author: LAWSON, J.

text:
    BELTWAY CAPITAL, LLC, Appellant, v. The GREENS COA, INC., et al., Appellees.
    No. 5D13-3148.
    District Court of Appeal of Florida, Fifth District.
    Dec. 5, 2014.

      Andrew J. Pascale, of the Law Firm of Gary M. Singer, P.A., Sunrise, for Appellant.
    Jacob A. Brainard and Scott C. Davis, of Business Law Group, P. A., Tampa, for Appellee.
   LAWSON, J.

In this foreclosure case, plaintiff Beltway Capital, LLC (“Beltway”) appeals from an “Order Granting Defendant’s Motion to Determine Amounts Due,” finding that Beltway could not seek safe harbor under section 718.116(l)(b), Florida Statutes (2013). This statute limits the liability of “a first mortgagee or its successor or assignees” who acquire title to a condominium unit by foreclosure for unpaid association assessments due before acquisition of title to the lesser of twelve months of assessments or one percent of the original mortgage debt. Instead, the lower court found Beltway liable for all past due assessments because it was not the “original lender” or its successor or assignee. Beltway was not a direct assignee of the original lender.

On appeal, Beltway claims the statute affords safe harbor to “all subsequent assignees of the first mortgage holder,” not just the first assignee. The condo association, The Greens COA, LLC (“The Greens”), argues that safe harbor is limited to “first mortgagee or its ... assignee,” which does not include Beltway because it was not a direct assignee of the original lender. Both the trial court and The Greens erroneously equate the terms “first mortgagee” with “original lender.” The former term is broader than the latter because the word “first” refers to first in priority, not first in time. Thus, a first mortgagee is simply one who owns and holds the note or first mortgage. Beltway is a first mortgagee and is therefore entitled to safe harbor. Accordingly, and for reasons further explained below, we reverse and remand for further proceedings.

Facts and Proceedings Below

In December 2011, Beltway filed a complaint to foreclose a mortgage on a condo unit against the unit owner, Michael Hei-bel, and his condo association, The Greens. Beltway alleged that: (i) in 2006, Heibel delivered a mortgage on the unit to Mortgage Electronic Registration Systems, Inc. (“MERS”), as nominee for First National Bank of Arizona; (ii) in 2011, MERS assigned the mortgage to GMAC Mortgage, LLC (“GMAC”); and (iii) GMAC subsequently assigned the mortgage to Beltway, Copies of the assignments were attached to the complaint. The Greens filed an answer and affirmative defenses asserting that Beltway would be liable for unpaid condo association assessments under section 718.116(1), Florida Statutes (2011).

Heibel defaulted. Beltway obtained a Final Judgment of Foreclosure and purchased the home at a foreclosure sale. The Greens filed a motion to determine the amounts it was due, specifically seeking a determination of whether Beltway was entitled to safe harbor under section 718.116(l)(b) as a first mortgagee or a subsequent holder of the first mortgage. Following a hearing on the motion, the trial court entered an “Order Granting Defendant’s Motion to Determine Amounts Due,” finding as follows:

2. Section 718.116(l)(b), Florida Statutes, only includes the original lender, the lender’s successor, and the lender’s assignee as parties qualifying for the narrow liability exception.
3. The Plaintiff, Beltway Capital, LLC, is the assignee of the assignee and does not qualify for the liability exception.
4. The Plaintiff has failed to pay any amounts due, including amounts coming due before and after issuance of the Certifícate of Title on or about May 12, 2012.
5. The Plaintiff is subject to the requirements of section 718.116(l)(a), Florida Statutes.
6. The Defendant is entitled to recover reasonable attorney’s fees in litigating this action. The court reserves jurisdiction to determine the amount pending an evidentiary proceeding, if necessary.

Beltway timely appealed, asserting that the above order was final.

After the appeal was perfected, this court issued an order to show cause as to why it should not be dismissed for lack of an appealable order. Because the order did not determine the actual amounts due, it contemplated further judicial labor and was therefore not a final order nor an appealable non-final order. The parties responded and improperly attempted to stipulate that this court had jurisdiction. See, e.g., Polk Cnty. v. Sofka, 702 So.2d 1243, 1245 (Fla.1997) (holding that parties cannot confer subject matter jurisdiction on district court where none exists). This court relinquished jurisdiction for forty-five days to allow the lower court to enter a final appealable order. On November 4, the lower court entered a final judgment, giving this court jurisdiction to review the issue.

Standard of Review

A trial court’s interpretation of a statute presents a pure issue of law subject to de novo review on appeal. Fla. Dep’t of Children & Family Servs. v. P.E., 14 So.3d 228, 234 (Fla.2009); Kasischke v. State, 991 So.2d 803, 807 (Fla.2008).

Merits

Section 718.116(l)(a), Florida Statutes (2012), part of the Condominium Act, not only makes a condominium unit owner liable for association assessments that come due while he or she is the owner, but also makes the unit owner jointly and severally liable with the previous owner for all unpaid assessments that came due before transfer of title. Subsection (l)(b) carves out a safe harbor provision, however, by limiting the liability of a “first mortgagee or its successor or assignees” who acquire title by foreclosure, or a deed in lieu of foreclosure, to the lesser of those common expenses and regular assessments that came due in the twelve months preceding acquisition of title or one percent of the original mortgage debt. See also Bay Holdings, Inc. v. 2000 Island Blvd. Condo. Ass’n, 895 So.2d 1197, 1197 (Fla. 3d DCA 2005) (noting that section 718.116(1) is a “safe harbor provision” that “provides a statutory cap on liability of foreclosing mortgagees for unpaid condominium assessments that become due prior to the first mortgagee’s acquisition of title pursuant to a foreclosure proceeding”). Subsection (l)(g) further states that: “For purposes of this subsection, the term ‘successor or assignee’ as used with respect to a first mortgagee includes only a subsequent holder of the first mortgage.”

The issue of statutory construction before this court — whether the safe harbor provision protects entities such as Beltway, which have not taken title from the original lender — appears to be one of first impression in Florida’s appellate courts. The trial court construed the provision granting safe harbor to the “first mortgagee or its successor or assignees” as meaning “the original lender, the lender’s successor, and the lender’s assignee.” Beltway claims that the plural term “assignees” includes “all subsequent assignees of the first mortgage holder,” not just the first assignee. The Greens essentially adopts the trial court’s construction, arguing that safe harbor is limited to “first mortgagee or its ... assignee,” which does not include Beltway because it was not a direct assignee of the original lender.

Beltway correctly notes that the first fatal flaw in both the trial court and The Greens’ construction of the statute is their equation of “first mortgagee” with “original lender.” Neither section 718.116 nor any other part of the Condominium Act define the term “first mortgagee.” Black’s Law Dictionary defines the term “first mortgage” as “[a] mortgage that is senior to all other mortgages on the same property.” Black’s Law Dictionary 1102 (9th ed. 2009). In contrast, a “second mortgage” is one “that is junior to a first mortgage on the same property, but that is senior to any later mortgage.” Id. at 1103. A “mortgagee” is “[o]ne to whom property is mortgaged; the mortgage creditor, or lender. — Also termed mortgage-holder.” Id. at 1104. Thus, a “first mortgagee” is simply one who holds the first mortgage, whether that be the original lender or a subsequent holder. The modifier “first” refers to priority of lien, not necessarily to the first in time. Cf. Hochstadt v. Gerl, 678 So.2d 1310, 1311 (Fla. 4th DCA 1996) (“AmeriFirst held a first mortgage (first in priority) on the property for $280,000.”). For example, a person who acquires a first mortgage from the original lender after a second mortgage has been executed is still considered a first mortgagee because he or she holds a higher priority mortgage despite acquiring it later in time.

Because Beltway held the mortgage when it acquired title by foreclosure, it was entitled to safe harbor as a “first mortgagee” without further regard to whether it was also an assignee. See Park v. Fed. Nat’l Mortg. Ass’n, 2014 WL 2742947 (Fla. 9th Cir. May 28, 2014) (“Regarding the third element [first mortgagee or its successor or assignees], the Court finds Fannie Mae was the first mortgagee because it owned the Loan secured by the Mortgage. The owner of the debt securing a Mortgage is the first mortgagee.”); Fed. Nat’l Mortg. Ass’n v. Countryside Master Ass’n, 2012 WL 6916812 (Fla. 20th Cir. Oct. 3, 2012) (“Based on its acquisition of the first mortgage [by purchase of note], Fannie Mae was a first mortgagee.”); see also The Plantation at Ponte Vedra, Inc. v. U.S. Bank, N.A., No. CA13-1072, 2014 WL 786346 (Fla. 7th Cir. Feb. 5, 2014) (“At some point thereafter, U.S. Bank became the mortgagee as holder of the mortgage. U.S. Bank stands in the shoes of the original mortgagee for the purposes of this action.”); cf. Bermuda Dunes Private Residences v. Bank of Am., 133 So.3d 609, 616 (Fla. 5th DCA 2014) (finding that when Bank of America assigned note and mortgage to Federal Home Mortgage Corporation (“FHMC”), FHMC had “succeeded Bank of America as the first mortgagee”).

In the Ninth Circuit order cited above, Judge Miller further correctly explained why a non-direet assignee of a note is also an assignee of the mortgage as a matter of law. After finding that Fannie Mae was a first mortgagee entitled to safe harbor because it owned the loan secured by the mortgage, the court made the following alternative finding:

Alternatively, Fannie Mae is also the assignee of the first mortgagee!!] Florida law has long held that a mortgage is just an incident to. the debt, and the assignee of the debt owns the mortgage-regardless of whether, there was a formal assignment, “[A] mortgage is but an incident to the debt, the payment of which it secures, and its ownership follows the assignment of the debt.” Johns v. Gillian, 134 Fla. 575, 184 So. 140, 143 (1938); see also Margiewicz v. Terco Prop, of Miami Beach, Inc., 441 So.2d 1124, 1125 (Fla. 3d. DCA 1983)[.] So, when Fannie Mae purchased the Loan, it became the assignee of the first mortgagee by operation of law.

