text:
    Carol A. BAPTISTE, Appellant, v. MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., as Nominee of Novastar Mortgage, Inc., Appellee.
    No. 4D10-45.
    District Court of Appeal of Florida, Fourth District.
    March 16, 2011.
    Enrique Nieves, III, of Ice Legal, P.A., West Palm Beach, for appellant.
    Sidney A. Stubbs of Jones, Foster, Johnston & Stubbs, P.A., West Palm Beach, and Barry S. Fishman of Shapiro & Fish-man, LLP, Boca Raton, for appellee.
   PER CURIAM.

We affirm the order denying Baptiste’s motion to vacate the notice of voluntary dismissal, noting that Baptiste failed to allege a colorable entitlement to relief in her motion. See Pino v. Bank of N.Y. Mellon, 2011 WL 309441 (Fla. 4th DCA 2011) (en banc). No evidentiary hearing was necessary to resolve Baptiste’s motion, and the trial court need not have taken this additional step.

Affirmed.

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


source: Caselaw Access Project

author: GROSS, C.J.

license: Public Domain

text:
    Abel SMITH, Petitioner, v. STATE of Florida, Respondent.
    No. 4D10-5226.
    District Court of Appeal of Florida, Fourth District.
    March 16, 2011.
    Abel Smith, South Bay, pro se.
    No appearance required for respondent.
   GROSS, C.J.

Abel Smith petitions this court for a writ of habeas corpus. He claims that he is illegally incarcerated and entitled to the same relief that this court granted to his co-defendant. Along with his sworn petition, Smith filed a copy of an order purporting to be from this court. The order is a fake. We deny Smith’s petition.

After a jury trial, Smith was convicted of robbery with a firearm, a crime he committed at a convenience store with the help of a co-defendant. His conviction was affirmed on direct appeal. Smith v. State, 948 So.2d 770 (Fla. 4th DCA 2007) (per curiam affirmance).

Smith filed a timely rule 3.850 motion claiming ineffective assistance of trial counsel. The motion was denied and on appeal, this court affirmed. Smith v. State, 11 So.3d 369 (Fla. 4th DCA 2009) (per curiam affirmance).

On December 28, 2010, Abel filed this petition for writ of habeas corpus. He says that the circuit court lacked jurisdiction to prosecute him because the “probable cause in this case was defective, and invalid to support the issuance of a warrant” in that it was not supported by an affidavit with an official seal. Smith says that in case number 4D07-3542, this court granted his co-defendant the requested relief, and that the trial court’s judicial assistant informed the co-defendant that the robbery case was dismissed. Smith claims it is a manifest injustice that he did not get the same treatment as his co-defendant.

To support his petition, Smith has attached two documents — an order from this court in the co-defendant’s case and a letter from the trial judge’s judicial assistant.

The “order” from this court is a fraud. The case number on the order was assigned to a civil case, not to any of the co-defendant’s prior cases with this court. The order does not include this court’s seal and the signature of the court clerk is a forgery. Additionally, the language of the order contains grammatical errors and misspellings and is in a form that the court does not use to grant the relief that the order purports to grant.

The letter from the judicial assistant is likely fraudulent as well. Although the letter says that the robbery ease is “to be dismissed with prejudice pending the outcome of timely appeal by the Attorney General,” the website of the Department of Corrections shows that the co-defendant is still incarcerated on the cases that were supposedly dismissed. Further, the circuit court’s online docket does not show that the cases were dismissed. Instead, the docket shows that the co-defendant has continued to file postconviction motions, and it appears the trial court has required the co-defendant to respond to a Spencer order.

Even if we were to push past the forged supporting documents, the legal basis for Smith’s petition is unsound. A technical deficiency in an arrest affidavit does not deprive the circuit court of jurisdiction in a criminal case. See State v. Faidy, 919 So.2d 582, 583 (Fla. 5th DCA 2006); State v. Ballone, 422 So.2d 900, 901 (Fla. 2d DCA 1982).

The petition for writ of habeas corpus is denied. We are forwarding a copy of this opinion and Smith’s petition with attachments to the proper authorities to investigate for criminal prosecution.

HAZOURI and LEVINE, JJ., concur.

      . State v. Spencer, 751 So.2d 47 (Fla.1999).


author: PER CURIAM.

text:
    Maxie James GODFREY, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 4D09-3441.
    District Court of Appeal of Florida, Fourth District.
    March 23, 2011.
    John Unruh, B.C.S., of Law Office of John Unruh, Vero Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Diane F. Medley, Assistant

      Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Dismissed. See Fla. R.App. P. 9.140(b)(2)(A).

HAZOURI, MAY and CIKLIN, JJ., concur.


text:
    Arthur L. SIMS, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-3274.
    District Court of Appeal of Florida, Fourth District.
    March 23, 2011.
    Carey Haughwout, Public Defender, and Gary Lee Caldwell, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Diane F. Medley, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant, Arthur Sims, argues that his trial counsel was ineffective in two respects and that the trial court erred in imposing a public defender fee without advising Sims of his right to contest the amount. We affirm Sims’s conviction in this direct appeal because his arguments that his counsel was ineffective are not apparent on the face of the record. See Aversano v. State, 966 So.2d 493, 494-95 (Fla. 4th DCA 2007). We do, however, strike the public defender fee and remand for a hearing for Sims to contest the amount of the public defender fee. See Johnson v. State, 944 So.2d 474, 477 (Fla. 4th DCA 2006) (holding that failure to advise defendant of his right to contest a public defender fee pursuant to Florida Rule of Criminal Procedure 3.720 requires that fee “must be stricken, without prejudice to being reimposed on remand after the proper procedure is followed”). The state concedes the error.

Affirmed in part; remanded in part.

POLEN, HAZOURI and CIKLIN, JJ., concur.


author: WARNER, J.

text:
    Jim Roy WATKINS, Jr., Petitioner, v. Al LAMBERTI, Sheriff of Broward County, Respondent.
    No. 4D11-894.
    District Court of Appeal of Florida, Fourth District.
    March 25, 2011.

      Michael D. Gelety and John Contini, Fort Lauderdale, for petitioner.
    No response required for respondent.
   WARNER, J.

The petition for habeas corpus to challenge the trial court’s denial of petitioner’s request for a bond on his charge of solicitation of premeditated murder is denied. In its ruling, the trial court both granted the state’s motion for pretrial detention and alternatively denied the petitioner’s motion to set bond. While we agree with the petitioner that the crime of criminal solicitation of murder is not included in the statutory list of dangerous crimes for which the state may seek pretrial detention, see § 907.041(4)(a), Fla. Stat. (2010), we conclude that the court did not abuse its discretion in denying bond to petitioner, after consideration of the factors set forth in Florida Rule of Criminal Procedure 3.131.

The court received evidence, albeit hearsay, that the petitioner told the individual whom he had solicited to commit the murder that if “things went bad,” he would flee to Venezuela. Evidence also showed that petitioner had substantial sums of money available to him. The trial court determined that the petitioner was a flight risk, and no monetary or non-monetary conditions would assure his appearance at trial or prevent a danger to the community short of detention in the Broward County jail. Even though an order of pretrial detention cannot be based solely on hearsay, see Fla. R.Crim. P. 3.132(c), there is no similar requirement in Florida Rule of Criminal Procedure 3.131. See Castro v. State, 914 So.2d 467, 469-70 (Fla. 5th DCA 2005). Moreover, the trial court heard testimony and had both direct and hearsay evidence to support its determination to deny bond. Based upon the totality of the circumstances, we cannot say that the trial court abused its discretion in denying bail to petitioner. See Narducci v. State, 952 So.2d 622, 623 (Fla. 4th DCA 2007) (“[M]atters concerning bail are generally left to the discretion of the trial court, and they are reviewed under an abuse of discretion standard”).

We distinguish Alvarez v. Crowder, 645 So.2d 63 (Fla. 4th DCA 1994), relied on by petitioner, as the defendant in that case had not expressed an intention to flee, as had the petitioner here. In this case, the court was clearly concerned about the risk of flight for this serious charge, a first degree felony, and the apparent intention by petitioner to abscond, together with his financial ability to do so. We also distinguish Henley v. Jenne, 796 So.2d 1273 (Fla. 4th DCA 2001), which petitioner cites for the proposition that support from family and friends together with their agreement to become financially responsible for a defendant’s bail should be considered in setting a bond. In this case, while petitioner had many friends testify at the bond hearing that he was a good friend and had significant ties to the community, there is no evidence in the record that any of his friends were pledging their assets to secure his appearance at trial. Thus, the dicta in Henley regarding family support does not apply to this case.

Petition denied.

MAY and DAMOORGIAN, JJ., concur.


text:
    Maurice COX, Appellant, v. Racquia DEACON, Appellee.
    No. 4D09-4993.
    District Court of Appeal of Florida, Fourth District.
    April 6, 2011.
    Maurice Cox, West Palm Beach, pro se.
    No appearance for appellee.
   PER CURIAM.

We affirm the trial court’s denial of appellant’s motion to dissolve a final judgment of injunction for protection against domestic violence. He claims that he did not have notice and opportunity to be heard on the motion, but the record belies this contention. He was given notice of the final hearing, and he was handed a copy of the final judgment in court, for which he signed a receipt. Additionally, appellant argues that the permanent injunction entered pursuant to section 741.30, Florida Statutes, was improper because it was for a period of more than a year. Although at one time there was a statutory provision that limited permanent injunctions to a period of one year, that provision was removed by the legislature in 1997. The current statute as amended provides for an injunction to “remain in effect until modified or dissolved.” § 741.30(6)(c), Fla. Stat. (2010); see also Miguez v. Miguez, 824 So.2d 258 (Fla. 3d DCA 2002). The court did not err in refusing to dissolve the injunction.

Affirmed.

WARNER, TAYLOR and MAY, JJ„ concur.

