author: SUAREZ, J. RAMIREZ, J.,

text:
    CITY OF MIAMI BEACH, Appellant, v. KUONI DESTINATION MANAGEMENT, INC., Ernesto Bertarelli, and Thomas Kramer, Appellees.
    No. 3D11-637.
    District Court of Appeal of Florida, Third District.
    Feb. 8, 2012.
    Holland & Knight, and Rodolfo Sorondo, Jr., Miami, and Christopher Bellows; Jose Smith, Miami Beach City Attorney, for appellant.
    Greenberg Traurig, and Elliot H. Scherker, Barry L. Rothberg, and Christopher B. Carbot, Miami, for appellees.

      Before RAMIREZ, SHEPHERD, and SUAREZ, JJ.
   SUAREZ, J.

The City of Miami Beach (“City”) appeals a non-final order granting a temporary injunction in favor of the appellees, Kuoni Destination Management, Inc., Ernesto Bertarelli, and Thomas Kramer (“Kuoni”), enjoining the City from closing a private party alleged to have been in violation of section 142-109 of the Miami Beach Code, which prohibits commercial use of residential property. We have jurisdiction. Fla. R.App. P. 9.130(a)(3)(B). We determine the issue moot, decline to address the merits of the order granting the temporary injunction and remand to the circuit court to determine in the action pending below whether a residence rented for the purpose of a private party is in violation of the ordinance.

Kuoni entered into an agreement with Thomas Kramer whereby it paid $40,000.00 for the use of Kramer’s residence on Star Island from Saturday, March 5, 2011, until Sunday, March 6, 2011, to serve as the location for a birthday party being produced for a client of Kuoni’s with an expected 200 guests in attendance. The City sent a March 4, 2011 letter to Kuoni advising that it would be in violation of the Miami Beach Code, section 142-109, prohibiting the use of residential property rented for purposes of a third-party host or a commercial event. On March 5, 2011, Kuoni brought an action for injunctive and declaratory relief against the City alleging that the limited commercial use was not barred by section 142-109, and that irreparable injury would result if the party were not allowed to go forward. Kuoni moved for a temporary injunction which the trial court granted on March 5, 2011. The party took place as planned. This non-final appeal ensued from the order granting the temporary injunction against the City, allowing the party to take place. A counterclaim filed by the City for a permanent injunction against Thomas Kramer is pending below.

The standard of review on an order granting a temporary injunction is abuse of discretion. Wise v. Sehmidek, 649 So.2d 336 (Fla. 3d DCA 1995) (holding that an appellate court will not disturb trial court’s discretion in granting, denying, dissolving, or modifying an injunction unless clear abuse of discretion is demonstrated). If a legal principle is involved, the standard of review is de novo. Lamiwood Med. Ctr., Inc. v. Desai, 54 So.3d 1027 (Fla. 4th DCA 2011).

The requirements for establishing the right to a temporary injunction are: the likelihood of irreparable harm; the unavailability of an adequate remedy at law; the substantial likelihood of success on the merits; the threatened injury to the petitioner outweighs the possible harm to the respondent; and the granting of the temporary injunction will not dis-serve the public interest. Graham v. Edwards, 472 So.2d 803, 806 (Fla. 3d DCA 1985). A party seeking to restrain enforcement of a municipal ordinance on grounds of irreparable injury must show sufficient facts so clearly that a trial court may determine the extent of injury and grant relief by injunction if justified. Egan v. City of Miami, 130 Fla. 465, 178 So. 132, 133 (1938). We find the present issue of irreparable injury to be moot as the birthday party in question took place as planned. Although we recognize that an appellate court has jurisdiction to address moot questions that are likely to recur, see Paul Jacquin & Sons, Inc. v. City of Port St. Lucie, 69 So.3d 306 (Fla. 4th DCA 2011), we decline to address the determination made below on the sufficiency of facts supporting the granting of the temporary injunction.

Because the purpose of a temporary injunction is not to resolve disputed issues, but rather to preserve the status quo pending final hearing on the merits, Garcia v. Dumenigo, 46 So.3d 1085 (Fla. 3d DCA 2010); Escudero v. Hasbun, 689 So.2d 1144 (Fla. 3d DCA 1997); Ladner v. Plaza Del Prado Condo. Ass’n, 423 So.2d 927 (Fla. 3d DCA 1982), and since the operative event in this case, the private party, has already taken place, we decline to address the merits concerning the interpretation of the Miami Beach Code, and we remand to the trial court for consideration of the City’s counterclaim, which remains pending below, and for the trial court’s determination of whether the City presents a reasonable interpretation of the ordinance in light of the presumption of an ordinance’s reasonableness. See City of Ft. Lauderdale v. Canary Enters., 546 So.2d 1114, 1116 (Fla. 4th DCA 1989) (citing City of Miami v. Kayfetz, 92 So.2d 798 (Fla.1957)). On remand, the City is to be given wide latitude in its interpretation of the ordinance if there does not appear to be an abuse of authority violating Kuoni’s fundamental rights. See Kayfetz, 92 So.2d at 801.

Remanded with directions.

SHEPHERD, J., concurs.

RAMIREZ, J.,

(dissenting).

I respectfully dissent. In my view, there is no need to remand the merits of this case to the circuit court to interpret the language of the ordinance. As quoted by the majority, the language of the ordinance, Sect. 142-109(c)(l)a, clearly prohibited the rental of the residence for commercial use, the party. The owner indisputably received $40,000 for the use of his residence, clearly in excess of $100. At the injunction hearing appellees argued that the house-party rental did not violate (l)b — dealing with the sale of goods at a single-family home — and thus they were allowed to violate (l)a. The City, in turn, argued that commercial use was prohibited if appellees violated (l)a or (l)b or (l)c, and because appellees indisputably violated (l)a the rental was forbidden.

The trial court said it was confused by the word “or” after each prohibition. The City explained that “or” meant there was a violation if plaintiffs did any of the things in (l)a or (l)b or (l)c. The court said the word “or” should not have been used and should be “blank[ed]” out. The court then ruled that appellees’ use was permitted under the ordinance — even though they indisputably violated (l)a. The trial court additionally said no bond would be required because it had given the parties a hearing.

There is no reason to remand this ease to interpret the ordinance again. The trial court deleted the language “or” from the ordinance and substituted the word “and.” Statutory construction involves a legal principle, which the majority acknowledges we can review de novo. The trial court clearly rewrote the statute, which is legal error. See Rodriguez v. State, 694 So.2d 96, 97 (Fla. 3d DCA 1997) (“ Tf a statute makes it punishable to do a particular thing specified, ‘or’ another thing, ‘or’ another, one commits the offense who does any one of the things, or any two, or more, or all of them.’”) (quoting Edwards v. State, 62 Fla. 40, 56 So. 401, 408 (1911)).

There is nothing moot about this case. The trial court stated in its order that this private party for which the owner received $40,000, is permitted under section 142-109. The owner is certain to use this order to lease his residence again with impunity.

As the supreme court stated in Godwin v. State, 593 So.2d 211, 212 (Fla.1992):

Florida courts recognize at least three instances in which an otherwise moot case will not be dismissed. The first two were stated in Holly v. Auld, 450 So.2d 217, 218 n. 1 (Fla.1984), where we said: “[i]t is well settled that mootness does not destroy an appellate court’s jurisdiction ... when the questions raised are of great public importance or are likely to recur.” Third, an otherwise moot case will not be dismissed if collateral legal consequences that affect the rights of a party flow from the issue to be determined. See Keezel v. Stale, 358 So.2d 247 (Fla. 4th DCA 1978).

(alteration in original). I believe this case presents the quintessential scenario for resolution. A circuit court order has basically rewritten a city ordinance. This owner, and other owners similarly situated, are free to convert their residences into commercial enterprises in the middle of exclusive residential communities. I do not believe we should let that order stand. Furthermore, I do not believe we need to remand the case for us to interpret the ordinance at issue.

Lastly, the trial court erred by failing to require an injunction bond, as mandated by Florida Rule of Civil Procedure 1.610. For this reason too, the injunction order must be reversed. See SoBeach Rentals, Inc. v. Shelbome Ocean Beach Hotel, 37 So.3d 982, 983 (Fla. 3d DCA 2010) (injunction bond is required by Florida Rule of Civil Procedure 1.610); Wigdor v. Wigdor, 917 So.2d 898, 898 (Fla. 3d DCA 2005) (same).

For these reasons, I would reverse the trial court’s entry of an injunction in this case.

      .Sec. 142-109. — Commercial use of single-family homes prohibited.
      (a) Intent and purpose: The land development regulations restrict residential properties to residential and compatible accessory uses. Commercial uses on residential properties are prohibited, with limited exceptions. While residents are entitled to enjoy the use of their property consistent with the applicable regulations, in order to ensure and protect the enjoyment, character and value of residential neighborhoods and buildings, the provisions herein are established.
      (b) Definitions: "Use of residential property" or “use of the property” in this section shall mean occupancy of residential property for the purpose of holding commercial parties, events, assemblies or gatherings on the premises.
      (c) Regulations: Determination of commercial use.
      (1) Accessory use of residential property shall be deemed commercial and not permitted, except as otherwise provided for in the Code, if:
      a. Compensation to owner. The owner, lessee or resident receives payment or other consideration, e.g., goods, property or services, in excess of $100 per party or event for the commercial use of the property, including payment by any means, direct or indirect, including security deposits: or
      b. Goods, property or services offered or sold. Goods, property or services are offered for sale or sold on or at the property, during use of the property; however, this subsection shall not apply, if:
      1. All of the goods, property or services offered are donated to or for charitable, religious or political organizations or candidates for public office, that have received 501(c)(3) or other tax exempt status under the U.S. Internal Revenue Code, as amended, or in accordance with applicable election laws; or
      2. All of the proceeds from sales are directly payable and paid to charitable, religious or political organizations or candidates for public office, that have received 501(c)(3) or other tax exempt status under the U.S. Internal Revenue Code, as amended, or in accordance with applicable election laws. An organization or candidate may reimburse donors for goods or property donated; or
      3. The sale is of the property itself or personal property of the owner or resident (excluding property owned by a business), and if publicly advertised, comply with subsection (3) below.
      4. Notwithstanding the restrictions in subsections (l)b. 1.-3., limited commercial use of the property by the
      owner or resident for the sale of goods, property or services shall be allowed under the following criteria.
      The event:
      i. Is by private invitation only, not publicly advertised;

        ii. Creates no adverse impacts to the neighborhood;
      iii. The activity and its impacts are contained on the property;
      iv. Parking is limited to that available on-site, plus 11 vehicles legally self-parked near the property, with no busing or valet service; and
      v. Frequency is no greater than one event per month; or
      c. Admittance fees. Use of the property by attendees requires an admittance or membership fee or a donation, excluding donations directly payable and paid by attendees to charitable, religious or political organizations or candidates for public office, that have received 501(c)(3) or other tax exempt status under the U.S. Internal Revenue Code, as amended, or in accordance with applicable election laws.

