author: PER CURIAM.

text:
    Stan DUBOSE v. STATE of Alabama.
    CR-08-0861.
    Court of Criminal Appeals of Alabama.
    Nov. 6, 2009.
    Rehearing Denied Feb. 19, 2010.
    Certiorari Denied May 7, 2010 Alabama Supreme Court 1090765.

      Jason B. Dial, Montgomery, for appellant.
    Troy King, atty. gen., and Ferris Stephens, asst. atty. gen., for appellee.
   PER CURIAM.

The appellant, Stan Dubose, appeals his convictions for assault in the second degree and kidnapping in the second degree. He was sentenced to 15 years in prison on the assault conviction and to 40 years in prison on the kidnapping conviction, the sentences to be served consecutively. Du-bose was convicted of the offenses in December 1995, but he was not sentenced until January 2009. He filed a written notice of appeal on March 2, 2009. While attempting to obtain the transcript this Court was notified by the circuit clerk’s office that the transcript of Dubose’s 1995 trial could not be completed because the court reporter who recorded those proceedings could not be located. Our review of the clerk’s portion of the record that this Court received showed that Dubose had escaped before he was sentenced. Based on these assertions we requested that the parties respond as to why this appeal should not be dismissed. Both Du-bose and the State filed responses to our request.

First, Dubose argues that he did not escape because, he says, one of the deputies erroneously released him from jail. Attached to the State’s response is an affidavit executed by the District Attorney for the Third Judicial Circuit — Ben Reeves. Mr. Reeves’s affidavit states:

“Mr. Stan Dubose was convicted on December 19, 1995, for assault second degree and kidnapping second degree. He escaped before he could be sentenced and has been residing in Florida and has spent some time in state prison. He was returned to Alabama in August of 2008, and on January 29, 2009, was sentenced to (15) fifteen years on the assault second degree, and (40) forty years on the kidnapping second degree.
“Between conviction and his sentencing (13) thirteen years later, the witnesses for the prosecution of Dubose have indicated they do not remember the details of this brutal crime, near to the extent as to when the crime happened.
“Because Dubose had fled justice all of these years, the State is severely prejudiced not only because the transcript to his trial has been misplaced and it is hard for the State to defend its case on appeal and refresh its own memory of how the case was presented, but also State witnesses are no longer with the law enforcement office that made this case. Also after so many years, the witnesses’ memory of the details of the crime are not as strong.”

Also, a letter written by Judge Burt Smit-hart to the district attorney is attached to the State’s response. This letter states: “In 1996, the above styled cases were withdrawn and filed because the Defendant ‘skipped’ town prior to being sentenced.” Other documents in the clerk’s record show that Dubose escaped. Contrary to Dubose’s contention, there is sufficient documentation to show that Dubose escaped from jail after he was convicted but before he was sentenced.

“For over a century, Alabama appellate courts have exercised the discretion to summarily dismiss the appeals of those who have escaped custody while their appeals are pending.... Although we find no Alabama Supreme Court cases summarily and unconditionally dismissing the pending review of an escaped and recaptured appellant’s conviction, we also can find no indication that our supreme court would reject the practice of dismissing such a pending review. Thus, we agree with the [United States Court of Appeals for the] Fifth Circuit in Joensen v. Wainwright, 615 F.2d [1077] at 1079 [(5th Cir.1980)], that, ‘If the Supreme Court can summarily and unconditionally dismiss an escapee’s appeal without offending the constitution, there is no reason why a state court may not do likewise.’ ”

Young v. State, 518 So.2d 822, 824 (Ala.Crim.App.1987). A few years later in Watkins v. State, 589 So.2d 1311 (Ala.Crim.App.1991), we applied the escape rule to a defendant who sought postconviction review. We stated:

“In reviewing this record on appeal, we are of the opinion that the following language from the United States Supreme Court in Molinaro v. New Jersey, [396 U.S. 365 (1970) ], fully supports the view that this appellant became disen-titled to post-conviction relief by virtue of his escape. The language upon which we now rely is as follows:
“ ‘No persuasive reason exists why this Court should proceed to adjudicate the merits of a criminal case after the convicted defendant who has sought review escapes from the restraints placed upon him pursuant to the. conviction. While such an escape does not strip the case of its character as an adjudicable case or controversy, we believe it disentitles the defendant to call upon the resources of the Court for determination of his claims.’
“For the reasons herein stated, this appeal is due to be and the same is hereby dismissed, as we specifically hold that the appellant’s escape has disen-titled him to appellate review.”

589 So.2d at 1312-13.

However, both Young, decided in 1987, and Watkins, decided in 1991, relied on Molinaro v. New Jersey, 396 U.S. 365, 90 S.Ct. 498, 24 L.Ed.2d 586 (1970), a case that was modified in 1993 by the United States Supreme Court in Ortega-Rodriguez v. United States, 507 U.S. 234, 113 S.Ct. 1199, 122 L.Ed.2d 581 (1993). The Supreme Court in Ortegar-Rodriguez held:

“[W]e conclude that while dismissal of an appeal pending while the defendant is a fugitive may serve substantial interests, the same interests do not support a rule of dismissal for all appeals filed by former fugitives, returned to custody before invocation of the appellate system. Absent some connection between a defendant’s fugitive status and his appeal as provided when a defendant is at large during ‘the ongoing appellate process,’ the justifications advanced for dismissal of fugitives’ pending appeals generally will not apply.”

507 U.S. at 249, 113 S.Ct. 1199.

Other states have addressed this issue. The Nebraska Court of Appeals in State v. Goree, 11 Neb.App. 685, 659 N.W.2d 344 (2003), gave a detailed discussion of the impact of Ortegar-Rodriguez on appeals where defendants have escaped and are returned to custody before a notice of appeal is filed. We quote extensively from that well reasoned opinion:

“In Ortega-Rodriguez v. United States, 507 U.S. 234, 113 S.Ct. 1199, 122 L.Ed.2d 581 (1993), the U.S. Supreme Court was asked to consider whether a defendant may be deemed to forfeit his right to appeal by fleeing while his case is pending in the district court, though he is recaptured before sentencing and appeal. The Court held that a rule requiring the automatic dismissal of appeals filed by former fugitives returned to custody before invocation of the appellate system was not justified, because the defendant’s former fugitive status does not necessarily have the required connection to the appellate process that would justify the appellate sanction of a dismissal. However, the Court recognized that sometimes a defendant’s actions while the case is still pending in district court may make a meaningful appeal impossible or otherwise disrupt or adversely affect the appellate process to such an extent to support the appellate sanction of dismissal. Thus, the Court held that former fugitives returned to custody before filing an appeal generally are not subject to dismissal of an appeal brought after recapture, unless the defendant’s flight has significantly interfered with the appellate process.
“The bar to automatic dismissal of appeals announced in Ortega-Rodriguez, supra, is not grounded in the federal Constitution, but on the supervisory authority of the federal courts of appeals over the procedures to be followed in the federal district courts. Annot., 105 A.L.R.5th 529 (2003). Thus, the holding is not binding authority for state courts addressing the issue of state fugitive dismissal rules. Id. However, the holding announced in Ortega-Rodriguez, supra, has been accepted by the judiciary of several states. See, Griffis v. State, 759 So.2d 668 (Fla.2000) (court remanded case for further consideration of whether defendant’s fugitive status prior to filing of appeal caused sufficiently detrimental connection to appellate process to support dismissal of appeal); State v. Bell, 608 N.W.2d 232 (N.D.2000); Bellows v. State, 110 Nev. 289, 871 P.2d 340 (1994); State v. Lundahl, 130 Or.App. 385, 882 P.2d 644 (1994) (upheld dismissal of defendant’s appeal where defendant’s 7-year fugitive status significantly interfered with appellate process); State v. Brown, 116 N.M. 705, 866 P.2d 1172 (App.1993).
“Both the New Mexico Court of Appeals and the Nevada Supreme Court have specifically considered the dilemma presented when a defendant’s fugitive status has contributed to the loss or destruction of records, and those courts have applied the standard set forth in Ortega-Rodriguez, supra. For example, the New Mexico Court of Appeals has held that the dismissal of a defendant’s appeal and denial of motion for new trial were appropriate where the defendant’s 13-year fugitive status significantly interfered with the operation of the appellate process because trial notes were destroyed 9 years after trial, in accordance with applicable regulations. Brown, supra.
“Likewise, the Nevada Supreme Court has upheld the dismissal of a defendant’s appeal and denial of a defendant’s motion for new trial where the defendant’s 8-year fugitive status resulted in trial transcripts being unavailable because they had been destroyed pursuant to normal procedures. Bellows, supra. Adopting the rule enunciated in Ortega-Rodriguez v. United States, 507 U.S. 234, 113 S.Ct. 1199, 122 L.Ed.2d 581 (1993), the Bellows court explained that not every appeal involving a convicted defendant who escapes before sentencing requires dismissal; dismissal is warranted only if the escaped defendant’s conduct significantly interferes with the operation of the appellate process. The Bellows court concluded that when a defendant’s fugitive status results in a trial transcript’s loss or destruction, such a substantial interference with the appellate process has occurred, justifying dismissal of the defendant’s appeal.
“Although not relying on Ortega-Rodriguez, supra, the Utah Supreme Court has held that a criminal appeal may be dismissed if ‘ “the State can show that it has been prejudiced by the defendant’s absence and the consequent lapse of time.” ’ State v. Verikokides, 925 P.2d 1255, 1256 (Utah 1996). In that case, the court upheld the denial of a defendant’s motion for new trial where the defendant’s 7-year fugitive status between conviction and sentencing indirectly resulted in the loss of a majority of the trial record.
“Other courts, either without specific reliance upon, or prior to the issuance of, Ortega-Rodriguez, supra, have also denied a defendant’s request for a new trial when the defendant’s absence has resulted in the loss or destruction of records. See, Com. v. Johnson, 764 A.2d 1094 (Pa.Super.2000) (defendant not entitled to new trial where fact that trial transcript is unavailable was direct result of defendant’s status as fugitive for 10 years); People v. Everett, 224 Cal.App.3d 932, 274 Cal.Rptr. 429 (1990) (defendant’s request for new trial, based upon destruction of trial notes 5 years after trial, denied because loss attributable to defendant’s 6-year status as fugitive); People v. Iacopelli, 141 Mich.App. 566, 367 N.W.2d 837 (1985) (defendant’s request for new trial, based upon loss of records, denied because loss attributable to defendant’s 9-year status as fugitive); People v. Valdez, 137 Cal.App.3d 21, 187 Cal.Rptr. 65 (1982) (denial of defendant’s request for new trial upheld where defendant was fugitive for 11 years and trial transcript was destroyed 10 years after his trial).
“Further, although the aforementioned cases all involve a fugitive status of 6 years or greater, a defendant’s fugitive status for shorter periods of time may also justify denial of a motion for new trial or dismissal of an appeal. See, e.g., Wynne v. State, 831 S.W.2d 513 (Tex.App.1992) (defendant, by his fugitive status for over 3 1/2 years, was not diligent in prosecuting his appeal, thereby producing kind of delay that may be anticipated to cause lost items, such as loss of portion of record in defendant’s case); Garces v. State, 727 S.W.2d 48 (Tex.App.1987) (defendant could not profit from lack of diligence in prosecuting his appeal where he failed to appear at sentencing and was fugitive for 2 years and where delay contributed to loss of record); Weeks v. State, 521 S.W.2d 858 (Tex.Crim.App.1975) (defendant who was fugitive for 2 years must bear responsibility for unavailability of transcription of trial).
“We adopt the reasoning and holding of Ortega-Rodriguez v. United States, 507 U.S. 234, 113 S.Ct. 1199, 122 L.Ed.2d 581 (1993), that former fugitives returned to custody before filing an appeal generally are not subject to dismissal of an appeal brought after recapture, unless the defendant’s flight has significantly interfered with the appellate process. Further, as the aforementioned cases make clear, when an appeal is filed by a former fugitive who has been returned to custody before invocation of the appellate system, it is the effect on the appellate process that is critical, not the defendant’s fugitive status itself or the length of time that the defendant was a fugitive.
“By faffing to appear for sentencing and remaining a fugitive for 1 1/2 years, Goree was not diligent in prosecuting his appeal, thereby producing the kind of delay that may be anticipated to cause lost items, such as the loss of the trial record in the instant case. When a defendant’s fugitive status results in the loss of a trial transcript, a substantial interference with the appellate process has occurred. Goree’s fugitive status ‘should not become an excuse for the convicted to begin the process anew at great cost to the state and the crime victim. Defendants have a responsibility to be vigilant in preserving their appeal rights.’ See State v. Verikokides, 925 P.2d 1255, 1258 (Utah 1996). Goree should not reap the benefit of his fugitive status through the gaining of a new trial due to the lack of a transcript.”