      . To the extent that he is challenging what occurred at the final judgment hearing, he has failed to provide this court with a transcript of the final hearing. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979).


author: GERBER, J.

text:
    Ethan Jermaine WASHINGTON, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-2424.
    District Court of Appeal of Florida, Fourth District.
    April 6, 2011.
    Carey Haughwout, Public Defender, and Christine C. Geraghty, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   GERBER, J.

The defendant violated probation and requested reinstatement. In response, the circuit court requested the defendant to provide a reason for a downward departure. After the defendant was unable to do so, the court revoked the defendant’s probation and sentenced him to prison. The defendant argues that the court mistakenly believed it did not have the discretion to reinstate his probation without grounds for a downward departure. We agree with the defendant. Therefore, we reverse and remand for resentencing.

The defendant pled guilty to certain charges in two eases. Pursuant to a plea agreement, the circuit court granted the defendant a downward departure and sentenced him to a total of two years of incarceration followed by eight years of probation. The defendant later violated his probation by driving with a suspended license. The defendant’s girlfriend testified about the circumstances of the violation. She said that she was driving when she became sick and started vomiting. The defendant told her to pull over to avoid getting into an accident. She and the defendant changed seats so that he could drive her to the hospital. As soon as the defendant started driving, a police officer pulled the car over for a tag light being out. The officer cited the defendant for driving with a suspended license, but did not arrest him. Instead, the officer let the defendant’s girlfriend drive them home. The state did not seek to refute that testimony.

The defendant entered an open plea to the court admitting the violation. During the plea colloquy, after advising the defendant of the sentencing range, the circuit court told the defendant, “I imagine your lawyer is going to ask for some sort of a downward departure.” The state asked the court to revoke the defendant’s probation and sentence him to fifteen years in prison. The defendant himself asked “to be reinstated on my probation.” Defense counsel and the court then had the following dialogue:

[DEFENSE]: Judge ... I’m asking the Court to adjudicate him, give him his credit and to reinstate him. Your honor does have the authority to do that. I know he still has about six years left on [probation.
I provided Your Honor the case law: Franquiz [v. State], It’s 682 So.2d 536.... In this case, the defendant was on probation.... [H]e violated probation and the Court did a downward departure on sentencing.
THE COURT: Isn’t the big thing on this case that if it were a downward departure, that there needs to be a written reason for the downward departure?
[DEFENSE]: Yes.
THE COURT: And if you [are] not given the reasons for the downward departure then the defendant either has the option of not going forward [or] of being resentenced within the guidelines?
[DEFENSE]: Your Honor, yeah; the proposition is that Your Honor can downward depart if your Honor gives written reasons. If there are no written reasons given the case gets remanded. So that’s why I brought up that case.
THE COURT: The basis for a downward departure will be what?
[DEFENSE]: The basis is ... that he is complying with probation ... which I believe is a valid reason ...
THE COURT: He is pleading guilty to violation of his probation, so the basis for the downward departure is complying with probation. Does that sort [of] seem like a circular argument?
[DEFENSE]: We admit that he violated probation with the Driving While Suspended charge .'.. there’s no question about that.... I’m not excusing that. It’s a misdemeanor [t]hat he violated with. It’s not ... a felony, but that is the sole basis for the violation.
THE COURT: I want to know what would be the legal basis to say that this gentleman is entitled to a downward departure.
[DEFENSE]: Well' the legal basis, again, there are specific departures outlined in [section 921.0026, Florida Statutes]—
THE COURT: Which one would apply?
[DEFENSE]: Well, in the statute, itself, it states these are the exceptions. I would argue if I had to apply one, that this crime was committed in an unsophisticated manner. It was a DUS but ... other than that departure basis, it says in the statute itself that the reasons are not limited to those outlined in the statute. There can be other reasons for departing....

At the end of the hearing, the circuit court revoked the defendant’s probation and sentenced him to eight years of incarceration.

The defendant then filed this appeal. He argues that the court mistakenly believed it did not have the discretion to reinstate his probation without grounds for a downward departure. The state argues that the court’s statements and inquiries demonstrate it had a keen understanding of the law and the bounds of its discretion regarding whether to reinstate or revoke the defendant’s probation.

An appellate court reviews a trial court’s revocation of probation under an abuse of discretion standard. Russell v. State, 982 So.2d 642, 646 (Fla.2008). However, where a trial court erroneously believes it does not have the discretion to impose a certain sentence, resentencing is warranted. See Williams v. State, 889 So.2d 969, 970 (Fla. 4th DCA 2004) (reversing sentence where “the trial court expressed the erroneous belief that it was barred from sentencing [the defendant] as a youthful offender”); Ellis v. State, 816 So.2d 759, 760 (Fla. 4th DCA 2002) (reversing habitual violent felony offender sentence where the trial court “may have been under the mistaken impression that [it] lacked any discretion in the matter”).

Here, the circuit court had the discretion to revoke probation as the state requested, or reinstate probation as the defendant requested. See § 948.06(2)(a), Fla. Stat. (2009) (when a defendant admits to violating probation, the court “may forthwith revoke, modify, or continue the probation ... or place the probationer into a community control program.”). If the court desired to reinstate probation, it could do so under section 948.06 without such reinstatement constituting a downward departure sentence requiring a valid reason for the departure. State v. Harrison, 589 So.2d 317, 318 (Fla. 5th DCA 1991).

The record here, however, does not demonstrate the circuit court’s understanding that it had the discretion to reinstate the defendant’s probation without a valid reason for a downward departure. It was the court which first notified the defendant of its expectation that “your lawyer is going to ask for some sort of a downward departure.” Defense counsel then led the court further astray by citing Franquiz v. State, 682 So.2d 536 (Fla. 1996). There, our supreme court held that

a trial court must determine and state in writing, based upon all the circumstances through the date of the revocation sentencing, whether valid reasons exist for a downward departure from a guideline sentence for a revocation. The written reasons should describe why the court has or has not found the State’s prior agreement to a downward departure to be a valid reason for a subsequent downward departure at the revocation sentencing.

Id. at 538 (emphasis added). Here, however, the defendant asked the court to reinstate his probation. Reinstatement would not have required the court to impose a sentence, much less a sentence requiring a valid reason for a downward departure. See Harrison, 589 So.2d at 318; see also State v. Gray, 721 So.2d 370, 370 (Fla. 4th DCA 1998) (“Only where the court revokes probation must the court impose a sentence. Even when an appellant admits a probation violation, the court is not required to revoke the probation and sentence the offender on the underlying charge.”) (internal citations omitted).

The state argues that we should interpret defense counsel’s citation to Franquiz as the defendant’s way of presenting both a request for reinstatement and, in the alternative, a request for revocation with a downward departure sentence. We disagree. The defendant himself asked “to be reinstated on my probation.” Nor do we see anything in the record suggesting that the circuit court understood defense counsel as presenting such requests in the alternative.

Based on the foregoing, we reverse and remand for resentencing so that the court may consider defendant’s request to reinstate his probation without such reinstatement constituting a downward departure requiring a valid reason for the departure. The court, of course, also remains free to revoke the defendant’s probation and reimpose the existing sentence or any other sentence permissible under the guidelines unless the defendant presents a valid reason for a downward departure. Williams, 889 So.2d at 970.

Reversed and remanded for resentenc-ing.

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


text:
    Patrick SURTAIN and Michelle Surtain, individuals, Petitioners, v. Joe CAPRIO and Phil Caprio, individuals, Joe Caprio & Co., a Florida corporation, Weston Title & Escrow, Inc., a Florida corporation, Landmark Custom Ranches, Inc., a Florida corporation, JNLN, LLC, a Florida corporation, and Branch Banking And Trust Co., a Foreign corporation, Respondents.
    No. 4D10-4776.
    District Court of Appeal of Florida, Fourth District.
    April 6, 2011.

      Michael L. Feinstein of Michael L. Fein-stein, P.A., Fort Lauderdale, for petitioners.
    Alan S. Rosenberg of Koleos Rosenberg P.A., Fort Lauderdale, for respondent Landmark Custom Ranches, Inc.
   PER CURIAM.

Patrick F. Surtain and Michelle J. Sur-tain, plaintiffs below, seek certiorari review of a trial court order which granted the motion by defendant Landmark Custom Ranches, Inc. (Landmark) to dissolve and/or strike Plaintiffs’ amended notice of lis pendens. We grant the petition, quash the order, and remand for further proceedings.

Plaintiffs’ original complaint essentially sought rescission of a real estate contract in which they had agreed to have Landmark construct a home for them on property it owned. However, their amended complaint included a count for unjust enrichment and another to impose and foreclose an equitable lien on the land, based on improvements to the property allegedly made by Plaintiffs with Landmark’s consent, allegedly outside of the terms of the contract. On the date of filing the amended complaint, they recorded a notice of lis pendens.

Landmark, which had found another buyer after Plaintiffs refused to close on the contract, moved on an emergency basis to dissolve and/or strike Plaintiffs’ notice of lis pendens. Without an evidentiary hearing, which Plaintiffs requested, the trial court granted the motion.

Certiorari lies to review a trial court order dissolving a lis pendens on real property. Bergmann v. Slater, 922 So.2d 1110 (Fla. 4th DCA 2006). To support a lis pendens, a plaintiff need not show a substantial likelihood of success on the merits, only a “fair nexus between the apparent legal or equitable ownership of the property and the dispute embodied in the lawsuit.” Chiusolo v. Kennedy, 614 So.2d 491, 492 (Fla.1993). If alienation of the property or the imposition of intervening liens conceivably could disserve the purposes for which lis pendens exists, a fair nexus must be found. Id.

Equitable liens exist “independently of any special agreement” and are enforceable “on the principle that one person, having gotten control of an estate of another, ought not in conscience to keep it, as between them, without making due compensation.” Special Tax Sch. Dist. No. 1 of Orange Cnty. v. Hillman, 131 Fla. 725, 179 So. 805, 809 (1938). Unjust enrichment may be the basis for an equitable lien, where the claimant has furnished funds to improve land with the knowledge and consent of the owner. Plotch v. Gregory, 463 So.2d 432, 436 & n. 1 (Fla. 4th DCA 1985).