      . The City represented at oral argument that this same factual and procedural scenario would recur.

      . The City was temporarily enjoined from closing the party, which took place on March 5, 2011.


source: Caselaw Access Project

author: ROTHENBERG, J.

license: Public Domain

text:
    PORTFOLIO INVESTMENTS CORP., Appellant, v. DEUTSCHE BANK NATIONAL TRUST COMPANY, etc., et al., Appellees.
    No. 3D11-1677.
    District Court of Appeal of Florida, Third District.
    Feb. 8, 2012.

      Rasco Klock Reininger Perez Esquenazi Vigil & Nieto, and Alfonso J. Perez, Jr., Coral Gables; Roberto E. Moran, Miami, for appellant.
    Butler & Hosch, P.A., and Dennis W. Moore, Tampa, Thomasina F. Moore, and Thomas Wade Young, Orlando, for appel-lee Deutsche Bank.
    Before RAMIREZ, SUAREZ, and ROTHENBERG, JJ.
   ROTHENBERG, J.

Portfolio Investments Corp. (“Portfolio”) appeals from a Final Consent Judgment for Foreclosure entered in favor of Deutsche Bank National Trust Company (“Deutsche Bank”) and against Annette Mendez (“Mendez”). We affirm all portions of the final judgment except for Paragraph 10, and remand for the limited purpose of addressing the priority of liens.

Deutsche Bank filed a complaint seeking to foreclose a mortgage executed by Mendez and to re-establish the lost note and mortgage, attaching a copy of the mortgage and an assignment of mortgage from the original lender to Deutsche Bank. In addition to Mendez, Deutsche Bank named Ten Aragon Condominium Association, Inc. (“Association”) as a defendant, alleging that the Association held a lis pendens and claim of lien on the mortgaged property that is subordinate and inferior to Deutsche Bank’s interest.

The Association filed an answer to the complaint denying the allegation that its claim of lien was subordinate and inferior. Mendez, however, did not file an answer, and a default was entered against her. Thereafter, Deutsche Bank filed a motion for summary judgment.

More than two years after the foreclosure action was filed, the Association sold and assigned its claim of lien to Portfolio Investments Corp. (“Portfolio”). Within days of the assignment, Portfolio filed a Notice of Lis Pendens and a “Crossclaim to Foreclose Condominium Lien” against Mendez seeking an accounting and a monetary judgment. After filing its cross-claim, Portfolio began to actively participate in the litigation by noticing Mendez for a deposition, propounding discovery on Deutsche Bank, re-noticing the parties that Mendez’s opposition to the deposition would be addressed at a status conference hearing, attending hearings, and filing other motions. In fact, the trial court ruled on several matters directly affecting Portfolio, including ordering Mendez to appear for deposition and warning her that if she failed to appear, a default would be entered against her as to the crossclaim. Although Portfolio did not move to intervene, see Fla. R. Civ. P. 1.230, or to substitute itself for the Association, see Fla. R. Civ. P. 1.260(c), Portfolio actively participated in the litigation without objection from either Mendez or Deutsche Bank.

Ultimately, the trial court granted Deutsche Bank’s motion for summary judgment after Mendez’s counsel informed the trial court that Mendez had no objection. Deutsche Bank submitted the Final Consent Judgment for Foreclosure, which was executed by Deutsche Bank and Mendez, along with the original note, mortgage, and assignment of mortgage. Paragraph 10 of the consent judgment provides that Deutsche Bank’s lien is superior to the Association’s claim of lien. The trial court executed the judgment, and thereafter, it denied Portfolio’s motion for rehearing and to set aside the summary judgment. Portfolio’s appeal follows.

Portfolio has raised several arguments on appeal. In its answer brief, however, Deutsche Bank does not address these arguments, but merely argues that Portfolio lacks standing to bring this appeal because it did not move to intervene or to substitute itself for the Association. Under the unique circumstances of this case, we disagree.

Generally, a non-party in the lower tribunal is a “stranger to the record” and, therefore, lacks standing to appeal an order entered by the lower tribunal. Barnett v. Barnett, 705 So.2d 63, 64 (Fla. 4th DCA 1997) (holding that bank that failed to intervene “was not a party to the proceeding below,” and therefore, “has no standing to appeal the adverse order”); see also Fla. R.App.P. 9.020(g)(1) (defining “appellant” as “[a] party who seeks to invoke the appeal jurisdiction of a court”) (emphasis added); Morrell v. Nat'l Health Investors, Inc., 876 So.2d 580, 580-81 (Fla. 1st DCA 2004) (dismissing appeal as person filing appeal “was not a party to the proceedings below” and, therefore, “cannot participate in appellate review”); Penabad v. A.G. Gladstone Assocs., 823 So.2d 146, 147 (Fla. 3d DCA 2002) (dismissing appeal for lack of standing because individual filing appeal “was not a party to the underlying motion to dissolve lis pendens”); Cf. Visoly v. Sec. Pac. Credit Corp., 768 So.2d 482, 489 (Fla. 3d DCA 2000) (holding that as to the assessment of attorney’s fees under section 57.105, “[a] ‘party’ is defined under Florida law as any person who participates in litigation regardless of whether or not actually named in the pleadings”).

In the instant case, it is undisputed that Portfolio was not a named party and did not seek to intervene or to substitute itself for the Association. However, under the unique circumstances of this case, there is no doubt that Portfolio was not a “stranger to the record.” Within days of Portfolio’s purchase of the claim of lien, Portfolio actively began to participate in the litigation. Moreover, the record demonstrates that Deutsche Bank and Mendez understood that Portfolio, as the assignee of the Association’s claim of lien, had stepped into the Association’s shoes and had adopted the position raised by the Association in its answer to the complaint, and that Deutsche Bank and Mendez did not object to Portfolio’s participation in the litigation. Further, the trial court treated Portfolio as party to the litigation by ruling on Portfolio’s motions and allowing it to participate at hearings. Under these circumstances, we reject Deutsche Bank’s argument, raised for the first time in its answer brief, that Portfolio lacks standing to appeal the order under review.

In its answer brief, Deutsche Bank failed to address the merits of Portfolio’s arguments, but we have done so, finding merit as to one of its contentions. Portfolio’s crossclaim sought an accounting of the amount due by Mendez and a monetary judgment against Mendez, but did not assert any claim against Deutsche Bank or a claim that Portfolio’s lien is superior to Deutsche Bank’s interest. However, as Portfolio stepped into the shoes of the Association, and the Association’s answer asserted that its claim of lien was superior to Deutsche Bank’s interest, this issue relating to priority of liens was before the trial court. The record before this Court demonstrates that Deutsche Bank did not properly notice Portfolio that its motion for summary judgment would be addressed at a hearing. Fla. R. Civ. P. 1.510(c). Accordingly, we affirm all portions of the final consent judgment except for Paragraph 10 as it directly affects Portfolio’s interest, and remand for further proceedings. On remand, the trial court is instructed to address the priority of the liens at a properly noticed hearing.

Affirmed, but remanded.

      . Portfolio's active participation in the litigation, without being formally substituted for the Association, was first addressed at a June 16, 2011 hearing before Judge Marvin H. Gillman on Portfolio’s motion to cancel the foreclosure sale and to set aside the final judgment. Portfolio’s participation in the litigation was first questioned when Judge Gill-man asked how Portfolio "legally got in this case.” Later on during the hearing, the trial court stated: "But there was no substitution of the parties here by Portfolio Investments being substituted for Ten Aragon Condominium Association.” In response, Mr. Alfonso J. Perez, Portfolio's president and the attorney who represented the Association, stated: "Well, again, Judge Deehl found that Portfolio was the proper party by entering that or-der_ He recognized Portfolio’s claim saying 'you must appear for a deposition, Ms. Annette Mendez, for your default.' " At that point, Deutsche Bank did not question Portfolio's standing to appear before the lower tribunal. However, toward the end of the hearing, when Judge Gillman indicated that he could not locate an order allowing Portfolio to intervene or to be substituted for the Association, Deutsche Bank's counsel stated, "I don’t see a formal order intervening. That's what I’m asking for a copy.” Thereafter, Judge Gillman stated: “You are correct about that. But there is no Motion to Intervene. But, be that as it may, you still have people appearing....”

      . Portfolio's crossclaim is still pending below, and we take no position as to the merits of the crossclaim.


author: PER CURIAM.

text:
    Frank V. RHEA, III, Appellant, v. UNEMPLOYMENT APPEALS COMMISSION and Publix Super Markets, Inc., Appellees.
    No. 4D11-3141.
    District Court of Appeal of Florida, Fourth District.
    Feb. 8, 2012.
    Rehearing Denied March 23, 2012.
    Frank V. Rhea, III, Sebastian, pro se.

      Amanda L. Neff, Tallahassee, for appel-lee Unemployment Appeals Commission.
   PER CURIAM.

Affirmed. “Whether [an] employee left [his or] her job voluntarily and without good cause is a question of fact within the province of the unemployment appeals referee.” Grossman v. Jewish Cvity. Ctr. of Greater Fort Lauderdale, Inc., 704 So.2d 714, 716 (Fla. 4th DCA 1998). See also Augustin v. State Unemployment Appeals Comm’n, 906 So.2d 1238, 1239 (Fla. 4th DCA 2005) (appellate court must sustain referee’s findings based upon credibility determinations supported by competent substantial evidence).

WARNER, DAMOORGIAN and CONNER, JJ., concur.


author: MORRIS, Judge. CRENSHAW, Judge,

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. Twyman E. BOWLING and Terry Bowling, Appellees.
    No. 2D10-1505.
    District Court of Appeal of Florida, Second District.
    Feb. 10, 2012.

      Anthony J. Russo and Ezequiel Lugo of Butler Pappas Weihmuller Katz Craig LLP, Tampa, and Mark S. Ramey of Ra-mey & Kampf, P.A., Tampa, for Appellant.
    Peter W. van den Boom, Bradford L. Stewart, and David F. Anderson of Frost van den Boom & Smith, P.A., Bartow, for Appellees.
   MORRIS, Judge.

The appellee’s motion for rehearing en banc is denied. The appellee’s motion for clarification is granted in part and denied in part. The opinion dated July 8, 2011, is withdrawn and the following opinion is substituted therefor, clarifying that a new trial should be held on the issue of damages. No further motions for rehearing or clarification shall be considered.

State Farm Mutual Automobile Insurance Company appeals a final judgment entered after a jury verdict in favor of its insureds, Twyman Bowling and Terry Bowling, in the amount of their uninsured motorist (UM) policy limits. On appeal, State Farm raises three evidentiary issues. We see no error in the trial court’s rulings on two of the issues, but we find merit in the third issue raised by State Farm. Accordingly, we reverse the final judgment and remand for a new trial on damages.