11 Neb.App. at 688-91, 659 N.W.2d at 347-49. See Bellows v. State, 110 Nev. 289, 293, 871 P.2d 340, 343 (1994) (“Because appellant’s absence led to the loss of his trial transcripts, he may not benefit from his attempt to elude the law. Allowing appellant to avoid any negative repercussions from his escape ‘operates as an affront to the dignity of [this] court’s proceedings.’”). See also Annot., Effect of Escape by, or Fugitive Status of, State Criminal Defendant on Availability of Appeal or Other Posb-Verdict or Posb-Conviction Relief — State Cases, 105 A.L.R. 5th 529 (2003). The United States Court of Appeals for the Eleventh Circuit has adopted the following test:

“[T]his Court should dismiss a former fugitive’s appeal unless the defendant can show that: (1) granting the appeal is not likely to result in an undue burden on the government and; (2) the defendant’s flight has not resulted in nor will not [sic] result in significant interference with the operation of the judicial process in either the district court or the appellate court.”

United States v. Rosales, 13 F.3d 1461, 1462-63 (11th Cir.1994).

We now join those jurisdictions that have adopted the rationale of the United States Supreme Court in Ortega-Rodñguez and hold that, if a defendant escapes after he is convicted but before he is sentenced and is returned to custody before he files a notice of appeal, his appeal will not automatically be dismissed because he was once a fugitive. We must consider the following: (1) whether the appeal will result in an undue burden on the State; and (2) whether the appeal will interfere with the “operation of the judicial process” in either the lower court or this court. See Rosales, supra. Here both of these questions can only be answered in the affirmative. Over 13 years elapsed between the time that Dubose was convicted in 1995 and his sentencing in 2009. It is impossible to obtain a transcript of Du-bose’s trial because the court reporter who transcribed the trial cannot be located. The district attorney has also noted the prejudice that his office will suffer if this appeal is allowed to go forward. Dubose cannot profit from his total disrespect for the judicial process. Based on the facts in this case, we hold that Dubose forfeited his statutory right to appeal his convictions. Accordingly, this appeal is dismissed.

APPEAL DISMISSED.

WISE, P.J., and WELCH, WINDOM, KELLUM, and MAIN, JJ., concur.

      . In Young v. State, 518 So.2d 822 (Ala.Crim.App.1987), we relied on an affidavit to show that the appellant had escaped.

      . We have held that a judgment in a criminal proceeding is due to be reversed if the record of the proceedings in circuit court cannot be prepared. See Wesson v. State, 594 So.2d 233 (Ala.Crim.App.1991).


source: Caselaw Access Project

author: CORTIÑAS, J.

license: Public Domain

text:
    Adrienne Andros FERGUSON, individually and on behalf of the Estate of Andrew A. Andros, Emily J. Andros, individually and on behalf of the Estate of Andrew A. Andros, Julia Lynn Andros, individually and on behalf of the Estate of Andrew A. Andros, Penelope J. Andros, individually and on behalf of the Estate of Andrew A. Andros, John S. Richards, Abbas I. Yousef, Mirsul Investments, S.A., and Importechno International, Inc., Appellants, v. The ESTATE OF Thomas J. CAMPANA, Jr., and NTP, Inc., Appellees. Donald E. Stout, William White, Antonelli Terry, Stout & Krauss, LLP, and Joletta Lampos, Appellants, v. Adrienne Andros Ferguson, individually and on behalf of the Estate of Andrew A. Andros, Emily J. Andros, individually and on behalf of the Estate of Andrew A. Andros, Julia Lynn Andros, individually and on behalf of the Estate of Andrew A. Andros, Penelope J. Andros, individually and on behalf of the Estate of Andrew A. Andros, John S. Richards, Abbas I. Yousef, Mirsul Investments, S.A., and Importechno International, Inc., Appellees.
    Nos. 3D09-2482, 3D09-2483.
    District Court of Appeal of Florida, Third District.
    April 21, 2010.
    Rehearing and Rehearing En Banc Denied Nov. 3, 2010.

      Richman Greer and Alan G. Greer and John M. Brumbaugh and Lyle E. Shapiro; King & Spalding and Reginald R. Smith and Tracey Robertson (Houston), and L. Joseph Loveland (Atlanta); Astigarraga Davis Mullins & Grossman and Edward M. Mullins and Edward H. Davis, Jr., and Douglas J. Giuliano, for appellants/appel-lees, Adrienne Andros Ferguson, et al.
    Hunton and Williams and Marty Stein-berg and Maya M. Eckstein (Virginia), and Adriana Riviere-Badell, for appellees/ap-pellants, The Estate of Thomas J. Campa-na, Jr., and NTP, Inc., and Donald E. Stout, et al.
    Before CORTIÑAS and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.
   CORTIÑAS, J.

Adrienne Andros Ferguson, Emily J. Andros, Julia Lynn Andros, and Penelope J. Andros, each individually and on behalf of the Estate of Andrew A. Andros, John S. Richards, Abbas I. Yousef, Mirsul Investments, S.A., and Importechno International, Inc., (collectively the “Plaintiffs”) filed the underlying suit in this appeal against the Estate of Thomas J. Campa-na, Jr., NTP, Inc., Donald E. Stout, William White, Antonelli, Stout & Krauss, LLP, and Joletta Lampos (collectively the “Defendants”). The Plaintiffs second amended complaint (the “Complaint”) asserted numerous causes of action against the Defendants, including breach of fiduciary duty, breach of contract, fraud, civil conspiracy, unjust enrichment, promissory estoppel, and a request for declaratory judgment. The Defendants first moved to dismiss the Complaint for failure to state a cause of action and later moved to dismiss for lack of personal jurisdiction. The trial court subsequently entered an order specifying that:

Defendants’ Motion to Dismiss Plaintiffs’ Second Amended Complaint for Failure to State a Cause of Action was filed on November 6, 2008. Defendants’ Motion to Dismiss for Lack of Personal Jurisdiction was filed on November 17, 2008. As such, all jurisdiction arguments not preserved in the original motion to dismiss have been waived pursuant to Fla. R. Civ. P. § 1.140(h).

The trial court further granted the motion to dismiss for lack of jurisdiction as to the Estate of Thomas J. Campana, Jr. (the “Campana Estate”) and NTP, Inc. (“NTP”) and denied the motion as to the other Defendants. The order also noted that the motion to dismiss for failure to state a cause of action would be addressed by separate order. In this consolidated appeal, the Plaintiffs seek review of the dismissal for lack of jurisdiction as to the Campana Estate and NTP, and the remaining Defendants seek review of the portion of the denial of the dismissal as to them.

In 1986, Andrew Andros formed Tele-find, a corporation focused on the development and operation of a nationwide paging network with its principal place of business in Coral Gables, Florida. In tandem with its paging network business, Telefind eventually began working on a “high speed protocol” for faster transfer of information via its networks. Shortly after its inception, Telefind hired Thomas J. Campana, Jr. (“Campana”) as an independent contractor. Campana eventually became a vice president at Telefind and, Plaintiffs allege, spent a significant amount of time in Florida during the approximate four-year period he was an officer of Telefind. Near in time to Campana’s hiring, Donald E. Stout (“Stout”) and the law firm Anto-nelli Stout & Krauss, P.A. (the “Firm”) were retained by Telefind to handle patent work.

Telefind’s financial backing throughout its existence included funds from John Richards, Abbas Yousef and other associates who invested large sums of money via three Panamanian corporations — Mirsul Investments, S.A., Importechno International, Inc., and Flatt Morris Associates, P.A. (collectively the “Investors”). The Investors, in turn, allegedly hired William White (“White”) to safeguard their investment in Telefind. Plaintiffs allege in the Complaint and by sworn declarations that in the course of Telefind’s business, Wireless Email Technology (‘WET”) was developed, though the parties disagree as to the actual time and place of, and the parties involved in, WET’s development. Stout and the Firm filed three WET patents in 1991, and Telefind filed for bankruptcy in Florida later that same year. In 1992, Stout and the Firm filed for another three WET patents. Plaintiffs further allege that because Telefind had fallen into financially difficult times, the WET patents were registered in the name of Campana and some of his associates in an effort to protect the patents from Telefind’s creditors. This was purportedly done pursuant to oral agreements whereby Andros and the Investors would share in any resulting financial benefits and proceeds, even though the patents were not in their names.