It appears that Plaintiffs’ allegations sufficed to require the trial court to hold an evidentiary hearing to determine whether the facts establish a fair nexus between the property and the claims in the lawsuit. Chiusolo, 614 So.2d at 492; Bergmann, 922 So.2d at 1112. On remand, the trial court is directed to hold such a hearing, at which Plaintiffs, as proponents of the lis pendens, have the burden of establishing that nexus. Chiusolo, 614 So.2d at 492 n. 2.

Petition Granted.

POLEN, STEVENSON and LEVINE, JJ., concur.


text:
    Nicholas ARSALI, Appellant, v. DEUTSCHE BANK NATIONAL TRUST COMPANY as Trustee for Premont Loan Trust 2005-1, Asset Backed Certificates, Series 2005-1; Grace O. Rance, Mers Acting Solely as Nominee for Fremont Investment & Loan, and Vineyards at Palm Beach Homeowners Association, Inc., Appellees.
    No. 4D10-3830.
    District Court of Appeal of Florida, Fourth District.
    April 6, 2011.

      Nicholas Arsali, Ocean Ridge, Pro Se.
    Andrea Shelowitz and Jesse Davidson of Gladstone Law Group, P.A., Boca Raton, for Appellee-Deutsche Bank National Trust Company.
   PER CURIAM.

Appellant, a third-party purchaser in a mortgage foreclosure sale, appeals the trial court’s denial of his motion for rehearing of the court’s prior order, which granted Deutsche Bank National Trust Company’s emergency motion to rescind and reschedule the foreclosure sale. We reverse because the trial court erred in summarily granting the bank’s motion to rescind the foreclosure sale without notice to appellant and without an evidentiary hearing on the bank’s allegations that the bid was grossly inadequate and resulted from mistake, fraud, or other irregularity in the sale.

On May 1, 2009, Deutsche Bank National Trust Company filed a foreclosure action in Palm Beach County Circuit Court against the homeowner. Subsequently, the trial court entered a final judgment of foreclosure against the homeowner for the amount of $350,419.21 on April 30, 2010. The trial court scheduled the foreclosure sale of the subject property for June 10, 2010 at 10:00 a.m.

On May 25, 2010, the bank filed a Motion to Cancel the Foreclosure Sale to determine whether the homeowner qualified for a loan modification. The trial court, however, failed to enter an order cancelling the foreclosure sale, and the sale went forward as scheduled on June 10, 2010.

At the foreclosure sale, appellant submitted the highest bid of $16,100.00 for the subject property and received a certificate of sale, which he filed that day. The bank promptly filed an Emergency Motion to Rescind and Reschedule the Foreclosure Sale, asserting that “[d]ue to its mistake or inadvertence, and because [the bank] believed the sale would be cancelled, [the bank] failed to send a representative to the foreclosure sale.” The bank further alleged that the property was appraised at $185,940.00, and that a third-party purchaser’s bid of $16,100.00 was “grossly undervalued at 11.55% of the property’s appraised value.” Along with the bank’s emergency motion, the homeowner filed an objection to the foreclosure sale; the homeowner mistakenly believed that the foreclosure sale had been cancelled and argued that granting the objection would not prejudice anyone since title to the subject property had not been transferred.

On June 17, 2010, the trial court granted the emergency motion to rescind the foreclosure sale during a uniform motion calendar hearing. Appellant did not receive notice of the hearing. On June 25, 2010, appellant filed a motion for rehearing, asserting that rescission of the foreclosure sale was improper because he was not given notice of the hearing and the bank failed to present evidence sufficient to vacate the sale. The trial court denied appellant’s motion for rehearing on August 18, 2010 because the “June 10, 2010 should have been cancelled and therefore vacated.”

We first address the bank’s argument that appellant lacks standing to appeal because he failed to follow the procedures for intervention of non-parties set forth in Florida Rule of Civil Procedure 1.230. The bank contends that because appellant did not obtain a court order permitting him to intervene in this foreclosure suit prior to filing this appeal, he now lacks standing to be a party in this action. Appellant responds that such procedure is unnecessary, as Florida’s well-settled law recognizes that a third-party purchaser who is not a named party in the action becomes a quasi-party with standing to appeal an adverse ruling. Appellant argues that as a third-party purchaser, he is a quasi-party who does not need to intervene under Rule 1.230 in order to have standing to appeal. We agree. See Miller v. Stavros, 174 So.2d 48, 49 (Fla. 3d DCA 1965) (stating that a third-party purchaser in a foreclosure sale does not have to intervene in a foreclosure suit in order to become a party to the action and such third-party purchaser has standing on appeal because “[a] purchaser at a mortgage foreclosure sale, who is not a named party in the cause, becomes a quasi party”); Confederate Point P’ship, Ltd., v. Schatten, 278 So.2d 661, 662 (Fla. 1st DCA 1973) (stating that “[purchasers of property at a judicial sale, and all persons claiming under them, are regarded as privies to the judgment authorizing the sale,” and noting that if a third-party purchaser was aggrieved by the judgment of sale, that purchaser could appeal the judgment of sale even though he or she was not named as a part of the cause of action).

As to the merits, “[wjhether the complaining party has made the showing necessary to set aside a [foreclosure] sale is a discretionary decision by the trial court, which may be reversed only when the court has grossly abused its discretion.” Ingorvaia v. Horton, 816 So.2d 1256, 1259 (Fla. 2d DCA 2002) (quoting United Cos. Lending Corp. v. Abercrombie, 713 So.2d 1017, 1018 (Fla. 2d DCA 1998)). “It is well established that courts may exercise their discretion as courts of equity to set aside foreclosure sales and allow mortgagors to exercise their statutory right of redemption where there has been some defect in the proceedings regarding notice of the foreclosure sale date, or other egregious matters, such as a grossly low bid by the purchaser and accident or mistake on the part of the mortgagor or an attorney representing the mortgagor, in failing to attend the foreclosure sale.” Cicoria v. Gazi, 901 So.2d 282, 287 (Fla. 5th DCA 2005).

Appellant argues that the trial court abused its discretion by summarily granting the bank’s motion to vacate the foreclosure sale during motion calendar without giving him notice of the hearing or conducting an evidentiary hearing on whether the property’s purchase price was “grossly or startlingly inadequate” and resulted from the bank’s mistake, which affected the sale. Further, appellant argues that the bank’s motion to vacate the sale contained mere assertions about the inadequacy of the bid price and the bank’s “mistake” but failed to provide any supporting affidavits or evidence to prove its allegations.

For a trial court to properly rescind a foreclosure sale, the record must demonstrate that the sale was improper based upon a two-part test. The mortgagor has the burden of proving not only that “the foreclosure sale bid was grossly or startlingly inadequate,” but also that the bid’s inadequacy resulted from “some mistake, fraud or other irregularity in the sale.” Blue Star Invs., Inc., v. Johnson, 801 So.2d 218, 219 (Fla. 4th DCA 2001) (quoting Cueto v. Mfrs. & Traders Trust Co., 791 So.2d 1125, 1126 (Fla. 4th DCA 2000)) (internal quotations omitted).

In determining whether a foreclosure sale should be vacated, a trial court may conduct an evidentiary hearing on the bank’s motion to rescind the sale. Cf. Esque Real Estate Holdings, Inc. v. C.H. Consulting, Ltd., 940 So.2d 1185, 1187 (Fla. 4th DCA 2006) (holding that “because [the bank] ... failed to allege any irregularity or defect connected with the sale process, the trial court did not abuse its discretion in denying their motion to vacate the foreclosure sale without holding an evidentiary hearing”). A trial court conducts an evidentiary hearing because attorneys’ arguments are not evidence. See State v. Jones, 30 So.3d 619, 622 (Fla. 2d DCA 2010) (“A trial court may not rely on argument by counsel to make factual determinations.” (citing Ordonez v. State, 862 So.2d 927, 930 (Fla. 2d DCA 2004))). Moreover, unsworn statements by an attorney at a hearing do not establish facts upon which the trial court can rely. Sonson v. Hearn, 17 So.3d 745, 747 n. 1 (Fla. 4th DCA 2009) (citing Leon Shaffer Golnick Adver., Inc. v. Cedar, 423 So.2d 1015, 1017 (Fla. 4th DCA 1982)).

Here, it appears the trial court summarily granted the bank’s motion to rescind the foreclosure sale without holding an evidentiary hearing to determine a factual basis for the bank’s claims. As noted earlier, the bank’s motion did not attach sworn affidavits, and the bank did not present testimony at the calendar call. The record does not reflect that the bank presented witnesses who vouched for the bank’s mistake or testified to the gross inadequacy of the price. We thus conclude that the trial court abused its discretion in summarily granting the motion without holding an evidentiary hearing to determine whether the sale should have been set aside. See U.S. Bank Nat’l Ass’n. v. Bjeljac, 43 So.3d 851, 853 (Fla. 5th DCA 2010) (noting that due process requires that a hearing be held on the bank’s request to set aside a foreclosure sale). Accordingly, we reverse and remand this cause for further proceedings consistent with this opinion.

Reversed and Remanded.

GROSS, C.J., TAYLOR and HAZOURI, JJ., concur.


text:
    Marshall E. FRAYSUR, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-2705.
    District Court of Appeal of Florida, Fourth District.
    April 6, 2011.

      Marshall E. Fraysur, Crawfordville, pro se.
    No appearance required for appellee.
   PER CURIAM.