Mr. Bowling filed suit against State Farm seeking coverage under the UM provision of his policy for injuries he received in an automobile accident. Mrs. Bowling filed a claim for loss of consortium. The case proceeded to a jury trial, after which the jury returned a verdict in favor of the Bowlings for $944,154.50. Upon motion by State Farm, the trial court reduced the judgment to the UM policy limits of $100,000.

State Farm’s witness list indicated that Debra Pacha had been retained by State Farm as an expert witness to testify to the reasonableness of the charges submitted for the medical treatment provided to Mr. Bowling. Ms. Pacha testified at her deposition that she was asked to testify “concerning the reasonableness of charges for medical treatment rendered to” Mr. Bowling. She testified that she compared the bills to the medical treatment records and found “extreme abuse in regards to the coding, billing!],] and medical record documentation” of four of Mr. Bowling’s main medical care providers. She testified that as for those four providers, “there is absolutely nothing within that documentation that is supportive or representative of any of the billed procedures that I have reviewed.” Her report also indicated that she reviewed $278,000 in medical bills and found that $111,000 in charges did not have any supporting medical codes.

The Bowlings filed a motion to exclude Ms. Pacha’s testimony, arguing that it would not assist the jury in determining whether Mr. Bowling’s bills are reasonable, that Ms. Pacha was not qualified to render an opinion as to the reasonableness of the bills, and that in her deposition, she failed to give any opinion as to the reasonableness of the bills. Prior to trial, the trial court granted the Bowlings’ motion by written order, finding that “the testimony of the witness will not assist the jury in determining whether Mr. Bowling’s medical bills are reasonable” and that Ms. Pa-cha was not “qualified to render an opinion as to the reasonableness of those medical bills.”

As in a suit for personal injury, a plaintiff seeking UM coverage must demonstrate that his or her medical expenses are reasonable and necessary. See USAA Cas. Ins. Co. v. Shelton, 932 So.2d 605, 608 (Fla. 2d DCA 2006) (“Just as she would in a suit against the tortfeasor, the insured [seeking UM recovery] bears the entire burden to prove that her claimed damages were reasonable, necessary, and related to the accident.”); Albertson’s, Inc. v. Brady, 475 So.2d 986, 988 (Fla. 2d DCA 1985) (“It is well established that the plaintiff in a personal injury suit has the burden to prove the reasonableness and necessity of medical expenses.” (citing Shaw v. Puleo, 159 So.2d 641 (Fla.1964))). To meet this burden, the Bowlings used a one-page summary of Mr. Bowling’s medical bills and Mr. Bowling testified that the charges were reasonable. State Farm attempted to refute this evidence with the testimony of Ms. Pacha.

On appeal, State Farm argues that the trial court erred in excluding the testimony of Ms. Pacha as State Farm’s medical billing and coding expert. We agree. Section 90.702, Florida Statutes (2009), provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify about it in the form of an opinion; however, the opinion is admissible only if it can be applied to evidence at trial.

“This section requires the court to make two preliminary determinations: (1) whether the subject matter will assist the trier of fact in understanding the evidence or in determining a disputed fact[ ] and (2) whether the witness is adequately qualified to express an opinion on the matter.” Chavez v. State, 12 So.3d 199, 205 (Fla.2009).

As part of its defense that Mr. Bowling fabricated or exaggerated his injuries, State Farm argued that Mr. Bowling’s medical providers fabricated or exaggerated the medical care necessary for his alleged injuries. Ms. Pacha’s testimony that the bills did not correlate to the treatment in the medical records was relevant to prove this defense. Her testimony regarded a technical matter of which the jury did not have basic knowledge. See United States v. Diaz, No. 07-20398-CR, 2008 WL 906725, at *6 (S.D.Fla. Mar. 28, 2008) (noting that medical billing codes are beyond the knowledge of an ordinary juror); see also Johnson v. State, 393 So.2d 1069, 1072 (Fla.1980) (holding that expert opinion testimony must relate to a “disputed issue [that] is beyond the ordinary understanding of the jury”). Therefore, the subject matter of Ms. Pacha’s testimony would have assisted the jury in determining whether Mr. Bowling’s medical bills, on which he based his claim for damages, accurately reflected the treatment he was documented to have received. This issue was directly relevant to whether Mr. Bowling’s claimed medical expenses were reasonable and necessary.

As to Ms. Pacha’s qualifications, it is clear from her deposition that she has specialized knowledge and training to express an opinion on whether the medical bills were properly coded and whether they correspond to the medical records documenting the purported treatment. See § 90.702; Charles Ehrhardt, Florida Evidence § 702.1, at 677-78 (2009 ed.) (noting that definition of expert in section 90.702 “applies not only to persons with scientific or technical knowledge but also to anyone with any specialized knowledge”). Ms. Pacha took multiple education courses in the field of coding, she passed a national board examination, and she is a licensed Registered Medical Coder, which allows “the auditing of the documentation, billing[,] and coding” of physician offices, hospitals, and ambulatory surgical centers. She attained the status of a Diplómate of the American Board of Forensic Examiners after taking an examination and teaching education courses. Moreover, she gained professional experience analyzing and reviewing medical coding for various clients such as the FBI, the State Attorney’s Office, Federal Express, Wal-Mart, the insurance industry, and attorneys— both plaintiff and defense. Therefore, Ms. Pacha’s training and experience qualify her as an expert in medical billing coding.

In granting the Bowlings’ motion to exclude Ms. Pacha’s testimony, the trial court found that Ms. Pacha is not qualified to give an expert opinion regarding whether the bills were reasonable. This was error. While Ms. Pacha does not have the necessary medical background to render an opinion on whether the medical care allegedly provided to Mr. Bowling was reasonable, she does have the requisite skill and training to render an opinion on whether the bills submitted by his medical providers accurately reflect the care documented in the medical records of those same providers. This was directly relevant to the amount of damages claimed by the Bowlings.

We recognize that a trial court has broad discretion in ruling on the admissibility of expert witness testimony, see McWatters v. State, 36 So.3d 613, 629 (Fla. 2010), but “[o]ne of a party’s most important due process rights is the right to call witnesses,” Keller Indus, v. Volk, 657 So.2d 1200, 1202-03 (Fla. 4th DCA 1995). “A trial court should only exclude witnesses under the most compelling of circumstances,” Keller Indus., 657 So.2d at 1203, especially “when the witness sought to be excluded is a party’s only witness or one of the party’s most important witnesses because if the witness is stricken, that party will be left unable to present evidence to support his or her theory of the case,” Pascual v. Dozier, 771 So.2d 552, 554 (Fla. 3d DCA 2000). Ms. Pacha was State Farm’s only witness who could testify in support of State Farm’s defense that the medical bills submitted for recovery by Mr. Bowling were inaccurate and therefore unreasonable. This testimony was especially important because at least two of Mr. Bowling’s medical providers admitted at trial that certain bills included items that should not have been billed.

The trial court abused its discretion in excluding the testimony of Ms. Pacha, and we reverse the final judgment and remand for a new trial on damages consistent with this opinion.

Reversed and remanded.

KELLY, J., Concurs.

CRENSHAW, J., Concurs in part and dissents in part with opinion.

CRENSHAW, Judge,

Concurring in part and dissenting in part.

In this case of first impression, State Farm seeks to introduce the expert testimony of Debra Pacha, a former x-ray technician who became licensed in the forensic examination of medical record coding and billing. Because Ms. Pacha’s testimony would have been collateral and did not consist of specialized knowledge requiring the use of an expert, I conclude the trial court did not abuse its discretion by excluding her testimony. Thus, I respectfully dissent from this part of the majority’s holding. I concur with the majority in all other respects.

State Farm sought to introduce Ms. Pa-cha’s testimony to address alleged billing discrepancies among four different healthcare providers — University Community Hospital Carrollwood (UCHC), Rose Radiology Centers, Inc. (Rose Radiology), Nucci Spine Institute & Orthopedics Institute (Nucci Spine Institute), and Dr. Robert Nucci — but primarily focused on the billing practices of Dr. Nucci, an orthopedic surgeon at Nucci Spine Institute specializing in spinal injuries. Mr. Bowling received treatment from Dr. Nucci for almost two years, and in exchange for Dr. Nucci’s services, Mr. Bowling signed a letter of protection in which he assigned his insurance benefits and any and all causes of action available to him under the policy to Dr. Nucci.

At trial, the Bowlings presented Dr. Nucci’s testimony via videotaped deposition. Dr. Nucci testified about Mr. Bowling’s injuries and the surgeries performed in treating those injuries. Though State Farm cross-examined another treating physician about the amounts and the reasonableness of the services he rendered to Mr. Bowling, it asked Dr. Nucci only limited questions about any discrepancies between services he performed and the services he billed. State Farm did not ask medical providers affiliated with UCHC or Rose Radiology about their billing practices. And State Farm did not ask Mr. Bowling about what sendees were performed on him and if the services received matched the services for which he was billed. Further, the Bowlings introduced the one-page synopsis of Mr. Bowling’s medical bills into evidence without objection from State Farm.

The majority is correct that in accordance with this court’s determination in USAA Casualty Ins. Co. v. Shelton, 932 So.2d 605, 608 (Fla. 2d DCA 2006), Mr. Bowling was required to prove under section 627.727, Florida Statutes (2004), that the damages in his uninsured motorist (UM) claim “were reasonable, necessary, and related to the accident.” Yet our focus in Shelton was whether evidence of an insurer’s payment of personal injury protection (PIP) benefits was relevant to prove the reasonableness and necessity of the insured’s UM claim. Id. We determined that the payment of PIP benefits was not relevant and therefore inadmissible, but also concluded the introduction of the PIP payments was harmless error because it did not become a feature of the trial. Id. Shelton essentially resolved a similar question raised in this court’s earlier holding in Flores v. Allstate Insurance Co., 883 So.2d 172 (Fla. 2d DCA 2002), in which we noted that a secondary issue of a PIP claim in a UM action could prejudi-cially outweigh any probative value under section 90.403.

Here, State Farm wanted to use Ms. Pacha’s testimony to insinuate that Mr. Bowling’s medical providers acted fraudulently in their treatment of Mr. Bowling. Though State Farm’s allegations are serious and troublesome, I believe Ms. Pacha’s testimony would improperly shift the focus of the trial away from Mr. Bowling’s actual allegations under chapter 627 to the conduct of third-party providers who acted independently of Mr. Bowling. And because Ms. Pacha could only testify as to whether the medical providers properly billed Mr. Bowling but not to the reasonableness of the charges for treatment rendered to him, a questionable billing code entered by a third-party amounted to an irrelevant, collateral issue. Of the $318,303.10 in claimed medical expenses that were calculated after deducting insur-anee payments and adjustments, only about a third of the amount — $111,-938.34 — was not assigned to an appropriate code. Ms. Pacha did not opine that the providers’ description of the $111,938.34 in services meant that the services were not rendered, and she did not calculate an amount of reasonable charges that Mr. Bowling should have incurred.