Park, 2014 WL 2742947, at *2. Thus, regardless of whether there had been' a formal assignment of the mortgage, Fannie Mae was both a first mortgagee and an assignee of the first mortgagee, by operation of law, because it owned the loan. The court added:

In making this decision, this Court joins the long line of trial courts to find Fannie Mae was entitled to safe harbor under similar circumstances. See Fed Nat’l Mortg. Ass’n v. Kensington of Royal Palm Beach Condo., Ass’n, Inc., 2012 WL 2365268 (Fla. 15th Cir.2012); Oriole Golf & Tennis Club Condo., One J Ass’n, Inc. v. Calbo, No, 03-CIV-21883, 2004 WL 6039691 (S.D.Fla., Jan. 22, 2004) (Hoeveler, J.,); Fed Nat’l Mortg., Ass’n v. Countryside Master Ass’n, Inc., Case No 12-1790-CA, 2012 WL 6916812 (Fla. 20th Cir.2012) (Order dated Oct. 3, 2012); Coral Springs Townhomes II Condo, Ass’n, Inc. v. Fed. Nat’l Mortg. Ass’n, Case No. 12-CA-25485 (08) (Fla. 17th Cir.2012) (Order dated Apr, 22, 2013); The Hamptons at Metrowest Condo. Ass’n, Inc. v. Fed Nat’l Mortg Ass’n, Case No. 2011-CA-15322-0, 2011 WL 8119337 (Fla. 9th Cir.2011) (Order dated May 17, 2012); Avanti Condo. Ass’n, Inc. v. Fed Nat’l Mortg. Ass’n, Case No. 16-2012-CC-009329 (Duval Cnty. Ct.2012) (Order dated May 23, 2013).

Id. The above cases demonstrate that when section 718.116(l)(b) is viewed within the broader context of mortgage law, an assignee of the first mortgagee is created by operation of law through ownership of the loan, not by written assignment of the mortgage, much less direct written assignment from the original lender.

Finally, The Greens makes an equitable argument for limiting the safe harbor provision to direct assignees of the original lender. It claims that it would be unfair to punish innocent unit owners (who must absorb unpaid assessments through higher future assessments) “for the non-payment of a financial entity who took title to the unit knowing it would have to pay assessments but chose not to do so.” The Greens then accuses Beltway, without record citation, of not only failing to pay the past assessments in question, but also assessments accruing after it took title to the condo. Beltway claims, also without record citation, that The Greens’ argument is “outlandish” because it has tried repeatedly to pay the current assessments, only to be refused by a demand to pay all past due assessments. As a result; Beltway has been unable to convey the property to a buyer because of The Greens’ outstanding lien. In addition to being outside the record, such equitable arguments must yield to the law. Fla. High Sch. Athletic Ass’n v. Melbourne Cent. Catholic High Sch., 867 So.2d 1281, 1291 (Fla. 5th DCA 2004) (“[T]he first principle of equity jurisdiction is that equity follows the law. Courts of equity simply have no power to issue rulings which they consider to be in the best interest of justice without regard to established law.” (internal quotations and citations omitted)).

Accordingly, we reverse the final judgment and remand for entry of a judgment consistent with this opinion, which recognizes that Beltway is entitled to benefit from the safe harbor provision of section 718.116(l)(b), Florida Statutes (2018).

REVERSED AND REMANDED.

COHEN and LAMBERT, JJ., concur.

      . The legislature has enacted similar safe harbor provisions relative to homeowners associations and timeshares. See § 720.3085, Fla. Stat. (2014) (limiting liability of "first mortgagee, or its successor or assignee” who acquire title to property subject to HO A from unpaid assessments): § 721.15(8), Fla. Stat. (exempting "first mortgagee or its successor or assignee” who acquire title to timeshare unit by foreclosure from unpaid assessments).

        . In Johns, the Florida Supreme Court further explained,
      "The transfer of the note or obligation evidencing the debt being as a general rule the equivalent of the assignment of the debt itself, such transfer operates as an assignment of the mortgage securing the debt, and it is not necessary that the mortgage papers be transferred, nor, in order that the beneficial interest shall pass, that a written assignment be made.”

        Johns, 184 So. at 143 (quoting 41 C.J., Mortgages, § 686, p. 673). This is still the law of Florida. See, e.g., Deutsche Bank Nat’l Trust Co. v. Clarke, 87 So.3d -58, 61 (Fla. 4th DCA 2012).


source: Caselaw Access Project

author: MARSTILLER, J.

license: Public Domain

text:
    Kenneth Lynn MASON, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-6187.
    District Court of Appeal of Florida, First District.
    Dec. 5, 2014.

      Kenneth Lynn Mason, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Charles R. McCoy, Senior Assistant Attorney General, Tallahassee, for Appellee.
   MARSTILLER, J.

Pursuant to a negotiated plea agreement, Kenneth Lynn Mason (“Appellant”) in 2009 pled guilty to lewd and lascivious molestation and received a prison sentence of 17 years followed by 15 years’ sex offender probation. Three years later, Appellant filed a postconviction motion under Florida Rule of Criminal Procedure 3.850 claiming ineffective assistance of defense counsel and seeking to vacate his plea as involuntarily entered. A subsequently-filed amended motion raised three claims: (1) counsel failed to investigate whether law enforcement officers read Appellant his Miranda rights before he confessed, orally and in writing, to the molestation during an interview he voluntarily participated in; (2) counsel failed to file a motion to suppress Appellant’s inculpatory statements; and (3) the sentence the trial court imposed was not the agreed-upon sentence set forth in the negotiated plea agreement. The post-conviction court summarily denied all three claims.

To prevail on an ineffective-assistance-of-counsel motion, a defendant must show that (1) counsel’s performance was so deficient that he or she did not provide the representation guaranteed by the Sixth Amendment, and that (2) counsel’s deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To satisfy the deficient-performance prong of the Strickland test, a defendant “must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment.” Id. at 690, 104 S.Ct. 2052. The prejudice prong of the Strickland test requires a defendant to show “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052. In the context of a guilty plea, the prejudice prong requires the defendant to show “there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985); see also Grosvenor v. State, 874 So.2d 1176, 1179 (Fla.2004). “[A] defendant is entitled to an evidentiary hearing on a postconviction relief motion unless (1) the motion, files, and records in the case conclusively show that the prisoner is entitled to no relief, or (2) the motion or a particular claim is legally insufficient.” Freeman v. State, 761 So.2d 1055,1061 (Fla.2000).

We reverse the denial of Appellant’s first and second claims related to defense counsel’s asserted failure to investigate grounds to suppress Appellant’s confession, and remand the claims for an evidentiary hearing. The postconviction court largely relied on a pre-sentencing filing in the record entitled, “Defendant’s List of Mitigating Factors,” in which Appellant, through counsel, stated that he “fully cooperated” with law enforcement, and “voluntarily” attended and participated in the “interview” with officers during which he admitted committing the unlawful acts for which he later was arrested and charged. Based on these factual assertions, the postconvietion court determined Appellant was not under custodial interrogation, and therefore, Miranda warnings were not required. We conclude, however, Appellant’s statements provided insufficient information upon which to base so conclusive a determination. See Ramirez v. State, 739 So.2d 568, 574 (Fla.1999) (setting forth factors for determining whether a reasonable person would have believed he was in custody), cert. denied, 528 U.S. 1131, 120 S.Ct. 970, 145 L.Ed.2d 841 (2000). Neither do the statements conclusively refute Appellant’s postconvietion claims or permit a conclusion, without more information, that defense counsel acted reasonably under the circumstances. See Strickland, 466 U.S. at 691, 104 S.Ct. 2052 (“The reasonableness of counsel’s actions may be determined or substantially influenced by the defendant’s own statements or actions. Counsel’s actions are usually based, quite properly, on informed strategic choices made by the defendant and on information supplied by the defendant.”).

We affirm the denial of Appellant’s third claim for it is fully refuted by the record. The written plea agreement states that in return for his guilty plea to lewd and lascivious molestation, Appellant would be sentenced to between 10 and 30 years’ imprisonment followed by 15 years of sex offender probation, and that the actual prison sentence would be determined by the court at the time of sentencing. Furthermore, the transcript of Appellant’s plea colloquy demonstrates that Appellant fully understood the maximum sentence he was facing.

AFFIRMED, in part; REVERSED, in part; and REMANDED.

BENTON and WETHERELL, JJ„ concur.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


author: PER CURIAM.

text:
    Eric E. BALCOM, Appellant, v. STATE of Florida, Appellee.
    No. 1D14-1400.
    District Court of Appeal of Florida, First District.
    Dec. 9, 2014.
    Eric E. Balcom, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The order denying the appellant’s petition seeking to file a belated motion for postconviction relief is reversed. The case is remanded for an evidentiary hearing to determine the validity of the appellant’s claim that counsel failed to file a timely postconviction motion, without prejudice to the state’s right to raise the defense of laches. See Strong v. State, 851 So.2d 758, 758 (Fla. 2d DCA 2003) (concluding that the burden was on the state to establish laches as a defense to an otherwise timely petitipn seeking to file a belated postcon-viction motion); Sanchez v. State, 848 So.2d 1253, 1254 (Fla. 3d DCA 2003) (“If the State has a basis on which to dispute the defendant’s entitlement to a belated filing under [r]ule 3.850(b)(3), then there must be a hearing on that issue.”).

REVERSED AND REMANDED.

LEWIS, C.J., VAN NORTWICK, and SWANSON, JJ., concur.


text:
    Anthony J. BRUMMER, Appellant, v. Nicole BRUMMER, Appellee.
    No. 5D14-192.
    District Court of Appeal of Florida, Fifth District.
    Dec. 12, 2014.
    Robert H. McLean, of Ayres, Cluster, Curry, McCall, Collins & Banks, P.A., The Villages, for Appellant.

      Henry G. Ferro, of Ferro & Gourley, P.A., Ocala, for Appellee.
   PER CURIAM.

Anthony Brummer (“Former Husband”) appeals the Final Judgment of Dissolution of Marriage (“Final Judgment”) rendered by the trial court. On appeal, Former Husband raises the following arguments: (1) the trial court improperly conditioned his shared parenting time upon his payment for psychological evaluation and counseling for the parties and the children; (2) the trial court’s characterization of marital and non-marital property and equitable distribution of marital property was error; and (3) the trial court’s imputation of income to Former Husband was not supported by adequate findings of fact or competent, substantial evidence in the record.

.As to the first issue, the trial court formulated a time-sharing plan regarding the children and ruled that before it was to be implemented, “the parties and the children shall participate in an evaluation by a psychologist or other licensed mental health professional agreed upon by the parties.” The court further ruled that Former Husband would have to pay the costs of the evaluation. However, the trial court made no findings that the evaluation is in the best interests of the children and that Former Husband has the ability to pay for the evaluation. Accordingly, we reverse that part of the Final Judgment and remand this case to the trial court to determine whether the evaluation is in the best interests of the children and whether Former Husband has the ability to pay for it. See Balas v. Balas, 521 So.2d 343 (Fla. 2d DCA 1988) (requiring that the trial court conduct a hearing to determine whether suspending the father’s visitation rights pending a psychological evaluation was in the child’s best interests and whether the father had the ability to pay for the evaluation).