In 1992, Stout, Campana, and White incorporated NTP, a Virginia corporation, and sometime thereafter transferred the WET patents to NTP. Documents filed under seal in the trial court demonstrate that after receiving the patents, NTP endeavored to license their use. In 2006, NTP and Research In Motion, Inc. (“RIM”) settled a patent infringement lawsuit whereby RIM paid NTP approximately $612,000,000 (the “RIM Settlement”). By the time of the RIM Settlement, both Andros and Campana had passed away, in 2001 and 2004, respectively. The underlying litigation ensued after NTP refused to share the proceeds of the RIM Settlement with the Plaintiffs.

We review the trial court’s grant and denial of the Defendants’ motion to dismiss for lack of personal jurisdiction de novo. See Wendt v. Horowitz, 822 So.2d 1252 (Fla.2002). In order to determine whether personal jurisdiction exists over a non-resident defendant, a trial court generally conducts a two-step inquiry. Id. First, the trial court must determine whether sufficient jurisdictional facts are alleged in the complaint such that action falls within the ambit of Florida’s long-arm statute, section 48.193, Florida Statutes. Id. at 1256; Venetian Salami Co. v. Parthenais, 554 So.2d 499, 502 (Fla.1989). In doing so, the court must strictly construe the statute in favor of the non-resident defendants. Blumberg v. Steve Weiss & Co., 922 So.2d 361, 363 (Fla. 3d DCA 2006) (citing Wendt, 822 So.2d at 1256). Second, the trial court must determine whether “sufficient minimum contacts exist between Florida and the defendant to satisfy due process requirements.” Id. at 364 (citing Wendt, 822 So.2d at 1256); Venetian Salami, 554 So.2d at 502. The plaintiff bears the initial burden of proving that personal jurisdiction exists; however, if a non-resident defendant raises a meritorious defense through affidavits, the burden shifts back to the plaintiff, unless the defendant’s affidavits contain only conclusory assertions that the defendant is not subject to jurisdiction. See Radcliffe v. Gyves, 902 So.2d 968, 970-71 (Fla. 4th DCA 2005); see also Acquadro v. Bergeron, 851 So.2d 665 (Fla.2003).

Section 48.193, Florida Statutes (2007) provides, in pertinent part, as follows:

Acts subjecting person to jurisdiction of courts of state.—
(1) Any person, whether or not a citizen or resident of this state, who personally or through an agent does any of the acts enumerated in this subsection thereby submits himself or herself and, if he or she is a natural person, his or her personal representative to the jurisdiction of the courts of this state for any cause of action arising from the doing of any of the following acts:
(a) Operating, conducting, engaging in, or carrying on a business or business venture in this state or having an office or agency in this state.
(Emphasis added).

We have previously held that “[although the term ‘arising from’ does not mean proximately caused by, it does require direct affiliation, nexus, or substantial connection to exist between the basis for the plaintiffs’ cause of action and the defendants’ business activity in the state.” Gadea v. Star Cruises, Ltd., 949 So.2d 1143, 1149 (Fla. 3d DCA 2007) (quoting Nw. Aircraft Capital Corp. v. Stewart, 842 So.2d 190, 195 (Fla. 5th DCA 2003)) (citations omitted). Moreover, the “term ‘business venture’ is generally applied to one subject matter or undertaking while ‘business’ is broader in scope denoting a variety of subjects, transactions or undertakings.” Suffolk Fed. Credit Union v. Cont’l Ins. Co., 664 So.2d 1153, 1154 (Fla. 3d DCA 1995) (quoting Matthews v. Matthews, 122 So.2d 571, 573 (Fla. 2d DCA 1960)).

The trial court granted the motion to dismiss as to the Campana Estate and NTP, but the order is silent as to why personal jurisdiction was not exercised over these two defendants. Although the Defendants presented sworn declarations purportedly demonstrating their lack of “[ojperating, conducting, engaging in, or carrying on a business or business venture” in Florida, the Plaintiffs have likewise produced numerous sworn declarations both from themselves and from other parties not named in the lawsuit, alleging involvement by the Defendants, each to varying degrees, in Telefind’s Florida operations or work in the development of the high speed protocol and WET.

With respect to the Campana Estate, the Plaintiffs’ claims include breach of fiduciary duty, promissory estoppel, and unjust enrichment which clearly bear a substantial connection to the work allegedly performed by Campana for Telefmd and the technology developed as a result. The allegations of the Complaint and the various declarations filed by the Plaintiffs set forth that it was the long-standing business relationship of Campana and other Defendants with Andros and Telefind that allowed them to develop the trust necessary to be in a position to obtain control over the WET patents. Though the specific facts are disputed by the parties, the allegations in the Complaint and the declarations submitted by the Plaintiffs satisfy the first step of the inquiry.

In determining whether sufficient minimum contacts exist, it is important to note that “[tjhe assessment of minimum contacts is fact-specific and must necessarily be tailored to the circumstances of each case.” Metro. Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 570 (2d Cir.1996). Additionally, “in order for a state to exercise jurisdiction over a defendant in satisfaction with the fourteenth amendment’s due process requirements, the defendant’s conduct and connection with the forum state must be such that it ‘should reasonably anticipate being haled into court there.’” Blumberg, 922 So.2d at 365 (quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980)). In order for a defendant to “reasonably anticipate such litigation in the forum state ‘it is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws.’ ” Id. (quoting deMco Techs., Inc. v. C.S. Engineered Castings, Inc., 769 So.2d 1128, 1131 (Fla. 3d DCA 2000)). Based upon the Complaint and the declarations in the record, Campana’s activities in Florida relating to Andros, Telefind, and the WET patents were sufficient such that he had “purposefully availed [himself] of the privilege of conducting activities within” Florida. Moreover, because of the nature and extent of his activities, Campana could have reasonably anticipated being haled into a Florida court.

The claims against NTP in the Complaint include unjust enrichment and civil conspiracy. While NTP filed a sworn declaration regarding its lack of contact with Florida, the record contains documents filed under seal supporting the assertions in the Plaintiffs’ brief that NTP was soliciting business relating to the WET patents from at least one Florida corporation and licensed and received licensing proceeds from a foreign corporation doing business in Florida. The allegations of the Complaint combined with the documents in the record are sufficient to warrant the application of Florida’s long-arm statute.

In the underlying suit, the Plaintiffs are seeking “disgorgement of all benefits obtained by Defendants associated with the Wireless Email Technology and the Wireless Email Patents.” Accordingly, by engaging in the activities revealed in the sealed documents, NTP has availed itself of the privilege of doing business in Florida and could have reasonably anticipated being haled into Florida courts. Moreover, though it is undisputed that NTP is a Virginia corporation with no offices in Florida, several of the controlling shareholders, including Stout, White, and Wright have connections to the State of Florida as demonstrated by the various declarations filed by the Plaintiffs and remain defendants in the underlying lawsuit.

Based upon the foregoing, we reverse the portion of the trial court’s order granting the motion to dismiss for lack of personal jurisdiction as to the Campana Estate and NTP. We affirm on all other points.

Affirmed in part, reversed in part, and remanded.

      . Joletta Lampos was Thomas J. Campana, Jr.'s assistant during times relevant to the allegations in the Plaintiffs’ second amended complaint and eventually became his wife and heir.

      . The trial court's order on the motion to dismiss for failure to state a cause of action dismissed the fraud and civil conspiracy counts as well as the count against William White for knowing participation in an agent’s breach of fiduciary duty. Upon a subsequent motion for clarification by the Defendants and Plaintiffs’ motion for leave to amend, the trial court clarified that the fraud count was dismissed without prejudice because the Plaintiffs failed to plead sufficient elements for that cause of action, and accordingly, the conspiracy claim was also dismissed because the underlying fraud claim was improperly pled. The trial court further granted the Plaintiffs’ motion for leave to file an amended complaint and provided the Defendants "fifteen (15) days from the date of this Order within which to file their response to the Third Amended Complaint.” However, the Third Amended Complaint is not in the record before us.


author: WALLACE, Judge.

text:
    CTX MORTGAGE COMPANY, LLC, Appellant, v. ADVANTAGE BUILDERS OF AMERICA, INC., a Florida corporation, Appellee.
    No. 2D09-3774.
    District Court of Appeal of Florida, Second District.
    Oct. 1, 2010.
    Rehearing Denied Dec. 3, 2010.

      Terrence L. Lavy of Vernis & Bowling of Southwest Florida, P.A., Fort Myers, for Appellant.
    Billy Joe L. McFarland, Cape Coral, for Appellee.
   WALLACE, Judge.

CTX Mortgage Company, LLC (the Lender), appeals a final judgment that awarded Advantage Builders of America, Inc. (the Builder), an equitable lien on undisbursed construction funds held by the Lender. When Kremlin Yee (the Owner) refused to proceed with a required end closing on the completed project, the Lender retained the final construction draw in accordance with the parties’ written agreement. Later, the Lender sold the residence that was the security for the construction loan and sustained a loss substantially exceeding the amount of the re-tainage. Because the parties’ written agreement authorized the Lender to retain the final construction draw if the Owner did not proceed with the end closing, the Lender’s retention of the undisbursed construction funds was not inequitable under the circumstances of this case. Thus the Builder failed to prove the unjust enrichment necessary to establish its equitable lien claim. For this reason, we reverse the final judgment imposing the equitable lien on the undisbursed construction funds and remand for the entry of judgment in favor of the Lender.

I. THE FACTS

The pertinent events in this case took place against the backdrop of the recent boom and bust of the housing market in Southwest Florida. In February 2006, at the height of the real estate bubble, the Builder entered into a construction contract with the Owner to build a single-family residence in Cape Coral, Florida. The contract price to build the residence was $242,900. The Owner was required to pay an additional $99,900 to acquire the lot for the residence.

The Owner obtained financing from the Lender for the purchase of the building lot and for the cost of constructing the residence from the Lender. Closing costs and settlement charges brought the Owner’s total cost for the project to approximately $361,000. The Lender provided $357,300 in funding, or almost one hundred percent of the Owner’s acquisition costs. The Owner’s obligation to the Lender was memorialized in a note secured by a mortgage on the property.

The type of loan provided by the Lender to the Owner may be referred to as a “construction/modification only” loan. As the Builder explains, “The construction/modification loan program with [the Lender] required two closings for each project, a front end closing to purchase the lot and allocate construction funds and then an end closing once construction was complete when the loan was modified or made permanent.” In this case, at the front end closing, the Lender disbursed the amount necessary to acquire the lot and an initial draw to the Builder in the amount of ten percent of the construction contract price.