Alternatively, even if the majority is correct that the evidence was relevant because it would tend to show whether Mr. Bowling’s claimed medical expenses were reasonable and necessary, the admission of evidence involving conduct that Mr. Bowling took no part in would still be unduly prejudicial. See, e.g., United States v. Dennis, 625 F.2d 782, 796-97 (8th Cir. 1980) (“Confusion of the issues warrants exclusion of relevant evidence if admission of the evidence would lead to litigation of collateral issues.”). Given the majority opinion’s broad language, I am concerned our holding is a blanket authorization for the regular introduction of billing code experts at trial to contest the reasonableness of injuries. Such a practice would make a third-party’s billing practices the focus of the trial rather than the questions of coverage, negligence by the uninsured motorist, and the extent of the plaintiffs injuries sustained in the accident that are typically raised under section 627.727.

Further, I disagree with the majority’s determination that the trial court abused its discretion by excluding Ms. Pacha because she was the only witness who could testify that Mr. Bowling’s medical bills were inaccurate. “It is well settled that the determination of a witness’s qualifications to express an expert opinion is peculiarly within the discretion of the trial judge, whose decision will not be reversed absent a clear showing of error.” Anderson v. State, 863 So.2d 169, 179 (Fla.2003) (emphasis added).

Ms. Pacha was State Farm’s only witness to contest Mr. Bowling’s medical bills because State Farm purposefully made her its only witness. State Farm had several other means to show that the codes in the medical records did not match the procedures billed. For example, State Farm could have shown the bills to each medical provider in question and conducted a detailed inquiry about each disputed charge. State Farm could have had the medical providers’ staff testify as to their billing practices and knowledge of entering the codes to bill Mr. Bowling. State Farm could have gone over each medical bill with Mr. Bowling if it believed the charges were unsupported. See Garrett v. Morris Kirschman & Co., 336 So.2d 566, 571 (Fla. 1976) (concluding plaintiffs testimony “made it a question for the jury to decide, under proper instructions, whether these bills represented reasonable and necessary medical expenses”); see also Albertson’s, Inc. v. Brady, 475 So.2d 986, 988 (Fla. 2d DCA 1985) (holding jury’s finding of damages were unsupported where plaintiffs testimony did not associate each medical bill with injuries resulting from the accident). Above all, State Farm could have objected to the Bowlings’ introduction of its one-page summary of Mr. Bowling’s medical bills. Hence, this case is not like Pascual v. Dozier, 771 So.2d 552, 554 (Fla. 3d DCA 2000), because State Farm had alternate ways to present evidence supporting its theory of the case and its failure to prevail on its trial strategy does not constitute “clear legal error” by the trial court.

Finally, the majority ignores the trial court’s discretion to determine whether Ms. Pacha was qualified to express an expert opinion. Ms. Pacha stated in her deposition that State Farm asked her “to simply look at the billing, coding[,] and documentation and to determine whether the billed procedures are coded appropriately and the documentation was there to support it.” The fact that the coding on some of the medical bills did not match the treatment performed is not something that requires the specialized knowledge of an expert witness to decipher in this case. See § 90.702; see also Dungan v. Ford, 632 So.2d 159, 163 (Fla. 1st DCA 1994) (determining “ ‘reasonableness or necessity’ can be established by lay testimony ... involving] a question of necessity from the perspective of the injured party, rather than from the perspective of a medical expert”). As previously mentioned, there are several other methods in which the discrepancies could have been shown without Ms. Pacha’s testimony. And, as the majority notes, Ms. Pacha lacks the necessary medical background to render an opinion on what I believe is the germane issue — whether the medical care provided to Mr. Bowling was reasonable. Thus, Ms. Pacha’s purported expert testimony was properly excluded because “the facts testified to are of such a nature as not to require any special knowledge or experience in order for the jury to form conclusions from the facts.” Johnson v. State, 393 So.2d 1069, 1072 (Fla.1980). Accordingly, I would affirm the trial court’s decision to exclude Ms. Pacha’s testimony.

      . At the appellate oral argument, State Farm contended it could not ask Mr. Bowling about the exact medical services he received because he did not have a vested interest in the amount owed due to his billing arrangement with Dr. Nucci. Yet State Farm did not raise this argument before the trial court. And, while the agreement between Mr. Bowling and Dr. Nucci is not in the record, Dr. Nuc-ci's testimony did not reflect that Mr. Bowling would be absolved of any financial obligation if he did not receive an award for his injuries.

      . The parties do not allege that Mr. Bowling was involved in, or would profit from, any of the billing code discrepancies.

      . The test for determining whether a matter is collateral or irrelevant "is whether the proposed testimony can be admitted for any purpose independent of the contradictions.”
      "Two types of evidence pass this test: (1) facts relevant to a particular issue; and (2) facts which discredit a witness by pointing out the witness’ [sic] bias, corruption, or lack of competency.”

        Foster v. State, 869 So.2d 743, 745 (Fla. 2d DCA 2004) (quoting Lawson v. State, 651 So.2d 713, 715 (Fla. 2d DCA 1995)) (internal citations omitted).

      .This case did not involve a question of coverage.

      . Though the majority cites to U.S. v. Diaz, No. 07-20398-CR, 2008 WL 906725 (S.D.Fla. Mar. 28, 2008), for the proposition that medical billing codes are beyond the knowledge of an ordinary juror, I find Diaz is not pertinent to the underlying issues in this case. Diaz involved two defendants who were charged with numerous offenses, including thirty-two counts of healthcare fraud. Id. at *1. The government sought the expert testimony of a registered nurse practitioner who analyzed a sample of claims packets taken from more than 400 boxes of records from the defendants’ billing company and identified categories in the records which she believed contained fraudulent characteristics. Id. at *2. Hence, the nurse's expert testimony was needed to cull through thousands of pages of records and explain the medical billing codes as it related to the defendants' records and the charges of fraud against the defendants. Id. at *6. In contrast, Ms. Pacha’s testimony as a medical billing and coding expert merely would have shown that the billing records did not match and would not assist the jury in understanding the facts of the case.


author: THOMAS, J.

text:
    Pedro A. URQUIZA, Appellant, v. DON GREENE POULTRY, INC. and Commerce & Industry Insurance Company and Chartis Claims, Inc., Appellees.
    No. 1D11-3300.
    District Court of Appeal of Florida, First District.
    Feb. 14, 2012.
    Kimberly A. Hill of Kimberly A. Hill, P.L., Fort Lauderdale, for Appellant.
    Kimberly J. Fernandes of Kelley,. Kro-nenberg, Gilmartin, Fichtel, Wander, Bam-das, Eskalyo & Dunbrack, P.A., Tallahassee, for Appellees.
   THOMAS, J.

In this workers’ compensation appeal, Claimant argues the Judge of Compensation Claims (JCC) erred in denying his claims for a limited period of temporary total disability (TTD) benefits and authorization for a second series of cervical epidural steroid injections, as well as penalties, interest, costs, and attorney’s fees. We find that the JCC did not err in denying the requested medical benefits, and we affirm that point without further comment. We agree that the JCC erred in denying the claimed indemnity benefits, and reverse that denial.

Background

As a result of Claimant’s compensable physical injuries, he began experiencing psychiatric difficulties, and the Employer/Carrier (E/C) authorized psychiatric treatment through Compass Health Systems. Claimant was first seen by Dr. Gomez, who opined that Claimant was in a no-work status. Dr. Gomez remained of that opinion until he left the employ of Compass Health in the summer of 2010. Dr. Conde then took over Claimant’s care, and agreed with Dr. Gomez’s assessment of Claimant’s work status, specifically during the period in question — September 15, 2010, through November 23, 2010. The adjuster testified that she never received any medical records from Compass Health changing Claimant’s work status from no-work to light duty.

Nevertheless, on the basis of a conference between Dr. Gomez and the E/C’s attorney, which took place after Dr. Gomez last saw Claimant, the E/C reclassified Claimant’s work status from TTD to temporary partial disability from September 15 through November 23, 2010. The discussion which allegedly took place during this conference, including the suggestion that Claimant could try to return to work part-time, was memorialized in a letter from the E/C’s attorney to Dr. Gomez, which, in turn, was allegedly signed off by Dr. Gomez. Claimant objected to the admission of this letter into evidence, arguing it was not authenticated and it was impermissible hearsay. The JCC sustained Claimant’s objection, and the letter was not admitted into evidence. The E/C does not challenge the letter’s exclusion on appeal. Nonetheless, the JCC, apparently relying on the suggestion included in the letter that Claimant could return to work, engaged in an analysis of Claimant’s credibility on the question of whether he was informed he could seek to re-enter the workforce. Based on this analysis, the JCC found Claimant was not credible, implicitly concluded Claimant had been informed he could return to work, and denied TTD benefits.

Analysis

Claimant’s entitlement to TTD benefits hinged on his submission of medical evidence, not lay evidence, in support of that request. See Southland Corp. v. Jones, 406 So.2d 1291, 1292 (Fla. 1st DCA 1981) (reversing JCC’s award of TTD benefits during time period claimant offered no medical evidence of total disability, only her own testimony she was unable to work). Because Claimant submitted such evidence here, the burden shifted to the E/C to submit evidence that Claimant’s work status had in fact changed from total disability to partial disability. See Campbell v. L & C Const., 869 So.2d 708, 708-09 (Fla. 1st DCA 2004) (reversing JCC’s denial of TTD benefits because no competent evidence supported change in work status). Even if evidence of a change in status is submitted, TTD benefits must be awarded if the record lacks evidence that the claimant was informed of the change in work status. See Amburgey v. Palm Beach County Sch. Bd., 712 So.2d 426, 427 (Fla. 1st DCA 1998). In such an instance, the JCC “must specifically state in the order that benefits are denied because the claimant knew or should have known that he could return to work.” Id. at 427 (citing Cocho v. Cont’l Baking, 648 So.2d 1203, 1204 (Fla. 1st DCA 1995)).

Here, it appears that the JCC may have intended to explicitly find Claimant knew he could return to work; however, the JCC need not have taken the analysis that far, given there is no record medical evidence that Claimant had been released to return to any sort of work during the period in question, September 15 through November 23, 2010. The only record evidence of Claimant’s work status during this time period was the opinion testimony of Dr. Conde, who opined Claimant was totally disabled from the time of her first assessment of Claimant in August 2010 through the last date she saw him — March 4, 2011. Thus, the record is devoid of medical evidence to support the suggestion that either Dr. Gomez, who stopped treating Claimant prior to the relevant time period, or Dr. Conde, who was the only psychiatrist to provide treatment during the relevant time period, opined that Claimant was sufficiently improved psychi-atrically to return to any sort of work, or that he was advised of the same.

