text:
    TRANQUIL HARBOUR DEVELOPMENT, LLC, a Limited Liability Company, Appellant/Cross Appellee, v. BBT, LLC (212 & 311); Claude Brousseau & Ann Marie Dugre (303); E & N, Inc. (103); Joseph Ferraro (211); Richard & Jane Kisel (205); Leonard Marnell (207); Jar Enterprises, LLC (105 & 108); L. Dennis Panter (107 & 206); Maria Costopolous (107); Guy & Barbara Ruvolo (106); Jeff & Dorsey Shiver (102); Judith Ann Wade (301 & 309); Tony Whitfield, Pam McClure, Teresa Carlton, Janie Schmarge, Darlene Madden, Vic George, S & S Family Properties, LLC (101); and, Bryan & Misty Morgan (210), Appellees, and Bonnie Strickland, Sylvia Lang, Nell Wooten, and Mike Nobles, Appellees/Cross Appellants.
    No. 1D11-1354.
    District Court of Appeal of Florida, First District.
    Dec. 30, 2011.
    Rehearing Denied Feb. 13, 2012.

      Douglas L. Smith and Michael J. Hau-versburk, Panama City, for Appellant/Cross Appellee.
    Charles A. Costin of Costin & Costin, Port St. Joe, for Appellees and Appel-lees/Cross Appellants.
   PER CURIAM.

This appeal and cross-appeal arise out of a consolidated action disposing of several breach-of-contract claims and counterclaims. The contracts at issue govern the construction and sale of eighteen units within the Tranquil Harbour Development in Mexico Beach, Florida. In the trial court, the purchasers contended that the developer failed to comply with a contract provision requiring the timely completion and delivery of the units, and the developer contended that the purchasers breached by refusing to close when, in fact, the units were timely completed. The trial court ruled in favor of the purchasers as to seventeen units, but in favor of the developer as to one (Unit 111). The developer appealed,-and the purchasers of Unit 111 cross-appealed. We affirm the appeal without discussion and reverse the cross-appeal.

On June 9, 2005, the developer and four purchasers entered into a subscription and purchase agreement governing the construction and closing of Unit 111. At some point, the agreement dated June 9, 2005, was changed to remove one purchaser and replace her with another person. On October 27, 2005, following a request by the new purchaser and the one who had been removed, the four original purchasers and the developer signed a new subscription and purchase agreement for Unit 111. The new agreement had the same terms as the original. On July 24, 2007, the City of Mexico Beach issued a Certificate of Occupancy for Unit 111, and on February 15, 2008, the surveyor’s certificate required under section 718.104(4)(e), Florida Statutes (2004), was recorded for the building in which Unit 111 is located.

In the trial court, the purchasers of Unit 111 sought the return of their deposit money pursuant to Paragraph 16 of the parties’ contract. Paragraph 16, which governs completion and delivery of the unit, provides as follows:

COMPLETION. Developer covenants to complete the unit that is the subject of this agreement within Two (2) years of the date of this agreement. Such two (2) year period may, however, be extended due to acts of God, inability to obtain materials or any other events constituting an impossibility of performance under Florida Law. If developer is unable to deliver the completed unit by said date, then purchaser, in addition to any other rights and remedies in law or equity, shall be entitled to demand a return of the purchaser’s deposit hereunder and developer shall be obligated to promptly return the deposit or purchaser shall have the right to seek specific performance or any other remedy, if purchaser is entitled to such remedies by operation of law.

The trial court rejected the purchasers’ argument that the unit was not timely completed, finding that the October 27 contract was a novation and that the Certificate of Occupancy signaled the completion of the unit. Accordingly, the trial court rendered judgment for the developer as to Unit 111.

In their cross-appeal, the purchasers challenge the finding that the October 27 contract was a novation and the ruling that the Certificate of Occupancy is the instrument signaling completion of the unit for the purposes of enforcing Paragraph 16. Given the plain language of the parties’ contract and the Florida statutes governing the construction and sale of condominiums, we hold that the trial court erred as a matter of law in using the Certificate of Occupancy as the controlling instrument for determining compliance with Paragraph 16’s deadline. The interplay between the contract and the governing statutes leads us to further hold that the recording of the surveyor’s certificate of substantial completion was the relevant event. This holding renders the novation issue moot; regardless of whether the operative contract was the June 9 document or the October 27 document, the developer failed to meet its obligations under Paragraph 16 and, thus, is required to return the purchasers’ deposit and any interest earned thereon.

The Legislature has enacted statutes specifically for the purpose of establishing “procedures for the creation, sale, and operation of condominiums.” § 718.102, Fla. Stat. (2004). Because a condominium is strictly a creature of statute, the language of the statutes in effect on the date of the declaration of condominium “is as controlling as if engrafted onto” a contract governing its purchase and sale. Suntide Condo. Ass’n, Inc. v. Div. of Fla. Land Sales & Condos., Dep’t of Bus. Regulation, 463 So.2d 314, 317 (Fla. 1st DCA 1984). Therefore, we must construe the requirements of Paragraph 16 in light of Florida’s condominium statutes. The dispositive issue in this case turns on our construction of the parties’ contract and the governing statutes. Accordingly, our review is de novo. See Hill v. Davis, 70 So.3d 572, 575 (Fla.2011) (statutory construction); Rose v. Steigleman, 32 So.3d 644, 645 (Fla. 1st DCA 2010) (contract interpretation).

The purchasers correctly contend that section 718.104(4)(e), Florida Statutes (2004), dictates the date for determining compliance with Paragraph 16. Section 718.104(2) provides that a condominium is created by recording a declaration in the public records. It then sets forth the requirements of a valid declaration. § 718.104(2). If the construction of a condominium is not substantially completed when the declaration is recorded, the developer is required to state this fact in the declaration and, once the condominium is substantially completed, amend the declaration to include a certifícate confirming substantial completion. § 718.104(4)(e). This certificate is issued by a surveyor or mapper and provides the following assurance:

that the construction of the improvements is substantially complete so that the material, together with the provisions of the declaration describing the condominium property, is an accurate representation of the location and dimensions of the improvements and so that the identification, location, and dimensions of the common elements and each unit can be determined from these materials.

§ 718.104(4)(e).

Section 718.104(4)(e) further provides the following mandate concerning when a “[c]ompleted unit” may be delivered to a purchaser:

Completed units within each substantially completed building in a condominium may be conveyed to purchasers, notwithstanding that other buildings in the condominium are not substantially completed, provided that all planned improvements, including, but not limited to, landscaping, utility services and access to the unit, and common-element facilities serving such building, as set forth in the declaration, are first completed and the declaration of condominium is first recorded and provided that as to the units being conveyed there is a certificate of a surveyor and mapper as required above, including certification that all planned improvements, including, but not limited to, landscaping, utility services and access to the unit, and common-element facilities serving the building in which the units to be conveyed are located have been substantially completed, and such certificate is recorded with the original declaration or as an amendment to such declaration.

Under the plain language of section 718.104(4)(e), a surveyor’s certificate of substantial completion must be recorded before a condominium’s “[c]ompleted units ... may be conveyed to purchasers.” “Convey” is a synonym of “deliver.” See Black’s Law Dictionary 334 (7th ed. 1999) (defining “convey” as “[t]o transfer or deliver (something, such as a right or property) to another, esp. by deed or other writing”). Thus, as a matter of law, the developer was not able to deliver the completed Unit 111 until the surveyor’s certificate of substantial completion was recorded.

The developer argues that the certificate of substantial completion is not the governing document because the issue is when the unit was completed, not when it was eligible for delivery. We disagree, and we conclude that the purchasers’ argument to the contrary was preserved. Under the plain language of Paragraph 16, the terms “complete” and “deliver” are related in that the duty required to be performed within two years is the delivery of a completed unit. Although the trial court’s finding that the unit was actually complete as of the date of the Certificate of Occupancy may be correct, the conclusion that this certificate established the controlling date under Paragraph 16 is incorrect. Unit 111 was not eligible to be delivered until the certifícate of substantial completion was recorded on February 15, 2008, months after the deadline for completion, even under the October 27 contract. For this reason, we reverse the final judgment as to Unit 111 and remand for entry of an order consistent with this opinion.

AFFIRMED in part; REVERSED in part; and REMANDED.

BENTON, C.J., ROWE and RAY, JJ., concur.

      . The State approved the condominium documents in April 2005.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Shannon BALLARD, Appellant, v. EDD HELMS GROUP and Amerisure Insurance, Appellees.
    No. 1D11-1030.
    District Court of Appeal of Florida, First District.
    Dec. 30, 2011.
    Rehearing Denied Feb. 9, 2012.
    Bill McCabe, Longwood, and David M. Cohen, Hollywood, for Appellant.

      Roberto Mendez of the Law Group of Mendez & Mendez, P.A., Hollywood, for Appellees.
   PER CURIAM.

In this workers’ compensation appeal, Claimant argues the Judge of Compensation Claims (JCC) erred on multiple counts. We agree with two of Claimant’s six points and write only to address those; the remaining points on appeal are affirmed without comment.