The Lender, the Owner, and the Builder also entered into a Residential Construction Loan Agreement (the RCLA). The RCLA defined the rights, obligations, and duties among the Lender, the Owner, and the Builder. The RCLA established several conditions on the Lender’s obligation to make advances on the construction loan, including proof of insurance and that the RCLA must not be in default. The final advance under the RCLA represented the retainage fund. The Lender was not required to make the final advance until all conditions were satisfied, including the Owner’s execution of the loan modification for the permanent financing. The RCLA provided further that the Lender would “not be liable to any Builder ... for goods delivered or for services performed in or upon the Property or employed in construction of the Project or for any debt or claim against [the Owner] or others or against the Property or the Project.” Under the RCLA, the Lender had extensive remedies in the event of a default, including the right to “[m]ake no further [advances.”

During 2006, the Builder was extremely busy. It had more than 400 homes under construction but employed no more than seven building superintendents. The building boom made it difficult to obtain the necessary subcontractors and materials to proceed with jobs under contract. Thus the Builder did not promptly begin construction of the Owner’s home as required by the RCLA. Once construction actually began, the Builder completed the construction of the home within four months and obtained a certificate of occupancy in May 2007. But by this time, the bottom had begun to drop out of the overheated housing market. Despite the Lender’s best efforts, the Owner refused to proceed to the end closing, and the loan went into default. As a result, the Lender continued to hold the final draw in the amount of $21,306.64 and refused to disburse these funds to the Builder.

Then the litigation began. The Builder sued the Owner and the Lender for the balance due on the construction contract. The Owner filed a petition in bankruptcy, leaving the Builder and the Lender to litigate the issue of entitlement to the final draw between them. The Lender foreclosed its construction mortgage and obtained title to the property through the foreclosure process. Ultimately, the Lender sold the property to a third party for $123,000. The amount due to the Lender on its foreclosure judgment was $375,319.02. So the Lender sustained a loss of more than $250,000 on the transaction.

II. THE TRIAL COURT’S RULING

After a bench trial, the trial court ruled that it would be inequitable for the Lender to obtain title to the completed residence through the foreclosure process and also retain the final draw that had been designated to pay for the construction. Based on this ruling, the trial court awarded the Builder an equitable lien on the undis-bursed construction funds held by the Lender in the amount of $21,306.64. The trial court also awarded the Builder prejudgment interest in the amount of $4945.27. The trial court rejected the Lender’s defenses based on the provisions of the RCLA. The Lender’s appeal followed.

III. THE STANDARD OF REVIEW

The facts pertinent to the Builder’s claim to an equitable lien on the undis-bursed construction funds are essentially undisputed. We use the de novo standard to review a question of law arising from undisputed facts. See Kirton v. Fields, 997 So.2d 349, 352 (Fla.2008) (citing D’An gelo v. Fitzmaurice, 863 So.2d 311, 314 (Fla.2003)).

IV. DISCUSSION

The rationale for awarding an equitable lien on undisbursed construction funds to a contractor who has completed construction is unjust enrichment. See Blosam Contractors, Inc. v. Republic Mortg. Investors, 353 So.2d 1225, 1227-28 (Fla. 2d DCA 1977); Morgen-Oswood & Assocs., Inc. of Fla. v. Cont’l Mortg. Investors, 323 So.2d 684, 685 (Fla. 4th DCA 1975). “The ... elements ... 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) (citing Ruck Bros. Brick v. Kellogg & Kimsey, 668 So.2d 205 (Fla. 2d DCA 1995)).

In this case, the Lender advanced funds approximating one hundred percent of the Owner’s cost to acquire the lot and build a residence on it. In becoming involved in such a project, the Builder and the Lender assumed the risk that, in the event of a slump in the local housing market, the Owner would be unable to make the payments due under the separate construction contract and unwilling or unable to proceed with the required end closing. Under such a scenario, a substantial financial loss was virtually inevitable for the Builder, the Lender, or both of them.

The Builder and the Lender are both large, sophisticated business entities. In the RCLA, signed by the Builder, the parties allocated at least a portion of the obvious financial risks inherent in the project to the Builder. The Builder specifically agreed that the Lender would have no obligation to make the final advance until all loan conditions were satisfied, including the Owner’s execution of the loan modification for permanent financing. There is no dispute that this and other loan conditions were not satisfied.

We understand that if the Builder does not receive the final draw, it will not be paid in full for completing the construction of the residence that was the security for the Owner’s obligation to the Lender. That said, when the Lender ultimately disposed of its security, it sustained a loss exceeding $250,000. Thus, to the extent that the Lender may have been enriched by the Builder’s completion of the residential construction, the allocation of the loss of the relatively small amount of the final draw to the Builder — in accordance with the parties’ written agreement — does not result in a windfall to the Lender that is unjust. Under these circumstances, the Builder did not establish that the Lender’s retention of the undisbursed construction funds was inequitable. We have also carefully reviewed the three reasons offered by the trial court for finding the provisions of the RCLA to be unenforceable, and we find them to be unpersuasive.

V. CONCLUSION

For the foregoing reasons, the trial court erred in granting the Builder an equitable lien on the undisbursed construction funds held by the Lender and in awarding the Builder prejudgment interest on the amount of the undisbursed funds. Accordingly, we reverse the final judgment and remand for the entry of judgment in favor of the Lender.

Reversed and remanded.

ALTENBERND and DAVIS, JJ., Concur.


author: COPE, J.

text:
    HACIENDA VILLAS, INC., Appellant, v. MIA CONSULTING GROUP, INC., Appellee.
    No. 3D10-1331.
    District Court of Appeal of Florida, Third District.
    Oct. 6, 2010.
    Rehearing Denied Nov. 12, 2010.
    David T. Weisbrod, Tampa, for appellant.

      Stack, Fernandez, Anderson & Harris, P.A., and Brian J. Stack, Miami, and Sammy Epelbaum, for appellee.
    Before COPE, GERSTEN and WELLS, JJ.
   COPE, J.

This is an appeal of a non-final order denying a motion to dismiss for improper venue. We conclude that venue is improper in Miami-Dade County and reverse the order now before us.

The plaintiff-appellee MIA Consulting Group, Inc. is a corporation having its principal place of business in Miami-Dade County. MIA manages assisted living facilities throughout Florida and the United States.

Hacienda Villas, Inc. is a corporation having its principal place of business in Hillsborough County. It owns and operates Hillsborough County Hacienda Villas, an independent senior housing project.

In its complaint, MIA alleged that it entered into an agreement with Hacienda Villas, Inc. to submit an application to the United States Department of Housing & Urban Development (“HUD”) for a grant to convert the Hillsborough County Hacienda Villas housing project to an assisted living facility. The parties agreed that MIA would not charge any fees for preparing and submitting the grant application. In exchange for this, Hacienda Villas agreed to retain MIA as the implementation consultant and managing agent of the Hillsborough County Hacienda Villas facility. MIA alleges that all payments to MIA for its services would be made at MIA’s principal office in Miami-Dade County.

The complaint goes on to allege that MIA submitted the application to HUD as agreed and that HUD awarded a multimillion dollar grant. MIA alleged that Hacienda Villas refused to retain MIA as the consultant and manager of the Hills-borough County Hacienda Villas facility. MIA alleged breach of contract and requested damages.

Hacienda Villas moved to dismiss the action for improper venue. The trial court denied the motion and Hacienda Villas has appealed.

Under section 47.011, Florida Statutes (2009), “Actions shall be brought only in the county where the defendant resides, where the cause of action accrued, or where the property in litigation is located.” MIA selected Miami-Dade County on the theory that this is where the cause of action accrued.

According to the stipulated statement of proceedings, see Fla. R.App. P. 9.200(b)(4), MIA relied on Rayman v. Langdon Asset Management, Inc., 745 So.2d 426 (Fla. 3d DCA 1999), which addresses the debtor-creditor rule. Under that rule, “an action on a default of an agreement for monetary payment accrues in the county where payment was agreed to be made.” Id. at 428. The complaint in this case alleged that payment for the management services was to be made in Miami-Dade County.

However, there are definite limitations on the debtor-creditor rule. The rule applies only if the debt is for a liquidated amount, and “only if the contract is one that establishes a debtor and creditor relationship between the parties.” Philip J. Padovano, Florida Civil Practice § 2:4 (2010); see 56 Fla. Jur.2d Venue § 67 (2010). “[T]he special venue rules pertaining to suits to enforce payments on debts do not apply in the absence of a debtor-creditor relationship flowing from an express contractual promise to pay a certain sum of money owed.” PDM Bridge Corp. v. JC Industrial Mfg., 851 So.2d 289, 291 (Fla. 3d DCA 2003); see also Morales Sand & Soil, L.L.C. v. Kendall Props. & Invs., 923 So.2d 1229, 1232-34 (Fla. 4th DCA 2006); Dep’t of Transp. v. Cone & Graham, Inc., 884 So.2d 224, 226-27 (Fla. 2d DCA 2004). Where there is no liquidated debt involved in the contract action, “the court must look to the gravamen of the allegations in the complaint to determine where the cause of action accrued and proper venue lies.” Magic Wok Int’l, Inc. v. Li, 706 So.2d 372, 374 (Fla. 5th DCA 1998).

The present case does not involve an agreement to pay a liquidated sum in Miami-Dade County. This is a suit for damages which are unliquidated. Accordingly the debtor-creditor rule does not apply-

The next question is where the cause of action accrued for purposes of section 47.011. The alleged agreement here was for MIA to manage a living facility located in Hillsborough County. “Failure to perform services is a breach that accrues in the county where the services were to be performed.” Philip J. Padovano, Florida Civil Practice § 2:4; Kumar v. Embassy Kosher Tours, Inc., 696 So.2d 393 (Fla. 3d DCA 1997); Weiner v. Prudential Mortgage Investors, Inc., 557 So.2d 912, 913 (Fla. 3d DCA 1990).

We reverse the order now before us and remand with directions to dismiss the action or transfer it to the circuit court in Hillsborough County.

Reversed and remanded.


text:
    Christopher HARRIS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-2008.
    District Court of Appeal of Florida, Third District.
    Oct. 6, 2010.
    Rehearing Denied Nov. 2, 2010.
    Christopher Harris, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before RAMIREZ, C.J., and GERSTEN and SALTER, JJ.
   PER CURIAM.