Even though the JCC reiterated in the final order her finding that the letter was not admissible, her final order is inconsistent because the only support for her credibility analysis of Claimant would be the inadmissible letter. As a consequence, we hold the JCC abused her discretion in considering Claimant’s credibility when there was no medical evidence that Claimant’s work status was anything other than no-work. See Trevino v. Dep’t of Revenue, 82 So.3d 930, 2011 WL 2937374 (Fla. 1st DCA 2011) (finding JCC abused his discretion in denying medical benefits on grounds that no medical evidence supported award, where written report of doctor clearly recommended requested evaluation). Accordingly, we reverse the JCC’s denial of TTD benefits, along with the resulting penalties, interest, costs, and attorney’s fees, and we remand the matter for an award of the requested TTD benefits along with the appropriate penalties, interest, costs, and attorney’s fees.

AFFIRMED in part, REVERSED in part, and REMANDED for proceedings consistent with this opinion.

ROBERTS, and ROWE, JJ., concur.


author: CASANUEVA, Judge.

text:
    Jireh KLEPPINGER, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-481.
    District Court of Appeal of Florida, Second District.
    Feb. 15, 2012.

      Sonya M. Rudenstine, Gainesville, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Diana K. Bock, Assistant Attorney General, Tampa, for Appellee.
   CASANUEVA, Judge.

In 2006, Jireh Kleppinger moved, pursuant to Florida Rule of Criminal Procedure 3.800(a), to correct an allegedly illegal departure sentence that the trial court imposed in 1997 for crimes he committed in 1996. He argues that the sentence imposed was in violation of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004); on an alternative ground, he added an argument for similar relief based on Graham v, Florida, — U.S. -, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010). The postconviction court denied his motion. We conclude that neither Apprendi nor Blakely affords him relief but Graham does. We reverse for resentencing.

Background

In December 1996 seventeen-year-old Jireh Kleppinger escaped from jail while awaiting prosecution on minor charges. During the escape, he and a cohort severely injured a jail deputy by choking him, beating him with a fire extinguisher, then locking him in a cell. The State charged Mr. Kleppinger with (1) attempted second-degree murder of a law enforcement officer, a second-degree felony; (2) escape, a second-degree felony; (3) kidnapping of a law enforcement officer, a first-degree felony punishable by life; and (4) depriving a law enforcement officer of the means of communication, a third-degree felony. At trial, the jury found him guilty on all four counts as charged. In November 1997 the trial court departed from the guidelines by adopting the reasons put forth by the State, imposing the statutory maximum for each count, and further ordered that the four sentences be served consecutively: fifteen years in prison each for the attempted second-degree murder and escape convictions; a term of “natural life” in prison, i.e., without the possibility of release, for the kidnapping conviction; and five years in prison for the conviction of depriving the officer of his means of communication. On June 26, 2000, while his direct appeal was pending, the Supreme Court issued its Apprendi opinion. This court subsequently affirmed his convictions and sentences, remanding only for correction of two scrivener’s errors in the written judgment. Kleppinger v. State, 779 So.2d 472 (Fla. 2d DCA 2000). Mr. Kleppinger’s direct appeal was final on November 27, 2000, when the mandate issued.

The Guidelines Departure Sentence vis-á-vis Apprendi and Blakely

In his rule 3.800(a) motion, Mr. Klep-pinger does not name a particular sentence of the four he received that is illegal, only that the trial court departed from the guidelines based on the grounds suggested by the State rather than factors found by the jury beyond a reasonable doubt. Thus he claims that this was a judicial finding of departure reasons by a preponderance of the evidence in violation of Apprendi See 530 U.S. at 489-90, 120 S.Ct. 2348. In his initial brief, Mr. Kleppinger argues only a violation of Apprendi in the sentence of natural life for the kidnapping conviction. Kidnapping is a felony of the first degree punishable by life. § 787.01(l)(a)(2), Fla. Stat. (Supp.1996). He claims that Apprendi applies to his sentence because his sentence was not final when Apprendi issued. Mr. Kleppinger further argues that the Supreme Court’s subsequent clarification of Apprendi in Blakely did nothing to change the conclusion that his departure sentence is illegal under Apprendi.

In its order, the postconviction court admitted that Apprendi applied to Mr. Kleppinger’s sentences because his direct appeal was not yet final when the Supreme Court issued Apprendi. But nevertheless the postconviction court denied him relief, explaining that because the life sentence for kidnapping was within the statutory maximum, Apprendi was not violated. This is the correct conclusion. See 530 U.S. at 490, 120 S.Ct. 2348 (“Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” (emphasis added)).

We reject Mr. Kleppinger’s further argument that Blakely should be applied retroactively to afford him relief. See Boardman v. State, 69 So.3d 367 (Fla. 2d DCA 2011) (holding that a sentence that does not exceed the statutory maximum applicable to the crime does not violate Apprendi and a defendant is not entitled to the benefit of Blakely when his sentence became final before Blakely was issued). Mr. Kleppinger’s situation mirrors the defendant’s in Boardman and requires the same result, i.e., that neither Apprendi nor Blakely affords him relief on his natural life sentence for kidnapping.

The postconviction court did not err in summarily denying Mr. Kleppinger’s rule 3.800(a) motion on his asserted grounds of Apprendi and Blakely.

The “Natural Life” Sentence for Kidnapping

We initially affirmed the postconviction court’s denial without a written opinion. But, for reasons not relevant here, we recalled the mandate in the instant appeal and allowed supplemental briefing to address the applicability of Graham, — U.S. -, 130 S.Ct. 2011, 176 L.Ed.2d 825. In his supplemental brief, Mr. Kleppinger argues that Graham entitles him relief from the sentence he received for his kidnapping conviction, a term of “natural life.” Mr. Kleppinger’s argument on this point has merit.

In Graham, the Supreme Court held that the Eighth Amendment to the United States Constitution prohibits imposition of a life without parole sentence on a juvenile offender who did not commit a homicide and that the State must give a juvenile nonhomicide offender sentenced to life without parole a meaningful opportunity to obtain release. Id. at 2030, 2032-33; see also Manuel v. State, 48 So.3d 94, 96-97 (Fla. 2d DCA 2010). At the time Mr. Kleppinger kidnapped the jail deputy, he was a juvenile, the kidnapping crime was not a homicide, and the trial court sentenced him to a term of natural life for the kidnapping conviction. Thus he fits squarely under the rubric of Graham and Manuel and his sentence for the kidnapping conviction constitutes a violation of the Eighth Amendment.

Conclusion

The postconviction court correctly denied relief grounded upon Apprendi and Blakely. However, Mr. Kleppinger’s life sentence was rendered unconstitutional by the decision in Graham. Accordingly, we vacate his life sentence and remand for resentencing on the kidnapping count only. Because resentencing is “a de novo proceeding in which the decisional law effective at the time of resentencing applies,” Mr. Kleppinger’s new sentence must comport not only with Graham, but also with Apprendi and Blakely. State v. Fleming, 61 So.3d 399, 400 (Fla.2011).

Reversed and remanded for resentenc-ing in accordance with this opinion.

KELLY and CRENSHAW, JJ., Concur.


text:
    Celio Sergio CASTRO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-1569.
    District Court of Appeal of Florida, Third District.
    Feb. 15, 2012.
    Rehearing Denied March 9, 2012.

      Celio Sergio Castro, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before RAMIREZ, SUAREZ and ROTHENBERG, JJ.
   ROTHENBERG, J.

The defendant, Celio Sergio Castro, appeals the trial court’s order denying his motions for postconviction relief. We affirm.

The defendant was charged with nine counts of sexual battery on his three minor stepchildren T.A., K.J., and J.F. Defense counsel filed, and the trial court granted, a motion to sever the charges and to try the allegations related to each victim separately. This ruling resulted in a jury trial commencing on May 7, 2007, as to T.A. (counts one, two, and three), wherein the defendant was found guilty as charged. This Court affirmed the judgments and convictions on these counts under appellate case number 3D07-1458 on December 8, 2008, Castro v. State, 995 So.2d 974 (Fla. 3d DCA 2008), and mandate issued on December 19, 2008. A second trial commenced in September of 2007, on counts four and six as to K.J., wherein the defendant was convicted as charged. This Court affirmed those convictions on April 8, 2009, under appellate case number 3D08-365, Castro v. State, 6 So.3d 616 (Fla. 3d DCA 2009), and mandate issued on April 24, 2009.

The defendant filed two separate motions for postconviction relief on April 20, 2011. On April 28, 2011, the trial court denied both motions, finding that: (1) the motion for postconviction relief as to the charges relating to T.A. was untimely; and (2) the motion for postconviction relief as to the charges relating to K.J. was without merit.

As the charges under appellate ease number 3D07-1458 were affirmed and mandate was issued on December 19, 2008, and the defendant did not file his motion for postconviction relief until April 20, 2011, it is clear that the trial court correctly denied the motion as untimely filed. Thomas v. State, 793 So.2d 1149, 1149 (Fla. 3d DCA 2001) (holding that when defendant files direct appeal, “the two-year limitation period within which to file a post-conviction motion does not begin to run until the appellate court issues its mandate on the direct appeal”). We therefore affirm that portion of the trial court’s order without further comment.

We now address the trial court’s ruling as to the charges relating to K.J. in appellate case number 3D08-365. The defendant claims that trial counsel provided ineffective assistance of counsel by not adequately investigating the claim that he penetrated K.J.’s vagina with his penis where: (1) the alleged sexual batteries occurred upon K.J. from age five until age eight; (2) the State alleged the defendant penetrated KJ.’s vagina with his penis; (3) K.J. testified the defendant did not penetrate her vagina with his penis; (4) and the defendant’s “penis was too large to have penetrated a child’s vagina.” We agree with the trial court that these claims are without merit.

First, the State charged that between July 14, 1976, and July 14, 1979, the defendant penetrated or had union with K.J.’s vagina with his penis (count four), and penetrated or had union with KJ.’s mouth with his penis (count six). Thus, only count four pertains to the defendant’s claim, and count four alleges in the alternative penetration or union with K.J.’s vagina.

The evidence presented at trial regarding count four was as to “union with,” not penetration. K.J. testified that the defendant began to touch her beginning at age five. K.J. explained the defendant would take her into his bedroom when no one else was home, lay her down on the floor, take off her underwear, and would attempt to penetrate her vagina with his penis. However, when he was unable to do so, he forced her to perform oral sex on him until he ejaculated. K.J. testified that the defendant’s sexual assaults upon her also occurred on the defendant’s fishing boat, where he would lock K.J. in a room, undress her, and try to penetrate her. When he could not penetrate her, he forced her to perform oral sex on him until he ejaculated. She testified that when the defendant tried to penetrate her it hurt, but she did not bleed or suffer any injuries. The evidence, therefore, clearly supported a finding that the defendant’s penis had union with K.J.’s vagina.