We affirm the summary denial of appellant’s motion for postconviction relief. In his motion, he claims that he pled to certain crimes in return for a recommended sentence which included probation, but he was not given notice of the general conditions of probation at sentencing, as the court did not enter an order of probation until several days after sentencing. Appellant did not learn of the imposition of the general conditions until he reported to his probation officer after release from prison. He claims that the imposition of the general conditions thus violates due process, because he lacked notice and an opportunity to object to them. To the contrary, the supreme court established in State v. Hart, 668 So.2d 589, 592-93 (Fla. 1996), that the general conditions, which are contained within the statutes or -within the forms contained within the rules of criminal procedure, may be imposed in a written order and not orally pronounced, because the statute and rule provide constructive notice to the defendant that these probation conditions can be imposed. In Hart, the court noted that defendants often do not see the probation order until they report to the probation office. However, because the defendant is on constructive notice of the conditions through their inclusion in statutes and rules, the defendant has the opportunity to object at sentencing if probation is imposed. Id. at 593; see also Maddox v. State, 760 So.2d 89, 105 (Fla.2000). Appellant’s argument has been rejected by the supreme court, as the trial court found.

Affirmed.

WARNER, POLEN and DAMOORGIAN, JJ., concur.


text:
    Stephen S. GREEN, Appellant, v. Robert SHANNON, Appellee.
    No. 4D10-1801.
    District Court of Appeal of Florida, Fourth District.
    April 6, 2011.
    Stephen S. Green, Okeechobee, pro se.
    Pamela Jo Bondi, Attorney General, and Lance Eric Neff, Assistant Attorney General, Tallahassee, for appellee.
   PER CURIAM.

Affirmed. See Bush v. State, 945 So.2d 1207, 1213-14 (Fla.2006).

WARNER, LEVINE and CONNER, JJ., concur.


text:
    CHALLENGE ELECTRIC, INC., a Florida corporation, Appellant, v. Norman & Ophelia McDANIELS, Appellees.
    No. 4D10-759.
    District Court of Appeal of Florida, Fourth District.
    April 6, 2011.
    Leanne L. Ohle of Blake, Mildner & Ohle, P.A., Fort Pierce, for appellant.
    Bruce A. Koebe, Jensen Beach, for ap-pellees.
   PER CURIAM.

Affirmed. See N. Am. Speciality Ins. Co. v. Bergeron Land Dev., Inc., 745 So.2d 359 (Fla. 4th DCA 1999); Regal Wood Prods., Inc. v. First Wis. Nat’l Bank of Milwaukee, 347 So.2d 643 (Fla. 4th DCA 1977).

STEVENSON, TAYLOR and GERBER, JJ., concur.


text:
    Jennifer Lynn FLORES, Appellant, v. Ronald W. FLORES, Appellee.
    No. 4D09-3743.
    District Court of Appeal of Florida, Fourth District.
    April 6, 2011.

      Perry W. Hodges, Jr. of Rogers, Morris & Ziegler LLP, Fort Lauderdale, for appellant.
    Denise E. Kistner of Law Offices of Denise E. Kistner, P.A., Fort Lauderdale, for appellee.
   WARNER, J.

The former wife, Jennifer Flores, timely appeals an order denying her motion for rehearing or to amend a final judgment, claiming that the trial court erred in failing to retain jurisdiction in the final judgment to award attorney’s fees in connection with the former husband’s petition for change of child custody. Although the former wife requested attorney’s fees in the response to the husband’s petition and in her written closing arguments after trial, the trial court did not mention attorney’s fees in the final judgment. In response to the former wife’s motion to amend, the former husband erroneously contended that she had never requested fees. The trial court denied the motion to amend to reserve jurisdiction, and we reverse.

Where the trial court fails to address a request for attorney’s fees and costs or to reserve jurisdiction to consider the issue, the final judgment should be reversed and remanded for entry of a corrected judgment reserving jurisdiction to address the request for attorney’s fees and costs. See May v. May, 908 So.2d 558, 559 (Fla. 2d DCA 2005); Yangco v. Yangco, 901 So.2d 217, 222 (Fla. 2d DCA 2005); see also Singer v. Singer, 38 So.3d 889 (Fla. 4th DCA 2010); Perez v. Perez, 846 So.2d 685 (Fla. 4th DCA 2003). In Harbin v. Harbin, 762 So.2d 561 (Fla. 5th DCA 2000), the wife petitioned the court for modification of child support and requested attorney’s fees. Her pretrial statement included a request for fees, and at the hearing she asked the court to rule on her entitlement to fees. When the trial court entered its final judgment of modification, it did not include a reservation of jurisdiction to determine fees. The wife moved for rehearing, requesting a ruling on her entitlement to attorney’s fees, but the trial court summarily denied the motion for rehearing. On appeal, the Fifth District held that the trial court should have determined the issue of attorney’s fees and should have reserved jurisdiction for that purpose. The court further explained that even though the trial court failed to reserve jurisdiction on attorney’s fees in its final judgment, “it nevertheless had jurisdiction to amend its final judgment to add the reservation of jurisdiction on the wife’s entitlement to attorney’s fees as the former wife had timely filed a motion for rehearing on this issue.” Id. at 563. Therefore, the court reversed to require amendment of the judgment to reserve fees.

Harbin is “on all fours” with the present case and compels reversal. The former wife requested an award of attorney’s fees in her amended answer, raised the issue of attorney’s fees in a pre-trial statement, and specifically requested in her written closing argument that the court reserve jurisdiction on the issue of attorney’s fees. Therefore, the trial court should have reserved jurisdiction on this issue in its final judgment. Furthermore, having failed to reserve jurisdiction on the wife’s entitlement to attorney’s fees in the final judgment, the trial court should have granted the wife’s motion for rehearing and amended the final judgment to reserve jurisdiction on the wife’s attorney’s fees claim.

Reversed and remanded for further proceedings consistent with this opinion.

POLEN and STEVENSON, JJ., concur.


text:
    Ronnie CREEK, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-2113.
    District Court of Appeal of Florida, Fourth District.
    April 6, 2011.
    Maurice Graham, Oakland Park, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Laura Fisher, Assistant Attorney General, West Palm Beach, for ap-pellee.
   WARNER, J.

Appellant, Ronnie Creek, violated his probation, on which he was placed for the crimes of burglary of a conveyance, battery on a person sixty-five years of age or older and criminal mischief. Creek admitted to having violated his probation, pled open to the court, and was sentenced to sixty months in state prison. His attorney then filed a motion for rehearing and to set aside his plea, which was treated as a motion pursuant to Florida Rule of Criminal Procedure 3.170(1). The motion alleged that, after sentencing, the attorney discovered for the first time that Creek suffers from severe mental illness, has received treatment and has been “Baker Acted” in the past. During Creek’s plea and sentencing hearing, he was under the influence of Prozac, Vistaril, Robaxin, and Tegretol. Because of his mental condition, his plea was not knowing and voluntary. The state responded, claiming that the plea colloquy conclusively refuted that contention. We reverse.

Although the plea colloquy was extensive, the trial court did not ask Creek about his mental capacity or his drug use. Therefore, the record does not conclusively refute the allegations in the motion. See Panchu v. State, 1 So.3d 1243, 1245 (Fla. 4th DCA 2009) (“A defendant who files a facially sufficient motion to withdraw a plea is entitled to an evidentiary hearing on the issue unless the record conclusively refutes the allegations.”). We remand for an evidentiary hearing on the motion.

Reversed and remanded.

POLEN and STEVENSON, JJ., concur.


author: LEVINE, J.

text:
    Mary ROGERS, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-815.
    District Court of Appeal of Florida, Fourth District.
    April 6, 2011.

      Carey Haughwout, Public Defender, and Ephrat Livni, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   LEVINE, J.

Appellant pled no contest to charges of trafficking in cocaine, possession of marijuana, and possession of drug paraphernalia, reserving her right to appeal the denial of her motion to suppress. The issue presented for our review is whether the trial court erred in not suppressing the cocaine, marijuana, and drug paraphernalia seized by the police after entering appellant’s residence without a warrant. We find that the trial court correctly admitted the marijuana, but the court erred in not suppressing the cocaine and paraphernalia seized from a locked bedroom within the residence. As a result, we reverse appellant’s conviction for trafficking in cocaine and possession of paraphernalia, but we affirm the conviction for possession of marijuana.

Testimony during the suppression hearing revealed that a neighbor called 911 about women and men arguing at a residence, advising that they were “throwing things and being violent.” Two officers responded to the residence. One officer testified that he heard male and female voices yelling from within the premises. The officer knocked on the door and saw a woman quickly peek outside from the window. After no one answered the door, the officer heard a male voice cursing and ordering someone not to open the door. At this point, the officer was worried about the safety of the woman, since he did not hear her voice. The officer opened the door, which happened to be unlocked, and yelled inside, “Davie Police, you need to come to the front of the door.” A male inside responded by cursing and stating, “[Djon’t go outside.” The officers then entered the residence, fearing that someone was being held hostage. Immediately upon entering the residence, the officers saw marijuana in plain view on the dining room table. Another officer arrived at the residence and conducted a “protective sweep” of the rest of the residence at that point. Appellant and the other two individuals at the residence were either seated at the table or handcuffed on the ground.

. When the officer conducting the sweep attempted to enter appellant’s bedroom, he discovered the room was locked. Appellant said she always kept her bedroom door locked, and when asked by the officer, she stated she did not have the key. The officer believed appellant’s answer was “fishy,” and due his concern that someone was in the room, the officer “jimmied” the lock with a knife. After entering appellant’s bedroom, the officer saw cocaine in an open dresser drawer, as well as plastic bags and other drug paraphernalia in plain view. At the hearing, the officer admitted that the bedroom was beyond the reach of appellant or the two other occupants of the residence, and the officers never asked appellant or the other occupants if anybody else was in the residence before jimmying the door.

When reviewing a trial court’s ruling on a motion to suppress, we accord a presumption of correctness to the trial court’s determination of facts, while we independently review mixed questions of law and fact that ultimately determine constitutional issues. Riggs v. State, 918 So.2d 274, 278 (Fla.2005). As to the initial issue of whether the police officers had the authority to open the unlocked door to the house and seize the marijuana on the table in plain view, we find that the trial court correctly denied appellant’s motion to suppress the marijuana.