As to the second issue, we believe that the trial court erred in failing to designate the coffee table, end tables, and watch as the non-marital assets of Former Husband. We also believe that, with the exception of the two Kimber firearms, the trial court failed to properly establish the value of the firearm collection when determining the equitable distribution of the firearms. Therefore, that part of the equitable distribution plan is reversed, and on remand, the trial court is to award the coffee table, end table, and watch to Former Husband as non-marital assets and properly determine the value of the firearm collection.

Finally, we agree with Former Husband that the imputation of income in the Final Judgment for purposes of child support determinations is not supported by competent, substantial evidence. Accordingly, that part, of the. Final Judgment is reversed, and on remand, the trial court is to properly determine the amount of income to impute to Former Husband as a basis for his child support obligation.

We reverse those parts of the Final Judgment as previously discussed and remand this case to the trial court for further proceedings. Otherwise, the Final Judgment is affirmed.

AFFIRMED in part; REVERSED in part; REMANDED.

TORPY, C. J., SAWAYA and COHEN, JJ., concur.


author: CRENSHAW, Judge.

text:
    Joseph CARROZZA, Appellant, v. Tammy STOWERS, Appellee.
    No. 2D13-5701.
    District Court of Appeal of Florida, Second District.
    Dec. 12, 2014.
    Joseph Carrozza, pro se.
    No appearance by Appellee.
   CRENSHAW, Judge.

Joseph Carrozza appeals the trial court’s order summarily denying his motion to dissolve a final judgment of injunction. We reverse and remand for further pro-. ceedings because Carrozza is entitled to a hearing on his facially sufficient motion.

According to the underlying order and motion, a final judgment of injunction was entered against Carrozza in 2006 prohibiting him from having contact with Tammy Stowers. The allegations against Carroz-za included that he was “a violent criminal with multiple prison sentences, and [made] threats to kill,” as summarized by the court. On October 7, 2013, Carrozza filed a motion to dissolve the injunction, alleging a change in circumstances.

In his motion, Carrozza stated that he participated in a number of relevant prison programs, including instruction oh anger management, parenting, behavioral issues, and substance abuse. Carrozza explained that he is currently imprisoned on unrelat-' ed charges, has not contacted Stowers since 2006, has no intention to contact her in the future except regarding “matters relating to the health and welfare of the parties’ daughter,” and stated that the injunction is preventing him from participating in certain prison work programs. See Baker v. Pucket, 139 So.3d 954, 955 (Fla. 4th DCA 2014) (“[W]e [previously] found that the appellant had sufficiently alleged a change in circumstances by alleging ‘the injunction has served its purpose; he had not attempted to contact his ex-girlfriend for years; he has been incarcerated on unrelated charges; and the injunction was impacting his ability to participate in certain prison work programs.’ ” (quoting Colarusso v. Lupetin, 28 So.3d 238, 239 (Fla. 4th DCA 2010))). The trial court summarily denied Carrozza’s motion on October 10, 2013, a mere three days later, citing “the serious nature of the [underlying] allegations.”

The trial court erred by denying Carroz-za’s motion without a hearing. See McCormick v. Shannon, 32 So.3d 787, 788 (Fla. 2d DCA 2010); Baker, 139 So.3d at 955; Reed v. Reed, 816 So.2d 1246, 1247 (Fla. 5th DCA 2002). As the court stated in Reed, “[d]ue process requires that [the movant] be given [an] opportunity to be heard on his request and that his motion should not be summarily disposed of within three days after it is filed. We express no opinion on the merits of [the] motion.” 816 So.2d at 1247; see § 741.30(6)(c), (10), Fla. Stat. (2013); Betterman v. Kukelhan, 977 So.2d 702, 703 (Fla. 4th DCA 2008). Accordingly, we reverse and remand for proceedings consistent with this opinion.

Reversed and remanded.

KHOUZAM and MORRIS, JJ., Concur.

      . The appendix provided by Carrozza is very limited. It only contains Carrozza’s motion to dissolve injunction, Carrozza’s motion requesting leave to appear telephonically, and the order denying the motion to dissolve injunction without a hearing. The appendix is sufficient, however, to address Carrozza's argument, which implicates basic due process requirements. See Fla. R. App. P. 9.130(e), 9.220(a).

      . In its order the trial court also expressed the following concern:
      F.S. 741.30(6)(c) generally authorizes any party to move to amend/dissolve an injunction at any time without making specific allegations (facts can vary). There is no language limiting how soon after a Final Judgment is entered, or how often, such a motion can be filed....
      It is axiomatic that procedures regarding expending finite Court resources must have a reasonable basis. An interpretation that, for example, automatically allows a Respondent additional hearings to repeatedly object after an adverse ruling is untenable. This court is concerned as to the issue of legislative encroachment of the Court’s [article V powers to regulate procedure if the Court cannot impose reasonable procedural requirements.... Multiple districts [ ] have actually interpreted legislative language to require a reasonable and basic application of other premises of law.
      It is worth acknowledging the court’s concern about the wording of section 741.30(6)(c) which provides: “Either party may move at any time to modify or dissolve the injunction. No specific allegations are required.” See State v. Raymond, 906 So.2d 1045, 1048 (Fla.2005) ("It is a well-established principle that a statute which purports to create or modify a procedural rule of court is constitutionally infirm.”); TGI Friday’s, Inc. v. Dvorak, 663 So.2d 606, 611 (Fla.1995). As further noted in the same order, however, courts applying section 741.30(6)(c) have indicated that a motion to modify or dissolve an injunction should allege some basis upon which relief may be granted, as was done in this case. See Baker, 139 So.3d at 955. Regardless, the issue of the constitutional validity of section 741.30(6)(c) is not before this court.


text:
    Jerome N. EZEM, Appellant, v. FEDERAL NATIONAL MORTGAGE, Appellee.
    No. 1D13-1253.
    District Court of Appeal of Florida, First District.
    Dec. 16, 2014.

      Jerome Ezem, pro se, for Appellant.
    Roy A. Diaz of Smith, Hiatt, and Diaz, Fort Lauderdale; Kathleen Angione of SHD Legal Group, P.A., Fort Lauderdale, for Appellee.
   PER CURIAM.

In this mortgage foreclosure case, Jerome N. Ezem (“Appellant”), a nonparty, appeals the orders denying his motions to stop the foreclosure sale of his wife’s home, and for intervention. For the reasons that follow, we reverse and remand with directions that the trial court permit Appellant to intervene in the proceedings.

In November 2007, Gladys C. Ezem (“Mrs. Ezem”) executed a note and mortgage in favor of J.P. Morgan Chase Bank, N.A. (“Chase”); she executed the mortgage as “a single woman.”

Eventually, Federal National Mortgage Association (“Fannie Mae”) acquired Chase’s interests in the note and mortgage, and when Mrs. Ezem failed to make her July 2010 mortgage payment, they initiated foreclosure proceedings by filing a complaint on May 13, 2011. Mrs. Ezem filed a pro se answer to the complaint, making only general admissions and denials, but raising no affirmative defenses. Following an impasse in mediation, Fannie Mae moved for summary judgment. Mrs. Ezem failed to file a response, and on December 5, 2012, the trial court granted the motion. The foreclosure sale was scheduled for March 6, 2013; no appeal was taken.

Appellant first appeared (pro se) in the proceedings on February 6, 2013 — approximately two months after the entry of the summary final judgment — by filing a “Motion/Application for an Injunction Restraining Mrs. Gladys Ezem, JP Morgan Chase and Seterus Inc. from Wrongful Sale or Foreclosure of Family Home with Children as Heirs to the Property” (“Injunction Motion”). In his motion, Appellant attached his marriage certificate, showing he was married to Mrs. Ezem in 1990, and declared that Chase was violating the laws of community property, and that his wife had bought the home “amidst false documentations, allegations, and threats.” The trial court denied the motion.

Five days before the scheduled sale, Appellant filed another motion: “Motion to Stop Foreclosure Sale and Simultaneously Motion for Hearing RE foreclosure sale” (“Stop Foreclosure Motion”). In this motion, he argued that although he was not named as a party to the foreclosure proceedings, as Mrs. Ezem’s spouse, he shared joint ownership of the home. He specifically requested that he be allowed to be included as a party to the proceedings. Attached to this motion was a “Motion to Set Aside Judgment of Foreclosure and Sale of Family Property Dated December 4, 2012 in Case No. 162011-CA003773-FCE.” This document does not appear to have been previously filed with, or ruled upon, by the trial court. In it, Appellant complained that he was never served with any of the motions prior to trial or final judgment, that the mortgage had false documentation from its inception, and that the trial court failed to grant him a hearing. As it did with the Injunction Motion, the trial court simply denied it.

The foreclosure sale commenced as scheduled. Fannie Mae successfully bid on the home and was issued a certificate of title on March 21, 2013. Appellant timely appealed the orders denying his Injunction Motion and Stop Foreclosure Motion.

Preliminarily, we note that Appellant’s Injunction Motion and Stop Foreclosure Motion both seek relief from the summary final judgment, which must be sought under Florida Rule of Civil Procedure 1.540(b). See Bank of Am., N.A. v. Lane, 76 So.3d 1007, 1008 (Fla. 1st DCA 2011).

But Appellant could only seek relief from judgment if he were an actual party to the proceedings below. See Smith v. Chepolis, 896 So.2d 934, 935-36 (Fla. 1st DCA 2005) (“As a general principle, the right to appeal is limited to those who were parties to the proceeding in the lower tribunal.”). Appellant arguably sought to become a party to the proceedings when, five days before the scheduled sale, he filed the Stop Foreclosure Motion, in which he first specifically requested he be allowed to be included as a party with an interest in the proceedings. Because he is pro se, despite their lack of “magic words,” Appellant’s filings were entitled to be liberally construed to seek the proper relief. See Stokes v. Fla. Dep’t of Corr., 948 So.2d 75, 77 (Fla. 1st DCA 2007) (citing cases). But the trial court simply denied the motion.

Because Appellant was never made a party to the proceedings, he cannot properly seek relief from the summary final judgment in this appeal. What can be reviewed, however, is the trial court’s denial of his request to intervene in the proceedings. See Chepolis, 896 So.2d at 935-36. For the reasons outlined below, the trial court abused its discretion when it denied Appellant’s request for intervention. At the minimum, intervention and an evidentiary hearing are required to resolve any factual disputes regarding the validity of the final judgment of foreclosure.

We review the denial of a motion to intervene for an abuse of discretion. Litvak v. Scylla Props., LLC, 946 So.2d 1165, 1172 (Fla. 1st DCA 2006). Under Florida Rule of Civil Procedure 1.230, which governs intervention:

Anyone claiming an interest in pending litigation may at any time be permitted to assert a right by intervention, but the intervention shall be in subordination to, and in recognition of, the propriety of the main proceeding, unless otherwise ordered by the court in its discretion.