Also, contrary to the defendant’s claim of ineffective assistance of counsel for failing to examine the size of the defendant’s penis to establish the impossibility of penetration or penetration without injury, such an examination and claim if true, would only have supported KJ.’s testimony that, despite the defendant’s repeated attempts to penetrate her vagina with his penis, he was unable to do so. Accordingly, we agree with the trial court that the defendant’s claims as to this victim were without merit.

Affirmed.


text:
    Jerson DIAZ-MURIELL, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-116.
    District Court of Appeal of Florida, Third District.
    Feb. 15, 2012.
    Jerson Diaz-Muriell, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before CORTIÑAS, LAGOA, and EMAS, JJ.
   PER CURIAM.

Affirmed. See Adams v. State, 76 So.3d 367 (Fla. 3d DCA 2011) (holding that section 893.13, as amended by section 893.101, Florida Statutes (2002), is constitutional); see also Little v. State, 77 So.3d 722 (Fla. 3d DCA 2011) (same).


text:
    Milo WHITEHEAD, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-66.
    District Court of Appeal of Florida, Third District.
    Feb. 15, 2012.

      Before WELLS, C.J., and FERNANDEZ, J., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Little v. State, 77 So.3d 722 (Fla. 3d DCA 2011).


text:
    Shadrick CRUMP, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-38.
    District Court of Appeal of Florida, Third District.
    Feb. 15, 2012.
    Shadrick Crump, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before CORTIÑAS, LAGOA, and EMAS, JJ.
   PER CURIAM.

Affirmed. See Adams v. State, 76 So.3d 367 (Fla. 3d DCA 2011) (holding that section 893.13, as amended by section 893.101, Florida Statutes (2002), is constitutional); see also Little v. State, 77 So.3d 722 (Fla. 3d DCA 2011) (same).


text:
    Marc D. BEAUMONT, Appellant, v. BANK OF NEW YORK MELLON, etc., Appellee.
    No. 5D10-3471.
    District Court of Appeal of Florida, Fifth District.
    Feb. 17, 2012.

      Marc D. Beaumont, Port Orange, pro se.
    Todd A. Armbruster of Moskowitz, Man-dell, Salim & Simowitz, P.A., Fort Lauder-dale, for Appellee.
   PER CURIAM.

Marc D. Beaumont appeals a final summary judgment entered by the trial court on a claim to foreclose a residential mortgage and recover on a promissory note executed in connection with the mortgage. We reverse.

The final summary judgment in this case was entered in favor of Novastar Home Mortgage, Inc. (“Novastar”), a non-party to the suit because of its prior withdrawal from the case. It is fundamental error to enter judgment in favor of a non-party. Beseau v. Bhalani, 904 So.2d 641 (Fla. 5th DCA 2005); Rustom v. Sparling, 685 So.2d 90 (Fla. 4th DCA 1997). The defect, which is jurisdictional, can be raised by this Court sua sponte. Dep’t of Envtl. Prot. v. Garcia, — So.3d -, 2011 WL 3300540 (Fla. 3d DCA 2011).

The judgment would also have to be reversed even if entered in favor of appellee, The Bank of New York Mellon, as Successor Trustee Under Novastar Mortgage Funding Trust 2005-3 (“Mellon”). Mellon sought in the complaint to reestablish the note and recover on it. See § 673.3091, Fla. Stat. (2010). This required Mellon to show it was entitled to enforce the note when it lost the instrument, or that it directly or indirectly acquired ownership from a person who was entitled to enforce the instrument when loss of possession occurred. § 673.3091(1), Fla. Stat. Mellon failed to prove who lost the note and when it was lost, offered no proof of anyone’s right to enforce the note when it was lost, and produced no evidence of ownership, due to the transfer from Novastar to Mellon. See Duke v. HSBC Mortg. Servs., LLC, 79 So.3d 778 (Fla. 4th DCA 2011). The trial court was also required to address the issue of providing adequate protection to Beaumont against loss that might occur by reason of a claim by another person to enforce the instrument. § 673.3091(2), Fla. Stat. If Mellon has, in fact, found the note, it must produce it prior to judgment. Gee v. U.S. Bank Nat’l Ass’n, 72 So.3d 211, 212 (Fla. 5th DCA 2011); Perry v. Fairbanks Capital Corp., 888 So.2d 725, 726 (Fla. 5th DCA 2004); see also Feltus v. U.S. Bank Nat’l Ass’n, 80 So.3d 375 (Fla. 2d DCA 2012).

Mellon also argues that Beaumont has waived the lack of “standing” to enforce the note because of the failure to assert this as an affirmative defense. Generally, the failure to raise standing as an affirmative defense operates as a waiver. Kissman v. Panizzi, 891 So.2d 1147, 1150 (Fla. 4th DCA 2005) (holding lack of standing is an affirmative defense that must be raised by defendant and failure to raise it generally results in waiver). Standing involves the right to enforce the note and must exist when suit is filed. See, e.g., McLean v. JP Morgan Chase Bank Nat’l Ass’n, 36 Fla. L. Weekly D2728 (Fla. 4th DCA Dec. 14, 2011); Taylor v. Deutsche Bank Nat’l Trust Co., 44 So.3d 618 (Fla. 5th DCA 2010). There is no evidence showing that Beaumont was on notice prior to the time his answer was filed that ownership of the note had been transferred from Novastar to Mellon. In fact, the claimed transfer, alleged to have occurred on the day suit was filed, was either concealed by Novastar for more than three years while it continued to pursue the action, or Novastar backdated the assignment it finally produced on July 23, 2010, as justification for substituting Mellon as plaintiff. Under these circumstances, Beaumont may raise lack of standing when suit was filed as a defense. See Boston Hides & Furs, Ltd. v. Sumitomo Bank, Ltd., 870 F.Supp. 1153, 1161 n. 6 (D.Mass.1994) (holding banks were not precluded from raising affirmative defense of fraud for first time on summary judgment in action alleging wrongful dishonor of letter of credit, where banks did not discover information suggesting fraud until almost one year of discovery). Furthermore, Mellon must prove its right to enforce the note as of the time the summary judgment is entered, even if Beaumont had waived the right to challenge the bank’s standing as of the date suit was filed. Venture Holdings & Acquis. Group, LLC v. A.I.M. Funding Group, LLC, 75 So.3d 773 (Fla. 4th DCA 2011). Its failure to do so would require this Court to reverse the summary judgment entered on the note and mortgage, even if judgment had been entered in favor of Mellon.

REVERSED.

TORPY, PALMER and COHEN, JJ., concur.

      . A negotiable instrument is enforceable by: (1) the holder of the instrument, (2) a non-holder in possession who has the rights of a holder, or (3) a person not in possession of the instrument who is entitled to reestablish a lost, destroyed or stolen instrument pursuant to section 673.3091, or who has paid or accepted a draft by mistake as described in section 673.4181. § 673.3011, Fla. Stat.

      . The record contains a copy of an assignment of the note from Novastar to Mellon, but the document was never offered into "evidence,” by being attached to an affidavit for purposes of authentification. As such, it is not competent evidence of the assignment and cannot be considered in ruling on Mellon’s motion. See, e.g., Morrison v. U.S. Bank, N.A., 66 So.3d 387, 387 (Fla. 5th DCA 2011) (reversing summary judgment of foreclosure where defendant asserted she had not received a notice of default as required by mortgage, and bank had simply filed an unauthenticated notice letter).


author: SUAREZ, J.

text:
    Rafael Jack ZARATE, Appellant, v. DEUTSCHE BANK NATIONAL TRUST CO. AS TRUSTEE, Appellee.
    No. 3D11-1454.
    District Court of Appeal of Florida, Third District.
    Feb. 22, 2012.
    Morris duPont, and J. Wil Morris, for appellant.
    Law Offices of Marshall C. Watson, and Robert R. Edwards, Fort Lauderdale, for appellee.
    Before SUAREZ, CORTINAS, and FERNANDEZ, JJ.
   SUAREZ, J.

Rafael Jack Zarate [“Zarate”], defendant below, appeals from the trial court’s denial, without prejudice, of his motion for relief from judgment and/or rehearing of the plaintiffs, Deutsche Bank National Trust Co., as Trustee [“Deutsche Bank”], motion for summary judgment in this residential foreclosure action. We affirm.

In 2005, Zarate executed and delivered a promissory note and mortgage to Wilmington Finance, a division of AIG Federal Savings Bank. The mortgage was recorded in Miami-Dade County. Deutsche Bank now holds the note and mortgage. In December 2006, Zarate defaulted, and in March 2007, Deutsche Bank filed to foreclose. In April 2007, Deutsche Bank moved for summary final judgment, and in May 2007, having received no response from the defendant, Deutsche Bank moved for default judgment. In September 2007, the circuit court issued a final judgment of mortgage foreclosure. On November 28, 2007, Zarate filed a suggestion of bankruptcy, and the sale scheduled for the following day was stayed. The sale of the property was eventually reset to March 2008, again to July 2009, and yet again to September 2010.

On September 13, 2010, Zarate’s emergency motion to cancel the sale was denied. Zarate attempted to re-negotiate the loan, but to no avail. The property was sold to Deutsche Bank on September 14, 2010, and Deutsche Bank took title; the Certificate of Title recites that “no objections to the sale have been filed within the time allowed for filing objections.” In November 2010, the trial court denied Zarate’s objection to sale and motion to mediate. In May 2011 the trial court denied, without prejudice, Zarate’s motion for relief from judgment and/or rehearing on Deutsche Bank’s motion for summary judgment. As indicated in the record, and pointed out by Deutsche Bank, Za-rate’s May 3, 2011, motion for relief from judgment (which judgment was entered in September 2007) and/or rehearing of Deutsche Bank’s motion for summary judgment (filed August 2007) is three years and seven months late.

Zarate argues that Deutsche Bank’s pleadings are not “well-pled” but he fails to identify any deficiency in those pleadings. Zarate argues that the affidavit attached to Deutsche Bank’s motion for summary judgment is legally insufficient to support the judgment. The attorney who prepared the affidavit stated that she based her affidavit on a review of the business records of the action, rather than on “personal knowledge.” The only attachment is the original mortgage and note. Zarate argues that sworn, certified copies of the business records should have been attached. An appellant has the burden to present a record that will overcome the presumption of the correctness of the trial court’s findings. Dade Cnty. Bd. of Pub. Instruction v. Foster, 307 So.2d 502 (Fla. 3d DCA 1975). The record here, however, contains no transcript of the summary judgment hearing at which such issues should have and could have been raised. As a result, we do not know if Zarate argued these concerns at the hearing, or if any objection was made to the court’s consideration of the issues. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979) (affirming because the record brought forward by the appellant was inadequate to demonstrate reversible error). Where there is no record of the testimony of witnesses or of evidentiary rulings, and where a statement of the record has not been prepared pursuant to Florida Rule of Appellate Procedure 9.200(a)(3) or (b)(3), a judgment which is not fundamentally erroneous on its face must be affirmed. Ahmed v. Travelers Indem. Co., 516 So.2d 40, 40 (Fla. 3d DCA 1987). Here, in the absence of a record of the summary judgment hearing, we must assume that the trial court’s order was correctly decided.