Once the officers entered the premises and secured its occupants, the question remains whether the officers had the authority to enter appellant’s locked bedroom. As a general rule, incident to arrest, police officers may as a “precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched.” Maryland v. Buie, 494 U.S. 325, 384,110 S.Ct. 1093, 108 L.Ed.2d 276 (1990). In Nolin v. State, 946 So.2d 52, 56 (Fla. 2d DCA 2006), the court summarized that the rationale for allowing a protective sweep is akin to the

intrusion allowed in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), where a nonconsensual pat down for weapons was permitted because it was “no more than necessary to protect the officer from harm.” Buie, 494 U.S. at 333, 110 S.Ct. 1093, 108 L.Ed.2d 276. Otherwise, the Fourth Amendment’s prohibition against unreasonable searches applies.

However, to justify a “protective sweep” beyond those stated parameters, “there must be articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene.” Buie, 494 U.S. at 334, 110 S.Ct. 1093. The “protective sweep” should be only a “cursory inspection of those spaces where a person may be found” and may last only as long as “necessary to dispel the reasonable suspicion of danger.” Id. at 335-36, 110 S.Ct. 1093.

In Runge v. State, 701 So.2d 1182, 1185 (Fla. 2d DCA 1997), the court found that since the state presented no evidence to support a precautionary sweep of the bedrooms, closets, and bathroom, the “State failed to meet its burden to justify the warrantless precautionary sweep of [the defendant’s] apartment.” The court concluded that to support the search of the entire apartment, “the police officer must articulate facts sufficient to warrant a reasonable belief that the apartment harbored dangerous individuals.” Id. In the present case, there was no testimony as to the occupants of the residence being questioned “whether there were others” on premises. Id. at 1186. We conclude, as in Runge, the search of the premises was “impermissibly broad.” Id. at 1183.

In the present case, like in Runge, no evidence indicated the need for such an intrusion or justified such a search. Further, in the present case, unlike the others cited, the police intrusion went beyond merely searching the bedroom after securing the residents of the premises. Here the officer had to jimmy the lock to appellant’s bedroom in order to gain entrance. If the search in Runge was overbroad and not permissible, then clearly the warrant-less, forcible entry into appellant’s bedroom is impermissible by any standard. In the present case, there are no facts on the record that would justify such a search, and as such, the trial court erred in not granting appellant’s motion to suppress.

We share the concerns of other courts that are equally mindful “of the dangers police face daily while performing their duties.” Runge, 701 So.2d at 1186. We agree, however, that “[o]ur paramount duty in cases such as this, however, is to determine whether the facts presented demonstrate that concern for officer safety justifies an exception to the Fourth Amendment right to be secure in one’s home against unreasonable warrantless searches.” Id. As Justice Jackson once stated:

The right of officers to thrust themselves into a home is ... a grave concern, not only to the individual but to a society which chooses to dwell in reasonable security and freedom from surveillance. When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or Government enforcement agent.

Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 92 L.Ed. 436 (1948). We find, given the facts of this case, the war-rantless intrusion into a locked bedroom was not justified.

In summary, we find the part of the trial court’s order denying suppression of the marijuana based on the initial entry into the residence to be correct, and we affirm appellant’s conviction for possession of marijuana. However, we find the trial court erred in not granting the motion to suppress the fruits of the protective sweep seized as a result of the officer’s warrant-less, forced entry into appellant’s locked bedroom. Accordingly, we reverse that part of the order denying suppression of the cocaine and drug paraphernalia and remand with directions to vacate appellant’s convictions for trafficking in cocaine and possession of drug paraphernalia.

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

GROSS, C.J., and TAYLOR, J., concur.

      . The officer elaborated that appellant’s answer appeared "fishy” because "the door is locked, she locks it every day, all the time, but she doesn't have the key, and you know, I see the drugs on the table; I also know that, you know, there's violence going on in the house.”

      . The two other individuals in the residence raised this same issue as to the seized marijuana, claiming there was no exigency that justified the police officers' entrance into the residence without a warrant. This court rejected those arguments and affirmed per cu-riam the defendants' convictions. Severe v. State, 48 So.3d 65 (Fla. 4th DCA 2010); Gilzene v. State, 49 So.3d 256 (Fla. 4th DCA 2010).


author: SHEPHERD, J.

text:
    Oza B. JENKINS, Appellant, v. MOTOROLA, INC., et al., Appellees.
    No. 3D10-3271.
    District Court of Appeal of Florida, Third District.
    April 20, 2011.
    Oza B. Jenkins, in proper person.
    Shook, Hardy & Bacon, and John M. Barkett and Daniel B. Rogers, Miami, for appellees.
    Before SHEPHERD, SUAREZ, and CORTIÑAS, JJ.
   SHEPHERD, J.

The trial court’s December 13, 2010, order denying Oza B. Jenkins’ request for payment, is affirmed.

Appellee’s, Motorola, Inc., and Cingular, Inc., motion for sanctions pursuant to section 57.105, Florida Statutes, (2011), for filing a frivolous appeal is granted. We remand to the trial court for an award to Motorola, Inc. of its attorney fees and costs incurred on this appeal.

Appellant, Oza Jenkins, is ordered to show cause, within twenty days of the date of this opinion, why she should not be barred from filing further pro se proceedings in this Court arising out of lower tribunal case number 04-1420. See Sibley v. Sibley, 885 So.2d 980 (Fla. 3d DCA 2004). Motorola, Inc. is invited to respond within ten days thereafter.

      . The following is a partial list of the merit-less filings by Jenkins in this Court: Jenkins v. Motorola, Inc., 23 So.3d 726 (Fla. 3d DCA 2009) (affirming); Jenkins v. Motorola, Inc., 994 So.2d 1253, 1254 (Fla. 3d DCA 2008) (affirming trial court’s order in “all respects” and reaffirming “the trial court's directive that Jenkins file no further motions in this action without the prior approval of the trial court”); Jenkins v. Motorola, Inc., 986 So.2d 613 (Fla. 3d DCA 2008) (table) (denying petition for writ of certiorari filed by Jenkins); Jenkins v. Motorola, Inc., 973 So.2d 454 (Fla. 3d DCA 2008) (table) (denying petition for writ of certiorari filed by Jenkins); Jenkins v. Motorola, Inc., 961 So.2d 951 (Fla. 3d DCA 2007) (dismissing appeal); Jenkins v. Motorola, Inc., 953 So.2d 537 (Fla. 3d DCA 2007) (per curiam affirmance); Jenkins v. Motorola, Inc., 939 So.2d 1073 (Fla. 3d DCA 2006) (table) (dismissing appeal). We do note Ms. Jenkins had one successful appeal in this Court, on the procedural ground that the trial court ruled on a motion after he had recused himself. See Jenkins v. Motorola, Inc., 911 So.2d 196 (Fla. 3d DCA 2005).


text:
    John R. HOCK, individually, and Doreen T. Zic-Hock, individually, Petitioners, v. LEGACY BANK OF FLORIDA, a Florida banking corporation, Respondent.
    No. 4D10-3872.
    District Court of Appeal of Florida, Fourth District.
    April 20, 2011.
    Peter M. Feaman and Nancy Guffey-Landers of Peter M. Feaman, P.A., Boyn-ton Beach, for petitioners.

      Daniel J. Barsky and Stephen T. Maher of Shutts & Bowen, West Palm Beach and Miami, for respondent.
   WARNER, J.

This petition for certiorari challenges an order of the circuit court requiring the petitioners to post a $400,000 bond into the court registry as a condition to their claim of rescission of a home equity mortgage on their residence. We dismiss the petition as it fails to show irreparable harm not remediable on appeal.

The petitioners secured a home equity mortgage with the respondent in 2006. When they failed to make their monthly payments in 2009, the respondent filed a complaint to foreclose. After being defaulted and then having the default set aside, petitioners filed an answer, affirmative defenses and counterclaim, alleging that the bank had forged their signatures on closing documents and failed to give notice of their right to rescind and other. Truth in Lending Act (TILA) disclosures. The petitioners also served respondent with a Notice to Rescind pursuant to 15 U.S.C. § 1635 and 12 C.F.R. § 226.23, which permit rescission when a lender fails to comply with the Truth in Lending disclosures. When that occurs, a creditor must terminate its security interest in property, after which the consumer shall tender the money or property back to the creditor. However, that procedure may be modified by court order. See 12 C.F.R. § 226.23(d)(4).

Upon receiving the pleadings and notice, respondent moved to strike or modify the TILA procedures, requesting that the court deviate from the statute and require that petitioners deposit the principal amount of money received on the home equity line of credit into the court registry before the respondent releases its security interest in their property. After a hearing, the court ruled that, assuming a TILA violation occurred, it still would require that the petitioners deposit at least most of the principal borrowed, amounting to $400,000. Should the petitioners fail to post the amount, their affirmative defense of rescission would be stricken and respondent would not be required to release its security.

To secure certiorari relief from a pretrial order of the circuit court a petitioner must show that the trial court departed from the essential requirements of law which will cause the petitioner irreparable injury not remediable on final appeal. See Bared & Co., Inc. v. McGuire, 670 So.2d 153 (Fla. 4th DCA 1996). We treat the requirement that petitioner show irreparable harm as a jurisdictional issue in that “[i]t is only if the petition demonstrates harm that cannot be corrected on final appeal that we have the power to exercise discretion to grant or withhold the writ. It must be made, at least prima facie, clear in the petition that the harm is incurable by final appeal.” Id. at 157.

Petitioners have not made that showing here. According to the trial court’s order, should petitioners not post the bond, their affirmative defense of rescission under TILA will be stricken upon motion by respondent. Petitioners do not show how this will cause irreparable damage not remediable on appeal. The striking of an affirmative defense can always be raised as an issue on appeal from a final judgment.