(Emphasis added). “A person seeking to intervene must claim an interest ‘of such a direct and immediate character that the intervener will either gain or lose by the direct legal operation and effect of the judgment.’” Litvak, 946 So.2d at 1172 (internal citation omitted); Kissoon v. Araujo, 849 So.2d 426, 429 (Fla. 1st DCA 2003). While intervention after judgment, or as final judgment is being entered, is extraordinary and disfavored, PS Capital, LLC v. Palm Springs Town Homes, LLC, 9 So.3d 643 (Fla. 3d DCA 2009), it is authorized “when the ends of justice require it be granted.” Wags Transp. Sys., Inc. v. City of Miami Beach, 88 So.2d 751, 752 (Fla.1956) (permitting intervention by non-party but similarly-situated homeowners because “[n]othing is more sacred to one than his home” where proposed intervenors, residential homeowners, sought to join an appeal from a court order commercializing the entire zoning district where they lived). This appears to be one of those situations.

Appellant has asserted the requirement for intervention because he potentially has a homestead interest in the property as Mrs. Ezem’s husband. While Appellant never explicitly claimed homestead protection in either of his two motions, these pro se filings impliedly do so because of his marriage to Mrs. Ezem at the time the home was “fraudulently” purchased. He also claimed he shared ownership of the property because of his marriage to Mrs. Ezem; that the property was the matrimonial home where he currently resides with the parties’ minor child; and that the home was “community property.” He attached a copy of the purported marriage certificate, showing a September 1990 marriage date.

Article X, section 4 of the Florida Constitution protects a homestead from forced sale, and Florida courts have emphasized that the homestead exception is to be liberally construed in the interest of protecting the family home against the claims of creditors. Coy v. Mango Bay Prop. & Inv., Inc., 963 So.2d 873, 876 (Fla. 4th DCA 2007). Under the intervention rule, the foreclosure of Appellant’s potential interest in the homestead qualified as an interest “of such a direct and immediate character that the intervener will gain or lose by direct legal operation and effect of the judgment,” Litvak, 946 So.2d at 1172, entitling him to seek intervention. The fact that Appellant does not hold record title to the property is immaterial, because “[r]ecord title is not a prerequisite to a finding that the property is homestead. Homestead status may derive from the husband’s beneficial interest as head of the family in a marital home titled in his wife’s name.” Heiman v. Capital Bank, 438 So.2d 932, 933 (Fla. 3d DCA 1983).

While it is true that a pre-existing lien— such as a mortgage — has priority over the exemption, if Mrs. Ezem was married to Appellant at the time she executed the mortgage document as “a single woman,” she could only have mortgaged her interest in the property with Appellant’s consent. See art. X, § 4(c), Fla. Const. (“The owner of homestead real estate, joined by the spouse if married, may alienate the homestead by mortgage....”) (emphasis added). See also Heath v. First Nat’l Bank in Milton, 213 So.2d 883, 887-88 (Fla. 1st DCA 1968) (a mortgage against a homestead is void if it is not joined by the mortgagor’s spouse); Clemons v. Thornton, 993 So.2d 1054 (Fla. 1st DCA 2008) (“A purported transfer of the homestead, not in compliance with constitutional requirements, is void.”); Gotshall v. Taylor, 196 So.2d 479, 481 (Fla. 4th DCA 1967) (“If the requirements of the Constitution and the statutes are not complied with in alienating homestead real estate, the attempt is a nullity as to the heirs of the homestead, and also as to a husband and wife and between them and between the parties and is void ab initio, and subsequent events will not breathe life into it.”); but cf. Pitts v. Pastore, 561 So.2d 297 (Fla. 2d DCA 1990) (failure of a spouse to join in the alienation of homestead property does not render a mortgage void, but simply ineffectual as a lien until the property loses its homestead status).

Appellant’s allegations are that Mrs. Ezem did not have his consent to alienate his interest in the property. The assertion that she “secretly” mortgaged the property with “fraudulent” documents, if true, would affect his legal and beneficial interests in the property. Under Florida law, all persons materially interested, either legally or beneficially, in the subject matter of a foreclosure suit, and who will be directly affected by an adjudication in such an action, are necessary parties to the suit. See Lambert v. Dracos, 403 So.2d 481 (Fla. 1st DCA 1981). On the record evidence presented, Appellant has demonstrated a legal and beneficial interest in the proceeding that would be directly affected by the final adjudication. At the minimum, he is entitled to a hearing on his claimed interest. Accordingly, we REVERSE with directions to allow Appellant to intervene.

REVERSED and REMANDED.

WOLF, BENTON, and MAKAR, JJ, concur.

      . Appellant’s claimed marriage to Mrs. Ezem raises factual questions to be resolved by the trial court as to whether there was some bad faith on the part of Mrs. Ezem only, or in collusion with Appellant, to say she was a single woman when she purchased the property. The constitutional protection of homestead, however, yields only to the enumerated exceptions. Butterworth v. Caggiano, 605 So.2d 56 (Fla. 1992) (construing the three exceptions to the homestead exemption allowed by article X, section 4); see Havoco of America, Ltd. v. Hill, 790 So.2d 1018 (Fla.2001) (holding that Florida’s homestead exemption protects a homestead even where a bankruptcy debtor intended to defraud his creditors by converting nonexempt property to exempt property).


text:
    Angela H. ASSIMENIOS, Wife, Appellant, v. Telis ASSIMENIOS, Husband, Appellee.
    No. 1D13-6158.
    District Court of Appeal of Florida, First District.
    Dec. 16, 2014.

      William S. Graessle and Jonathan W. Graessle of William S. Graessle, P.A., Jacksonville, for Appellant.
    Barry S. Sinoff of Law Office of Barry S. Sinoff, P.A., Jacksonville; and, Michael J. Korn of Korn & Zehmer, P.A., Jacksonville, for Appellee.
   PER CURIAM.

The former wife appeals from an amended final judgment of dissolution of marriage. We reverse the portion of the order making the former wife responsible for the full cost of missed or canceled appointments required under the parenting plan. In context of the remainder of the order, this directive operates as an automatic, prospective sanction without an opportunity to be heard as to whether any missed or canceled appointments are the result of the former wife’s intentional failure to obey a court order, which is improper. Cf. Rojo v. Rojo, 84 So.Sd 1259, 1262 (Fla. 3d DCA 2012) (reversing contempt sanctions for the former wife’s failure to send a child to visit her father where there was no showing that she had the ability to do so); see Rickard v. Bomscheuer, 937 So.2d 311, 311 (Fla. 4th DCA 2006) (requiring notice and an opportunity to be heard before the imposition of sanctions). We also reverse the portion of the order imputing income to the former wife and remand the case to the trial court to reconsider that issue. The finding that the former wife has the ability to work full-time is not supported by competent, substantial evidence. Undisputed evidence, including the list of appointments the former husband agreed were necessary for the former wife to keep during the work day, indicated to the contrary, and the court erred in failing to account for the travel time required to keep appointments occurring at 5:00 p.m. or shortly after. Additionally, the court’s ruling does not reflect any consideration of the appointments the former wife is required to attend without the children or of the children’s medical appointments.

For the foregoing reasons, we reverse outright the provision requiring the former wife to bear the full cost of missed and canceled appointments, and we reverse the imputation of income and remand for further consideration of that issue. We affirm the remainder of the order.

AFFIRMED in part; REVERSED in part; and REMANDED.

VAN NORTWICK, RAY, and OSTERHAUS, JJ, concur.


text:
    Samuel JACKSON, Petitioner, v. COLUMBIA PICTURES AND FIREMAN’S FUND, Respondents.
    No. 1D14-3018.
    District Court of Appeal of Florida, First District.
    Dec. 16, 2014.
    See also 153 So.3d 349, 2014 WL 7107729.
    Laurence F. Leavy of Laurence Leavy & Associates, P.A., Fort Lauderdale, for Petitioner.
    Scott A. Cole and Daniel M. Schwarz of Cole Scott & Kissane, P.A., Miami, for Respondents.
   PER CURIAM.

In this workers’ compensation case, Claimant filed a petition for writ of certio-rari seeking relief from an order of the Judge of Compensation Claims (JCC) entered June 5, 2014, granting the Employer/Carrier’s (E/C’s) motion to compel an independent medical examination (IME). We grant the petition, and modify the order to limit the IME as will be discussed infra.

As background, Claimant sustained brain damage in a 20-foot fall in September 1986, reached maximum medical improvement in 1988, and was awarded medical and indemnity benefits, including attendant care that was in the nature of “remote surveillance” or “oversight.” Jackson v. Columbia Pictures & Fireman’s Fund, 610 So.2d 1349, 1351 (Fla. 1st DCA 1992) (finding such care medically necessary and remanding for determination of number of hours needed). Thereafter, Claimant was' incarcerated for two periods: April 13, 1993, through September 30, 2005, and March 13, 2008, to July 31, 2012. A final order of the JCC entered July 8, 2008, essentially found Claimant needed 24 hours a day of attendant care, and awarded Claimant attendant care benefits for services “actually rendered.” In 2010, Claimant filed petitions for benefits (PFBs) seeking (inter alia) the payment of attendant care benefits for care rendered by the State of Florida during his incarceration, in the amount of 24 hours a day, seven days a week, at $20 per hour.

In 2014, the E/C moved to compel an. IME, and also moved to “compel medical care” with the authorized treating physician. Claimant objected that he had no pending claim for current or future medical benefits — just the past attendant care — and that the E/C could not force him to undergo treatment; the E/C responded that medical issues are in dispute, and that Claimant was medically noncom-pliant (Claimant admits he has avoided treatment because he does not want surgery for herniated discs and does not want to become dependent on medication). The JCC granted the motion to compel the IME, finding the 2010 PFBs were still at issue and by seeking a medical benefit Claimant had placed his condition at issue. The JCC also granted the motion to compel care, finding Claimant’s refusal of an evaluation with the authorized treating physician unjustified, finding no evidence an evaluation would be invasive or cause irreparable harm, and finding Claimant’s refusal deprives the E/C of the ability to carry out its statutory duty to investigate Claimant’s entitlement to benefits. The instant case is Claimant’s challenge to the order compelling an IME; a companion case (# 1D14-3019) is Claimant’s challenge to the order compelling medical care.

Claimant has demonstrated irreparable harm. See Reeves v. Fleetwood Homes of Fla., Inc., 889 So.2d 812, 822 (Fla.2004) (holding that to obtain writ of certiorari Claimant must show “(1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case (3) that cannot be corrected on postjudgment appeal”) (citations omitted); Taylor v. Columbia/HCA Doctors Hosp. of Sarasota, 746 So.2d 1244, 1245 (Fla. 1st DCA 1999) (“In the context of compelled physical or psychiatric examinations, the required element of irreparable harm may be found based on the notion that once the invasive harm of the examination occurs, it cannot be undone on appeal.”).

