim or defense.” Id. (quoting Aoude v. Mobil Oil Corp., 892 F.2d 1115, 1118 (1st Cir.1989)). “Because ‘dismissal sounds the death knell of the lawsuit,’ courts must reserve such strong medicine for instances where the defaulting party’s misconduct is correspondingly egregious.’ ” Arzuman, 843 So.2d at 952 (citations omitted). While a trial court has discretion to dismiss an action for fraud on the court, it should exercise this severe sanction “only in extreme circumstances.” Id.

When imposing this harshest of sanctions, trial courts should weigh the “policy favoring adjudication on the merits” with the need to “maintain the integrity of the judicial system.” Id.; Bass v. City of Pembroke Pines, 991 So.2d 1008, 1011 (Fla. 4th DCA 2008). While it appears Prentice may have a selective memory regarding his medical history, the issue is not whether any member of this panel would make the same decision as the trial judge given the facts of this case. Bass, 991 So.2d at 1011. The ultimate question is “whether reasonable minds could differ as to the propriety of that decision.” Id. We find that reasonable minds could differ under the facts of this case.

Prentice did disclose in his answers to interrogatories a prior injury to his lower back on the job as an ironworker in Los Angeles in the 1980s and that he had a workers’ compensation claim and a third party claim in California. This disclosure led the appellants to discover his 1991 injury to his neck and shoulder. As noted by the court in Bologna v. Schlanger, 995 So.2d 526, 529 (Fla. 5th DCA 2008), rev. denied, 7 So.3d 1098 (Fla.2009), in reversing a dismissal for alleged fraud, the fact that the plaintiffs answers to interrogatories were adequate for the defense to learn of her treatment for back pain prior to her deposition, was “relevant to whether there existed a scheme to defraud.”

The trial court, in denying the appellants’ motion to dismiss for fraud on the court, also found the temporal distance of the 1991 injury to the 2008 trial to be compelling. As Judge Griffin pointed out in her specially concurring opinion in Bologna:

We all know that the capacity to remember and the categories of what we remember varies widely among individuals and depends on a number of common factors, such as age, stress, fatigue, emotion. I am skeptical that all of the plaintiffs in the recent profusion of “fraud on the court” cases are thieves and perjurers. Certainly the background of many of these individuals prior to becoming personal injury plaintiffs suggests otherwise.
Pain and medical treatment may be, for many, not so easy to recollect with accuracy. Just as some people seem to revel in every aspect of every medical event in their lives, past and present, and seem able to talk endlessly about it, others are the opposite. They do not want to recall it, prefer not to think about it and almost never discuss it. I would even wager that if judges were put to the test — i.e., required to describe in detail their experiences of pain and medical care four years in the past — they might be surprised at their own lack of accuracy-

Id. at 580 (emphasis in original).

For the foregoing reasons, we affirm the trial court’s denial of JVA’s motion to dismiss for fraud on the court.

Our affirmance of the trial court’s refusal to dismiss the case is based, in part, on the policy favoring adjudication on the merits. However, it is the application of precisely that policy which requires us to reverse the trial court’s exclusion of evidence of the 1991 injuries from the trial below.

The facts of Cross v. Pumpco, Inc., 910 So.2d 824 (Fla. 4th DCA 2005), are analogous to the facts of this case. In Cross, the appellant claimed injuries to the left side of his neck and shoulder from a 1999 accident. When asked whether he had any prior problems with his neck and shoulder, the appellant stated “never.” The trial court dismissed the action based on the appellant’s failure to disclose prior similar injury to his neck and shoulder. In reversing the trial court’s dismissal for fraud on the court, this court found that the alleged misconduct did not rise to the level of warranting the imposition of such a harsh sanction, stating:

Except in the most extreme cases, where it appears that the process of trial has itself been subverted, factual inconsistencies, and even false statements, are well managed through the use of impeachment and traditional discovery sanctions.