Claimant sought payment of penalties and interest on the late payment of temporary partial disability (TPD) benefits for the time period of June 12, 2009, through August 14, 2009. Based on the testimony of Dr. Wilensky, Claimant’s treating orthopedist, Claimant was in a no-work status during this time period. Thus, Claimant was not entitled to the TPD benefits paid to him; rather, he would have been entitled to temporary total disability benefits—had he not been receiving unemployment compensation benefits during this time. See § 440.15(10)(a), Fla. Stat. (2008) (“No compensation benefits shall be payable for temporary total disability or permanent total disability under this chapter for any week the injured employee has received, or is receiving, unemployment compensation benefits.”). Thus, the JCC did not err in denying penalties and interest on indemnity benefits sought for the requested time period.

The JCC did err, however, in finding that the Employer/Carrier (E/C) overpaid benefits paid during this time period. This determination was error because it was based on a defense untimely asserted—first raised by the E/C in its written closing argument submitted after the conclusion of the final hearing. See Isaac v. Green Iguana, Inc., 871 So.2d 1004, 1006 (Fla. 1st DCA 2004) (holding JCC erred in permitting E/C to amend defenses at time of trial to include affirmative defense of fraud).

Because the JCC found the E/C entitled to an overpayment, she directed that the $87.05 penalty due for a late payment of interest for a different time period be deducted from the overpayment. Had the award of an overpayment been proper, this would have been permissible. See New Hope Baptist Church v. Duran, 38 So.3d 170, 171 (Fla. 1st DCA 2010) (modifying final order to reflect that five dollars of overpayment would be reclassified as interest). Because the JCC erred in finding that the E/C overpaid TPD benefits, the JCC erred in reducing the overpayment by the amount owed in penalties.

The JCC also erred in denying Claimant an attorney’s fee and costs for the successful prosecution of the claim for penalties on the late payment of interest. See § 440.34(3)(b), Fla. Stat. (2008) (“If any party should prevail in any proceedings before a[JCC] or court, there shall be taxed against the nonprevailing party the reasonable costs of such proceedings, not to include attorney’s fees. A claimant shall be responsible for the payment of her or his own attorney’s fees, except that a claimant shall be entitled to recover a reasonable attorney’s fee from a carrier or employer ... (b) In any case in which the employer or carrier files a response to petition denying benefits ... and the injured person has employed an attorney in the successful prosecution of the petition.”).

Accordingly, the order on appeal is AFFIRMED in part, REVERSED in part, and REMANDED for entry of an order striking any reference to an overpayment, directing that the Employer/Carrier pay $87105 in penalties for the late payment of interest, and finding Claimant entitled to a fee and costs for obtaining the $87.05 penalty.

PADOVANO, HAWKES, and SWANSON, JJ., concur.


author: ROWE, J.

text:
    X.G., Appellant, v. STATE of Florida, Appellee.
    No. 1D11-1864.
    District Court of Appeal of Florida, First District.
    Dec. 30, 2011.
    Nancy A. Daniels, Public Defender, and Archie F. Gardner, Jr., Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Dixie Daimwood, Assistant Attorney General, Tallahassee, for Appellee.
   ROWE, J.

X.G. appeals the trial court’s denial of his motion for continuance and the trial court’s order placing him in a moderate-risk commitment program. We affirm the trial court’s denial of the motion for continuance without further discussion. But we reverse the trial court’s order committing X.G. to a moderate-risk program. See C.M.H. v. State, 25 So.3d 678, 680 (Fla. 1st DCA 2010).

X.G. was tried and found guilty of two counts of battery upon a school employee. The Department of Juvenile Justice (DJJ) initially recommended that X.G. be committed to a moderate-risk residential program. Fourteen days later, DJJ amended its predisposition report to recommend that X.G. be placed on supervised probation. After conducting the final disposition hearing, the trial court deviated from DJJ’s amended recommendation and committed X.G. to a moderate-risk program.

X.G. argues that in deviating from DJJ’s recommendation, the trial court failed to engage in the appropriate level of analysis as set forth in E.A.R. v. State, 4 So.3d 614, 638 (Fla.2009). Although the trial court in this case found that DJJ failed to provide “any rational explanation” regarding the change in its recommended disposition, specifically referred to the child’s violent behavior, the threat posed to “the employees at [his] school” or “any school” and found based on the totality of the circumstances that “a moderate-risk placement would serve the needs of both the child and the community,” these findings fall short of the scrupulous analysis required under E.A.R. See C.M.H. v. State, 25 So.3d 678, 680 (Fla. 1st DCA 2010). As this court recognized in M.H. v. State, 69 So.3d 325, 328 (Fla. 1st DCA 2011), E.A.R. requires the trial court to perform a rigorous and detailed analysis when deviating from DJJ’s recommendation:

[I]t is important for trial courts to understand that deviating from a DJJ’s recommendation is a difficult matter pursuant to the dictates of EAR. In order to deviate lawfully, a trial court must do more than place generalized reasons on the record; it must engage in a well-reasoned and complete analysis of the PDR and the type of facility to which the trial court intends to send the child. This is no easy task and will take time and consideration.

Based on the strict requirements of E.A.R., we are constrained to reverse and remand. As in C.M.H. v. State, 25 So.3d 678, 680 (Fla. 1st DCA 2010); M.J.S. v. State, 6 So.3d 1268, 1270 (Fla. 1st DCA 2009); and M.K. v. State, 4 So.3d 1271, 1273 (Fla. 1st DCA 2009), on remand, the trial court shall articulate on the record an understanding of the opposing restrictiveness levels or the divergent treatment programs and services available to the juveniles at these levels and why a moderate-risk commitment was better suited to serving the rehabilitative needs of X.G. as required by the supreme court’s holding in E.A.R.

REVERSED AND REMANDED.

BENTON, C.J., and RAY, J., concur.


author: RAMIREZ, J.

text:
    Fadia DANERI, et al., Appellants, v. BCRE BRICKELL, LLC, Appellee.
    Nos. 3D10-666, 3D10-665, 3D10-664, 3D10-663, 3D10-662.
    District Court of Appeal of Florida, Third District.
    Jan. 4, 2012.

      Vila, Padrón & Diaz and Kara D. Phin-ney, for appellants.
    Brian K. Goodkind; Yoss and Franches-co Soto; Krinzman, Huss, Lubetsky and Neale J. Poller, and Cary A. Lubetsky, Miami, for appellee.
    Before RAMIREZ, SUAREZ and LAGOA, JJ.
   RAMIREZ, J.

Appellants/plaintiffs Fadia Daneri, Paola Dickinson, Paola Daneri, Consuelo Dickinson, and Jaime Dickinson (collectively, “Daneri”) appeal the trial court’s Final Summary Judgment in favor of appellee BCRE Brickell, LLC with regard to count III. We reverse because there are issues of fact that affect whether BCRE adhered to section 718.202, Florida Statutes (2008). The record suggests BCRE may have illegally withheld a portion of Daneri’s deposit because it conditioned return of Daneri’s deposit, a return to which it conceded Dan-eri was entitled, upon its lender’s consent to return of the deposit. The requirement for lender’s consent was imposed by an agreement to which Daneri was not a party. Encumbering return of the first 10% of a buyer’s deposit toward the purchase price of a condominium, through a contract with someone other than the buyer, would violate the statute. We cannot, however, resolve the legal issue of violation of the statute without determining whether Dan-eri “defaulted” under the contract, which the pleadings below suggest is in dispute. Thus, we reverse the summary judgment.

Daneri entered into a contract with BCRE for the sale and purchase of a condominium. The contract required Dan-eri to make a 20% deposit towards the purchase price of the condominium. In the event of a buyer default, Daneri was entitled to 25% of her deposit, and the developer would be entitled to the remaining 75%.

In October 2008, the developer notified Daneri, by letter, that she had defaulted on the agreement. BCRE did not return any of Daneri’s deposit at that time. Instead, BCRE explained in its letter to Daneri that BCRE’s lender needed to eon-sent to the refund before returning the money to Daneri. BCRE advised Daneri’s lawyers that BCRE had received consent from its lender to return 25% of Daneri’s deposit, so long as she executed a release entitled “Termination Agreement.” Dan-eri’s counsel rejected the offer and filed suit against BCRE. The trial court entered summary judgment in Daneri’s favor on counts I and II, which was not appealed. The trial court also reserved jurisdiction to determine entitlement to other relief deemed appropriate.

The day before the hearing regarding Daneri’s other relief, BCRE filed an affidavit that revealed an agreement between the escrow agent, BCRE, and BCRE’s lender. BCRE had entered into an agreement with the construction lender that promised the lender whatever interest BCRE had in all of the construction’s purchase agreements and escrow deposits. The agreement, entitled the “Escrow Ac-knowledgement and Agreement,” was between BCRE, its lender, and the escrow agent. Daneri filed an amended complaint to include a third count to void the agreement for violation of the statute. Daneri argued in count III that the contract should be voided because BCRE violated section 718.202. The trial court entered final summary judgment for BCRE, and this appeal followed.