Affirmed. See Alexander v. State, 571 So.2d 122 (Fla. 3d DCA 1990).


author: SCHWARTZ, Senior Judge.

text:
    Kenneth FARAH, Appellant, v. IBERIA BANK, Appellee.
    No. 3D09-2524.
    District Court of Appeal of Florida, Third District.
    Oct. 6, 2010.
    Rehearing Denied Nov. 16, 2010.

      Julio F. Margalli, Key West, for appellant.
    Carlton Fields, Natalie J. Carlos and Cristina Alonso, Miami; Carlton Fields and Andrew D. Manko, Tallahassee, for appellee.
    Before COPE and CORTINAS, JJ., and SCHWARTZ, Senior Judge.
   SCHWARTZ, Senior Judge.

The final judgment of mortgage foreclosure on appeal unauthorizedly and contrary to Form 1.996, promulgated by the Florida Supreme Court for such actions, provides “for which let execution issue,” upon the amounts due on the underlying debt. As in American General Finance, Inc. v. Graves, 621 So.2d 585 (Fla. 5th DCA 1993), those words are stricken from the judgment under review, which is otherwise affirmed.

The effect and purpose of this ruling is to prevent the circumvention of the process required to establish the right to a deficiency judgment, which prominently includes a valuation of the mortgaged property. See Century Group, Inc. v. Premier Fin. Servs. East, L.P., 724 So.2d 661 (Fla. 2d DCA 1999). In other words, we disapprove any effort — including those already undertaken by the appellee in this case— to reach the personal assets of the mortgagor until, unless, and only to the extent that a deficiency judgment is rendered after an appropriate exercise of the trial court’s discretion in accordance with applicable principles of law and equity. See Wilson v. Adams & Fusselle, Inc., 467 So.2d 345, 346 (Fla. 2d DCA 1985), and cases cited therein; see also Fulton v. R.K. Cooper Constr. Co., 208 So.2d 863 (Fla. 3d DCA 1967), writ dismissed, 216 So.2d 11 (Fla.1968). Moreover, the trial court must also consider the claim that the appellee specifically waived the right to a deficiency in the proceedings below, in which case no such judgment may be entered. See Taylor v. Kenco Chem. & Mfg. Corp., 465 So.2d 581, 584 (Fla. 1st DCA 1985); Capital Bank v. Needle, 596 So.2d 1134, 1136 (Fla. 4th DCA 1992).

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

      . American General Finance, Inc., 621 So.2d at 585, states in its entirety:
      We delete the words "for which let execution issue” from the final judgment of mortgage foreclosure which is otherwise affirmed as modified.
      AFFIRMED as modified.


text:
    Conrad S. MIKULEC, Petitioner, v. Patricia Higgins MIKULEC, Respondent.
    No. 4D10-1723.
    District Court of Appeal of Florida, Fourth District.
    Oct. 13, 2010.
    Rehearing Denied Dec. 13, 2010.
    Stacey D. Mullins of Lavalle, Brown, Ronan & Mullins, P.A., Boca Raton, for petitioner.

      Andrew A. Harris of Burlington & Rockenbach, P.A., and J. Mark Maynor of Maynor Sachs Copple, LLC, West Palm Beach, for respondent.
   PER CURIAM.

Conrad Mikulec seeks review, by petition for writ of prohibition or in the alternative writ of certiorari, of an order denying his motion to dismiss his wife’s petition for dissolution of marriage. The husband alleges the circuit court does not have subject matter jurisdiction because he does not meet the residency requirement of the Florida Statutes. We grant in part the alternative petition for writ of certiorari, as discussed below, and remand for further proceedings.

“Subject matter jurisdiction is conferred upon a court by a constitution or statute, and cannot be created by waiver, acquiescence or agreement of the parties.” Snider v. Snider, 686 So.2d 802, 804 (Fla. 4th DCA 1997); see also Walker v. Garrison, 610 So.2d 716, 718 (Fla. 4th DCA 1992) (estoppel cannot defeat a challenge to lack of subject matter jurisdiction; “[njeither conduct nor consent of the parties may confer on a court subject matter jurisdiction which it does not otherwise have”). To establish subject matter jurisdiction in a divorce proceeding, section 61.021, Florida Statutes, provides that “one of the parties to the marriage must reside 6 months in the state before the filing of the petition.” See Fernandez v. Fernandez, 648 So.2d 712, 713 (Fla.1995) (recognizing “Florida’s residency requirement is jurisdictional and must be alleged and proved in every case .... corroborating testimony cannot be waived by an admission that the residency requirement has been met”); Cleveland v. Cleveland, 692 So.2d 304, 305 (Fla. 4th DCA 1997).

In denying the husband’s motion to dismiss, the trial court did not make any findings regarding where the husband resided before the wife petitioned for divorce in Florida, and the record before this court does not demonstrate that the residency requirement is satisfied.

Accordingly, we grant in part the husband’s alternative petition for writ of cer-tiorari, quash the trial court’s order, and remand for further proceedings. On remand, the trial court may consider additional evidence regarding this issue. In the absence of any additional evidence, and a specific finding by the court that the husband meets the residency requirements, the motion to dismiss should be granted. The wife elected to file for divorce in Florida, rather than her own place of residency. As the party petitioning for divorce, she has the burden of proving that the residency requirement is satisfied. Coons v. Coons, 765 So.2d 167, 170 (Fla. 1st DCA 2000).

Petition for writ of certiorari granted in part.

STEVENSON, TAYLOR and LEVINE, JJ., concur.


text:
    Richard Allen HILL, Appellant, v. Vanessa Maria CALDERIN, Appellee.
    No. 3D10-72.
    District Court of Appeal of Florida, Third District.
    Oct. 13, 2010.

      Richard Allen Hill, in proper person.
    Kenneth M. Kaplan, for appellee.
    Before GERSTEN, SHEPHERD, and SUAREZ, JJ.
   PER CURIAM.

Richard Allen Hill (“the father”) appeals from an order of child support. We reverse.

The father and Vanessa Maria Calderin (“the mother”) were unmarried and had a child. Soon after the child’s birth, the father’s paternity was determined by court order. The parents were awarded shared parental responsibility and provided a schedule for the child to be with each parent on certain days.

Several years later, the Florida Department of Revenue, on behalf of the mother, filed a petition for child support. The matter was referred to a general magistrate (“the GM”) who heard testimony from both parents. The GM determined that the child spent fifty percent of her time with each parent. Accordingly, the GM ruled that the child support guidelines totaled zero, and recommended no child support payments. The trial court ratified the GM’s recommendations.

A few months thereafter, the father filed the instant action seeking sole parental responsibility for the child. The mother answered the father’s petition, and moved for child support. The father, pro se, requested that the mother’s motion for child support be dismissed for lack of subject matter jurisdiction. Attaching a copy of the order ratifying the GM’s recommendations, the father argued that the matter of child support had been fully determined in the prior action.

Without ruling on the father’s jurisdictional objection, the trial court held an evidentiary hearing where both parties testified. The record contains no transcript of this hearing. However, the trial court thereafter entered an order directing the father to pay $305.50 per month in child support.

On appeal, the father inter alia asserts that the trial court erred in entering an order of child support because the issue of child support previously had been resolved by a court order. The mother contends that this Court may not review the order under appeal because the father failed to provide a transcript of the eviden-tiary hearing. We agree with the father and reverse.

Generally, where an appellant fails to provide the appellate court with a trial transcript, the trial court’s judgment must be affirmed. Applegate v. Barnett Bank of Tallahassee, 877 So.2d 1150 (Fla.1979). Notwithstanding the absence of a transcript, however, an appellate court may review a lower court judgment for error apparent on its face. See Howle v. Howle, 967 So.2d 435 (Fla. 4th DCA 2007); Kanter v. Ranter, 850 So.2d 682 (Fla. 4th DCA 2003).

Where an order determining child support exists, a trial court may not increase the amount of child support, except upon a petition for modification. Torres v. Torres, 739 So.2d 599 (Fla. 2d DCA 1997). Moreover, the Florida Department of Revenue is authorized to file an action to recover child support on behalf of a dependent child’s custodian. § 409.2561, Fla. Stat. (2009); Lamm v. Chapman, 413 So.2d 749 (Fla.1982).

Here, the Florida Department of Revenue 'filed such an action on behalf of the mother. After an evidentiary hearing, the trial court determined that no child support payments were necessary because the child spent equal time with each parent. The mother did not appeal from this order. Additionally, she has not filed a petition for modification of child support based on a change of circumstances. Thus, the trial court erred in changing the prior child support determination without pleading or proof of changed circumstances.

Accordingly, we reverse the trial court’s order directing the father to pay child support.

Reversed and remanded.


author: CORTIÑAS, J. COPE, J.

text:
    Marco NORDELO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-1269.
    District Court of Appeal of Florida, Third District.
    Oct. 13, 2010.
    Rehearing and Rehearing En Banc Denied Nov. 18, 2010.

      Silvia M. Gonzalez, for appellant.
    Bill McCollum, Attorney General, and Nicholas A. Merlin, Assistant Attorney General, for appellee.

      Before COPE, WELLS, and CORTIÑAS, JJ.
   CORTIÑAS, J.

Nineteen years ago, a jury found Marco Nordelo guilty of armed robbery of a convenience store and sentenced him to life in prison as a habitually violent offender. Before Nordelo’s trial began, his codefen-dant entered a plea of no contest and was sentenced to twenty-five years in state prison.

Two years ago, Nordelo filed a Motion for New Trial Based on Newly Discovered Evidence and Prosecutorial Misconduct Pursuant to Rule 3.850. Attached to the motion was an affidavit from Nordelo’s codefendant, a nineteen-time convicted felon, alleging that Nordelo had not participated in the robbery and naming a different co-perpetrator. The codefendant claimed that he did not come forward with this information sooner because he was afraid that the State would take away his plea offer.

At a hearing on the motion, the trial court ruled that “[t]he evidence could have been obtained through due diligence simply” and that just because the codefen-dant’s custodial status changed and he “decided to come forward does not render the evidence newly discoverable.” The trial court entered a written order “finding that the evidence as to both counts is not newly discovered and could have been obtained through due diligence” and that the allegation of prosecutorial misconduct was successive to one of Nordelo’s prior Motions for Post-Conviction relief. The order directed the clerk to attach necessary record excerpts from the file to support the ruling. Nordelo now appeals the part of the trial court’s order denying his motion for a new trial based on newly discovered evidence, arguing that the case must be remanded for an evidentiary hearing.