Id. at 328. Accord Bologna, 995 So.2d at 528 (poor recollection, dissemblance, even lying can be well managed through cross-examination); Ibarra v. Izaguirre, 985 So.2d 1117, 1119 (Fla. 2d DCA 2008) (alleged inconsistencies can be better handled by impeachment and/or vigorous cross-examination).

A plaintiff may properly be cross-examined as to his previous injuries, physical condition, claims or actions for injuries similar to those constituting the basis for the present action for the purpose of showing that his present physical condition is not the result of the injury presently sued for, but was caused wholly or partially by an earlier injury or preexisting condition. Zenchak v. Kaeufer, 612 So.2d 725, 726 (Fla. 4th DCA 1993); Zabner v. Howard Johnson’s Inc. of Fla., 227 So.2d 543, 545 (Fla. 4th DCA 1969); State Farm Fire & Cas. Co. v. Pettigrew, 884 So.2d 191, 196-97 (Fla. 2d DCA 2004). Prentice’s position that injuries related to the 1991 industrial claim, the thoracic strain injury, cervical disc bulges at C3-4 and C4-5, and the physician finding of permanent injury related to the cervical spine were totally different from, and unrelated to, the C6-7 disc herniation that he sustained in the 2003 accident was a matter of argument for trial, as opposed to exclusion from evidence.

While the prior injuries in 1991 may not have been the identical injuries sustained in 2003 and 2004, they involved the same general area of Prentice’s body, the neck and shoulder, and were relevant to the plaintiffs credibility in light of his lack of memory of this injury. We conclude that JVA and Enterprise should have been allowed to cross-examine Prentice on the prior injury, complaints and workers’ compensation claim and, therefore, the trial court abused its discretion by excluding such evidence. The improper exclusion of evidence thwarted the defense efforts to attack Prentice’s credibility and challenge the cause of his current physical complaints and limitations. JVA and Enterprise intended to rely on the California medical records to show that Prentice had claimed the same symptoms in 1991 and that his prior injury was such that Prentice would be susceptible to future injuries. The trial court’s exclusion of this evidence substantially interfered with the appellants’ ability to present a crucial element of their defense. See Pettigrew, 884 So.2d at 197-98.

The prejudice to the defendants by the trial court’s exclusion of this evidence was compounded when in final argument the plaintiffs counsel, who had succeeded in excluding this evidence, stated:

[Wjhere is the testimony to support the speculation of some big, bad neck injury, or shoulder [injury] in the past? ... Where is the testimony or evidence?

Case law indicates it is improper for a lawyer, who has successfully excluded evidence, to seek an advantage before the jury because the evidence was not presented. See Carnival Corp. v. Pajares, 972 So.2d 973, 975-76 (Fla. 3d DCA 2007) (plaintiffs comment on defendant’s failure to offer testimony that plaintiff successfully moved in limine to preclude improperly implied that the failure to offer such testimony was because defendant had no favorable testimony to provide); Hernandez v. Home Depot USA, Inc., 695 So.2d 484, 485 (Fla. 3d DCA 1997) (error in excluding plaintiffs expert testimony on the issue of negligence was unfairly exacerbated and compounded when, in final argument, defense counsel stated: “What is the evidence that we were negligent?”).

JVA also contends the trial court erred in refusing to set off Prentice’s recovery for cure with insurance payments from JVA’s insurer. The record indicates the facts were not sufficiently developed to determine whether JVA was entitled to a set-off for these payments pursuant to Johnson v. Cenac Towing, Inc., 544 F.3d 296 (5th Cir.2008). Accordingly, this matter may be revisited upon remand to the trial court.

Finally, we find that the trial court erred in awarding pre-judgment interest to Prentice. See McPhillamy v. Brown & Root, Inc., 810 F.2d 529 (5th Cir.1987).

For these reasons, the judgment against the defendants is reversed and the cause remanded for a new trial. The final judgments awarding pre-judgment interest, attorney’s fees and costs, are likewise reversed. In light of our reversal for a new trial, we need not address the remaining issues on appeal.