Summary judgment is proper only if no genuine issue of material fact exists and if the moving party is entitled to a judgment as a matter of law. Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). The standard of review for summary judgment is de novo. Id. In reviewing a summary judgment, this Court “must consider the evidence contained in the record, including any supporting affidavits, in the light most favorable to the non-moving party ... and if the slightest doubt exists, the summary judgment must be reversed.” Krol v. City of Orlando, 778 So.2d 490, 492 (Fla. 5th DCA 2001).

Resolution of this case requires the Court to interpret section 718.202, which imposes requirements upon developers who take deposits from buyers before substantial completion of the condominium project. When the Court interprets a statute, the Court must follow the plain meaning of the statute in light of the express legislative intent contained in the statute’s language. See St. Petersburg Bank & Trust Co. v. Hamm, 414 So.2d 1071, 1073 (Fla.1982). When interpreting a statute, we interpret its language and the resulting operation of its terms by reading the statute as a whole to give it meaning in its entirety. Forsythe v. Longboat Key Erosion Control Dist., 604 So.2d 452, 455 (Fla.1992). Each section of the statute must be read in light of its interaction with other parts of the statute so that this Court’s interpretation “give[s] full effect to all statutory provisions in harmony with one another.” Id. And “the fact that the legislature may not have contemplated a particular situation does not make the statute ambiguous.” Id. at 456. Similarly, limitations upon use of money placed in escrow pursuant to an agreement are governed by the terms of the agreement. Van Vorgue v. Rankin, 41 So.3d 849, 853 (Fla.2010).

In this case, the statute’s purpose in imposing conditions upon use of purchaser deposits, by requiring placing the funds in escrow and limiting release of the funds placed in escrow, is “to protect purchasers under preconstruction condominium contracts from loss of their deposits should the developer fail to perform its obligations.” First Sarasota Serv. Corp. v. Miller, 450 So.2d 875, 878 (Fla. 2d DCA 1984).

The statute restricts a developer’s use of purchaser deposit funds by requiring those funds to be kept untouched in escrow unless certain conditions are met. As to the first 10% of the purchase price, the statute requires that “the developer shall pay into an escrow account all payments up to 10 percent of the sale price received by the developer from the buyer towards the sale price.” § 718.202(1). The statute then states that “funds shall be released from escrow” only if: a) the buyer terminates the contract; b) the buyer defaults under the contract; or c) the sale closes. § 718.202(l)(a); (b); (d). As to the remainder of the deposit, “all payments which are in excess of the 10 percent of the sale price ... shall be held in a special escrow account” controlled by an escrow agent independent of the developer and cannot be used except as specifically provided in the statute. § 718.202(2). The developer can use this portion of the deposit only for “actual construction and development.” Id. In addition, the developer’s contract with the buyer must specifically provide that the funds provided in excess of 10 % of the purchase price may be used in actual construction and development, or they cannot be used at all. § 718.202(3). Failure to comply with the statute makes the developer’s contract with the buyer voidable by the buyer, which requires return of all monies provided to the developer as a deposit.

Here, all three subsections of 718.202 are at issue, because the purchaser, Dan-eri, provided the developer, BCRE, with a deposit of 20% of the sale price. However, BCRE did not violate subsection (2) because BCRE specifically informed Daneri, in two places in the sales contract (the price page and the signature page), that it intended to use money in excess of 10% of the purchase price to fund its construction costs, as permitted pursuant to subsection (2). BCRE also used the language required by the statute to inform Daneri of its intentions, as required under subsection (3).

Summary judgment was incorrectly entered, however, because there is an issue of fact regarding whether BCRE’s limitation on the return of the other portion of Daneri’s deposit violated subsection (1), which states “default determinations and refund of deposits shall be governed by the escrow release provisions” contained in section 718.202. The statute’s escrow release provisions provide that the ten % in escrow is released when: a) the buyer terminates the contract pursuant to its terms or as allowed under the condominium law; b) the buyer defaults under the contract; or c) the sale closes. § 718.202(l)(a); (b); (d). Here, an issue of fact exists because it is unclear whether the alleged default by Daneri was really a termination of the contract “pursuant to its terms,” or whether it was a default “in the performance of [Daneri’s] obligations under the contract of purchase and sale.” See § 718.202(1).

BCRE advised the trial court that Dan-eri had conceded default under the contract by demanding return of 25% of its deposit, but that is an inference we cannot make upon our de novo review of this record. While BCRE contends that Dan-eri conceded it had defaulted, the record only shows that BCRE gave “written notification that it has claimed or will claim” that Daneri defaulted under the agreement. Consequently, we cannot accept BCRE’s contention that Daneri, by filing a lawsuit seeking to void the contract for violation of 718.202(3), conceded it had defaulted under the contract.

Thus, BCRE may have violated section 718.202 because the funds held in escrow were withheld in violation of the statute due to BCRE’s obligations to its lender, rather than pursuant to the purchase contract. The statute requires that “funds shall be released from escrow” under specified conditions, which as relevant here, relate to the contract’s terms regarding pui’chaser default or developer default. If the developer defaulted, it had no right to withhold any of the deposit due back to Daneri pending approval of BCRE’s lender. If Daneri defaulted, then BCRE was entitled to all the deposit, and could, as it claims to have done here, return portions of the deposit subject to the conditions imposed upon Daneri. The pleadings demonstrate this issue was disputed, and its resolution is material to whether the statute was violated, which requires us to reverse the summary judgment in favor of BCRE. See First Sarasota Serv. Corp., 450 So.2d at 878 (reversing summary judgment because determining whether a violation of the statute had occurred required “the court to first determine whether the purchasers were in default under their contracts”); Ric-Rec, Inc. v. Capri Gardens Condo., Inc., 379 So.2d 407, 408 (Fla. 3d DCA 1980) (reversing summary judgment because the record evidence was “susceptible to conflicting inferences”).

Accordingly, we reverse the trial court’s summary judgment with respect to count III, because BCRE failed to demonstrate beyond dispute that it adhered to the constraints placed on funds in escrow pursuant to section 718.202.

Reversed and remanded as to count III in each of the plaintiffs’ cases.

      . The plaintiffs’ cases are all procedurally and factually identical and have been consolidated on appeal. The units, which were the subject of the five cases in the trial court, differ in price and the corresponding 20% deposit amount.


author: VAN NORTWICK, J.

text:
    Sommai BREAZEALE, Appellant, v. GDC VIEW, LLC, a Florida Limited Liability Company, Appellee.
    No. 1D10-4312.
    District Court of Appeal of Florida, First District.
    Jan. 6, 2012.
    Rehearing Denied Feb. 10, 2012.
    D. Michael Chesser of Chesser & Barr, P.A., Shalimar, for Appellant.
    Jeffrey ' L. Burns of Anchors Smith Grimsley, P.L., Fort Walton Beach, for Appellee.
   VAN NORTWICK, J.

Sommai J. Breazeale appeals a final judgment which requires appellant to pay damages to GDC View, LLC, appellee, for breach of a contract to purchase a condominium. For the reasons that follow, we affirm.

In October 2004, Breazeale entered into a contract to purchase a condominium unit in the Grand Dunes II, a condominium development in Walton County. Construction had not yet begun on the condominium when the purchase contract was executed, and the contract provided that the unit would be completed within two years of the date of the contract and in no event later than May 1, 2007. The condominium was not completed within two years of the contract. In April 2007, the developer, GDC View, gave notice to Breazeale that it was ready to close between the dates of May 1 and May 21, 2007, but Breazeale never appeared for a closing. On May 4, Breazeale advised GDC View in writing of her decision to rescind the contract. Breazeale sought a refund of the deposit and return of the letter of credit. GDC View refused to grant a refund and, thereafter, filed suit against Breazeale alleging a breach of the purchase contract. Breaz-eale filed a counterclaim for breach of contract.

The matter was heard in a bench trial after which the trial court entered a final judgment in favor of GDC View. Among other things, the trial court concluded that GDC View did not breach the contract by failure to deliver the unit within two years of the date of the purchase contract because much of the delay in completing the unit was excusable pursuant to the contract. The trial court found that excusable delays permitted extension of the completion deadline to June 28, 2007. There is no reference in the final judgment to the provision in the purchase contract that the unit was required to be delivered no later than May 1, 2007, and Breazeale does not premise her appeal on this provision.

In its final judgment, the trial court made the following findings:

5. The completion date of the unit underlying this action, unit 240, was April 80, 2007, the date that the respective certificate of occupancy was issued for unit 240.
7. The date the certificate of substantial completion, permitted under section 718.104(4)(e), Florida Statutes[,] was filed for the entire Grand Dunes II condominium project was May 1, 2007 (although it was executed on April 30, 2007), and it is recorded in the Official Records of Walton County at Book 2759, Page 3951.
8. The date that the entire Grand Dunes II condominium was substantially completed was May 1, 2007, as reflected by Book 2759, Page 3951. ⅜ * *
16. In total, [because of unexpected delays affecting construction, GDC View] is entitled to extend the performance period, under the purchase agreement, by 251 days. Therefore, the last day of completion of Unit 240 was June 28, 2007.