In Jones v. State, 591 So.2d 911 (Fla.1991), the Florida Supreme Court “articulated a two-step inquiry for determining whether a defendant is entitled to relief for newly discovered evidence.” McLin v. State, 827 So.2d 948, 956 (Fla.2002) (citing Jones, 591 So.2d at 915-16). The first prong is that “in order to be considered newly discovered, the evidence ‘must have been unknown by the trial court, by the party, or by counsel at the time of trial, and it must appear that defendant or his counsel could not have known [of it] by the use of diligence.’ ” Jones v. State, 709 So.2d 512, 521 (Fla.1998) (quoting Torres-Arboleda v. Dugger, 686 So.2d 1321, 1324-25 (Fla.1994)).

The second prong “requires that ‘in order to provide relief, the newly discovered evidence must be of such nature that it would probably produce an acquittal on retrial.’ ” McLin, 827 So.2d at 956 (quoting Jones, 591 So.2d at 915). “To reach this conclusion the trial court is required to ‘consider all newly discovered evidence which would be admissible’ at trial and then evaluate the “weight of both the newly discovered evidence and the evidence which was introduced at the trial.’ ” Jones, 709 So.2d at 521 (citing Jones, 591 So.2d at 916). The trial court thoroughly considers the evidence so that an “appellate court can ‘fully evaluate the quality of the evidence which demonstrably meets the definition of newly discovered evidence.’ ” McLin, 827 So.2d at 956 (citing Jones, 591 So.2d at 916).

The codefendant’s affidavit cannot be deemed newly discovered evidence because it was either known to or easily discoverable by Nordelo and his counsel: the court allowed them both to speak with the codefendant after his plea was accepted and before Nordelo’s trial began. Put in the context of due diligence, if Nordelo had believed that he was innocent, then he would have had a reasonable basis for believing that his codefendant would provide exculpatory testimony and would have sought to elicit such testimony. Indeed, the record is clear that neither side called the codefendant as a witness.

Nordelo cites Brantley v. State, 912 So.2d 342 (Fla. 3d DCA 2005), for the proposition that evidence can be treated as newly discovered where it is “ ‘based on newly available testimony of defendants who were previously unwilling to testify.’ ” Totta v. State, 740 So.2d 57, 58 (Fla. 4th DCA 1999) (citing Kendrick v. State, 708 So.2d 1011 (Fla. 4th DCA 1998)). However, in Brantley, “[a]ecording to the Rule 3.850 motion, defense counsel tried to obtain the cooperation of [the] co-defendant ... but [he] refused[, and] ... defense counsel could not have procured [his] testimony on account of the Fifth Amendment privilege against self incrimination.” Brantley, 912 So.2d at 342-43. In contrast, Nordelo failed to allege in his motion that he ever, in seventeen years, asked his codefendant to testify.

The codefendant now claims in his affidavit that the reason he did not come forward with this information sooner is because he “was afraid that the Officer of the State Attorney would take away [his] plea offer.” This is nonsensical: as the court had already accepted his plea, which required him neither to testify for the State nor to refrain from testifying for Nordelo, he could have come forward with this supposed information at any time, and the State would have had no discretion or authority to withdraw the plea offer or vacate the plea. Furthermore, the code-fendant does not state in his affidavit, nor does Nordelo allege, that he was coerced or threatened by anyone, including the State.

This case is also distinguishable from the line of cases involving recanted testimony, such as Keen v. State, 855 So.2d 117 (Fla. 2d DCA 2003). There, the witness testified against the defendant at trial, and the defendant could not have known that the witness would eventually change his testimony; here, it is unknown what Nor-delo’s codefendant would have said since neither side ever asked him to testify. Nordelo suggests that because his codefen-dant made no prior inconsistent statements contradicting the statement in his affidavit that someone other than Nordelo committed the robbery, his credibility must be evaluated in an evidentiary hearing.

However, an evidentiary hearing is not required here: one is required, if at all, for the sole purpose of allowing the trial court to determine whether the newly discovered evidence is of “such nature that it would probably produce an acquittal on retrial.” Jones, 591 So.2d at 915. Furthermore, such a hearing is not required when “the affidavit is inherently incredible or obviously immaterial to the verdict.” Stephens v. State, 829 So.2d 945, 946 (Fla. 1st DCA 2002); see Taylor v. State, 877 So.2d 842, 843 (Fla. 3d DCA 2004); Evans v. State, 843 So.2d 938, 940 (Fla. 3d DCA 2003). “Such rulings must be made on a case-by-case basis.” Johnson v. Singletary, 647 So.2d 106, 111 (Fla.1994).

Nordelo complains that the trial judge failed to attach portions of the record to her order in contravention of rule 8.850(d), Florida Rules of Criminal Procedure. See Anderson v. State, 627 So.2d 1170, 1171 (Fla.1993) (citing Hoffman v. State, 571 So.2d 449, 450 (Fla.1990)) (“To support summary denial without a hearing, a trial court must either state its rationale in its decision or attach those specific parts of the record that refute each claim presented in the motion.”). However, that portion of Rule 3.850(d) regards only “those instances when the denial is not predicated on the legal insufficiency of the motion on its face.” As Nordelo’s motion is legally insufficient, the trial court’s summary denial is adequate.

In order for an appellate court “[t]o uphold the trial court’s summary denial of claims raised in a 3.850 motion, the claims must be either facially invalid or conclusively refuted by the record.” Peede v. State, 748 So.2d 253, 257 (Fla.1999) (citing Fla. R.Crim. P. 3.850(d)). Norde-lo’s claims are both. First, his claim that his codefendant’s affidavit is newly discovered evidence is invalid on its face: as explained above, the affidavit provides no information that neither Nordelo nor his counsel could have discovered at the time of trial through the exercise of due diligence. Second, his claim is conclusively refuted by the record: the State presented overwhelming evidence of Nordelo’s guilt during the trial, including the victim’s identification of both defendants from photo lineups with one hundred percent certainty. Furthermore, under Taylor v. State, 877 So.2d 842, 843 (Fla. 3d DGA 2004), “the trial court could properly reject the affidavit, for it is ‘inherently incredible’”: therein, the codefendant claims he was the driver of the white car, while the record shows that the arresting officer testified — and Nordelo never disputed — that Nordelo was driving at the time of his arrest.

We agree that this alleged evidence cannot meet the first prong of the newly discovered evidence test. We therefore affirm the trial court’s summary denial of the newly discovered evidence claim. We find that the record shows conclusively that Nordelo is entitled to no postconviction relief, and we affirm the trial court’s order.

Affirmed.

WELLS, J., concurs.

COPE, J.

(dissenting).

The only issue before us is a narrow one: whether the claim of newly discovered evidence should have been denied without an evidentiary hearing. Respectfully, as a matter of pleading, this motion is sufficient to call for an evidentiary hearing. Whether the defendant will ultimately be entitled to any relief is an entirely different matter.

The affidavit of codefendant Angel Lopez maintains that he (Lopez) committed the charged crime with a man named Jose Sanchez, not this defendant. Where the claim is that the defendant is actually innocent of the crime charged, the court should err on the side of granting an evidentiary hearing.

Alternatively, if there is any pleading deficiency, then the State is correct that leave to amend should be granted.

I.

Defendant-appellant Marco Nordelo and codefendant Angel Lopez were charged with holding up a Circle K convenience store on May 29, 1990. They took money from the cash register and the attendant. About one month after the robbery, the police showed the victim photo lineups, and the victim identified the defendant and codefendant. The victim felt certain of his identification.

The case proceeded to trial in 1991. On the day of trial, the codefendant accepted a plea offer in exchange for a twenty-five year prison sentence. The plea agreement did not require codefendant Lopez to testify at the defendant’s trial. The defendant and his attorney, Mr. Casabielle, were given the opportunity to speak with codefen-dant Lopez after the acceptance of the plea but prior to the start of the defendant’s trial. According to codefendant Lopez’ affidavit, “I took the plea and then refused to testify.” Neither side called codefendant Lopez to testify at trial.

The defendant’s identity was an issue at trial. Brief of Appellee, Nordelo v. State, 603 So.2d 36 (Fla. 3d DCA 1992). The defendant was convicted and sentenced to life imprisonment as a habitual violent felony offender. The conviction was affirmed on appeal. Nordelo v. State, 603 So.2d 36 (Fla. 3d DCA 1992).

Codefendant Lopez completed his twenty-five year sentence and was released. He contacted Nordelo’s family about the case. Lopez stated that he held up the Circle K with another man, Jose Sanchez, and the defendant was not involved.

Nordelo’s counsel filed the current Florida Rule of Criminal Procedure 3.850 motion, supported by an affidavit from code-fendant Lopez. The affidavit states:

AFFIDAVIT OF ANGEL LOPEZ
I, Angel Lopez, do swear under penalty of perjury, that the following statements are true and correct:
I was involved in the armed robbery of the Circle-K convenience store on May 29, 1990, at approximately 6:45 am, located at 595 SE Okeechobee Road. I entered this convenience store with an accomplice named Jose Sanchez, not Mr. Marco Nordelo.
Mr. Nordelo was not present at the time of the robbery, and was not involved in any way.
I was then involved in the Grand Theft of a Ford Taurus on the next day, May 30, 1990. I was driving this stolen car when I came into contact with Mr. Nordelo.
Mr. Nordelo was the passenger in this car when we were both arrested on May 31, 1990. Any items from the robbery that were in the car were placed there by me.
I did not come forward with this information sooner, as I was afraid that the Office of the State Attorney would take away my plea offer. I took the plea and then refused to testify. I was ignorant of the law and was afraid that if I had not cooperated with the State Attorney, then my plea would have been refused.
Marco Nordelo was mis-identified by Mr. Benavides, the victim in the robbery. He should have never been convicted because he is innocent of this crime.
I feel it is now time to come forward with the truth.
Respectfully submitted,
M_
Angel Lopez

The motion came before the trial court for hearing. After hearing argument of counsel, the trial court summarily denied the motion, ruling that the evidence “is not newly discovered and could have been obtained through due diligence.” The defendant has appealed.

In order to obtain a new trial based on newly discovered evidence, a defendant must meet two requirements:

First, the evidence must not have been known by the trial court, the party, or counsel at the time of trial, and it must also appear that neither the defendant nor defense counsel could have known of such evidence by the use of diligence. Second, the newly discovered evidence must be of a nature that it would probably produce an acquittal on retrial or yield a less severe sentence.