Affirmed in part, reversed in part, and remanded for a new trial.

GROSS, C.J. and CIKLIN, J., concur.


author: PER CURIAM. SCHWARTZ, Senior Judge,

text:
    LPP MORTGAGE LTD., f/k/a Loan Participant Partners, Ltd., etc., Appellant, v. Barbara J. TUCKER, Appellee.
    No. 3D09-161.
    District Court of Appeal of Florida, Third District.
    Nov. 10, 2010.

      Liebler, Gonzalez & Portuondo, P.A., and Dora F. Kaufman, Miami, for appellant.
    Mesa & Associates, and Manuel Arthur Mesa, Miami, for appellee.
    Before RAMIREZ, C.J., GERSTEN, J., and SCHWARTZ, Senior Judge.
   On Motion for Reheating

PER CURIAM.

Upon consideration, we grant appellant’s motion for rehearing, withdraw our prior opinion dated June 23, 2010, and substitute the following:

LPP Mortgage LTD., etc. (“LPP”) appeals an adverse final summary judgment entered in favor of Barbara J. Tucker (“Tucker”). We reverse.

The Small Business Association (“SBA”) made mortgage loans to certain companies. Tucker executed guaranty agreements on the loans. Subsequently, LPP succeeded to the SBA mortgage. When the borrowers defaulted, LPP filed a foreclosure action against Tucker’s property. The trial court entered final summary judgment in favor of Tucker on the ground that the statute of limitations expired before the action was filed.

On appeal, LPP asserts that the trial court erred in applying a six-year statute of limitations to this foreclosure action. On the other hand, Tucker contends that the trial court applied the correct statute of limitations. We agree with LPP.

A statute of limitations is a procedural statute that prevents the enforcement of a cause of action that has accrued. See Houck Corp. v. New River, Ltd., Pasco, 900 So.2d 601, 603 (Fla. 2d DCA 2005). An assignee of a mortgage acquires the rights and benefits which are available to the assignor. See, e.g., U.S. Nat’l Assoc. v. Taylor, 30 So.3d 530, 532 (Fla. 3d DCA 2010). This includes the benefit of the statute of limitations applicable to the assignor’s foreclosure action. See UMLIC VP LLC v. Matthias, 364 F.3d 125 (3d Cir.2004); LPP Mortgage Ltd. v. Hotaling, 497 F.Supp.2d 1217 (D.Colo.2007); LLP Mortgage Ltd. v. Cravero, 851 So.2d 897 (Fla. 4th DCA 2003).

The United States Code provides an unlimited time for the federal government to bring an action to establish the title to, or right of possession of, real or personal property. See 28 U.S.C. § 2415 (1996). Thus, the courts have determined that the federal government may file to foreclose on mortgaged property at any time. See, e.g., United States v. Thornburg, 82 F.3d 886, 894 (9th Cir.1996) (“Congress has left no gap in the law concerning the right of the United States to foreclose on a mortgage without being subject to a limitation period.”)

Here, as assignee of a federal government agency, LPP acquired the benefit of the federal government’s unlimited time to foreclose on the mortgaged property. Thus, the trial court erred in finding that LPP was time barred for bringing this foreclosure action against Tucker’s property-

Accordingly, we reverse the final summary judgment, and remand for further proceedings.

Reversed and remanded.

RAMIREZ, C.J., and GERSTEN, J., concur.

SCHWARTZ, Senior Judge,

(dissenting).

I dissent and would adhere to the panel opinion of June 23, 2010.


text:
    Desmond T. KENNER, Appellant, v. STATE of Florida, Appellee.
    Nos. 5D09-90, 5D09-166.
    District Court of Appeal of Florida, Fifth District.
    Nov. 12, 2010.
    James S. Purdy, Public Defender, and Noel A. Pelella, Assistant Public Defender, Daytona Beach, for Appellant.
    Desmond T. Kenner, Lake Butler, Pro se.
    Bill McCollum, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Appellant challenges his conviction for second-degree murder on several grounds, only one of which merits discussion. Appellant contends that the jury instruction for the lesser-included offense of manslaughter by act was fundamentally flawed, requiring a new trial. We agree and reverse.