On appeal, Breazeale raises several issues, including the issue that the delays found reasonable by the trial court are not supported by the record. We affirm the extension of the construction window to June 28, 2007, as the record contains competent substantial evidence to support the trial court’s resolution of these matters of fact. See Sheppard & White, P.A. v. City of Jacksonville, 827 So.2d 925, 931 (Fla.2002); Markham v. Fogg, 458 So.2d 1122, 1126 (Fla.1984).

Breazeale argues further that Grand Dunes II was not substantially completed by the time GDC View sought to close during May 2007 and, because the condominium was not completed, the unit could not be conveyed. Pursuant to section 718.104(4)(e), Florida Statutes (2007), a completed unit may be conveyed when it is within a “substantially completed” building. The relevant portion of section 718.104(4)(e) provides in pertinent part:

Completed units within each substantially completed building in a condominium development may be conveyed to purchasers, notwithstanding that other buildings in the condominium are not substantially completed, provided that all planned improvements, including, but not limited to, landscaping, utility services and access to the unit, and common-element facilities serving such building, as set forth in the declaration, are first completed and the declaration of condominium is first recorded and provided that as to the units being conveyed there is a certificate of a surveyor and mapper as required above, including certification that all planned improvements, including, but not limited to, landscaping, utility services and access to the unit, and common-element facilities serving the building in which the units to be conveyed are located have been substantially completed, and such certificate is recorded with the original declaration or as an amendment to such declaration.

(Emphasis added).

We read section 718.104(4)(e) as setting forth two requirements before a completed unit in a substantially completed building may be conveyed. First, all planned improvements and common-element facilities as set forth in the recorded declaration of condominium are completed. Second, a certifícate of a surveyor and mapper is recorded with the declaration, which includes certification that all planned improvements to the unit being conveyed and the common elements serving the building containing the unit to be conveyed are substantially completed.

The Declaration of Condominium of Grand Dunes II provides in Article I (Definition of Terms):

8. Common Property: Common property is that which Florida Statutes define as “common ■ elements” and shall mean and comprise all the real property, improvements and facilities to Grand Dunes II, A Condominium including all parts of the buildings other than the units as same are herein defined and shall include easements through units for conduits, pipes, ducts, plumbing, wiring and other facilities for the furnishing of utility service to units and easements of support in every portion of the unit which contribute to the support of the improvements and shall further include all personal property held and maintained for the joint use • and enjoyment of all the owners of all such units.

(Emphasis added).

The trial court below made no finding as to extent of the completion of the common elements. The trial court did find, in paragraphs 6 though 8 of its Final Order, that, because a certificate of substantial completion was filed on May 1, 2007, the condominium was completed for purposes of section 718.104(4)(e) on that date. This finding is not adequate proof of the first requirement of that statute, and we have not been directed to any other evidence in the record which supports this element. The certificate here was conditional and did not establish that “common-element facilities serving such building, as set forth in the declaration, [were] first completed” by the time GDC View sought to close between May 1 and May 21, 2007. See § 718.104(4)(e), Fla. Stat. Indeed, the conditional certificate of substantial completion of May 1, 2007, acknowledges that certain common elements were incomplete as of the date of the certificate. It is undisputed that a certificate of occupancy did not issue until June 11, 2007.

In its complaint alleging breach of contract, GDC View alleged that the unit was complete and ready for closing in accordance with the terms of the purchase contract, but Breazeale refused to close. In her counterclaim for breach of contract, Breazeale claimed GDC View breached the contract by failing to complete the unit by October 20, 2006 (two years after the execution of the purchase contract). She added that GDC View did not notify her of any conditions which would extend the completion time. She did not assert below that GDC View was in breach of contract by seeking to close in May 2007 because the unit was not substantially complete at that time, the position she takes on appeal. Instead, as noted, Breazeale stated in her amended answer and counterclaim that GDC View did not complete and deliver the unit within the unconditional completion deadline of 24 months from the date of the contract.

We agree that the trial court erred in concluding that the unit could be permissibly conveyed as of May 1, 2007, since, pursuant to section 718.104(4)(e), the unit could not be deemed complete on that date because common elements of the condominium were not complete. Nevertheless, we affirm the result reached below given the undisputed fact that the unit was complete and ready for conveyance as of June 11, 2007, and that under the purchase contract, the period for completing a unit could be extended beyond two years if certain delays occurred. The trial court, as finder of fact, found that certain delays occurred thereby extending the completion deadline to June 28, 2007, and we affirm this finding as supported by competent and substantial evidence. Because Breaz-eale refused to close on the grounds that the unit was not complete as of October 2006, .the fact that the unit was not complete as of May 1, 2007, is not a dispositive fact. Therefore, the trial court properly found a breach of contract by Breazeale.

Because the remaining issues raised on appeal are also without merit, the final judgment is AFFIRMED.

WETHERELL and ROWE, JJ., Concur.


author: WARNER, J.

text:
    Lisa KHAN, Appellant, v. Aslam KHAN, Appellee.
    No. 4D11-460.
    District Court of Appeal of Florida, Fourth District.
    Jan. 11, 2012.

      Karen Coolman Amlong and Jennifer Daley of Amlong & Amlong, P.A., Fort Lauderdale, for appellant.
    Nancy W. Gregoire and Joel L. Kirschb-aum of Kirschbaum, Birnbaum, Lippman & Gregoire, PLLC, Fort Lauderdale, for appellee.
   WARNER, J.

The wife, Lisa Khan, appeals a non-final order striking a notice of hearing on her motion for an increase in temporary alimony and attorney’s fees and costs. The trial court based its ruling on a Marital Settlement Agreement in which the parties had agreed to pay their own attorney’s fees in any dissolution proceeding. As the order has the effect of denying temporary support and attorney’s fees to the wife in the pending litigation, we have jurisdiction pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iii). We reverse, because an agreement of the parties that waives or limits the right to request temporary support and attorney’s fees to a spouse in need in a pending dissolution action is a violation of public policy. See Belcher v. Belcher, 271 So.2d 7 (Fla.1972).

The parties were married to each other in January 1991. In 1998, they separated, and marital dissolution proceedings were commenced. During those dissolution proceedings, the parties entered into a Marital Settlement Agreement (MSA). In 2000, however, the parties reconciled, and the proceeding was dismissed. The MSA was never approved by the court.

The agreement provided for alimony to the wife in the amount of $6,500 per month for 48 months and included, among its detailed terms: (1) an acknowledgment that both parties were represented by counsel and fully informed of their rights and obligations; (2) a provision that reconciliation would not invalidate the MSA; and (3) a provision that the MSA would not bar a subsequent action for dissolution. Several provisions addressed attorney’s fees. These included:

(d) Notwithstanding the foregoing, in the event either party must resort to a Court of competent jurisdiction for either enforcement or interpretation of this agreement, then and in that event, the prevailing party shall be entitled to recoup any and all costs incurred including reasonable attorney’s fees.
Nothing contained in this Agreement shall be construed to bar or prevent either party from instituting an action or proceeding to terminate the marriage in any competent jurisdiction because of the past, present or future fault on the other’s part or upon any ground now or hereafter existing. In the event of any such action, however, each party shall be solely responsible for their respective counsel fees, if any.

In 2009, nine years after the dismissal of the first dissolution action, the wife filed the present dissolution action. The wife’s petition sought alimony, child support, equitable distribution, and attorney’s fees and costs. The wife’s petition did not mention the 1999 MSA. In the husband’s answer and counter-petition for dissolution, the husband also did not mention the MSA, but denied that the wife should be awarded alimony or attorney’s fees and costs.

The wife filed a motion for temporary alimony and attorney’s fees. She requested temporary alimony of $6,000 per month and a temporary award of $15,000 in attorney’s fees and costs. The wife also filed a projected litigation budget, estimating that she needed approximately $147,000 in fees and costs to litigate the case. The husband stipulated to an award of $15,000 in temporary fees and costs, as well as $4,914 per month in temporary alimony. The $4,914 monthly figure represented the $6,000 that the wife requested, less credit for health insurance and automobile expenses that the husband was required to pay. The trial court entered an order on the stipulation.

Subsequently, the wife filed a Motion for Increase in Temporary Alimony and Additional Attorney’s Fees and Costs. After a change in counsel and an amended motion, the wife noticed the latter motion for hearing. Before the hearing on the wife’s motion for an increase in temporary support and attorney’s fees, the husband filed a Motion to Amend Answer and Counter-Petition. In the proposed Amended Answer, the husband for the first time raised the 1999 MSA as a defense to the wife’s claims for equitable distribution, alimony, and attorney’s fees and costs. Relying on the agreement, the husband also filed a Motion to Strike Notice of Hearing on Wife’s Motion for Increase in Temporary Alimony and for Additional Attorney’s Fees. In the husband’s motion to strike, he argued that the alimony provision of the MSA was non-modifiable and that the MSA specifically stated that the parties agreed to pay for their own legal fees in connection with any divorce proceedings between them. Citing the prevailing party fee provision in the MSA, the husband also requested that his attorney’s fees and costs in bringing the motion be taxed against the wife.