The record is devoid of any evidence to contradict the appropriateness of foreclosure, and we thus affirm the trial court’s denial of relief from judgment both on legal insufficiency of the appellant’s arguments and the fact that he is procedurally barred from challenging a three-year-old judgment.

Affirmed.

      . Mortgage Electronic Registration Systems, Inc. (MERS) was the mortgagee listed in the Note.

      . Zarate filed the bankruptcy action two months after the final judgment of mortgage foreclosure issued. The bankruptcy filing only acted to stay the first scheduled sale of the property because on January 29, 2008, the United States Bankruptcy Court dismissed Zarate’s case for failure to make pre-confir-mation plan payments and for failure to appear at the section 341 Meeting of Creditors.

      . There is no record or transcript of the hearing.

      . Zarate did not answer the Complaint, did not respond to the motion or raise any defenses to it; he did not file any papers or affidavits in opposition to the motion, and only now asserts defenses that should have been brought at the time.


text:
    Robert DOLAN, Appellant, v. Kim DOLAN, a/k/a Kim D. Ferguson, Appellee.
    No. 3D11-36.
    District Court of Appeal of Florida, Third District.
    Feb. 22, 2012.
    Hutchison & Tubiana, and David G. Hutchison and Vincent J. Tubiana, Key Largo, for appellant.
    Rosenthal Rosenthal Rasco Kaplan, and Liliana Loebl and Daniel Kaplan, Aventu-ra, for appellee.

      Before RAMIREZ, SUAREZ, and ROTHENBERG, JJ.
   SUAREZ, J.

Robert Dolan, former husband, appeals from a final order granting the former wife, Kim Dolan’s (Ferguson), motion to dismiss for lack of service of process, and dismissing with prejudice the former husband’s second verified petition to modify the Final Judgment. We reverse.

The record shows that in March 2009, the former husband filed his second verified petition to modify the Final Judgment regarding his child support obligations. In September 2009, the former wife responded to the petition with a motion to dismiss. In that motion, the former wife addressed the merits of the issues raised in the former husband’s petition; she did not raise insufficiency of notice and service of process. The trial court denied her motion. One year later, in September 2010, the former wife again moved to dismiss the 2009 petition. This time she argued, among other procedural issues, that the former husband failed to serve her with the second verified petition. The former husband asked that he be allowed to amend his petition. The trial court denied the wife’s motion to dismiss and in November 2010, heard arguments from both parties.

The former wife argued to dismiss the petition on grounds that the former husband failed to serve her with the second amended petition; the former husband asked that he be allowed to amend the petition. The court, over the wife’s objection, allowed him to amend, and gave him five working days to personally serve the second verified petition on the wife. He was unable to do so at the wife’s residence, place of business, or with her attorney; the process server noted that the former wife was likely attempting to avoid service. After the time expired for service, the trial court subsequently granted the former wife’s motion to dismiss for lack of service of process, and dismissed the former husband’s second petition to amend the Final Judgment with prejudice.

We reverse the order below because the former wife waived the service of process issue when she filed her 2009 motion to dismiss the former husband’s petition to amend for failure to state a claim. She did not raise the insufficiency of process issue until a year later when, after retaining counsel, she filed a second motion to dismiss. That second motion led to the erroneous dismissal with prejudice in this case.

If not raised in a responsive pleading or by motion filed by a party, an objection to improper service of process is waived. Fla. R. Civ. P. 1.140(b), (h)(1); see Brivis Enters., Inc. v. Von Plinski, 976 So.2d 1244, 1244 (Fla. 3d DCA 2008) (failure to assert defense of insufficient service of process at inception waives that defense); Caldwell v. Caldwell, 921 So.2d 759, 760 (Fla. 1st DCA 2006) (concluding that entering a general appearance following default without raising sufficiency of service of process or lack of personal jurisdiction constituted a waiver); Solmo v. Friedman, 909 So.2d 560, 564 (Fla. 4th DCA 2005) (holding that active participation in a proceeding waives issues regarding service of process defense and constitutes submission to a court’s jurisdiction); Berne v. Beznos, 819 So.2d 235, 238 (Fla. 3d DCA 2002) (finding that pleading to the merits without objecting to service of process or lack of personal jurisdiction waives those defenses); Parra v. Raskin, 647 So.2d 1010, 1011 (Fla. 3d DCA 1994) (stating that failure to raise the insufficient service of process defense at the inception of a case, in either a motion or responsive pleading, constitutes a waiver of that defense). It is not disputed that the former wife was served in 2009 with the former husband’s amended petition and that she responded to it by filing a motion to dismiss for failure to state a cause of action. It is also not disputed that she did not raise the issue of insufficiency of service of process in that motion. The former wife, therefore, waived that issue by failing to raise it in her first motion to dismiss. Her subsequent motion to dismiss was filed a year later and cannot resurrect the issue. We do not see any basis in this record for the trial court’s November 2010, order requiring the former husband to serve an amended petition and, due to his inability to do so, dismissing his complaint with prejudice for failure to comply. Service had been waived one year prior.

Contrary to the former wife’s other arguments on appeal, Mr. Dolan did not need to file a motion for rehearing to preserve the service issue on appeal. Such findings are not a prerequisite to appeal unless the appellant is challenging whether the trial court made sufficient findings of fact. See Broadfoot v. Broadfoot, 791 So.2d 584, 585 (Fla. 3d DCA 2001); Alpha v. Alpha, 885 So.2d 1023, 1027 (Fla. 5th DCA 2004). This is not this case here. Because the former wife waived the issue of sufficiency of process and submitted herself to the court’s jurisdiction in 2009, we reverse the trial court’s order dismissing the former husband’s second amended petition with prejudice and remand for further proceedings.

Reversed and remanded.

      . Rule 1.140. Defenses, (b) How Presented. Every defense in law or fact to a claim for relief in a pleading shall be asserted in the responsive pleading, if one is required, but the following defenses may be made by motion at the option of the pleader: ... (5) insufficiency of service of process ... A motion making any of these defenses shall be made before pleading if a further pleading is permitted. The grounds on which any of the enumerated defenses are based and the substantial matters of law intended to be argued shall be stated specifically and with particularity in the responsive pleading or motion. Any ground not stated shall be deemed to be waived except any ground showing that the court lacks jurisdiction of the subject matter may be made at any time....

      (h) Waiver of Defenses.
      (1) A party waives all defenses and objections that the party does not present either by motion under subdivisions (b), (e), or (f) of this rule or, if the party has made no motion, in a responsive pleading except as provided in subdivision (h)(2).

        See also Comm. Notes to R. 1.140(h).


author: SCHWARTZ, Senior Judge.

text:
    Charles MANETTA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-2901.
    District Court of Appeal of Florida, Third District.
    Feb. 22, 2012.
    Rehearing Denied March 23, 2012.

      Carlos J. Martinez, Public Defender, and Manuel Alvarez, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Michael W. Mervine, Assistant Attorney General, for appellee.
    Before WELLS, C.J., FERNANDEZ, J. and SCHWARTZ, Senior Judge.
   SCHWARTZ, Senior Judge.

The defendant appeals convictions and sentences for two counts of lewd and lascivious molestation of a child twelve to sixteen years of age under Section 800.4(5)(c)(2), Florida Statutes, (Counts I and II), and one count of lewd and lascivious molestation of a child less than twelve years old (Count IV)- The victim alleged in Counts I and II was a thirteen-year-old friend of his daughter who was a guest in the defendant’s home; the one in Count IV was the daughter, who was eight years old.

I.

The first issue presented claims the right to a mistrial, continuance, and a new trial on all counts because, after the State’s case, in which the defendant’s daughter had been the primary witness against him, it was first revealed by the prosecution that she had made unresolved similar accusations against three other persons. We reject this argument both because (1) inasmuch as appellant failed to secure a specific ruling on the issue, the point was not properly preserved, see LeRetilley v. Harris, 354 So.2d 1213 (Fla. 4th DCA 1978), and (2) more importantly, under Pantoja v. State, 59 So.3d 1092, 1100 (Fla.2011), in which the supreme court held that in the absence of an adverse adjudication on these claims, which did not occur here, mere accusations of similar abuse against others by a State witness were inadmissible, the argument was unavailing on its merits.

II.

We do agree with Manetta that double jeopardy bars the entry of two judgments and sentences on Counts I and II. This is because Counts I and II were identical in every respect; and thus did not so much as allege separate acts which might form the basis of separate judgments even if it were permitted under the law. See Partch v. State, 43 So.3d 758, 761-62 (Fla. 1st DCA 2010) (applying double jeopardy where “neither the charging information nor the jury verdict form included language clearly predicating the dispute charges on two distinct acts. The ambiguous wording of the charging information and the jury verdict makes it impossible for this court to know if the jury convicted the appellant for one act of sexual battery or two distinct acts”). There can be no question that two convictions for the same crime constitute a violation of the constitutional guarantee against double jeopardy in its starkest form. See Lippman v. State, 633 So.2d 1061 (Fla.1994).

Accordingly, the judgments and sentences as to Counts I and IV are affirmed; the judgment and sentence as to Count II are vacated.

Affirmed in part; vacated in part.

      . Mr. Manetta was found not guilty as to Count III, which concerned another eleven-year-old girl.

      . Both Count I and Count II state: “Charles A. Manetta, on or about September 09, 2005, in the County and State aforesaid, being a person of the age of (18) years or older, did unlawfully and intentionally touch the breasts, genitals, genital area, or buttocks, or the clothing covering the breasts, genitals, genital area, or buttocks, of D.M.(a minor), a person 12 years of age or older, but less than 16 years of age, in violation of s.800.04(5)(c)2, Fla. Stat., contrary to the form of the Statute in such cases made and provided, and against the peace and dignity of the State of Florida.”

      . We do not reach the issue debated by the parties as to the applicability of State v. Meshell, 2 So.3d 132 (Fla.2009), which permits multiple charges alleging separate, but closely related acts of sexual abuse under section 800.4(l)(a), Florida Statute, to the present prosecutions under section 800.4(5)(c). But cf. Brown v. State, 25 So.3d 78 (Fla. 2d DCA 2009); J.M. v. State, 4 So.3d 703 (Fla. 5th DCA 2009); Cabanela v. State, 871 So.2d 279 (Fla. 3d DCA 2004).


text:
    Ernesto FONG and Carmita Sanchez Fong, Appellants, v. COURVOISIER COURTS CONDOMINIUM, etc., Appellee.
    No. 3D11-2682.
    District Court of Appeal of Florida, Third District.
    Feb. 22, 2012.
    Rehearing Denied March 22, 2012.