Regarding departure from the essential requirements of law, section 440.29(1), Florida Statutes (Supp. 1986), permits the JCC to “make such investigation or inquiry, or conduct such hearing, in such manner as to best ascertain the rights of the parties” without being “bound by technical or formal rules of procedure, except as provided by this chapter,” but the investigation should be limited to the issue pending before the JCC, which is only whether the supervision provided by the State of Florida during Claimant’s incarceration constitutes the attendant care ordered. See generally Zabik v. Palm Beach Cnty. Sch. Dist., 911 So.2d 858, 859 (Fla. 1st DCA 2005) (holding certiorari review is appropriate where JCC lacks statutory authority to compel attendance at IME); Berry Corp. v. Smith, 576 So.2d 1366, 1368 (Fla. 1st DCA 1991) (holding JCC did not “err in ordering the independent medical .examination to assist him in ascertaining the rights of the parties”); Atlanta Nat. Real Estate Trust v. Rain, 892 So.2d 1839, 1341 (Fla. 1st DCA 1980) (“While section 440.25(3) (b) [, Florida Statutes (1977),] contemplates that independent examinations will be ordered where there is a conflict in the medical evidence, no such requirement appears in Section 440.29(1).”).

Accordingly, we hereby GRANT the petition, modify the order to limit the IME to an opinion as to whether the supervision of Claimant provided by the State of Florida during the two periods of Claimant’s past incarceration constitutes the type of attendant care ordered for Claimant, and QUASH any portion of the order to the contrary.

PADOVANO, RAY, and OSTERHAUS, JJ., concur.


text:
    Samuel JACKSON, Petitioner, v. COLUMBIA PICTURES AND FIREMAN’S FUND, Respondents.
    No. 1D14-3019.
    District Court of Appeal of Florida, First District.
    Dec. 16, 2014.
    See also 153 So.3d 347, 2014 WL 7107607.
    Laurence F. Leavy of Laurence Leavy & Associates, P.A., Fort Lauderdale, for Petitioner.
    Scott A. Cole and Daniel M. Schwarz of Cole Scott & Kissane, P.A., Miami, for Respondents. .
   PER CURIAM.

In this workers’ compensation case, Claimant filed a petition for writ of certio-rari seeking relief from an order of the Judge of Compensation Claims (JCC) entered June 6, 2014, granting the Employer/Carrier’s (E/C’s) motion to compel medical care. We grant the petition.

As background, Claimant sustained brain damage in a 20-foot fall in September 1986, reached maximum medical improvement in 1988, and was awarded medical and indemnity benefits, including attendant care that was in the nature of “remote surveillance” or “oversight.” Jackson v. Columbia Pictures & Fireman’s Fund, 610 So.2d 1349, 1351 (Fla. 1st DCA 1992) (finding such care medically necessary and remanding for determination of number of hours needed). Thereafter, Claimant was incarcerated for two periods: April 13, 1993, through September 30, 2005, and March 13, 2008, to July 31, 2012. A final order of the JCC entered July 8, 2008, essentially found Claimant needed 24 hours a day of attendant care, and awarded Claimant attendant care benefits for services “actually rendered.” In 2010, Claimant filed petitions for benefits (PFBs) seeking (inter alia) the payment of attendant care benefits for care rendered by the State of Florida during his incarceration, in the amount of 24 hours a day, seven days a week, at $20 per hour.

In 2014, the E/C moved to compel an IME, and also moved to “compel medical care” with the authorized treating physician. Claimant objected that he had no pending claim for current or future medical benefits — just the past attendant care — and that the E/C could not force him to undergo treatment; the E/C responded that medical issues are in dispute, and that Claimant was medically noncom-pliant (Claimant admits he has avoided treatment because he does not want surgery for herniated discs and does not want to become dependent on medication). The JCC granted the motion to compel the IME, finding the 2010 PFBs were still at issue and by seeking a medical benefit Claimant had placed his condition at issue. The JCC also granted the motion to compel care, finding Claimant’s refusal of an evaluation with the authorized treating physician unjustified, finding no evidence an evaluation would be invasive or cause irreparable harm, and finding Claimant’s refusal deprives the E/C of the ability to carry out its statutory duty to investigate Claimant’s entitlement to benefits. The instant case is Claimant’s challenge to the order compelling medical care; a companion case (# 1D14-3018) is Claimant’s challenge to the order compelling an IME.

Claimant has demonstrated irreparable harm. See Reeves v. Fleetwood Homes of Fla., Inc., 889 So.2d 812, 822 (Fla.2004) (holding that to obtain writ of certiorari Claimant must show “(1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case (3) that cannot be corrected on postjudgment appeal”) (citations omitted); Taylor v. Columbia/HCA Doctors Hosp. of Sarasota, 746 So.2d 1244, 1245 (Fla. 1st DCA 1999) (“In the context of compelled physical or psychiatric examinations, the required element of irreparable harm may be found based on the notion that once the invasive harm of the examination occurs, it cannot be undone on appeal.”).

Claimant has also demonstrated a departure from the essential requirements of law. There has never been any part of the workers’ compensation law that permits an E/C to force a claimant to submit to treatment, nor does any provision of law brought to our attention permit this court to bodily force an injured employee to undergo unwanted medical care. Further, the record before us contains no evidence suggesting that Claimant’s injuries, which plateaued in 1988, currently require medical care. Moreover, the evaluation ordered here has no connection to or bearing on the sole issue pending before the JCC, which is whether the supervision of Claimant provided by the State of Florida during the two periods of Claimant’s past incarceration constitutes the type of attendant care ordered for Claimant.

We GRANT the petition, and QUASH the order on review.

PADOVANO, RAY, and OSTERHAUS, JJ., concur.


author: BENTON, J.

text:
    Daniel and Nancy KIEFERT, Appellants, v. NATIONSTAR MORTGAGE, LLC, Appellee.
    No. 1D13-5998.
    District Court of Appeal of Florida, First District.
    Dec. 16, 2014.

      Thomas R. Pycraft, Jr., John J. Spence, and Michael Pelkowski of Pycraft Legal Services, LLC, St. Augustine, for Appellants.
    Nancy M. Wallace, Kristen M. Fiore, and Michael J. Larson of Akerman LLP, Tallahassee, and William P. Heller of Ak-erman, LLP, Fort Lauderdale, for Appel-lee.
   BENTON, J.

Daniel and Nancy Kiefert appeal the final judgment of foreclosure entered against them following a non-jury trial, on grounds that Nationstar Mortgage, LLC (Nationstar) did not prove standing. The Kieferts first raised lack of standing in two motions to dismiss, then pleaded it as a defense in their answer. We reverse because Nationstar failed to establish that the original plaintiff, Aurora Loan Services, LLC (Aurora), had standing to foreclose at the time Aurora filed the original foreclosure complaint.

As Aurora’s successor, Nations-tar proceeded on the theory that it was the holder of the note and mortgage at issue. Under this theory, a plaintiff must show that it is the holder both of the mortgage and of the note the mortgage secures in order to have standing to foreclose the mortgage. See Lindsey v. Wells Fargo Bank, N.A., 189 So.Sd 903, 906 (Fla. 1st DCA 2013) (citing Mazine v.M & I Bank, 67 So.3d 1129, 1132 (Fla. 1st DCA 2011)). A plaintiff alleging standing as a holder must prove it is a holder of the note and mortgage both as of the time of trial and also that the (original) plaintiff had standing as of the time the foreclosure complaint was filed. See id. (citing Rigby v. Wells Fargo Bank, N.A., 84 So.3d 1195, 1196 (Fla. 4th DCA 2012)); see also Ryan v. Wells Fargo Bank, N.A., 142 So.3d 974, 974-75 (Fla. 4th DCA 2014) (holding the plaintiff failed to establish standing when, among other things, it “did not demonstrate that the endorsement occurred prior to the filing of the initial complaint”).

Such a plaintiff must prove not only physical possession of the original note but also, if the plaintiff is not the named payee, possession of the original note endorsed in favor of the plaintiff or in blank (which makes it bearer paper). See Focht v. Wells Fargo Bank, N.A., 124 So.3d 308, 310-11 (Fla. 2d DCA 2013) (citing Green v. JPMorgan Chase Bank, N.A., 109 So.3d 1285, 1288 (Fla. 5th DCA 2013)); Lindsey, 139 So.3d at 906 (citing Gee v. U.S. Bank Nat’l Ass’n, 72 So.3d 211, 213 (Fla. 5th DCA 2011)). If the foreclosure plaintiff is not the original, named payee, the plaintiff must establish that the note was endorsed (either in favor of the original plaintiff or in blank) before the filing of the complaint in order to prove standing as a holder. See Ryan, 142 So.3d at 975; Focht, 124 So.3d at 310-11; McLean v. JP Morgan Chase Bank Nat’l Ass’n, 79 So.3d 170,174 (Fla. 4th DCA 2012).

In the present case, Aurora filed the foreclosure action, attaching to the original complaint an unendorsed copy of the note payable, not to Aurora, but to Lehman Brothers Bank, FSB. A year later, Aurora sought leave to file an amended complaint to which it attached a different copy of the note, now bearing endorsements making it bearer paper. The trial court granted Aurora’s motion and allowed the amended complaint to supersede the original complaint. Separately, a year after the amended complaint was filed, the trial court substituted Nationstar for Aurora. See Olivera v. Bank of Am., N.A., 141 So.3d 770, 771-774 (Fla. 2d DCA 2014) (reversing a final summary judgment of foreclosure because the original plaintiff lacked standing, despite the substituted plaintiffs possession of a duly endorsed note, which had been filed with the court nearly a year before the substitution).

At trial, the original of the note attached to the amended complaint came into evidence. That note bears two endorsements: the first, an endorsement from Lehman Brothers Bank, FSB to Lehman Brothers Holdings, Inc., and the second, an endorsement in blank by Lehman Brothers Holdings, Inc. Both endorsements were undated; neither answered the question whether the endorsement in blank antedated the filing of the original complaint. The only evidence Nationstar presented on this question was the testimony of one witness, Mr. Hyne, an employee of Nationstar. On cross-examination, the Kieferts’ counsel pressed Mr. Hyne concerning his knowledge, if any, of when the note had been endorsed. But Mr. Hyne’s testimony established only that Aurora was in possession of the note at the time the complaint was filed, not that the note had been endorsed at the time the complaint was filed. In short, Nationstar failed to establish that Aurora had standing to foreclose at the time Aurora filed the original complaint.