The trial court entered an agreed order granting the husband’s motion to amend. It then entered an order granting the husband’s motion to strike the hearing on additional temporary alimony and attorney’s fees. As grounds for the relief, the court’s order stated that the relief was granted “based exclusively upon the language contained in the parties’ Marital Settlement Agreement executed on January 11, 1999: the Wife’s Notice of Hearing on Wife’s Motion for Increase in Temporary Alimony and for Additional Attorney’s Fees and Costs is hereby stricken.” From that order the wife filed this appeal.

This appeal is controlled by Belcher v. Belcher, 271 So.2d 7 (Fla.1972), which states the governing law with respect to agreements including limitations or waiver of temporary support and attorney’s fees in dissolution actions. In Belcher, the court considered “whether or not by express provision in an antenuptial agreement the husband can, by the payment of a present, fixed consideration, contract away his future obligation to pay alimony, suit money and attorney’s fees during a separation prior to dissolution of the marriage.” Id. at 9. Answering that question in the negative, the court held

that before and pending dissolution of the marriage a husband’s obligation of support while still married continues under the historical principle supported by an unbroken line of cases since shortly after Florida became a state in 1845 which we decline to reverse, as would be necessary in order to accept the husband’s contention here that his agreement extends as controlling to the period while his marriage continues. This provision of such an agreement is a factor to be considered but not the sole factor, nor conclusive, in a determination of support pendente lite.

Id. (emphasis in original) (footnote omitted). The court reasoned that because the husband had the duty to support the wife during the marriage, the state was an interested party and the obligation of the husband could not be waived. As noted in Lashkajani v. Lashkajani, 911 So.2d 1154, 1157 (Fla.2005), “the evolution in Florida law approving prenuptial agreements concerning posi-dissolution support has so far not extended to provisions waiving the right to recover pre-judgment support such as temporary alimony. In fact, in the more than thirty years since Belcher, Florida courts consistently have rejected attempts to waive prejudgment support.” (citations omitted). “The evolution in our law, therefore, has been toward greater freedom of contract regarding posi-dissolution spousal support, while recognizing the continuing obligations of support before the marriage is dissolved.” Id. at 1158.

Thus, with respect to the striking of the motion for temporary support, the trial court erred in concluding that the wife’s right to request alimony pendente lite was precluded by the MSA. Lashkajani makes clear that public policy prevents a spouse from contracting away his or her obligation of support during the marriage.

We likewise conclude that based upon Belcher and Lashkajani the court also erred in striking the motion for attorney’s fees. The holding in Belcher applied to attorney’s fees prior to dissolution as well as temporary support. Mulhern v. Mulhern, 446 So.2d 1124, 1125 (Fla. 4th DCA 1984). Lashkajani has recognized, however, that a provision in a prenuptial agreement providing for prevailing party attorney’s fees in litigation regarding the validity or enforceability of the agreement is enforceable. 911 So.2d at 1158-59. As the supreme court itself explained, its holding was narrow and did not reach the question of whether an agreement’s limitations on pre-dissolution support may likewise be enforced.

Lashkajani does not address the question of whether the trial court may order temporary attorney’s fees in spite of the agreement’s prevailing party provision. In fact, in Lashkajani the trial court made an award of temporary attorney’s fees to the wife. See Lashkajani v. Lashkajani, 855 So.2d 87 (Fla. 2d DCA 2003). The parties then litigated the enforceability of the premarital agreement, and the husband prevailed. Both parties moved for an award of attorney’s fees, and the husband moved for reimbursement of the temporary attorney’s fees that he had paid. The trial court granted both parties’ requests for attorney’s fees, the wife’s based upon section 61.16 and the husband’s based upon the prevailing party attorney’s fee provision of the agreement. It denied the husband’s request for reimbursement of the temporary attorney’s fees. Both parties appealed the various awards, but the husband dismissed his appeal. Therefore, the only question presented to the appellate court and the supreme court was the wife’s claim that the husband was not entitled to prevailing party attorney’s fees pursuant to the premarital agreement. Id. at 90. Neither the appellate court nor the supreme court addressed the issue of whether the husband was required to pay temporary attorney’s fees based upon Belcher or whether he was entitled to reimbursement of fees already paid.

“Florida’s long-standing policy against enforcing waivers of pre-dissolution support remains intact.” Lord v. Lord, 993 So.2d 562, 565 (Fla. 4th DCA 2008). In Lord, which contained similar attorney’s fees provisions as found in the agreement in this case, Judge May explained:

Here, there are two attorney’s fees provisions in the antenuptial agreement. The husband sought, and the trial court awarded, temporary attorney’s fees to defend the dissolution or annulment of his marriage and the enforcement of the antenuptial agreement. While the court may ultimately enforce the prevailing party attorney’s fees provision concerning the litigation over the enforceability of the antenuptial agreement under Lashkajani, at this point there is no prevailing party. And, while the first section of the attorney’s fees provision requires each party to pay his or her own attorneys’ fees and costs, that provision cannot be enforced because it violates Florida’s long-standing policy against waiver of pre-dissolution support. See Belcher v. Belcher, 271 So.2d 7 (Fla.1972).

Id. This long-standing policy draws no distinction between prenuptial and postnup-tial agreements. See Trowbridge v. Trowbridge, 674 So.2d 928, 930 (Fla. 4th DCA 1996) (noting that the law is well-established that notwithstanding a prenuptial or postnuptial agreement to the contrary, a spouse may be entitled to attorney’s fees while the parties remain married).

The husband, however, maintains that this is not a prenuptial or postnuptial agreement but a marital settlement agreement, entered into during the parties’ first dissolution of marriage proceedings. He relies on Kuchera v. Kuchera, 983 So.2d 776 (Fla. 4th DCA 2008), to draw this distinction. Kuchera involved a marital settlement agreement which, like the one in this case, was executed in prior dissolution proceedings between the parties. Both sides were represented by counsel when the MSA was executed. Even though they did not divorce, they obtained a court order incorporating the MSA. They then reconciled. When the parties started divorce proceedings ten years later, the husband challenged the MSA as unfair and unconscionable, and the trial court agreed, refusing to enforce it. On appeal from the final judgment of dissolution, we held that the MSA was enforceable and could not be challenged for fairness, where each party had been represented by chosen counsel and given an opportunity to learn the financial resources of the other through litigation discovery. Id. at 780.

While the husband in this case relies on Kuchera, pointing out that in that case the marital settlement agreement “included an express provision making each of [the parties] responsible for one’s own attorney’s fees,” Id. at 779, Kuchera did not address the question here — namely, whether such a fee provision could be enforced against a spouse seeking temporary pre-dissolution fees. Therefore, Kuchera is not on point.

We must continue to follow Bel-cher, which holds that pending dissolution of marriage, public policy and the statutory obligation of support permits the award of temporary attorney’s fees to a spouse even where an agreement provides that the parties will each pay their own attorney’s fees or that the prevailing party is entitled to fees in any litigation over the validity of the agreement. 271 So.2d at 9.

Of course, the trial court may consider the provisions of the MSA as a factor in determining both the issue of support and attorney’s fees. It could also manage these proceedings so as to minimize the fees until the MSA validity has been decided. In particular, it would seem to us that litigating the preliminary question of enforceability of the MSA prior to substantial discovery and litigation regarding the normal issues in dissolution would significantly reduce the size of any temporary award. We do not decide whether the husband could seek reimbursement of any award of temporary attorney’s fees or support if he were to be successful in enforcing the MSA with its provision for prevailing party attorney’s fees, as that issue is not before us.

For the foregoing reasons, we reverse and remand for proceedings consistent with this opinion.

POLEN and GERBER, JJ., concur.

      . Since Belcher, both section 61.09, Florida Statutes, and the case law interpreting it have been revised to be gender neutral. Lashkajani v. Lashkajani, 911 So.2d 1154, 1157 n. 2 (Fla.2005).


text:
    STATE of Florida, Appellant, v. Zachary Seth PRINCE, Appellee.
    No. 4D10-3656.
    District Court of Appeal of Florida, Fourth District.
    Jan. 11, 2012.
    Pamela Jo Bondi, Attorney General, Tallahassee, Joseph A. Tringali Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, Paul Perillo and Peggy Natale, Assistant Public Defenders, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See State v. Sun, — So.3d -, 2011 WL 2135646 (Fla. 4th DCA 2011), reh’g denied (Fla. 4th DCA July 7, 2011).

GROSS, HAZOURI and CIKLIN, JJ., concur.


text:
    Lisa O’CONNOR, Appellant, v. Nabeel ZANE, Appellee.
    No. 1D11-2516.
    District Court of Appeal of Florida, First District.
    Jan. 13, 2012.
    Rehearing Denied Feb. 13, 2012.
    Michael Farrar, Miami, for Appellant.
    Paul Stadler, Jr., Assistant General Counsel, Department of Financial Services, Tallahassee, for Appellee.
   PER CURIAM.