Davis v. State, 26 So.3d 519, 526 (Fla.2009) (citing Jones v. State, 709 So.2d 512, 521 (Fla.1998) (Jones II); Jones v. State, 591 So.2d 911, 915 (Fla.1991) (Jones I)).

The Rule 3.850 motion in this case was dismissed at the pleading stage. “In reviewing a trial court’s summary denial of postconviction relief, this Court must accept the defendant’s allegations as true to the extent that they are not conclusively refuted by the record.” Hunter v. State, 29 So.3d 256, 261 (Fla.2008), cert. denied, — U.S. -, 130 S.Ct. 76, 175 L.Ed.2d 53 (2009). Where deficiencies in a motion can be cured by amendment, an opportunity to amend should be given. Davis, 26 So.3d at 527.

“The determination of whether the statements [which constitute the newly discovered evidence] are true and meet the due diligence and probability prongs of Jones II usually requires an evidentiary hearing to evaluate credibility unless the affidavit is inherently incredible or obviously immaterial to the verdict and sentence.” Id.

It is certainly true that codefendant Lopez has come forward with his affidavit many years after the crime was committed in 1990, and after he entered a plea in 1991. However, the amount of time which elapsed is not dispositive. In Davis, the defendant had been convicted of first degree murder in 1987. In 2008, twenty-one years later, he filed a postconviction motion alleging newly discovered evidence, namely, that two trial witnesses recanted portions of their trial testimony. The trial court ruled that the evidence was not newly discovered. The Florida Supreme Court said that this ruling was error:

Here, as in Swafford [v. State, 679 So.2d 736 (Fla.1996),] the State’s only argument to dispute due diligence was that defense counsel had “years” to find the witness. See id. Regardless of the time span from the time of trial to the discovery of the new testimony, recanted testimony cannot be “discovered” until the witness chooses to recant. See Burns v. State, 858 So.2d 1229, 1230 (Fla. 1st DCA 2003) (“Even though the appellant knew at trial that the codefen-dant was lying, the appellant could not have gotten the codefendant to admit that he was lying earlier, and thus the recantation is newly discovered evidence that could not have been obtained earlier with due diligence.”). Logically, even if counsel had or could have located these witnesses at an earlier date such earlier date does not conclusively establish that the witnesses would have recanted their testimony at that earlier time.

Davis, 26 So.3d at 528 (emphasis added). The same logic applies in the present case.

II.

The Davis court explained that there is an important distinction between the requirements (a) to plead the existence of newly discovered evidence, versus (b) the heightened requirements to establish due diligence during an evidentiary hearing. The pleading requirement is lower; the proof requirement is higher. The Davis Court said:

The postconviction trial court appears to have incorrectly applied the heightened requirements to establish due diligence during an evidentiary hearing to evaluate the allegations at a pleading stage. However, permitting a newly discovered evidence claim to proceed to an evidentiary hearing does not establish that the recanted testimony qualifies as newly discovered evidence as a matter of law. See Swafford, 679 So.2d at 739. The newly discovered evidence claim remains to be factually tested in an evidentiary hearing to determine whether the defendant has demonstrated that the successive motion has been filed within the time limit for when the statement was or could have been discovered through the exercise of due diligence. See id. The motion here was sufficiently pled to allow the opportunity to prove through the testimony of witnesses that the threshold requirement of due diligence was satisfied. Accordingly, the postconviction trial court erred in summarily denying this claim on the basis that the pleading failed to sufficiently satisfy the due diligence requirement at that stage of the proceeding.

26 So.3d at 528-29.

Codefendant Lopez’s affidavit states that he “did not come forward with this information [exonerating the defendant] sooner, as I was afraid that the Office of the State Attorney would take away my plea offer. I took the plea and then refused to testify. I was ignorant of the law and was afraid that if I had not cooperated with the State Attorney, then my plea would have been refused.” For pleading purposes, we are required to accept that statement as true. The majority opinion says that this statement is nonsensical, majority op. at 857, by which the majority opinion means that codefendant Lopez was wrong about the law. For present purposes, however, we are required to accept the proposition that the defendant did not know the law — which is what his affidavit says — and believed that any cooperation would jeopardize his plea. He states that he refused to testify.

Notwithstanding the codefendant’s ignorance of the law, it is in theory possible that this defendant’s counsel could have called codefendant Lopez to the stand and requested an order from the judge to compel him to testify. Given that the codefen-dant believed testimony would jeopardize his plea agreement, we must assume for present purposes (based on the affidavit) that the defendant would have persisted in his refusal to testify or at least, declined to testify in a way that would assist the defense.

In its brief, the State contends that the Rule 3.850 motion should have more allegations than it does. The State argues:

[T]he Rule 3.850 motion alleges there was contact between the defendant or defendant’s counsel and codefendant Lopez shortly prior to the start of Norde-lo’s trial. Allegations as to what transpired at that time — whether Lopez said he would cooperate after his own case was over; whether he said he would incriminate the defendant; or whether he said nothing at all — would be essential to any determination of whether Nordelo exercised due diligence when failing to contact Lopez some 17 years after Nordelo’s trial.

Answer Br. of Appellee at 15. The State continued by saying, “The State notes that insofar as the motion was denied as legally insufficient, the denial should have been without prejudice, under Spera v. State, 971 So.2d 754, 761 (Fla.2007), to file an amended motion with further allegations regarding due diligence.”

While the State sees the issue as a pleading matter which should be resolved by conferring leave to amend, this writer believes the case law indicates that where the existence of newly discovered evidence has been pled, and there is a question whether the defendant exercised due diligence, the proper procedure is to conduct an evidentiary hearing at which evidence will be taken on the due diligence issue, as well as the other issues presented. The Hunter case, previously cited, is illustrative. James Hunter, Eric Boyd and several other individuals committed multiple crimes, culminating in multiple murders. Hunter was convicted. He requested postconviction relief claiming newly discovered evidence that codefendant Boyd had recently confessed to shooting Cooley, one of the surviving victims. Defendant Hunter alleged that Boyd previously refused to give a statement because he was promised by prosecutors that they would clear the matter up and that he should keep quiet. Id. at 262-63. The Hunter Court said:

In similar circumstances, Florida courts have found post-trial confessions from codefendants to qualify as newly discovered in the sense that the evidence was not known at the time of trial and could not have been known by the use of due diligence. See Brantley v. State, 912 So.2d 342, 342-43 (Fla. 3d DCA 2005) (remanding for an evidentiary hearing based on the affidavit of a code-fendant which stated the defendant was not present and was not involved in the shooting and based on the postconviction motion which alleged that defense counsel tried to obtain the codefendant’s cooperation but was refused); Roundtree v. State, 884 So.2d 322, 323 (Fla. 2d DCA 2004) (holding that the defendant’s allegations that his codefendant admitted that the defendant had no role in the robbery and that the codefendant had not testified on the defendant’s behalf because he had been coerced by the State were sufficient to state a prima facie claim of newly discovered evidence); Kendrick v. State, 708 So.2d 1011, 1012 (Fla. 4th DCA 1998) (stating that a codefendant’s sworn post-trial testimony that he lied to police and that he was told by police to say he got the cocaine from the defendant in order to keep his own prison time to a minimum qualified as newly discovered evidence because it was unknown, the codefen-dant was unwilling to give the testimony previously, and the testimony could not have been secured through due diligence); State v. Gomez, 363 So.2d 624, 626-28 (Fla. 3d DCA 1978) (treating as newly discovered evidence the post-trial affidavit of a codefendant confessing to having committed the robbery without the defendant’s assistance).

Id. at 263. The circumstances present here are comparable.

In conclusion, I respectfully suggest that under established precedent, the Rule 3.850 motion is legally sufficient and the matter should be remanded for an eviden-tiary hearing. Alternatively, as suggested by the State, any affirmance should be with leave to amend the Rule 3.850 motion.

      . For the first time on appeal, Nordelo argues that he could not have compelled his codefen-dant’s exonerating testimony because that would have required the codefendant to implicate himself, in contravention of the Fifth Amendment’s right to silence, in the theft of the white car the two drove in a high-speed chase two days after the robbery. Although we cannot consider this argument for the first time on appeal, see Castor v. State, 365 So.2d 701, 703 (Fla.1978), we note that there is no reason why the codefendant could not have exonerated Nordelo without mentioning the white car; in fact, Nordelo's 1992 direct appeal held that evidence of the high speed chase was irrelevant and should have been excluded.

      . The State said that it would file a copy of the entire trial transcript, but did not do so. The trial court's order contemplated that excerpts from the court record would be attached, but neither the order nor the State identifies anything specific that was to be attached.


author: CORTINAS, J. SCHWARTZ, Senior Judge

text:
    CENTENNIAL HOMEOWNERS ASSOCIATION, INC., a Florida not-for-profit corporation, Appellant, v. DOLOMITE CO., INC., a Colorado corporation, Appellee.
    No. 3D10-1256.
    District Court of Appeal of Florida, Third District.
    Oct. 13, 2010.
    Rehearing and Rehearing En Banc Denied Nov. 18, 2010.
    William J. Motyczka, Miami; G. David O’Leary, for appellant.
    Restani, Dittmar & Hauser and Helen Ann Hauser, Coral Gables; Keith D. Diamond, Weston, for appellee.
    Before COPE and CORTINAS, JJ., and SCHWARTZ, Senior Judge.
   CORTINAS, J.

Centennial Homeowners Association appeals the trial court’s denial of its motion to stay certain provisions of a summary final judgment entered in favor of Dolomite Co. The judgment ejected Centennial from the subject property and required it to remove “any and all structures and appurtenances.” We treat this appeal as a petition for a writ of certiorari, and, finding that the trial court departed from the essential requirements of the law in refusing to grant the stay pending the resolution of Centennial’s Betterment proceedings, we grant the petition.

Centennial is a Florida not-for-profit corporation that administers a residential community in Miami-Dade County. The community’s developer abandoned the community before it was completed and liquidated its assets in bankruptcy, with the exception of the common areas claimed by — but not deeded to — Centennial. Unpaid construction contractors filed suit against the developer and won default judgments. In partial satisfaction of the judgments, the common areas were sold at auction. Four years later, the purchaser brought an ejection action under Chapter 66, Florida Statutes, seeking to have Centennial vacate the property and remove its gates, fences, and structures. Dolomite, as the purchaser’s successor-in-interest, brought a motion for summary judgment, which the trial court granted. The final order of ejectment was stayed pending resolution of Centennial’s appeal, which this Court decided in Dolomite’s favor.