Nationstar⅛ subsequent acquisition of the note endorsed in blank cannot cure Aurora’s lack of standing at the inception of the case. See Focht, 124 So.3d at 311— 12 (stating the general principle that lack of standing in foreclosure actions is not a defect that can be cured after the case is filed) (citations omitted); Rigby, 84 So.3d at 1196; see also Olivera, 141 So.3d at 771-74. We therefore reverse the final judgment of foreclosure. See Ryan, 142 So.3d at 975; Hunter v. Aurora Loan Servs., LLC, 137 So.3d 570, 574 (Fla. 1st DCA2014).

Reversed.

LEWIS, C.J. and RAY, J., concur.

      . Under certain circumstances, nonholders may also enforce notes and foreclose mortgages securing them. See § 673.3011(2)-(3), Fla. Stat. (2010); Mazine v. M & I Bank, 67 So.3d 1129, 1131 (Fla. 1st DCA 2011).

      . The cases teach that ownership of a mortgage follows the note it secures. See Johns v. Gillian, 134 Fla. 575, 184 So. 140, 143 (1938); Lindsey v. Wells Fargo Bank, N.A., 139 So.3d 903, 907 (Fla. 1st DCA 2013); Vives v. Wells Fargo Bank, 128 So.3d 9, 17 (Fla. 3d DCA 2012) (concurring opinion); Deutsche Bank Nat’l Trust Co. v. Lippi, 78 So.3d 81, 85 (Fla. 5th DCA 2012); Taylor v. Bayview Loan Servicing, LLC, 74 So.3d 1115, 1118 (Fla. 2d DCA 2011); WM Specialty Mortg., LLC v. Salomon, 874 So.2d 680, 682 (Fla. 4th DCA 2004).

      .Even when the original plaintiff produces a duly endorsed note (after the inception of the case but) before another party is substituted as plaintiff, the complaint is subject to dismissal for lack of standing. See Olivera v. Bank of Am., N.A., 141 So.3d 770, 771-774 (Fla. 2d DCA 2014) (reversing where original plaintiff filed a copy of the note with two, undated endorsements eighteen months after initially filing a complaint with an unen-dorsed copy of the note, not payable to the original plaintiff and, one year after the endorsed note was produced, another bank was substituted as plaintiff (stating that the substituted plaintiff failed to establish that the original plaintiff had possession of the endorsed note "before the commencement of the underlying action”)).

      . Pursuant to Florida Rule of Civil Procedure 1.260, a substituted plaintiff acquires the standing of the original plaintiff. See Brandenburg v. Residential Credit Solutions, Inc., 137 So.3d 604, 605-06 (Fla. 4th DCA 2014) (affirming a final summary judgment of foreclosure because the substituted plaintiff showed that the original plaintiff had standing to foreclose).

      . [Kieferts’ counsel]: [C]an you continue on and locate the amended complaint attached.
      [Mr. Hyne]: Yes.
      [Kieferts’ counsel]: Does that note have endorsements?
      [Mr. Hyne]: Yes.
      [Kieferts’ counsel]: When were those endorsements put on that note?
      [Mr. Hyne]: I don’t know.

        [Kieferts’ counsel]: Was your — who was the holder of the note at the time you filed the lawsuit?
      [Mr. Hyne]: Aurora Loan Services.
      [Kieferts’ counsel]: Do you know what a holder is?

      [Mr. Hyne]: Yes,
      [Kieferts’ counsel]: What is a holder?
      [Mr. Hyne]: It’s the entity that has possession of the document and has the ability to take the actions.
      [¡Kieferts’ counsel]: Do you know if the person has to have the endorsement in their favor or an endorsement in blank to be a holder?

      [Mr. Hyne]: I don’t know.
      [Kieferts’ counsel]: Do you have any — or have you reviewed any records that indicate that there was an endorsement on the note at the time of filing the lawsuit?
      [Mr. Hyne]: No.


author: WARNER, J.

text:
    HOANG DINH DUONG, M.D., Radiology Associates of Hollywood, P.A. and Truck Insurance Exchange, Appellants, v. Olivia ZIADIE, as plenary guardian of the person and property of Francis Ziadie, incapacitated, Philip Ziadie and Paul Ziadie, Appellees.
    No. 4D11-1492.
    District Court of Appeal of Florida, Fourth District.
    Dec. 17, 2014.

      Erik P. Bartenhagen of Hicks, Porter, Ebenfeld & Stein, P.A., Miami, and Cindy L. Ebenfeld of Hicks, Porter, Ebenfeld & Stein, P.A., Hollywood, for appellants Hoang Dinh Duong, M.D. and Radiology Associates of Hollywood, P.A.
    Bard D. Rockenbach, Andrew Harris and Adam J. Richardson of Burlington & Rockenbach, P.A., West Palm Beach, and Crane A. Johnstone of Sheldon J. Schlesinger, P.A., Fort Lauderdale, for appellees.
   WARNER, J.

Following a jury verdict against the defendant/appellant Dr. Duong in a medical malpractice action, the plaintiff/appellee moved for an award of fees pursuant to a proposal for settlement. Dr. Duong claims that the proposal was ambiguous and that it was an improper “all or nothing” offer which did not allow him to settle the claims of individual plaintiffs, contrary to Attorneys’ Title Insurance Fund v. Gorka, 36 So.3d 646 (Fla.2010). We reject Dr. Duong’s claim that the cover letter accompanying the proposal for settlement made the proposal ambiguous. We also conclude that the all or nothing proposal made by multiple offerors to a single offeree is an acceptable proposal for settlement.

Olivia Ziadie, acting as guardian of her son Francis Ziadie, brought medical malpractice claims against Dr. Hoang Dinh Duong, M.D., Radiology Associates of Hollywood, P.A., and others. The complaint alleged that Dr. Duong had negligently attempted to stent Francis’s carotid artery, causing permanent paralysis. Olivia sought damages for Francis’s pain and suffering, medical expenses, and loss of earning capacity. She also sought damages for his children for permanent loss of his parental services, comfort, companionship, and society.

Olivia had been appointed his plenary guardian due to his incapacity. At the time the complaint was filed, Francis’s children were minors. Thus, the complaint identified the plaintiff as: “OLIVIA ZIADIE, as plenary guardian of the person and property of FRANCIS ZIADIE, incapacitated, and for FRANCIS ZIADIE, as parent and legal guardian of PHILIP ZIADIE and PAUL ZIADIE, his minor children[.]”

Prior to trial, Olivia made a proposal for settlement. Dr. Duong received a letter notice of proposal together with a formal Proposal for Settlement. The formal proposal outlined to whom it was made and its terms, providing in pertinent part:

2. The party making the proposal is the Plaintiff, OLIVIA ZIADIE, as plenary guardian of the person and property of FRANCIS ZIADIE, incapacitated, and for FRANCIS ZIA-DIE, as parent and legal guardian of PHILIP ZIADIE and PAUL ZIA-DIE, his minor children.
3. The party to whom this proposal is made is the Defendant, HOANG DINH DUONG, M.D. only.
5. The total amount of this proposal is ONE MILLION AND 00/100 DOLLARS ($1,000,000.00), as follows:
• NINE HUNDRED THOUSAND AND 00/100 DOLLARS ($900,-000.00) for OLIVIA ZIADIE, as plenary guardian of the person and property of FRANCIS ZIADIE, incapacitated;
• FIFTY THOUSAND AND 00/100 DOLLARS ($50,000.00) for PHILIP ZIADIE, the minor son of FRANCIS ZIADIE; and
• FIFTY THOUSAND AND 00/100 DOLLARS ($50,000.00) for PAUL ZIADIE, the minor son of FRANCIS ZIADIE.
9. If there is a judgment of liability as to this Defendant, HOANG DINH DUONG, M.D., and if the Plaintiffs, OLIVIA ZIADIE, as plenary guardian of the person and property of FRANCIS ZIADIE, incapacitated, and for FRANCIS ZIADIE, as parent and legal guardian of PHILIP ZIA-DIE and PAUL ZIADIE, his minor children obtains a judgment against this Defendant for at least twenty-five percent more than the offer made in this proposal the Plaintiff will seek enforcement of sanctions against this Defendant for attorneys [sic] fees and costs ...

Dr. Duong did not accept the proposal. At trial, a jury found Dr. Duong’s negligence was seventy-five percent the cause of Francis’s injuries, finding another doctor twenty-five percent responsible. After the court granted the defendants’ motion for setoff it entered judgment as follows: (1) for Olivia, as guardian of Francis, $8,896,926 in economic damages and $6 million in non-economic damages; and (2) for each child, $172,000 in non-economic damages.

Olivia moved for attorney’s fees pursuant to the proposal for settlement, as the award to each claimant exceeded by more than twenty-five percent the amount of the proposal for settlement as to each claimant. Dr. Duong claimed that the proposal was ambiguous because the cover letter did not spell out the exact terms contained in the proposal for settlement. Further, the proposal did not give Dr. Duong the opportunity to settle the individual claims but required him to settle all the claims together. He argued, “[A]n offer that requires acceptance of all plaintiffs’ claims deprives the defendant of the ability to evaluate each of the plaintiffs claims and determine whether to settle one or all.” He relied in part on Attorney’s Title Insurance Fund, Inc. v. Gorka, 989 So.2d 1210 (Fla. 2d DCA 2008), which found a proposal from one offeror to multiple of-ferees invalid, where the offer was conditioned upon it being accepted by all offer-ees.

The trial court granted the motion for fees, concluding that the offer was not ambiguous. It found that there was a singular plaintiff, Olivia, asserting claims on behalf of multiple claimants, and that the “all or nothing” offer was valid and unambiguous. After the court entered the order determining that the proposal was valid, Dr. Duong moved for reconsideration based on the Florida Supreme Court’s ruling in Attorneys’ Title Insurance Fund v. Gorka, 36 So.3d 646 (Fla.2010). Gorka held that a joint offer to multiple offerees, conditioned on acceptance by both offer-ees, was invalid because “[t]he conditional nature of the offer divests each party of independent control of the decision to settle, thereby rendering the offer of judgment invalid and unenforceable.” Id. at 649. The trial court denied relief, however, concluding that in this case there was but one plaintiff asserting claims on behalf of three claimants and one offeree, instead of multiple offerees as in Gorka. The court entered final judgment for appellees as to attorney’s fees and costs, awarding them $557,452. Dr. Duong appeals this order.

The issue of whether an offer of settlement comports with Florida Rule of Civil Procedure 1.442 and section 768.79, Florida Statutes, is reviewed de novo. Nationwide Mut. Fire Ins. Co. v. Pollinger, 42 So.3d 890, 891 (Fla. 4th DCA 2010).