The circuit court entered a final judgment dissolving the marriage between Na-beel Zane and Lisa O’Connor and ordered Mr. Zane to pay Ms. O’Connor various amounts of money for child support and other marital obligations. Mr. Zane did not fully satisfy this obligation and subsequently, Ms. O’Connor sought and obtained a civil judgment against him for the money he owed her. The money judgment was recorded in 2003.

In February, 2011, Ms. O’Connor filed a motion in the dissolution case asking for a declaration that she is entitled to approximately $32,430.79 belonging to Mr. Zane now held by the Bureau of Unclaimed Property, Department of Financial Services. The department intervened, arguing, among other things, that it had exclusive jurisdiction to determine entitlement to any unclaimed property in its custody, and that the claims process provided Ms. O’Connor with a clear, adequate, and readily available administrative remedy for her claim, which she had failed to exhaust. The circuit court dismissed the motion, finding that Ms. O’Connor had failed to exhaust her administrative remedy of filing a claim with the department to recover the funds. We affirm.

The statutes dealing with disposition of unclaimed property in Chapter 717, Florida Statutes, do not authorize the department to determine the priority of claims that could be asserted by judgment creditors against unclaimed property in its possession. See Martin Young Private Investigative Agency, Inc. v. Department of Banking and Finance, 659 So.2d 410 (Fla. 1st DCA 1995). However, a judgment creditor does have standing to assert a claim against unclaimed property in the hands of the state in order to obtain a determination that the property does in fact belong to the judgment debtor.

Accordingly, if Ms. O’Connor files a claim under section 717.124, the department must determine whether it is in possession of unclaimed property belonging to Mr. Zane, and if the property consists of cash, it must state the amount. Ms. O’Connor may then obtain legal process or pursue judicial remedies, if necessary, to execute her judgment against the property.

Affirmed.

PADOVANO, LEWIS, and CLARK, JJ., concur.


author: SHEPHERD, J.

text:
    Frank C. CABALLERO, Appellant, v. PHOENIX AMERICAN HOLDINGS, INC., et al., Appellees.
    No. 3D11-957.
    District Court of Appeal of Florida, Third District.
    Jan. 18, 2012.
    Rehearing Denied Feb. 27, 2012.

      Harper Meyer Perez Hagen O’Connor Albert & Dribin and Patrick J. O’Connor, Miami, for appellant.
    Duane Morris and Charles C. Papy III, Miami; Bernstein Osberg-Braun & de Moraes and Scott R. Jablonski, for appel-lees.
    Before SHEPHERD, SUAREZ, and CORTIÑAS, JJ.
   SHEPHERD, J.

This is an appeal by a counter-plaintiff, Frank C. Caballero, from a final summary judgment finding the language of a General Release executed by Caballero exonerates the appellees — five third-party corporate defendants: Phoenix American Holdings, Inc.; Phoenix American Insurance Group, Inc.; Phoenix American Administrators, Inc.; Insurance Adjustment Services, Inc.; and Wynn’s Extended Care, Inc. — on a six-count complaint brought by Caballero against them for (1) retaliatory discharge and violations of the Florida Private Sector Whistleblower’s Act; (2) breach of Compensation Agreement; (3) fraudulent inducement with respect to the Compensation Agreement; (4) unjust enrichment; (5) promissory es-toppel; and (6) tortious interference with a business relationship. On de novo review, we find the release does not exonerate the appellees on the last of these counts. In all other respects, we affirm the judgment of the trial court.

The release was executed as part of a termination package between Caballero and his former employer, Phoenix American Warranty Company, Inc. The releas-ees include Phoenix American Warranty Company, Inc., and its affiliates, which include the appellees. The title of the release, “General Release,” is a misnomer. Rather the release is limited by its terms as follows:

(a) The released claims consist of and are limited to any and all Claims that in any way relate to: (i) employment of [Caballero] with Company, or the termination thereof, or Claims for compensation, bonuses, commissions, lost wages, or unused accrued vacation or sick pay.

As the descriptions of the first five claims above indicate, and a careful examination of the allegations will confirm, each of these counts relate to Caballero’s employment, termination, or compensation. Therefore, the trial court properly granted summary judgment as to these counts of the third-party complaint. See AXA Equitable Life Ins. Co. v. Gelpi, 12 So.3d 783, 785 (Fla. 3d DCA 2009); Hold v. Manzini, 736 So.2d 138, 141 (Fla. 3d DCA 1999). The appellees’ tortious interference claim, however, plainly relates to a subsequent employment relationship Caballero had with Road America Motor Club, Inc., which he claims was terminated by Road America as a direct result of intentional and unjustifiable interference by the appel-lees. Because the allegations in this count are alleged to have occurred after the release was executed and pertain to actions outside of Caballero’s employment with Phoenix American Warranty Company, Inc., we reverse the final summary judgment for further proceedings on this count alone. See Plumpton v. Cont’l Acreage Dev. Co., 830 So.2d 208, 210 (Fla. 5th DCA 2002) (finding general release bars all claims which have matured prior to the execution of the release).

Affirmed in part, reversed in part.

      . Phoenix American Warranty Company, Inc. is not included among the appellees in this appeal because additional claims remain pending in the trial court between Caballero and Phoenix American Warranty Company, Inc. See S.L.T. Warehouse Co. v. Webb, 304 So.2d 97, 99 (Fla.1974) ("Piecemeal appeals will not be permitted where claims are interrelated and involve the same transaction and the same parties remain in the suit.”). However, because the final summary judgment disposes all claims as to the appellees, we have jurisdiction. See Fla. R.App. P. 9.110(k).


author:
      SCHWARTZ, Senior Judge.
      SHEPHERD, J.,

text:
    The BANK OF NEW YORK TRUST COMPANY, N.A., as successor to JPMorgan Chase Bank, N.A., as trustee, Appellant, v. George H. RODGERS and Caroline J. Rodgers, Appellees.
    No. 3D10-1852.
    District Court of Appeal of Florida, Third District.
    Jan. 18, 2012.
    Rehearing Denied Feb. 23, 2012.
    Florida Default Law Group and Erin M. Berger, Tampa; Roberta Kohn, Wesley Chapel, for appellant.
    Mortimer H. Kass, Village of Palmetto Bay, for appellee Caroline J. Rodgers.
    Before SHEPHERD and EMAS, JJ., and SCHWARTZ, Senior Judge.
   SCHWARTZ, Senior Judge.

The plaintiff, designated as the Bank of New York Trust Company, N.A., as successor to JPMorgan Chase Bank, N.A., as trustee, the alleged holder of a note and mortgage, seeks review of a final judgment in favor of the defendants mortgagors borrowers in an action to re-establish the note (which was lost, having disappeared in the bowels of the clerk’s office after being filed in a prior proceeding) and to foreclose the mortgage. The judgment was entered upon granting a defense motion for involuntary dismissal at the conclusion of the plaintiffs case in a non-jury trial. It specifically stated that it was required “as a result of Plaintiffs failure to establish its status as the owner and holder of the applicable Note and Mortgage with standing to bring suit.” We disagree and reverse:

1. In the first place, the decision is directly contrary to an earlier, previously unopposed and subsequently unchallenged order, which substituted the present appellant as the party-plaintiff and provided that:

The Bank of New York Trust Company, N.A., as successor to JPMorgan Chase Bank, N.A., as trustee, is the real party in interest and proper Plaintiff in this action, and;
The Bank of New York Trust Company, N.A., as successor to JPMorgan Chase Bank, N.A., as trustee, is hereby substituted for JPMorgan Chase Bank, formerly known as Chase Manhattan, as trustee, residential funding corporation, as attorney in fact, as the proper Plaintiff in this action and the style is amended as reflected on this order.

Compare Mazine v. M & I Bank, 67 So.3d 1129, n. 1 (Fla. 1st DCA 2011), where the court pointed out that “[a]lthough M & I Bank filed a motion to substitute a party by which M & I Marshall and Isley Bank was to be substituted for M & I Bank, the trial court never acted upon this motion.” [e.s.]. Because there was no denial or defense raised in defendants’ pleadings concerning this finding, the judgment under review cannot be permitted to stand for that reason alone. See Fla. R. Civ. P. 1.140(h)(1); Mutchnik, Inc. Constr. v. Dimmerman, 23 So.3d 809 (Fla. 3d DCA 2009) (concluding that the trial court erred in basing its judgment on issue not raised in the pleadings); Kissman v. Panizzi, 891 So.2d 1147 (Fla. 4th DCA 2005) (lack of standing is waivable affirmative defense); Krivanek v. Take Back Tampa Political Committee, 625 So.2d 840 (Fla.1993) (same); Sobel v. Jefferson Stores, Inc., 459 So.2d 433, 434 n. 1 (Fla. 3d DCA 1984) (quoting Florida Rule of Civil Procedure Rule 1.110(c)).

2. In addition, the record adequately independently demonstrates the capacity of the appellant to maintain the action (a) as the owner of the note as established by an uncontradicted chain of self-authenticating assignments, see Riggs v. Aurora Loan Servs., LLC, 36 So.3d 932 (Fla. 4th DCA 2010), and if, arguendo, this is not the case (b) as the real party in interest or (c) its agent. See Fla. R. Civ. Pro. 1.210(a); Juega ex rel. Estate of Davidson v. Davidson, 8 So.3d 488 (Fla. 3d DCA 2009); Mortgage Elec. Registration Sys., Inc. v. Revoredo, 955 So.2d 33 (Fla. 3d DCA 2007).