Petitioners rely on S and T Builders v. Globe Properties Inc., 909 So.2d 375 (Fla. 4th DCA 2005), as support for the contention that they have suffered irreparable harm. That case involved a trial court order requiring the posting of a bond to continue a lis pendens. Where a trial court’s order may dissolve a lis pendens, the courts have treated it as creating irreparable injury, because the litigant may lose lien rights or priority status because of intervening interests which could arise during the pendency of the litigation. See State-Wide Constr., Inc. v. Dowda, 424 So.2d 198, 199 (Fla. 5th DCA 1983). Loss of a property right would be irreparable and could not be corrected on final appeal. Id. at 198-99; see also Norwest Mortg., Inc. v. King, 789 So.2d 1139, 1140 (Fla. 4th DCA 2001) (irreparable harm shown where trial court ordered satisfaction of mortgage upon mortgagor depositing a certain amount in court registry without an ultimate determination of the amount due, as petitioner would have lost its right to foreclose if it were later determined that petitioner was entitled to more).

In this case, the trial court’s order does not affect any property rights which cannot be corrected on final appeal. For this reason, we conclude that petitioners have not established irreparable harm and thus cannot invoke our jurisdiction to entertain this petition.

Petition dismissed.

POLEN and CIKLIN, JJ., concur.

      . The respondent also denied that any violations took place or that any forgery was committed.

      . This amount was actually less than the principal amount due.


text:
    Gary Wayne GRIMES, Petitioner, v. STATE of Florida, Respondent.
    No. 4D10-4619.
    District Court of Appeal of Florida, Fourth District.
    April 27, 2011.

      Gary Wayne Grimes, Florida City, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for respondent.
   PER CURIAM.

The petitioner’s appointed appellate counsel, who also represented him at trial, filed a timely notice of appeal on his behalf but then failed to respond timely to this court’s order directing the appellant either to pay the filing fee or to file a circuit court clerk’s determination of indi-gency status. As a result, the petitioner’s direct appeal, case number 4D09-4240, was dismissed. This alone constitutes ineffective assistance of appellate counsel. Spivey v. State, 827 So.2d 390 (Fla. 5th DCA 2002).

The petitioner then filed with the circuit court a pro se motion for the appointment of the public defender’s office as appellate counsel, attaching his completed application for criminal indigent status. The trial court adjudged him indigent for purposes of the appeal but again appointed the same attorney to represent him on appeal. These orders were filed within closed case number 4D09^240, but no one requested the reinstatement of the dismissed appeal. In response to petitioner’s bar complaint, the attorney indicated he would file a petition for belated appeal, but this court received no such petition.

In response to a pro se communication, this court’s clerk wrote the petitioner on September 15, 2010, to explain that this court had received the lower court’s order of insolvency, but the appeal remained dismissed because no motion to reinstate the appeal had been filed. The September 15 communication to petitioner was served on appointed counsel, but he still filed no motion to reinstate.

The petitioner next filed with the circuit court a second motion to appoint conflict-free counsel, asking the trial court to appoint the public defender and representing that appointed counsel had informed the circuit court he was not doing the appeal. The petitioner served a copy of this motion on appointed counsel. The trial court denied the motion, reiterating that it had appointed the same attorney to represent the petitioner on appeal. It served a copy of the order on appointed counsel, but counsel filed nothing further with this court.

Consequently, we now grant the petitioner’s pro se petition for writ of habeas corpus alleging ineffective assistance of appellate counsel. We hereby reinstate the petitioner’s appeal in case number 4D09-4240.

The petitioner already having been certified indigent, we also relinquish jurisdiction to the trial court for thirty days to appoint new appellate counsel, either the public defender or another attorney, other than the attorney who previously was appointed. Thereafter, substitute appellate counsel is directed to ensure transmittal of the record on appeal to this court within thirty days after appointment and to file the initial brief in case number 4D09-4240 within thirty days thereafter.

Petition granted; direct appeal reinstated; jurisdiction relinquished.

WARNER, POLEN and LEVINE, JJ, concur.

      . The petitioner has requested that the trial court be directed to appoint only the Office of the Public Defender to represent him on appeal; however, especially in light of the fact that he was not represented at trial by the Public Defender for the Fifteenth Circuit, where he was tried, the trial court may have valid reasons for not appointing that office to represent him on appeal. At any rate, we leave the appointment to the trial court’s discretion, so long as it is not the same attorney who previously was appointed.


text:
    FLORIDA INSURANCE GUARANTY ASSOCIATION, Appellant, v. Jeffrey EHRLICH and Sylvie Ehrlich, Appellees.
    No. 4D09-3886.
    District Court of Appeal of Florida, Fourth District.
    May 4, 2011.
    Hinda Klein of Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow & Schef-fer, P.A., Hollywood, for appellant.
    Bard D. Rockenbach and Nichole J. Se-gal of Burlington & Rockenbach, P.A., West Palm Beach, and James C. Spitz of the Law Office of James C. Spitz, West Palm Beach, for appellee Jeffrey Ehrlich.
   PER CURIAM.

The issue presented in this appeal is whether appellant was liable for attorney’s fees. Appellant was compelled by the court to file an answer, and appellant claimed in its affirmative defenses that appellees had not complied with all conditions precedent to filing suit in the underlying insurance policy. The trial court found that appellees were entitled to attorney’s fees and entered a final judgment for attorney’s fees and costs in the amount of $41,775.50. We hold that appellees were not entitled to attorney’s fees in this case, and we reverse.

Where an insured prevails in litigation against an insurance company, the insured is generally entitled to reasonable attorney’s fees. § 627.428(1), Fla. Stat. (2009). Likewise, where an insurance company pays on a claim after the insured files suit but before judgment is rendered, the payment constitutes a “confession of judgment or verdict in favor of the insured, thereby entitling the insured to attorney’s fees.” Ivey v. Allstate Ins. Co., 774 So.2d 679, 685 (Fla.2000). Appellant, when it assumes the liabilities of an insolvent insurance company, generally possesses “all rights, duties, defenses, and obligations of the insolvent insurer.” § 631.57(1)0»), Fla. Stat. (2009). Section 631.70 excludes FIGA from the provisions of section 627.428, “except when the association denies by affirmative action, other than delay, a covered claim or a portion thereof.”

Appellees filed a homeowner’s insurance claim with appellant after their own insurance company became insolvent. A few weeks later, before appellant investigated the claim and ostensibly to avoid the expiration of the statute of limitations, appel-lees filed suit against appellant. Having had insufficient time to investigate the claim, appellant sought two extensions of time to respond to the complaint. It then requested to stay the proceedings or dismiss the complaint pending completion of its investigation. Appellees opposed the motion. The trial court denied the motion and compelled appellant to “answer the complaint in 10 days.”

Pursuant to that order, appellant filed its answer and affirmative defenses in which it claimed that appellees had not complied with all conditions precedent to filing suit and, accordingly, no valid coverage existed. The parties later settled the underlying suit, and appellees moved the court for an award of attorney’s fees. Ap-pellees argued successfully in the trial court that appellant’s filing of the affirmative defense was an “affirmative action,” triggering appellant’s obligation to pay fees under section 631.70.

As the trial court’s order of entitlement was based on its interpretation of a statute, our review is de novo. T & W Developers, Inc. v. Salmonsen, 31 So.3d 298, 301 (Fla. 5th DCA 2010). Based on the specific facts of this case, we find that appellant’s filing of an answer and affirmative defenses pursuant to a court order did not constitute a “denial” of appellees’ claim by affirmative action other than delay. Appellant was compelled to answer the complaint by the trial court; appellant did not voluntarily deny the claim. Rather, appellant simply asserted its legitimate defenses under the policy. Essentially, appellant “delayed” paying the claim until it had sufficient time to investigate. At no time did appellant explicitly deny the claim itself.

Because the facts of this case do not satisfy the exception to appellant’s exclusion from section 627.428, the court erred in awarding attorney’s fees. Therefore, we reverse the judgment awarding attorney’s fees in favor of appellees.

Reversed.

MAY, DAMOORGIAN and LEVINE, JJ., concur.


text:
    Christopher DEAN, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-1317.
    District Court of Appeal of Florida, Fourth District.
    May 11, 2011.
    Carey Haughwout, Public Defender, and John M. Conway, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   GROSS, C.J.

Christopher Dean appeals his convictions for second degree felony murder and burglary. The victim in this case committed the burglary along with Dean. He was killed when he was hit by an SUV driven by one of the residents of the burgled apartment during a high speed chase after Dean and the victim fled the scene of the burglary. We write to address Dean’s claim that the trial court erred in denying his motion for judgment of acquittal on the felony murder charge. We affirm and hold that the death occurred during the perpetration of a burglary within the meaning of the felony murder statute.

This court reviews the denial of a motion for judgment of acquittal de novo and will affirm if the conviction is supported by competent, substantial evidence. E.g., Floyd v. State, 913 So.2d 564, 571 (Fla.2005). When a defendant moves for a judgment of acquittal, he admits all the facts in evidence, and the trial court must draw all reasonable inferences in the state’s favor. Id. “If ... a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt, sufficient evidence exists to sustain a conviction.” Pagan v. State, 830 So.2d 792, 803 (Fla.2002) (citation omitted). At trial, the state presented the following facts.

Phillondra Thompson and her boyfriend, Gregory Marlow, lived in a second-floor apartment in a complex bordering Interstate 95. The complex and 1-95 were separated by a fence and some hedges. On January 12, 2005, Marlow picked up Thompson at her job and they went to their apartment for lunch. When they arrived, they noticed an unfamiliar white Nissan Maxima in the parking lot. Its engine was running and the windows were tinted. Thompson and Marlow walked up the stairs to their apartment, and Thompson noticed the door was already unlocked.