Section 768.79, Florida Statutes (2002), and Florida Rule of Civil Procedure 1.442 are strictly construed as in derogation of the common law rule that parties are responsible for their own attorney’s fees. Campbell v. Goldman, 959 So.2d 223, 226 (Fla.2007). Florida Rule of Civil Procedure 1.442 requires a proposal for settlement to, inter alia, “state with particularity any relevant conditions” and “state the total amount of the proposal and state with particularity all nonmonetary terms of the proposal.” Fla. R. Civ. P. 1.442(c)(2)(C)-(D). This “requires that the settlement proposal be sufficiently clear and definite to allow the offeree to make an informed decision without needing clarification. If ambiguity within the proposal could reasonably affect the offeree’s decision, the proposal will not satisfy the particularity requirement.” State Farm Mut. Auto. Ins. Co. v. Nichols, 932 So.2d 1067, 1079 (Fla.2006).

Rule 1.442(c)(3) allows joint proposals under certain conditions: “A proposal may be made by or to any party or parties and by or to any combination of parties properly identified in the proposal. A joint proposal shall state the amount and terms attributable to each party.” Subsection (c)(3) imposes a “bright line rule.” Cano v. Hyundai Motor Am., Inc., 8 So.3d 408, 410-11 (Fla. 4th DCA 2009). It requires that “offers of judgment made by multiple offerors must apportion the amounts attributable to each offeror.” Willis Shaw Exp., Inc. v. Hilyer Sod, Inc., 849 So.2d 276, 278 (Fla.2003). Under the statute, a plaintiff who makes an unaccepted offer may recover such costs and fees if the plaintiff recovers an amount at least twenty-five percent greater than the plaintiffs offer. § 768.79(1), Fla. Stat. (2002).

We summarily reject Dr. Duong’s contention that the cover letter constituted a separate proposal of settlement and made the two documents ambiguous. As the trial court found, the cover letter was not itself a proposal for settlement but merely a notice of the enclosed proposed settlement. Although it may be theoretically possible for the plaintiffs to have made two separate and conflicting proposals and enclosed them in the same envelope, it is not substantively reasonable to assume that the letter was intended as a separate and conflicting proposal. See, e.g., Alamo Fin., L.P. v. Mazoff, 112 So.3d 626, 630 (Fla. 4th DCA 2013) (finding that, while plaintiffs claimed ambiguity was “grammatically possible, it [was] substantively unreasonable” and was “clarified by reference to the proposal for settlement as a whole”). The Proposal for Settlement was clearly the operative document, and the letter is not inconsistent with that interpretation.

Dr. Duong contends that the Proposal for Settlement is itself ambiguous, because it refers to Olivia Ziadie in some places as the sole plaintiff and in other places refers to “plaintiffs.” The trial court found that Olivia constituted the single plaintiff. At the time the proposal was made, Olivia was acting as legal guardian of Francis and in that capacity acting for the minor children. Therefore, she had authority to make the offer and settle all three claims. There is no ambiguity in the proposal as to which claims were covered by the proposal (Francis and his two children), the amount of the total proposal ($1,000,000), and the amount assigned to each claim ($900,000 to Francis and $50,000 to each child). Cf. Arnold v. Audiffred, 98 So.3d 746, 749 (Fla. 1st DCA 2012) (“Here, while the first two paragraphs stated appellee Audiffred was the sole offeror, the proposal as a whole offered that both appellee Audiffred and appellee Kimmons would dismiss their claims against appellant upon appellant’s acceptance. Therefore, the proposal was a joint proposal.”).

Although the trial court may have erred in concluding that this was a single proposal rather than a joint proposal, the court correctly concluded that it was an appropriate “all or nothing” proposal to which Gorka did not apply. In Gorka, the Flori-' da Supreme Court held, “[A] joint offer or proposal of settlement that is conditioned on the mutual acceptance of all joint offer-ees ... is invalid and unenforceable because it is conditioned such that neither offeree can independently evaluate or settle his or her respective claim by accepting the proposal.” 86 So.Bd at 647. The court found, “[t]he conditional nature of the offer divests each party of independent control of the decision to settle,” and “a party’s exposure to potential consequences from the litigation would be dependently interlocked with the decision of the other offer-ees.” Id. at 649-50.

Unlike Gorka, which involved an offer to multiple offerees conditioned on acceptance of all the offerees, this case involves an offer to a single offeree, conditioned on that single offeree accepting the offer as to all of the multiple offerors. Since Gorka was issued in 2010, this court and other district courts have upheld this type of offer. See Wolfe v. Culpepper Constructors, Inc., 104 So.3d 1132, 1134 (Fla. 2d DCA 2012); Rossmore v. Smith, 55 So.3d 680, 681 (Fla. 5th DCA 2011); Andrews v. Frey, 66 So.3d 376, 379 (Fla. 5th DCA 2011); Donovan Marine, Inc. v. Delmonico, 40 So.3d 69, 71-72 (Fla. 4th DCA 2010). These decisions distinguish Gorka on the grounds that where there is only one offer-ee, it is the offeree’s decision alone to accept or reject the proposal, without the decision being dependent on any other party. Thus, Gorka’s concern that the offer there “divest[ed] each party [i.e., of-feree] of independent control of the decision to settle” was not implicated. 36 So.3d at 649.

Dr. Duong contends that the foregoing decisions were wrongly decided. Essentially, he argues that the purpose of apportionment is to. allow the offeree to “evaluate” the offer with respect to each offeror, and that such “evaluation” is meaningless if the offeree cannot accept or decline each offer individually. This argument overlooks the other main purpose of the apportionment requirement, which is to allow the trial court to later determine “whether the judgment against only one of the parties was at least twenty-five percent more or less than the offer (depending on which party made the offer).” All-state Indem. Co. v. Hingson, 808 So.2d 197, 199 (Fla.2002); see also Twiddy v. Guttenplan, 678 So.2d 488, 489 (Fla. 2d DCA 1996) (“[W]e are required to reverse because the joint offer of judgment was not specific enough to enable the trial judge to determine that the ... verdict against [one offeror] was at least twenty-five percent less than the offer made on her behalf.”). The “evaluation” for the offeree also means the importance of allowing the offeree(s) to consider whether each offeror will later recover the amount of the offer that is apportioned to them, which would determine the offeree(s)’ liability for attorney’s fees.

In this case, the proposal for settlement gave Dr. Duong all of the information necessary to evaluate his exposure. Olivia Ziadie offered to settle the multiple claims of Francis and the children for $1,000,000. The offer broke down what part of the million dollar settlement would be paid to each of the claimants. Thus, Dr. Duong could evaluate each claim separately and determine both the reasonableness of the offer and the likelihood that the claimant would obtain, as to each claim, a verdict of at least twenty-five percent in excess of the proposal. There is no obligation for the claimants in this case to make individual offers to a single offeree.

Further, because it was an “all or nothing” joint proposal, if the verdict for any of the claimants was not twenty-five percent higher than the amount of that claim in the settlement proposal, then none of the claimants could obtain attorney’s fees under its terms. In other words, it was not enough that the total amount of the verdict exceed the total amount of the offer by twenty-five percent; the individual amounts awarded to each claimant in the verdict must also exceed the individual amounts set forth in the proposal for settlement for that claimant by twenty-five percent, or no attorney’s fees could be claimed based upon the proposal for settlement. In this case, the awards to each claimant exceeded that threshold.

For these reasons, we affirm the order awarding attorney’s fees pursuant to the proposal for settlement..

TAYLOR and MAY, JJ., concur.

      . Imposing such a requirement could mean that an offeree could settle the main claim and leave consortium claims unsettled. It would be rare plaintiffs who would want to hazard trying a consortium claim without the underlying injury claim being tried at the same time.


author: FORST, J.

text:
    Lamont DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-794.
    District Court of Appeal of Florida, Fourth District.
    Dec. 17, 2014.

      Gregory J. Morse of Morse & Morse, LLC, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   FORST, J.

Appellant Lamont Davis was convicted of felony murder and sentenced to life imprisonment for his role in the 2010 killing of a young mother in Port St. Lucie, Florida. At the same trial, he also was convicted of armed burglary with a firearm causing bodily harm or death, possession of a firearm by a felon, possession of ammunition' by a felon, and high-speed or wanton fleeing.

Appellant now appeals his convictions, arguing the trial court erred by (1) admitting statements he made after he invoked his right to counsel; (2) admitting evidence obtained pursuant to a search warrant that used statements from the suppressed portion of his interview; (3) denying his motion to sever his high-speed fleeing count from the rest of the trial; and (4) admitting evidence relating to the 10 mm ammunition used during the crime. As set forth below, we find no reversible error and affirm his convictions.

Background

The victim was shot and killed during a robbery of her home in March 2010. Investigators found two bullet casings at the scene, including one from a 10 mm round. Investigators tracked the purchase of the 10 mm ammunition to a gun shop in Port St. Lucie, Florida. Using security footage from the shop, they identified Appellant and his co-defendant as the purchasers of the ammunition.

Eight days later, Appellant was arrested for high speed or wanton fleeing after he sped away from a routine traffic stop and crashed his car into an apartment building, following which he fled on foot before being apprehended. Items taken from the victim’s home were found in Appellant’s car.

While in pretrial custody, Appellant was interviewed by officers from the Port St. Lucie Police Department and an agent from the federal Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”). At the beginning of the interview, the ATF agent advised Appellant that the agent could riot speak to him unless Appellant waived his rights. Appellant replied, “Well could I — Could I call my mother? I got a lawyer. Could I call them?” The agent spoke with Appellant for several more minutes before an officer from the Port St. Lucie Police administered Appellant Miranda rights. Appellant agreed to speak with the officers and signed a waiver form. Appellant continued talking to the investigators before again asking, “Can’t I call my lawyer?” Questioning nonetheless continued, and Appellant eventually told officers he was involved in the robbery and murder. Following the interrogation, detectives obtained a search warrant and executed a search of the residence of Appellant’s girlfriend. Additional items removed from the victim’s home were found in the girlfriend’s residence.

Appellant filed a pretrial motion to suppress his statements made during the course of the police interview. The trial court granted the motion in part and denied it in part, suppressing everything Appellant said before he was read his Miranda rights and everything after he stated, “Can’t I call my lawyer?” The motion was denied for everything between those points.

Appellant also moved to suppress evidence obtained from search warrants for his automobile and his girlfriend’s residence and to sever his high speed fleeing charge from the other counts. The trial court denied these motions and ruled that the fleeing charge was “episodically related to the burglary because [Appellant’s] automobile contained many of. the items reportedly stolen during the burglary when the murder occurred.”