There is also no question that the legal prerequisites of establishing a lost note were fully met below. See Gutierrez v. Bermudez, 540 So.2d 888 (Fla. 5th DCA 1989); Young v. Charnack, 295 So.2d 665 (Fla. 3d DCA 1974).

The judgment under review is therefore reversed for a new trial.

Reversed and remanded.

EMAS, J., concurs.

SHEPHERD, J.,

dissenting.

This case is illustrative of the consequences of a breakdown of a property transfer system. Because of the breakdown in this case, I would affirm the involuntary dismissal of the Bank of New York’s (the Bank) attempted foreclosure action in this case.

The Bank’s action is based upon a standard FNMA/FHLMC promissory note and mortgage executed on June 25, 1999, by George H. Rodgers and Caroline J. Rodgers to Metropolitan Mortgage Co., in its capacity as the originating lender on the Rodgers’ residential property. The action was initiated on January 5, 2005, by JP Morgan Chase Bank, formerly known as Chase Manhattan, as Trustee, Residential Funding Corporation, as Attorney in Fact (JP Morgan Chase). The sole witness offered by the Bank to prove the Bank’s ownership of the promissory note and mortgage, and the default on the loan, was Annassa Blackman, Business Relationship Manager for Litton Loan Services, the servicing agent for the loan since January 30, 2002. Ms. Blackman testified from a file she brought with her to trial, but it is clear she was not the custodian of those records, and Bank counsel did not attempt to prove otherwise. Despite vigorous objection by counsel for the Rodgers, the trial court nevertheless permitted Ms. Blackman to testify as to the contents of the file.

The file contained neither the original note nor the original mortgage. Ms. Blackman admitted in her testimony she “[had] no knowledge of the last [entity] who had it or anything else about the original note.” She thought the note was lost by counsel during the course of a prior foreclosure action filed by JP Morgan Chase in January 2003, but upon being shown a copy of the complaint filed in the 2003 foreclosure action, acknowledged that action, like the present one, also contained a claim for re-establishment of lost note., Thus, it cannot be said, as the majority asserts, that the note “disappeared in the bowels of the clerk’s office after being filed in a prior proceeding.”

Nor do the copies of the transfer documentation in the file brought by Ms. Blackman to the trial conclusively resolve the central issue in this case. The Rodgers executed the promissory note and mortgage on June 25, 1999. There can be no question but that Metropolitan Mortgage Co. had the original documents at that time. The copy of the original note, admitted into evidence by the trial court over the Rodgers’ objection, reflects it was endorsed on a date unknown by Metropolitan Mortgage Co. to Fairbanks Capital Corporation, and then on May 14, 2001, Fairbanks Capital executed an Assignment of Deed of Trust, purporting to assign both the note and mortgage to JP Morgan Chase. A copy of an allonge, purportedly attached to the promissory note, indicates that on some unknown date the promissory note was endorsed by Fairbanks Capital Corporation to Residential Funding Corporation, and on some later date from Residential Funding to JP Morgan Chase, as Trustee. Absent testimony from a witness with knowledge, it cannot be determined exactly when, between June 25, 1999, and the date of the filing of the foreclosure complaint in this case, the promissory note was lost or by what entity-

Section 673.3091 of the Florida Statutes (2004), titled “Enforcement of lost, destroyed, or stolen instrument,” provides as follows:

(1) A person not in possession of an instrument is entitled to enforce the instrument if:
(a) The person seeking to enforce the instrument was entitled to enforce the instrument when loss of possession occurred, or has directly or indirectly acquired ownership of the instrument from a person who was entitled to enforce the instrument when loss of possession occurred;
(b) The loss of possession was not the result of a transfer by the person or a lawful seizure; and
(c)The person cannot reasonably obtain possession of the instrument because the instrument was destroyed, its whereabouts cannot be determined, or it is in the wrongful possession of an unknown person or a person that cannot be found or is not amenable to service of process.

As has been the case in many recent foreclosure actions — see, e.g., Mazine v. M & I Bank, 67 So.3d 1129, 1132 (Fla. 1st DCA 2011) (reversing final judgment of foreclosure where the bank failed to prove it holds the note and mortgage in question); Gee v. U.S. Bank Nat’l Ass’n, 72 So.3d 211, 214 (Fla. 5th DCA 2011) (reversing final summary judgment of foreclosure where U.S. Bank neither tendered original note nor offered any evidence of its whereabouts at summary judgment hearing); Servedio v. U.S. Bank Nat’l Ass’n, 46 So.3d 1105, 1107 (Fla. 4th DCA 2010) (reversing final summary judgment of foreclosure where record on appeal contained neither original note nor any other evidence that U.S. Bank owned or held the note); U.S. Bank Nat'l Ass’n v. Kimball, 27 A.3d 1087, 1092 (Vt.2011) (dismissing foreclosure complaint on basis trial court properly concluded U.S. Bank lacked standing to show it was holder of note at time complaint filed); Kondaur Capital Corp. v. Hankins, 25 A.3d 960, 962 (Me.2011) (reversing summary judgment where party did not hold note or mortgage at time complaint was filed) — the Bank failed to prove, and may be unable to prove, who owns the promissory note and mortgage in this case. Nor is this the first time in recent memory the Bank of New York has found itself in this predicament in our appellate courts. See Verizzo v. Bank of N.Y., 28 So.3d 976, 978 (Fla. 2d DCA 2010) (reversing summary judgment of foreclosure in favor of the Bank of New York just last year where, as is equally true in the case before us, “[njothing in the record reflects assignment or endorsement of the note by JP Morgan Chase Bank to the Bank of New York The Bank should receive the same result in this district court of appeal this year as it did on nearly identical facts in our sister Second District Court of Appeal last year.

It is apodictic there can be no cause of action to foreclose a mortgage unless we know where the paper is and that it actually represents something. There is much “sand in the gears” of our property transfer system in these times. However, we cannot bend the rules. A person seeking to enforce an instrument conveying an interest in real property must demonstrate he has directly or indirectly acquired ownership of the instrument. The majority errs by not insisting upon this fundamental precept in this case.

I would affirm the decision of the trial court.

      . The Bank also called Caroline Rodgers as an adverse witness. Needless to say, she was unable to offer any evidence pertinent to the central issues to the case. She contended in her testimony that the Bank (through its servi-cer) was at fault in the matter by improperly refusing to accept payments tendered on the mortgage loan.

      . A full sense of Ms. Blackman’s cluelessness concerning the facts of this case can be gleaned from the following exchange between her and the Rodgers’ counsel on cross-examination:
      Q. Okay, as far as the copy of the note is concerned, to your knowledge do you know anybody who held the note whether or not any of the people named in this action ever held a note to your knowledge?
      [Objection sustained. Counsel nonetheless continuing....]
      Q. Whether Fairbanks Capital Corporation, Residential Funding Corporation[,] J.P. Morgan, New York Bank of New York [sic] ever held the original note?
      A. I do not have personal knowledge of the original note.
      Q. Okay. So you have no knowledge [who] was the last who had it or anything else with regard to the original note? You have no knowledge about the original note, is that correct?
      A. That’s correct.

      .According to Ms. Blackman, the Rodgers brought the loan current sometime in 2004, upon which JP Morgan Chase voluntarily dismissed the 2003 action. The present foreclosure action was filed in 2005.


text:
    Michael SANTOS a/k/a Michael Minasian, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-4810.
    District Court of Appeal of Florida, Fourth District.
    Jan. 18, 2012.
    Rehearing Denied March 1, 2012.
    Michael Santos a/k/a Michael Minasian, Lake City, pro se.
    No appearance required for appellee.
   PER CURIAM.

We affirm with prejudice the summary denial of appellant’s untimely postconviction motion. The alleged “newly discovered evidence,” that jury selection was not transcribed for the direct appeal in 1994, could have been discovered with due diligence within the two-year time limit. See Fla. R.Crim. P. 3.850(b)(1).

Affirmed.

WARNER, POLEN and DAMOORGIAN, JJ., concur.


text:
    Benjamin Q. JACKSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-3043.
    District Court of Appeal of Florida, Third District.
    Jan. 18, 2012.
    Benjamin Q. Jackson, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before RAMIREZ, SUAREZ, and ROTHENBERG, JJ.
   PER CURIAM.

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


text:
    Colbert GARCON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-3055.
    District Court of Appeal of Florida, Third District.
    Jan. 18, 2012.
    Colbert Garcon, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before RAMIREZ, SUAREZ, and ROTHENBERG, JJ.
   PER CURIAM.

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


text:
    Jonathan CHERRY, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-3077.
    District Court of Appeal of Florida, Third District.
    Jan. 18, 2012.
    Rehearing Denied Feb. 15, 2012.
    Jonathan Cherry, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before WELLS, C.J., FERNANDEZ, J., and SCHWARTZ, Senior Judge.
   PER CURIAM.