Marlow went inside the apartment to see if someone was inside. Thompson walked back downstairs and called 911. Marlow came outside and ran around the building to see if someone jumped off one of the apartment’s balconies. At that point Dean, a person whom Thompson did not know, ran out of the apartment carrying a plastic storage container. Dean got into the Maxima with the container and took off. Marlow jumped into his SUV and followed Dean’s car out of the complex.

Thompson realized that a second person had been left behind. This was Eric Flint, the victim. Flint walked to the complex’s gate. He was talking on a cell phone. Upon discovering that the gate was broken and he could not get out, Flint headed back into the complex, jumped over the fence separating the complex from 1-95, and walked through the hedges.

Meanwhile, Marlow followed Dean’s car outside the complex. At first Dean drove at a normal rate of speed, but he then began driving faster. Dean drove onto I-95 and weaved in and out of bumper-to-bumper traffic at a high rate of speed. Marlow tried to keep up "with him in the unobstructed emergency lane. Suddenly, Dean’s car slowed down. Marlow and his SUV were a few car lengths behind. Mar-low began to pull over and he saw Flint coming out of the hedges.

Flint made a run for the Maxima. He saw Marlow, realized he could not make it to the Maxima, and stopped. Flint reached for something in his waistband. Marlow did not know what Flint was about to do, so he ducked in his car. His SUV went off the pavement and ran into bumpy ground, striking Flint and killing him. A jury found Dean guilty of burglary and second degree felony murder.

As defined by section 782.04(3), Florida Statutes (2005), second degree felony murder occurs

[w]hen a person is killed in the perpetration of, or in the attempt to perpetrate, any ... [bjurglary ... by a person other than the person engaged in the perpetration of or in the attempt to perpetrate such felony....

In challenging the felony murder conviction, Dean argues that Flint’s death was not “in the perpetration of’ the burglary because the high speed chase by Marlow was not a predictable result of the felony.

To decide whether a killing occurs “in the perpetration of’ a felony within the meaning of the felony murder statute, the supreme court has looked to see if there was a “break in the chain of circumstances” between the killing and the underlying felony. Parker v. State, 641 So.2d 369, 376 (Fla.1994). In evaluating whether there has been such a break in the chain, courts focus on the time, distance, and causal relationship between the underlying felony and the killing. Parker v. State, 570 So.2d 1048, 1051 (Fla. 1st DCA 1990).

As we observed in State v. Williams, one of the most important factors to consider in deciding if there has been a “break in the chain of circumstances” is whether the “fleeing felon has reached a place of temporary safety.” Parker, 570 So.2d at 1051 (quoting LaFave, Substantive Criminal Law, § 7.5 (1986)). If the felon has gained a place of temporary safety after commission of the felony and before the death of the victim, the felony murder rule generally does not apply. See State v. Pierce, 23 S.W.3d 289, 295 (Tenn.2000).

776 So.2d 1066, 1070 (Fla. 4th DCA 2001). By contrast, “[fjlight from the police in a car at a high rate of speed is an ‘inherently dangerous situation,’ of which a fatal automobile accident is a ‘predictable result.’ ” Id. (quoting State v. Hacker, 510 So.2d 304, 306 (Fla. 4th DCA 1986)). Thus, the felony murder rule generally does apply in such a situation. See Parker, 570 So.2d at 1052 (affirming a felony murder conviction where one officer struck and killed another officer who was trying to set up a road block during a high speed chase, because “[t]he death was a result of the high-speed chase necessitated by the robbers’ attempt to flee the scene of the crime”).

For the purpose of applying the felony murder statute, there is no reason to distinguish flight from the police from any other type of flight by a perpetrator from the scene of a crime. Any such flight creates a perilous situation and the purpose of the felony murder statute “is to protect the public from inherently dangerous situations caused by the commission” of a felony. Parker, 641 So.2d at 376 (quoting Parker, 570 So.2d at 1051). Cf. Parker, 570 So.2d at 1052 (affirming the exclusion of evidence of police negligence, which the defendant argued was an intervening cause, because, “[i]f a defendant was permitted to rely on the negligent conduct of the victim and third parties as intervening acts, it would defeat the obvious purpose of the statute”).

Applying the factors to this case, the death occurred “in the perpetration of the burglary,” during Dean’s flight from the apartment complex. Flint’s death was causally related to the burglary — Marlow immediately gave chase when he saw Dean leaving the apartment and the chase continued unabated until the death; there was no point when Dean and Flint reached a place of temporary safety. The burglary and death occurred close in time and geographically near each other, as the apartment complex was just beyond the hedges alongside 1-95.

Although Dean relies principally on Williams, that case is distinguishable. In Williams, we ruled that the felony murder statute did not apply because “there had been a break in the chain of circumstances during the twenty-four hours” from the applicable felony to the death of the victim. 776 So.2d at 1071. Between the underlying crime and the death, the defendant had stopped for pizza and visited several places, so he “had reached several places of temporary safety after fleeing from the scene” of a carjacking. Id. We distinguished Williams from a case like this one, where a defendant is in “continuous flight” from the scene of a crime until the death of the victim. Id.

We have considered the other points raised on appeal and find no error, much less fundamental error, in the prosecutor’s closing argument and no abuse of discretion in the trial court’s exclusion of a trooper’s recommendation to the prosecutor that Marlow be charged with vehicular homicide and leaving the scene of a death.

Affirmed.

HAZOURI and CIKLIN, JJ„ concur.


text:
    SOUTH FLORIDA PAIN AND REHABILITATION CENTER, INC., Petitioner, v. UNITED AUTOMOBILE INSURANCE COMPANY, Respondent.
    No. 4D10-1606.
    District Court of Appeal of Florida, Fourth District.
    May 11, 2011.
    Joseph R. Dawson of Law Offices of Joseph R. Dawson, P.A., Fort Lauderdale, for petitioner.
    Lara J. Edelstein of United Automobile Insurance Company Office of General Counsel, Miami, for respondent.
   PER CURIAM.

We treat the notice of appeal as a petition for a writ of certiorari. See Brass & Singer, P.A. v. United Auto. Ins. Co., 919 So.2d 473, 474 n. 1 (Fla. 3d DCA 2005) (“Certiorari is the procedure for review in this court of the denial of appellate attorney’s fees by the appellate division of the circuit court.”). A writ of certiorari may be granted to review the circuit court sitting as an appellate court “only when there has been a violation of a clearly established principle of law resulting in a miscarriage of justice.” Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885, 889 (Fla.2003). The circuit court denied petitioner’s motion for attorney’s fees because petitioner requested fees in its brief and did not file a separate motion. The circuit court applied the correct law of this district. See McCreary v. Fla. Residential Prop. & Cas. Joint Underwriting Ass’n, 758 So.2d 692, 696 (Fla. 4th DCA 1999). On the record before us, no miscarriage of justice has resulted. Therefore, we deny the petition.

Petition denied.

MAY, DAMOORGIAN and LEVINE, JJ., concur.


text:
    Patricia KELLY, individually, and as parent and natural guardian of Danielle Trembley, and Danielle Trembley, individually, as assignees of Summit Christian School, a Florida corporation, Appellants, v. David LODWICK and Insurance Office of America, Inc., a Florida for-profit corporation, Appellees.
    No. 4D09-4501.
    District Court of Appeal of Florida, Fourth District.
    May 25, 2011.
    Bard D. Rockenbach of Burlington & Rockenbach, P.A., West Palm Beach, and Walter C. Jones, IV of Freeman'& Jones, L.L.C., Palm Beach Gardens, for appellants.
    Brian J. Moran and Richard V. Blystone of Moran Kidd Lyons Johnson & Berkson, P.A., Orlando, for appellees.
   ON APPELLEES’ MOTION FOR REHEARING OR CLARIFICATION

GERBER, J.

We deny appellees’ motion for rehearing, but grant appellees’ motion for clarification. We have revised the last two paragraphs of our April 6, 2011 opinion accordingly. For ease of reference, we replace our April 6, 2011 opinion with the following.

The plaintiffs, as assignees, sued the defendant insurance agents for negligence and breach of fiduciary duty for failing to obtain coverage for their assignor. The circuit court dismissed the action on the ground that the statute of limitations period expired before the plaintiffs sued the agents. We reverse. Accepting the plaintiffs’ allegations as true, the limitations period had not expired before the plaintiffs sued the agents.

We first summarize the alleged facts. See Edwards v. Landsman, 51 So.3d 1208, 1213 (Fla. 4th DCA 2011) (“In reviewing an order granting a motion to dismiss ... [a] court may not go beyond the four corners of the complaint and must accept the facts alleged therein and exhibits attached as true.”) (internal quotations and citations omitted).

A private school’s insurer informed the school and the school’s insurance agents that it would not renew the school’s casualty policy, which would lapse on March 1, 2004 at 12:01 a.m. The agents received a commitment from a second insurer which was willing to issue the school a new policy with an effective date of March 1, 2004 at 12:01 a.m. The second insurer required the agents to provide written confirmation indicating that the school desired the policy. However, the agents failed to provide such written confirmation to the second insurer. As a result, the school became uninsured on March 1, 2004 at 12:01 a.m.

On the morning of March 1, 2004, the second insurer notified the agents that even though the previous policy lapsed, it still would provide coverage if the agents provided a written statement that no claim or accident had occurred during the twelve to fourteen hours after the policy lapsed. The agents failed to provide such a written statement to the second insurer.

During the afternoon of March 1, 2004, a student from the school was injured due to the alleged negligence of one of the school’s employees. The school immediately contacted the agents to advise them of the incident. The agents advised the school that it had no coverage.

On April 20, 2005, the student and her mother (“the plaintiffs”) sued the school and the employee for injuries suffered as a result of the incident. On January 8, 2009, the plaintiffs, the school, and the employee entered into a stipulation for settlement. The settlement provided that the plaintiffs would obtain a $500,000 final judgment against the school and the employee. The plaintiffs, however, agreed to forego payment by the school and the employee of the final judgment. Instead, the school and the employee assigned to the plaintiffs all causes of action for damages which the school and the employee had against the agents for the agents’ alleged negligence or breach of fiduciary duty in failing to obtain coverage for the school. The assignment described those damages as the $500,000 final judgment amount. The assignment excluded the right to recover the attorney’s fees and costs which the school and the employee incurred in defense of the plaintiffs’ suit.