Two months after this Court’s decision, Centennial filed a Betterment action in the trial court, pursuant to section 66.041, et seq., Florida Statutes (2009). Centennial then filed a Motion to Extend Stay Pending Resolution of Betterment Petition, but the trial court denied the motion and executed a writ of possession in Dolomite’s favor; expressly enjoined any further action by Centennial to impede Dolomite’s exclusive possession; and required Centennial to remove the improvements delineated in the Summary Final Judgment within thirty days, despite the provisions of the Betterment Statute.

The Betterment cause of action was created to prevent unjust enrichment by compensating a party that has lost an ejectment case for any value of improvements that were made by the losing party and are received by the successful party along with the land. Section 66.041 provides:

If a judgment of eviction is rendered against defendant ... defendant may file in the court in which the judgment was rendered a petition setting forth that:
(1) Defendant had been in possession and that [defendant] or those under whom defendant validly derived had permanently improved the value of the property in controversy before commencement of the action in which judgment was rendered;
(2) Defendant or those under whom defendant validly derives held the property at the time of such improvement under an apparently good legal or equitable title ...; and
(3) When defendant made the improvements or purchased the property improved, [defendant] believed the title [that defendant] held or purchased to the land thus improved to be a good and valid title. The petition shall demand that the value of the improvements be assessed and compensation awarded to defendant therefore.

It is axiomatic that the permanent improvements must exist and be in place in order for Centennial to exercise its right to utilize the Betterment statute. The clear provisions of the statute make the trier of fact in the Betterment case responsible for assessing the present value of the permanent improvements made by the petitioner and his predecessors-in-interest. § 66.061(2), Fla. Stat. (2009). If the improvements have already been removed before the Betterment proceeding reaches the valuation phase, no such assessment can reasonably be made.

Centennial could potentially suffer irreparable harm if the stay were not granted, for, should the improvements and structures be removed, the trial court’s order could effectively dismiss the Betterment case with prejudice. If the improvements no longer existed, proceedings under the Betterment statute may be rendered moot, and its entire purpose would be frustrated. In contrast, Dolomite would not be harmed were it required to temporarily retain the improvements on the subject property: there is no urgent use to which Dolomite could put the common areas were they purged of Centennial’s walls, gates, fences, guardhouses, sidewalks, storm drains, speed bumps, fountains, security systems, landscaping, lighting and electrical fixtures, and roadway surfacing.

Moreover, the Betterment proceedings could ultimately result in the improvements remaining on the subject property if Dolomite failed to timely pay the valuation of the improvements as assessed by the trier of fact (minus “[t]he value of the use of the land by [Centennial] ... from the time of the judgment to the time of the ... eviction”). § 66.061, Fla. Stat. (2009). Then, Centennial would “again have the privilege of paying to [Dolomite] in cash the value of the land assessed,” thus gaining title to the land, and Dolomite would be required to “give [Centennial] a deed to the land ... and appurtenances, and [because Centennial] has been evicted from ... the property, it [would] be returned to [Centennial] by order of court on motion.” § 66.101, Fla. Stat. (2009). Were that possibility to occur, allowing the improvements to be removed prematurely would have been an egregious waste.

For the foregoing reasons, we find that a stay of the proceedings authorized by the trial court’s Summary Final Judgment was necessary during the pendency of Centennial’s Betterment proceedings to effectuate the intent of the Betterment statute. Therefore, we hold that the trial court departed from the essential requirements of the law by refusing to grant Centennial’s Motion to Extend Stay.

Reversed and remanded.

COPE, J., concurs.

SCHWARTZ, Senior Judge

(dissenting).

I believe that the court’s decision is in conflict with two fundamental principles of law.

I

In Centennial Homeowners Ass’n, Inc. v. Dolomite Co., 30 So.3d 506 (Fla. 3d DCA 2010) (per curiam affirmed), we unquali-fiedly affirmed a final judgment of the trial court which included the equally unqualified provisions that:

1. DOLOMITE owns and is entitled to immediate possession of the Subject Property. The Clerk of this Court shall forthwith enter a Writ of Possession as requested by DOLOMITE with regard to the Subject Property.
2. No later than thirty (30) days from the date of this Summary Final Judgment, CENTENNIAL is hereby ordered to have completed, at its sole cost and expense, the removal of any and all structures and appurtenances from the Subject Property including, without limitation, all guard houses or other buildings, gates, fences and fountains.

The court, however, now provides the proverbial end run around its own decision by-requiring that it be stayed without any prior authorization or even indication that such a thing would be appropriate. This ruling contravenes the basic doctrine that no deviation whatever from the terms of a prior appellate mandate will be permitted. See Wilcox v. Hotelerama Assocs., 619 So.2d 444, 445-46 (Fla. 3d DCA 1993) (holding that a stay of new trial pending payment of costs was unacceptably in conflict with unconditional appellate reversal for new trial); see also Dines v. Fla. Unemployment Appeals Comm’n, 730 So.2d 378 (Fla. 3d DCA 1999); State Farm Mut. Auto. Ins. Co. v. Stack, 543 So.2d 782, 783 (Fla. 3d DCA 1989); Mendelson v. Mendelson, 341 So.2d 811, 814 (Fla. 2d DCA 1977).

II

The majority result is barred by what can only be considered an aggravated example of the doctrine of the “law of the case.” See 3 Fla. Jur. 2d Appellate Review § 433 (“Absent extraordinary circumstances, the ruling of the appellate court in an earlier appeal is binding on the trial court on remand and on the appellate court in a subsequent appeal.”); see also Eventys Marketing & Products, Inc. v. Comcast Spotlight, Inc., 28 So.3d 959, 962 (Fla. 3d DCA 2010) (“Under the ‘law of the case’ doctrine a court adheres to its own decision at an earlier stage of the litigation unless there are cogent or compelling reasons not to, such as an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.”).

As the appellee accurately states in its motion for sanctions, which I would grant:

The [sic] is the fourth appearance of this case before this Court, and the latest attempt by Appellant to delay and hinder the rights of Appellee. In 1999, certain lands belonging to an insolvent real estate developer were sold at a sheriffs sale for the benefit of creditors. Appellant Centennial learned of the sale within a week after the date of the deed, and filed a motion to intervene in the case and set aside the sale. The court authorized Centennial to file its proofs of ownership, if any, but Centennial failed to do so. Accordingly, in January of 2000, a final judgment was entered confirming the sheriffs sale as to the specific lands that Centennial claimed. Although the order was served upon Centennial’s counsel, no appeal was filed and Centennial took no further action.
In 2003, the purchaser at the sheriffs sale filed an ejectment action seeking to have Centennial vacate the property and remove the gates, fences and structures on the property. The cause was transferred to circuit court and renumbered; Dolomite, as successor in interest, was substituted as the plaintiff. In 2007, Judge King entered a summary judgment in favor of Dolomite, on the basis that the questions of title had already been settled between these parties or their privies by the former judgment in 2000. Centennial unsuccessfully tried to appeal, but the judgment was not final. This Court can take judicial notice of its own records in case no. 3D07-756. After a true final judgment was entered in the ejectment case, Centennial filed a final appeal, which was extensively briefed and argued. As this Court may judicially notice from its own records in case no. 3D09-8, the issues raised by Centennial were: 1) whether the doctrines of res judicata or collateral estop-pel barred relitigation of the question of title between these parties; 2) whether the trial court was within its discretion in refusing to permit a new counterclaim and affirmative defenses after the action had been pending five years and summary judgment had already been issued upon very similar matters; and 3) whether the trial judge erred in denying rehearing. Specifically, Centennial asserted that rehearing should be granted because some of the structures that it was ordered to remove may have been erected by the developer, not by Centennial. Dolomite responded that this was a new contention which had been waived by failure to timely raise it in all the years the litigation had been pending, so that the trial court was not obliged to consider it. Centennial also contended that the lower court did not have jurisdiction to require removal of the structures, and/or that this relief had not been properly requested in the pleadings.
The final order of ejectment was stayed by the lower court pending resolution of Centennial’s appeal in case no. 3D09-8. After full briefing and oral argument, Judge King’s final judgment was affirmed in toto, including the provisions requiring Centennial to remove all of the structures from the property. Centennial Homeowners Ass’n v. Dolomite Co., Inc., 30 So.3d 506 (Fla. 3 DCA 2010). Centennial unsuccessfully moved for rehearing in the Court, raising the same issues. This Court’s mandate was issued on April 5, 2010.
Centennial then filed a “betterment” action in the lower court, pursuant to Chapter 66, Florida Statutes. Centennial returned to Judge King and requested that he stay enforcement of this Court’s mandate until the conclusion of the “betterment” proceeding. Stay was denied. Judge King ordered that Centennial remove all structures and appurtenances from the property and cease any attempts to interfere with Dolomite’s possession. Centennial not only filed this appeal, but also sought to disqualify Judge King because of his ruling. Centennial’s application for writ of prohibition was denied by this Court on May 28, 2010, and rehearing was denied on June 25, 2010 (case no. 3D10-1334). As to the instant appeal, there is no appellate jurisdiction for an order denying stay, and if there were, this appeal is patently meritless.
Even a cursory review of Centennial’s brief and appendix in this cause indicates that Centennial is again raising the identical issues that have been fully precluded by this Court’s prior opinion — the validity of the sheriffs deed, equitable claims of title, and an assertion that removal of the structures was not pled properly and/or not authorized by law. Ironically, Centennial’s appeal in case no. 3D09-8 from the final summary judgment revolved around the doctrines of issue preclusion, but Centennial still has not understood that, once it is litigated to conclusion, a controversy between the same parties cannot be revived. Centennial’s argument in this appeal amounts to an assertion that the final judgment of ejectment is so wrong that it ought to be stayed forever, and the prevailing party, Dolomite, should never have the benefit of the property.
Centennial continues to reargue the identical issues ad nauseam. In the trial court, it has already lost a final judgment in the sheriff’s deed proceeding, then a summary judgment in the ejectment proceeding, a final judgment, a motion for rehearing, a motion for stay pending conclusion of the betterment action, and a motion to disqualify the trial judge, all raising the same points. In this court, it has lost an appeal from a nonfinal summary judgment, an appeal from a final judgment, a motion for rehearing addressed to the final judgment, a petition for prohibition, a motion for rehearing from denial of prohibition, and a motion to stay the final judgment pending the conclusion of the betterment action. This Court’s prior opinion is “law of the case,” Florida Department of Transportation v. Juliano, 801 So.2d 101 (Fla.2001), but Centennial refuses to recognize that the matter must come to an end.
For these reasons I would deny review.