Appellant was charged and tried for second-degree murder. In addition to instructing the jury on the second-degree murder charge, the trial judge also instructed the jury, without objection, using the then-standard instruction for manslaughter by act, a category one lesser-included offense of the murder charge. Subsequent to the trial, our supreme court held that the use of this instruction constitutes fundamental error. State v. Montgomery, 39 So.3d 252 (Fla.2010). Although the State concedes that a new trial is required if Montgomery is applicable, it attempts to distinguish it based on Joyner v. State, 41 So.3d 306 (Fla. 1st DCA 2010), which distinguished Montgomery on two grounds, neither of which are applicable here. Here, the jury was not instructed on manslaughter by culpable negligence because defense counsel did not believe that the facts supported the instruction. Nor did counsel invite the error here in the manner identified by the court in Joyner. Accordingly, Montgomery compels a new trial.

REVERSED AND REMANDED.

PALMER, TORPY and COHEN, JJ., concur.


author: PALMER, J.

text:
    Ruben GUTIERREZ, Appellant, v. Joanne GUTIERREZ, Appellee.
    No. 5D09-2999.
    District Court of Appeal of Florida, Fifth District.
    Nov. 12, 2010.

      Erick Trivedi, Orlando, for Appellant.
    No Appearance for Appellee.
   PALMER, J.

Ruben Gutierrez (father) appeals the order entered by the trial court adopting the recommendations of the general magistrate on the father’s motions to modify the parties’ child support obligations and child custody arrangement. Determining that the trial court erred in failing to hold a hearing on the father’s exceptions to the general magistrate’s report, we reverse.

Post-dissolution, the father filed a petition seeking a downward modification of his child support obligation. He subsequently filed a supplemental petition to modify custody and other relief. The trial court referred the father’s supplemental petition to a general magistrate. The matter then proceeded to a hearing before the general magistrate. After receiving evidence, the general magistrate issued a report and recommendation. The father timely filed exceptions to the general magistrate’s report and requested a hearing on the exceptions. The trial court entered an order adopting the general magistrate’s report without holding a hearing on the exceptions.

The father contends that the trial court’s order approving the general magistrate’s report must be reversed because the trial court failed to hold a hearing on the exceptions in spite of his request for such a hearing. We agree.

Rule 12.490 of the Florida Family Rules of Procedure authorizes parties to file exceptions to a general magistrate’s report. The rule further instructs trial courts to conduct hearings on timely filed exceptions:

Rule 12.490. General Magistrates
* * ⅜
(f) Filing Report; Notice; Exceptions. The general magistrate shall file the report and recommendations and serve copies on all parties. The parties may file exceptions to the report within 10 days from the time it is served on them.... If exceptions are filed, they shall be heard on reasonable notice by either party or the court.

Fla. Fam. L.R.P. 12.490(f). It is reversible error for a trial court to fail to conduct a hearing on timely filed exceptions. See Simmons v. Simmons, 16 So.3d 878 (Fla. 5th DCA 2009)(holding that, because trial court failed to hold a hearing on husband’s timely filed exceptions to the general magistrate’s report before entering the final judgment in dissolution action, case would be remanded to the trial court to conduct an appropriate hearing). Accord Collado v. Pavlow, 951 So.2d 69, 70 (Fla. 5th DCA 2007).

Here, the father was entitled to receive a hearing on his exceptions to the general magistrate’s report because he did timely file his exceptions.

REVERSED and REMANDED.

SAWAYA and ORFINGER, JJ„ concur.

      . All of the other claims of error raised by the father in his appellate brief can be addressed by the trial court during the hearing on the father’s exceptions.