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


text:
    Elena CASINES, Appellant, v. STATE FARM FLORIDA INSURANCE COMPANY, Appellee.
    No. 3D10-1448.
    District Court of Appeal of Florida, Third District.
    Jan. 18, 2012.

      Jason T. Forman, Fort Lauderdale, for appellant.
    Richard A. Warren, for appellee.
    Before SHEPHERD and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

The trial court’s order granting a new trial in this case is affirmed on the ground the juror was stricken absent a jury interview. See De La Rosa v. Zequeira, 659 So.2d 239, 241 (Fla.1995) (delineating three-part test to determine whether a juror’s nondisclosure of information during voir dire warrants a new trial); Simon v. Maldonado, 65 So.3d 8, 10 (Fla. 3d DCA 2011) (“[T]he mere possibility that a juror was involved in prior claims does not show in and of itself that his point of view was affected so as to deprive the defendant of a fair and impartial trial.”); Pereda v. Parajon, 957 So.2d 1194, 1197 (Fla. 3d DCA 2007) (stating appellate court reviews an order granting a motion for new trial based on juror nondisclosure for an abuse of discretion); Tripp v. State, 874 So.2d 732, 734 (Fla. 4th DCA 2004) (holding denial of new trial based on juror’s failure to disclose relationship with the defendant and his family was error absent a jury interview).

Affirmed.


text:
    Thomas Agustin Velazquez LEON, Appellant, v. Ida R. VELAZQUEZ, Appellee.
    No. 3D11-708.
    District Court of Appeal of Florida, Third District.
    Jan. 18, 2012.
    Greene Smith & Associates and Cynthia L. Greene, - Miami; Raquel A. Rodriguez, Coral Gables, for appellant.
    Kirschbaum, Birnbaum, Lippman & Gregoire and Nancy W. Gregoire, Fort Lauderdale; Luis M. Padrón, Coral Gables, for appellee.
    Before SHEPHERD and EMAS, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Thomas Agustín Velazquez Leon, the former husband, appeals an “Order on Former Wife’s Motion for Temporary Attorney’s Fees, Costs and Suit Monies Pending Appeal.” Because the order does not contain any findings concerning the former wife Ida R. Velazquez’s needs, or the former husband’s ability to pay fees, we reverse and remand for a new hearing, with directions to the trial court to set forth its factual findings. See Baumann v. Baumann, 22 So.3d 719, 721 (Fla. 2d DCA 2009) (quoting Perrin v. Perrin, 795 So.2d 1023, 1024 (Fla. 2d DCA 2001) (“[A] trial court cannot decide the issue of attorney’s fees without findings as to one spouse’s ability to pay fees and other spouse’s need to have fees paid.”)); accord Bator v. Osborne, 833 So.2d 884 (Fla. 2d DCA 2003).

Reversed and remanded.


text:
    Janet FLINT, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION, et al., Appellees.
    No. 3D11-1378.
    District Court of Appeal of Florida, Third District.
    Jan. 18, 2012.
    Santiago J. Padilla, Miami, for appellant.
    M. Elaine Howard, Deputy General Counsel, Tallahassee, for appellee Unemployment Appeals Commission.
    Before SUAREZ, CORTINAS, and LAGOA, JJ.
   PER CURIAM.

Janet Flint (“Flint”) appeals an order of the Unemployment Appeals Commission that affirmed the denial of unemployment compensation benefits. We reverse because Flint’s action did not constitute “misconduct” as defined by section 443.036(29), Florida Statutes (2010).

A review of the record demonstrates that the incident for which Flint was discharged from employment, after an otherwise unblemished fifteen-year career with the employer, amounted to an “exercise of poor judgment [that] does not amount to misconduct sufficient to support the denial of unemployment compensation benefits.” Fenelus v. Publix Super Mkts., Inc., 727 So.2d 274, 274 (Fla. 3d DCA 1999) (quoting Navarrete v. Fla. Unemployment Appeals Comm’n, 726 So.2d 833, 834 (Fla. 3d DCA 1999)). See also Kelley v. Pueblo Wholesale Co., 627 So.2d 534 (Fla. 3d DCA 1993) (recognizing that this Court consistently has held that an exercise of poor judgment does not amount to “misconduct”). Although Flint’s action was in violation of a stated company policy and may have justified her discharge from employment, “such conduct does not necessarily preclude entitlement to unemployment benefits.” Miller v. Barnett Bank of Broward Cnty., 650 So.2d 1089, 1090 (Fla. 3d DCA 1995); accord Hernandez v. Am. Gen. Fin., 39 So.3d 476 (Fla. 3d DCA 2010) (holding that one incident in violation of company policy over a fourteen-year career did not rise to the level of misconduct contemplated in section 443.036(29)); Fiedler v. Burdines, Inc., 654 So.2d 1276, 1277 (Fla. 2d DCA 1995) (“Misconduct usually involves repeated violations of explicit policies after several warnings.”).

We therefore reverse the order under review and remand the case for the allowance of Flint’s claim.

REVERSED and REMANDED.


author: GERBER, J.

text:
    Tyra WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-2818.
    District Court of Appeal of Florida, Fourth District.
    Jan. 18, 2012.
    Rehearing Denied March 1, 2012.

      Carey Haughwout, Public Defender, and John Pauly, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Helene C. Hvizd, Assistant Attorney General, West Palm Beach, for appellee.
   GERBER, J.

The defendant appeals her conviction for first degree murder of one of two children under her care. The defendant raises two arguments, neither of which have merit. We choose to briefly address one of these arguments.

The state charged the defendant for the murder of the older child. The defendant argues that the trial court erred by admitting evidence that she tricked her boyfriend into believing he was the younger child’s father. The defendant claims that this evidence was not admissible as being inextricably intertwined with the murder of the older child because it was neither relevant nor necessary to explain the crime. The defendant argues that this error was harmful and that she deserves a new trial.

We agree with the defendant that the trial court erred by admitting the evidence. The evidence clearly was not relevant and was not inextricably intertwined with relevant evidence. However, we conclude that the error was harmless. The evidence was so clearly not relevant that we do not believe any reasonable juror would have considered that evidence to be even slightly significant to a determination of whether the defendant murdered the older child. Thus, there is no reasonable possibility that the error contributed to the conviction. See State v. DiGuilio, 491 So.2d 1129, 1138 (Fla.1986) (“The harmless error test ... places the burden on the state, as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction.”).

Affirmed.

CIKLIN and CONNER, JJ., concur.


author: HAZOURI, J.

text:
    STATE of Florida, Appellant, v. Dustin Chester KOLODZ, Appellee.
    No. 4D10-1205.
    District Court of Appeal of Florida, Fourth District.
    Jan. 18, 2012.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Helene C. Hvizd, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Tom Wm. Odom, Assistant Public Defender, West Palm Beach, for appellee.
   HAZOURI, J.

We agree with the state that the court erred in imposing a downward departure sentence without providing written reasons as required by section 921.00265(2), Florida Statutes (2010), and Florida Rule of Criminal Procedure 3.704(d)(27)(A). We reverse and remand for resentencing.

Kolodz pled guilty to violation of probation and a new offense. At his sentencing, he presented two statutory grounds for a downward departure sentence. The trial court explicitly rejected both grounds. The Criminal Punishment Code (“CPC”) called for a minimum sentence of 46.5 months. For some inexplicable reason, the trial court sentenced Kolodz to 42 months. The court did not provide oral or written reasons for the departure.

Upon pronouncing the sentence, the trial court inquired as to any objections. The following colloquy occurred:

Assistant State Attorney: Yes, Your Honor. You stated that you did not want to depart and that there wasn’t a basis. The State provided a score sheet where he scores 46.5 months.
The Court: Right.
Assistant State Attorney: I thought you said ...
The Court: Well, appeal me for a four month downward sentence, go right ahead.

We are at a loss as to why the court would invite a needless appeal rather than simply provide valid written reasons for a departure or impose a sentence within the CPC.

Contrary to the state’s contention, the trial court is not limited to a sentence ■within the CPC upon remand. The court may depart downward again if it has valid written reasons to do so. See Jackson v. State, 64 So.3d 90 (Fla.2011). Otherwise, the court must impose a sentence within the CPC.

We do not address the state’s second point on appeal, which is rendered moot by our decision.

Reversed and Remanded.

MAY, C.J., and DAMOORGIAN, J., concur.


text:
    Tomas RAMIREZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-2413.
    District Court of Appeal of Florida, Third District.
    Jan. 18, 2012.

      Tomas Ramirez, in proper person.
    Pamela Jo Bondi, Attorney General, and Jill D. Kramer, Assistant Attorney General, for appellee.
    Before RAMIREZ, SUAREZ, and ROTHENBERG, JJ.
   PER CURIAM.

Tomas Ramirez appeals from the summary denial of his motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. We affirm, without comment, claims one and three of Ramirez’s motion. We further remand this cause to the trial court for it to either attach supportive record excerpts on the denial of Ramirez’s second claim, or to conduct an evidentiary hearing on the merits of the claim.

Affirmed in part; reversed and remanded in part.