      J. Elizabeth Graddy, Atlanta, Georgia, for appellants.
    Weiss Serota Helfman Pastoriza Cole & Boniske, and Gary L. Brown, Fort Lauder-dale, and Edward G. Guedes, Miami, and Joanna D. Thomson, Fort Lauderdale, for appellee.
    Before ROTHENBERG, EMAS and FERNANDEZ, JJ.
   ROTHENBERG, J.

On March 4, 2010, Courvoisier Courts Condominium Association, Inc. (“the Association”) sought and obtained an “emergency ex parte temporary injunction” regarding the use of certain property owned by Ernesto Fong and Carmita Sanchez Fong (“the Fongs”), who are the appellants in this appeal. Five days later, on March 9, 2010, with notice to the Fongs, the trial court conducted a hearing to determine whether the temporary injunction granted on March 4, 2010, should remain in place. The Fongs, who were represented by counsel, presented evidence and argument at this hearing. The trial court extended the temporary injunction, and the Fongs did not appeal that ruling. Over a year later, the Fongs filed a motion to dissolve the temporary injunction. After conducting a hearing on August 10, and August 31, 2011, the trial court denied the motion to dissolve the temporary injunction.

We agree with the Fongs that the trial court abused its discretion in granting the temporary injunction. The record reflects that the Association failed to demonstrate irreparable harm will result if the temporary injunction is not entered, an adequate remedy at law is unavailable, a substantial likelihood of success on the merits, and the threatened injury to the Association outweighed the obvious harm to the Fongs and their tenant. See Cordis Corp. v. Prooslin, 482 So.2d 486, 489-90 (Fla. 3d DCA 1986). However, we are compelled to affirm the order denying the Fongs motion to dissolve the temporary injunction because: (1) the grounds raised relate to the procedure and the sufficiency of the evidence regarding the granting of the underlying injunction; (2) the Fongs did not appeal the orders granting the temporary injunction, issued following the March 4, and March 9, 2010, proceedings; (3) the standard regarding a motion to dissolve a temporary injunction, entered after notice and a hearing, required the Fongs to demonstrate a change in circumstances; and (4) the Fongs failed to meet their burden. See Cohen v. Zidon, 994 So.2d 1163, 1164-65 (Fla. 3d DCA 2008) (“When a trial court issues a temporary injunction after the parties receive notice and a hearing is conducted, a party seeking review of the propriety of the injunction should file a direct appeal.”) (emphasis in original); Thomas v. Osier Med., Inc., 963 So.2d 896, 899 (Fla. 5th DCA 2007) (“When a motion to dissolve is directed to a temporary injunction entered after notice and a hearing, the moving party must establish that a change in conditions justifies the dissolution.”); Spaulding v. Estate of Frey, 666 So.2d 935, 936-37 (Fla. 5th DCA 1995) (“It is now too late to raise arguments that should have been raised at the contested hearing on [petitioner’s] motion for temporary injunction or in a direct appeal from the order granting the motion for a temporary injunction.”).

Affirmed.


text:
    John F. TOMASIC, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D11-3309.
    District Court of Appeal of Florida, Third District.
    Feb. 22, 2012.
    John F. Tomasic, in proper person.
    Pamela Jo Bondi, Attorney General, for respondent.
    Before SHEPHERD, CORTIÑAS, and LAGOA, JJ.
   PER CURIAM.

Petitioner John F. Tomasic seeks a writ of prohibition directed to the county court to disqualify the trial judge, the state attorney, and an assistant state attorney from proceeding in the currently pending prosecution of criminal charges against him in the county court. The petitioner has been charged with a misdemeanor offense and with violation of probation. “Prohibition is an extraordinary writ by which a superior court may prevent an inferior court or tribunal, over which it has appellate and supervisory jurisdiction, from acting outside its jurisdiction.” Mandico v. Taos Constr., Inc., 605 So.2d 850, 853 (Fla.1992). Here, the circuit court has appellate jurisdiction over the county court, and therefore, this Court is without jurisdiction to entertain the petition for writ of prohibition. See Fla.R.App. P. 9.030(c); Lane v. State, 970 So.2d 422 (Fla. 3d DCA 2007) (holding that jurisdiction of a petition for writ of prohibition directed to the county court lies in the circuit court, appellate division); Clanton v. Mapp, 559 So.2d 656 (Fla. 3d DCA 1990) (same); Dupont v. Hershey, 576 So.2d 442 (Fla. 4th DCA 1991) (same). Accordingly, we dismiss the petition without prejudice to petitioner seeking disqualification, if appropriate, in the county court. See Guetzloe v. State, 18 So.3d 528 (Fla.2009) (table); Harris v. State, 54 So.3d 497 (Fla. 2d DCA 2011) (table); see also Sutton v. State, 975 So.2d 1073, 1076 (Fla.2008) (“[Prohibition is ... clearly recognized as the proper avenue for immediate review of whether a motion to disqualify a trial judge has been correctly denied.”).

Petition dismissed.


text:
    Markette McNEAL, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-525.
    District Court of Appeal of Florida, Third District.
    Feb. 22, 2012.

      Markette McNeal, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before RAMIREZ, SHEPHERD, and SUAREZ, JJ.
   SUAREZ, J.

Affirmed. See Moody v. Daggett, 429 U.S. 78, 97 S.Ct. 274, 50 L.Ed.2d 236 (1976).


text:
    Omar HABER, Appellant, v. DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee For The Benefit Of The Certificate Holders For Argent Securities, Inc., Asset-Backed Pass-Through Certificates, Series 2006-W2, Appellee.
    No. 4D10-4458.
    District Court of Appeal of Florida, Fourth District.
    Feb. 22, 2012.
    Lionel Barnet of the Law Offices of Lionel Barnet, P.A., Miami, for appellant.
    Debra Rescigno of Robertson, Anschutz & Schneid, P.L., Boca Raton, for appellee.
   PER CURIAM.

Omar Haber appeals the trial court’s entry of a final summary judgment of foreclosure in favor of Deutsche Bank National Trust Company (the bank). He argues that summary judgment was improper because the bank lacked standing to file the foreclosure suit and failed to refute his affirmative defense that the bank did not provide him with the requisite notice and opportunity to cure required by the mortgage agreement. We affirm as to the standing issue without discussion, but we reverse the final summary judgment because the bank failed to refute appellant’s affirmative defense regarding notice and opportunity to cure.

The mortgage agreement states, in pertinent part:

Lender shall give notice to Borrower prior to acceleration following Borrower’s breach of any covenant or agreement in this Security Instrument ... The notice shall specify: (a) the default; (b) the action required to cure the default; (c) a date, not less than 30 days from the date the notice is given to Borrower, by which the default must be cured; and (d) that failure to cure the default on or before the date specified in the notice may result in acceleration of the sums secured by this Security Instrument, foreclosure by judicial proceeding and sale of the Property.

There is no evidence within the record showing that the bank provided appellant with the requisite notice and opportunity to cure.

An order granting summary judgment is reviewed de novo. Allenby & Assocs., Inc. v. Crown St. Vincent Ltd., 8 So.3d 1211, 1213 (Fla. 4th DCA 2009) (citation omitted). In order to be entitled to summary judgment, a mortgagee must refute all of the affirmative defenses of the mortgagor or show that they are legally insufficient. Woodrum v. Wells Fargo Mortg. Bank, N.A., 73 So.3d 873, 874 (Fla. 4th DCA 2011) (citing Frost v. Regions Bank, 15 So.3d 905 (Fla. 4th DCA 2009)). Because the bank failed to show that it provided appellant with the requisite notice and opportunity to cure, it was not entitled to a final summary judgment of foreclosure.

Affirmed in part, Reversed in part and Remanded.

TAYLOR, GERBER and LEVINE, JJ., concur.


text:
    Charlotte TAYLOR, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 4D10-4105.
    District Court of Appeal of Florida, Fourth District.
    Feb. 22, 2012.

      Charlotte Taylor, Lake Worth, pro se.
    Marjorie S. Desporte, West Palm Beach, for appellee.
   PER CURIAM.

This appeal stems from the appellant, Charlotte Taylor, challenging decisions made by the appellee, Department of Children and Families, regarding her claims for Sun Cap benefits eligibility and food stamp benefit recovery. Because Taylor’s claims were improperly dismissed by the hearing officer, we reverse.

The Department and Taylor were scheduled to appear for two hearings before a hearing officer on May 27, 2009, to address her Sun Cap eligibility and food stamp benefit recovery claims. On May 14, 2009, Taylor filed a request for a continuance. The hearing officer entered a written order denying her request, reasoning that the statutory deadline to hold a hearing on her first claim had already expired, and an additional continuance would cause the hearing on the second claim to be beyond the time limit. The order advised that the hearings would be held as scheduled. Taylor did not appear at the hearings. Taylor’s claims were then “closed as abandoned” within the Department, though no final order was issued.

On July 16, 2010, Taylor requested a hearing on the same two claims previously scheduled to be heard on May 27th. Taylor was granted a hearing, scheduled for August 13, 2010. At the hearing, the Department made an oral motion for dismissal of Taylor’s claims, on the ground that the matters were previously abandoned. The hearing officer granted the Department’s motion on this basis. The hearing officer determined that Taylor’s remedy should have been “through judicial review” of that order and concluded that he was prohibited by administrative rules from granting a rehearing. The hearing officer also specifically declined to address the merits of Taylor’s claims.

While, generally, administrative action is upheld if supported by competent, substantial evidence, “an agency’s decision is given no deference when an agency commits an error of law.” Jerry Ulm Dodge, Inc. v. Chrysler Grp. LLC, 78 So.3d 20, 23 (Fla. 1st DCA 2011). Section 120.569(2)(l), Florida Statutes, provides that “the final order in a proceeding which affects substantial interests must be in writing and include findings of fact, if any, and conclusions of law.” Additionally, rules 65-2.066(3) and (7), Florida Administrative Code, state that all final orders “shall be in writing and include a caption, time and place of the Hearing, statement of issues, findings of fact and conclusions of law” as well as “notice of opportunity for judicial review.”

The record indicates that no final order complying with Florida Statutes and the Florida Administrative Code was issued. The order denying Taylor’s request for a continuance was not a final order as it did not contain the necessary findings or notice, and contemplated further judicial labor. See § 120.569(2)(l), Fla. Stat.; Hill v. Div. of Ret., 687 So.2d 1376, 1377 (Fla. 1st DCA 1997) (“ ‘The test to determine whether an order is final or interlocutory in nature is whether the case is disposed of by the order (quoting Prime Orlando Props., Inc. v. Dep’t of Bus. Regulation, Div. of Land Sales, Condos. & Mobile Homes, 502 So.2d 456, 459 (Fla. 1st DCA 1986)). Failure to issue a final, appealable order denied Taylor her right to appeal. See Art. I, § 21, Fla. Const. (“The courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay.”). Thus, dismissal of her claims was inappropriate and the final order is reversed.

Reversed and remanded.

POLEN, STEVENSON and TAYLOR, JJ., concur.