On January 8, 2009, the circuit court entered the $500,000 final judgment in favor of the plaintiffs and against the school and the employee. On February 9, 2009, the plaintiffs, as assignees, sued the agents for negligence and breach of fiduciary duty for failing to obtain coverage for the school. The plaintiffs sought to recover the $500,000 final judgment amount from the agents.

The agents moved to dismiss the complaint with prejudice. They argued that the four-year statute of limitations period commenced on March 1, 2004, when the school discovered it lacked coverage, and that more than four years passed before the plaintiffs sued the agents on February 9, 2009. The plaintiffs responded that the limitations period commenced when the final judgment was entered on January 8, 2009, and so they sued the agents within the limitations period.

The circuit court granted the motion to dismiss without prejudice. The court found that the limitations period commenced on March 1, 2004, when the school was advised that it lacked coverage. The court concluded that because the plaintiffs did not file their complaint against the agents until February 9, 2009, the statute of limitations barred their claims.

The plaintiffs filed an amended complaint. The amended complaint added two material allegations: (1) before the plaintiffs filed the underlying suit, the school and the employee had not incurred any damages as a result of the plaintiffs’ claim; and (2) after the plaintiffs filed the underlying suit, the school and the employee incurred damages by being forced to retain counsel to defend them against the plaintiffs’ claim.

The agents moved to dismiss the amended complaint with prejudice. The agents again argued that the four-year limitations period commenced on March 1, 2004, when the school discovered it lacked coverage, and that more than four years passed before the plaintiffs sued the agents on February 9, 2009. The plaintiffs responded that the limitations period did not commence until the school and the employee incurred damages. Thus, according to the plaintiffs, the limitations period had not expired before they sued the agents on February 9, 2009.

A successor court granted the motion to dismiss the amended complaint with prejudice. The successor court stood by the previous court’s ruling that the limitations period commenced on March 1, 2004.

The plaintiffs then filed this appeal. Our review is de novo. See Edwards, 51 So.3d at 1213 (“A trial court’s order granting a motion to dismiss is reviewed de novo.”); Fox v. Madsen, 12 So.3d 1261, 1262 (Fla. 4th DCA 2009) (“ ‘A legal issue surrounding a statute of limitations question is an issue of law subject to de novo review.’ ”) (citation omitted).

Under the statute of limitations, actions for negligence or breach of fiduciary duty must be commenced within four years of when the cause of action accrued. § 95.11(3)(a), (p), Fla. Stat. (2009). “A cause of action accrues when the last element constituting the cause of action occurs.” § 95.031(1), Fla. Stat. (2009). The last element constituting a cause of action for negligence or breach of fiduciary duty is the occurrence of damages. See Clay Elec. Coop., Inc. v. Johnson, 873 So.2d 1182, 1185 (Fla.2003) (traditionally, a cause of action based on negligence comprises four elements: duty, breach, proximate cause, and actual loss or damage) (citation omitted); Gracey v. Eaker, 837 So.2d 348, 353 (Fla.2002) (“The elements of a claim for breach of a fiduciary duty are: the existence of a fiduciary duty, and the breach of that duty such that it is the proximate cause of the plaintiffs damages.”). Thus, “the issue of when legally cognizable damages occurred is dispositive of this case.” Kellermeyer v. Miller, 427 So.2d 343, 345 (Fla. 1st DCA 1983).

The plaintiffs argue that the damages to the school and the employee occurred at the earliest on April 20, 2005, when the school and the employee were forced to defend themselves against the plaintiffs’ claim. In the alternative, the plaintiffs argue that the damages to the school and the employee occurred at the latest on January 9, 2009, when the final judgment was entered against the school and the employee. Under either date, the plaintiffs argue, the four-year limitations period had not expired before they sued the agents on February 9, 2009.

The agents argue that damages to the school and the employee occurred on March 1, 2004, when the school discovered it lacked coverage. Thus, according to the agents, the four-year limitations period expired before the plaintiffs sued the agents on February 9, 2009.

Limiting our review to the four corners of the amended complaint, we agree with the plaintiffs to the extent they argue that damages to the school and the employee first occurred on April 20, 2005, when the school and the employee were forced to defend themselves against the plaintiffs’ claim. At that time, if the school had coverage with the second insurer, then the plaintiffs’ suit against the school and the employee would have triggered the second insurer’s duty to defend the school and the employee. See Hale v. State Farm Fla. Ins. Co., 51 So.3d 1169, 1171 (Fla. 4th DCA 2010) (“ ‘The existence of a duty to defend is determined based on only the allegations of the underlying complaint. If the complaint alleges facts that could bring the insured partially within coverage of the policy, the insurer is obligated to defend the entire suit.’ ”) (internal quotations and citation omitted). Because the school and the employee did not have the second insurer to defend them, they were forced to defend themselves against the plaintiffs’ claim and thereby incurred damages. Once the school and the employee incurred damages, the four-year limitations period commenced.

We disagree with the plaintiffs to the extent they argue, in the alternative, that the school and the employee did not suffer damages until January 8, 2009, when the final judgment was entered against the school and the employee. As our supreme court stated in City of Miami v. Brooks, 70 So.2d 306 (Fla.1954):

The general rule, of course, is that where an injury, although slight, is sustained in consequence of the wrongful act of another, and the law affords a remedy therefor, the statute of limitations attaches at once. It is not material that all the damages resulting from the act shall have been sustained at that time and the running of the statute is not postponed by the fact that the actual or substantial damages do not occur until a later date.

Id. at 308. Here, according to the amended complaint, the injury to the school and the employee in consequence of the agents’ alleged wrongful acts first was sustained when the school and the employee were forced to retain counsel to defend them against the plaintiffs’ claim. At that time, the statute of limitations attached. The running of the statute was not postponed by the fact that all the damages resulting from the agents’ alleged wrongful acts did not occur until the final judgment was entered on January 8, 2009.

We disagree with the agents’ argument that damages to the school and the employee occurred on March 1, 2004, when the school discovered that it lacked coverage. Nowhere does the amended complaint allege that, upon the school’s discovery that it lacked coverage, the school and the employee immediately defended themselves against the plaintiffs’ possible claim. Rather, the amended complaint alleges that the school and the employee retained counsel to defend them only after the plaintiffs filed the underlying suit. If the school and the employee took no action to defend themselves against the plaintiffs’ possible claim, and if the plaintiffs never sued them, then the school and the employee would not have suffered any damages. “[T]he mere possibility of damage at a later date” is insufficient to commence the limitations period. Kellermeyer, 427 So.2d at 346-47; accord Zuckerman v. Ruden, Barnett, McCloskey, Smith, Schuster & Russell, P.A., 670 So.2d 1050, 1051 (Fla. 3rd DCA 1996) (“[Mjere knowledge of possible malpractice is not dispositive of when a malpractice action accrues. Rather, the test for determining when a legal malpractice cause of action has accrued is based upon the establishment of redressable harm.”) (internal citation omitted).

By our ruling today, however, we do not mean to suggest that, as a matter of law, the limitations period for an action against an agent for failing to obtain insurance can never commence until the underlying plaintiff sues the party lacking insurance. Rather, we recognize, as a factual matter, that situations may occur in which the party lacking insurance takes immediate steps to defend itself against the underlying plaintiffs possible suit. For example, the party lacking insurance immediately may retain counsel or may undertake its own investigation by taking witness statements, photographs, and other actions to preserve evidence. In such situations, the agent may be able to argue that the party incurring such fees and costs has suffered “an injury, although slight” for which “the statute of limitations attache[d] at once.” City of Miami, 70 So.2d at 308. If such allegations appear on the face of the complaint, then a motion to dismiss based on the expiration of the limitations period may be granted. Aquatic Plant Mgmt, Inc. v. Paramount Eng’g, Inc., 977 So.2d 600, 604 (Fla. 4th DCA 2007) (citation omitted). However, if such allegations do not appear on the face of the complaint, but discovery reveals the existence of such evidence, then a motion for summary judgment based on a statute of limitations affirmative defense may be granted instead. Applied to this case, the agents may contest the plaintiffs’ allegation that the school and the employee first incurred damages when the plaintiffs filed the underlying suit on April 20, 2005, and may pursue a statute of limitations defense if their discovery reveals evidence to support such a defense.

For now, however, such a defense does not appear on the face of the amended complaint. Instead, the amended complaint alleges that the school and the employee incurred damages only after the plaintiffs filed the underlying suit. Thus, the agents’ motion to dismiss based on the expiration of the limitations period was improper. We reverse the court’s order granting the motion to dismiss the amended complaint.

Reversed.

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

      . Further, it is immaterial that the assignment from the school and the employee to the plaintiffs excluded the right to recover the damages which the school and the employee incurred in defense of the plaintiffs' suit. "It is fundamental that the assignee of a ... nonnegotiable chose in action occupies the same position as its assignor and is subject to the same equities, conditions and defenses that could have been asserted against the assign- or.” Fred S. Conrad Constr. Co. v. Exch. Bank of St. Augustine, 178 So.2d 217, 219 (Fla. 1st DCA 1965) (emphasis added).

      . We find inapplicable here our supreme court's opinion in Blumberg v. USAA Casualty Insurance Co., 790 So.2d 1061 (Fla.2001). There, the court held that the limitations period for a negligence action against an insurance agent for failure to procure insurance did not accrue until an underlying proceeding to determine whether coverage existed became final. Here, there was no underlying proceeding to determine whether coverage existed because it is undisputed that coverage did not exist for the plaintiffs' underlying claim. Therefore, as mentioned above, "the issue of when legally cognizable damages occurred is dispositive of this case.” Kellermeyer, 427 So.2d at 345.