At trial, the portion of Appellant’s statement that was not suppressed was entered into evidence. Among other testimony, Appellant’s girlfriend stated that he had planned the robbery in her presence, brought stolen goods to her home, and asked his co-conspirator why he had shot the victim. The jury also heard tapes of phone calls between Appellant and his girlfriend in which he asked her to find a gun he had hidden. Appellant was convicted on all counts.

Analysis

1. Admission of Statements

We apply a mixed standard of review when reviewing a motion to suppress. We must defer to the trial court’s factual findings, but we review any legal conclusions de novo. State v. E.W., 82 So.3d 150, 151 (Fla. 4th DCA 2012).

Both the United States and Florida Constitutions protect criminal defendants from compelled self-incrimination. U.S. Const. amend V; Art. I, § 9, Fla. Const. The Únited States Supreme Court has held that law enforcement officers are required to inform suspects of their right to have counsel present during custodial interrogations. Miranda, 384 U.S. at 444, 86 S.Ct. 1602. “If the individual states that he wants an attorney, the interrogation must cease until an attorney is present.” Id. at 474, 86 S.Ct. 1602. “After such warnings have been given, ... the individual may knowingly and intelligently waive these rights and agree to answer questions or make a statement.” Id. at 479, 86 S.Ct. 1602.

In order for a suspect to invoke his right to counsel, he must make, “[a]t a minimum, some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney.” Moss v. State, 60 So.Sd 540, 543 (Fla. 4th DCA 2011) (quoting McNeil v. Wisconsin, 501 U.S. 171, 178, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991)). However, “if a suspect makes a reference to an attorney that is ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel, our precedents do not require the cessation of questioning.” Davis v. United States, 512 U.S. 452, 459, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994) (emphasis in original); see also State v. Owen, 696 So.2d 715 (Fla.1997) (holding that Florida follows the rule in Davis, allowing questioning until a suspect clearly requests an attorney).

While courts have not always been clear on what constitutes an “unequivocal invocation” of one’s right to counsel, Appellant’s initial request for an attorney in this case seems to qualify. Although he also references a desire to speak to his mother, Appellant’s initial statement, “Well, could I — [c]ould I call my mother? I got a lawyer. Could I call them?” is a sufficiently clear expression of his desire for the assistance of an attorney.

“Under the well-settled principles of Miranda, once a suspect unequivocally invokes the right to counsel, all interrogation must cease.” McKenzie v. State, 125 So.3d 906, 909 (Fla. 4th DCA 2013). “If the accused invoked his right to counsel, courts may admit his responses to further questioning only on finding that he (a) initiated further discussions with the police, and (b) knowingly and intelligently waived the right he had invoked.” Moss, 60 So.3d at 544 (quoting Smith v. Illinois, 469 U.S. 91, 95, 105 S.Ct. 490, 83 L.Ed.2d 488 (1984)).

[W]hen an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that [the accused] responded to further police-initiated custodial interrogation even if he has been advised of his rights. We further hold that an accused, ... having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.

Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). Since questioning never ceased, Appellant never reinitiated the conversation with the officers, and he did not appear to “knowingly and intelligently” waive the right he had invoked. Accordingly, there is insufficient evidence of a valid waiver.

Despite our agreement with Appellant that his Miranda rights were violated, such violations are subject to a harmless error analysis. Caso v. State, 524 So.2d 422, 425 (Fla.1988). The harmless error doctrine permits a conviction to stand where the State can “prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction.” State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986). The “application of [the harmless error] test requires an examination of the entire record by the appellate court including a close examination of the permissible evidence on which the jury could have legitimately relied, and in addition an even closer examination of the impermissible evidence which might have possibly influenced the jury verdict.” DiGuilio, 491 So.2d at 1135.

In this case, the error in admitting Appellant’s statements was harmless, as the improperly admitted statements were cumulative of other evidence presented at trial. Appellant informed the detectives that he was in the gun store from which the ammunition used in the burglary and murder had been purchased; however, the detectives initially had suspected that the ammunition had been purchased at this store before Appellant’s interview, and the jury was shown a video still of Appellant purchasing ammunition in the store, heard testimony that he was identified as the man inside the store, and a store clerk identified Appellant in a photo lineup. Appellant admitted that he was a convicted felon; this information was stipulated to by the parties at trial and was easily discoverable. Appellant also admitted that he fled from the police and that he was the driver and sole occupant of the vehicle; this information was brought forward by the arresting officer during his testimony at trial.

Moreover, during the interview, Appellant stated that he heard the victim was killed in front of her child, information which a testifying police officer indicated had not been disclosed to the media. Without this information, the State nonetheless had sufficient evidence to convict Appellant, in light of the other evidence presented at trial, including testimony from his girlfriend that she observed Appellant planning the robbery and discussed the shooting of the victim with him; the discovery of the stolen items in Appellant’s car and at his girlfriend’s residence; and the video recording and testimony with respect to high speed car chase and the purchase of 10 mm ammunition. Additionally, Appellant informed the detectives that he merely was repeating “word on the street,” and denied having any first-hand knowledge about the victim’s murder. Appellant also told the police detectives that he had heard that the victim died in front of her daughter; evidence presented at trial reflected that the victim had two sons, no daughters.

“Where the evidence introduced in error was not the only evidence on the issue to which the improper evidence related, the introduction can be harmless.” Hojan v. State, B So.Sd 1204, 1210 (Fla.2009). That is the case here. As there was abundant evidence linking Appellant to the crimes charged, the trial court’s error in not suppressing the entirety of Appellant’s interview constituted harmless error.

2. Search Warrant

Some of the physical evidence used to convict Appellant was seized pursuant to a warrant to search the home of Appellant’s girlfriend. Search warrants must be based on “probable cause supported by affidavit or affidavits, naming or describing the person, place, or thing to be searched and particularly describing the property or thing to be seized.” § 933.05, Fla. Stat (2010). The affidavit in support of this search warrant included information obtained from Appellant in contravention of his Constitutional rights.

The inclusion of illegally obtained evidence in the supporting affidavit, where the affidavit contains other valid allegations sufficient to establish probable cause, does not invalidate a search warrant. The trial court’s duty is to excise the invalid allegations and determine whether the independent and lawfully obtained information demonstrates probable cause.

State v. Hunwick, 434 So.2d 1000, 1001 (Fla. 4th DCA 1983) (internal citations omitted). When Appellant’s statements are removed from the affidavit, there are no facts to support probable cause to search his girlfriend’s home.

However, like the admission of Appellant’s statements, this is not the end of our analysis. “[T]he exclusionary rule will not be applied where it can be shown that, had the evidence in question not been obtained by the challenged police conduct, it ‘ultimately or inevitably would have been discovered by lawful means.’ ” Craig v. State, 510 So.2d 857, 862 (Fla.1987) (quoting Nix v. Williams, 467 U.S. 431, 434,104 S.Ct. 2501, 81 L.Ed.2d 377 (1984)). For the inevitable discovery doctrine to apply, the State must establish that the evidence would have been discovered “by means of normal investigative measures that inevitably would have been set in motion as a matter of routine police procedure.” Id. at 863.

“In making a case for inevitable discovery, the State must show ‘that at the time of the constitutional violation an investigation was already under way.’ ” Moody v. State, 842 So.2d 754, 759 (Fla.2003) (quoting Nix, 467 U.S. at 457, 104 S.Ct. 2501 (Stevens, J., concurring)). Here, investigators had already discovered sufficient evidence to create probable cause for a search of Appellant’s girlfriend’s residence prior to his interrogation. Officers linked the stolen item found in Appellant’s car to the murder- scene before talking to Appellant. Likewise, investigators obtained a recording of the phone call from Appellant to his girlfriend, asking her to find the gun he had hidden, two days before he was interrogated. This recording would give investigators reason to believe his girlfriend might know of or possess evidence relevant to their ongoing investigation. From this information, routine investigative measures, would have inevitably discovered the evidence presented at trial, making that evidence admissible. Therefore, there was no error in admitting the evidence obtained from the search warrant.

3. Severance of High Speed or Wanton Fleeing Count

“Because the decision to grant or deny a motion for severance rests within the sound discretion of the trial court, we review the denial of the motion for an abuse of discretion.” Williams v. State, 40 So.3d 89, 91 (Fla. 4th DCA 2010).

Two or more offenses can be charged in the same indictment or information “when the offenses ... are based on the same act or transaction or on 2 or more connected acts' or transactions.” Fla. R. Crim. P. 3.150(a).

The “connected acts or transactions” requirement set forth in rule 3.150(a) requires that the charges joined for trial must be considered in an episodic sense.... [T]he crimes in question must be linked in some significant way.... [C]rimes linked in an episodic sense generally fall into two categories: first, those that occurred during a crime “spree” interrupted by no significant period of respite; and second, situations in which one crime is causally related to the other, even though there may have been a significant lapse of time between crimes.

Shermer v. State, 935 So.2d 74, 76 (Fla. 4th DCA 2006) (internal quotations and citations omitted). The trial court found that Appellant’s flight from officers eight days after the murder was episodically related. to the prior crimes. We agree.

Appellant’s flight from the traffic stop reasonably could be construed as an attempt to prevent the officers from discovering the stolen items in his car that would link him to the murder scene. The commission of one crime in an attempt to avoid conviction for another is a sufficient connection to link the two crimes. See Sule v. State, 968 So.2d 99 (Fla. 4th DCA 2007) (holding the trial court did not abuse its discretion by denying a motion to sever counts where defendant, charged with murder and arson, solicited other inmates to murder his neighbor to hinder the prosecution of the initial crimes). Therefore, the trial court did not abuse its discretion in this case by denying Appellant’s motion to sever the high speed or wanton fleeing count.

4. Evidence of 10 mm Ammunition

Finally, Appellant challenges the admission of evidence pertaining to the 10 mm ammunition. “A trial court’s decision to admit evidence is reviewed using an abuse of discretion standard of review, as limited by the rules of evidence.” Lopez v. State, 97 So.3d 301, 304 (Fla. 4th DCA 2012). The admission of evidence relating to the ammunition was clearly relevant to the trial, as Appellant was charged with possession of ammunition by a felon. Furthermore, the ammunition was relevant as bullets of this caliber were used in the murder. See Holloway v. State, 114 So.3d 296 (Fla. 4th DCA 2013). Finally, the record does not support Appellant’s argument on appeal that “the state’s evidence that the ammunition was unique or rare was woefully inadequate.” Therefore, the trial court did not abuse its discretion in admitting this evidence.

Conclusion

In sum, we hold that any error in the admission of Appellant’s statements and their use in applying for a search warrant was not reversible error. No other reversible error exists to allow- his convictions to be reversed. Therefore, we affirm Appellant’s convictions on all counts.

Affirmed.

CIKLIN and CONNER, JJ., concur.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).