author: LAGOA, J.

text:
    COURVOISIER COURTS, LLC, Appellant, v. COURVOISIER COURTS CONDOMINIUM ASSOCIATION, INC., Appellee.
    No. 3D12-709.
    District Court of Appeal of Florida, Third District.
    Dec. 19, 2012.
    Siegfried, Rivera, Lerner, De La Torre & Sobel and Helio De La Torre, H. Hugh McConnell, Coral Gables, and Laura M. Manning-Hudson for appellant.
    Weiss Serota Helfman Pastoriza Cole & Boniske and Gary L. Brown and Joanna D. Thomson, Fort Lauderdale, for appellee.
    Before WELLS, C.J., and SHEPHERD and LAGOA, JJ.
   LAGOA, J.

Courvoisier Courts, LLC (“Developer”), appeals a partial final summary judgment entered in favor of Courvoisier Courts Condominium Association, Ine. (“Association”). For the reasons set forth below, we reverse.

I.FACTUAL AND PROCEDURAL HISTORY

On April 29, 2005, the Developer recorded a Declaration of Condominium (“Declaration”) for Courvoisier Courts (hereinafter “Condominium”). Following the recording of the Declaration, the Developer proceeded to assign certain limited common elements — parking and storage spaces — to purchasing unit owners in the ordinary course of selling units. On July 16, 2006, the Developer executed a “Transfer of Unassigned Units” (“Transfer”), which assigned the remaining parking spaces and storage spaces to one of its unsold units, Penthouse Unit Number 7. Two weeks later, on July 31, 2006, the Developer turned over control of the Association to the purchasing unit owners (“Turnover”), as contemplated by section 718.301, Florida Statutes (2004).

In July 2007, the Association filed suit against the Developer for construction defects in the condominium property. It subsequently amended its pleadings in February 2009 to assert that the Developer improperly transferred to itself those remaining parking and storage spaces just prior to Turnover, which prevented those limited common elements from becoming the property of the Association. The Association sought a declaratory judgment from the trial court as to whether the Transfer was valid, and both parties ultimately filed cross-motions for partial summary judgment on the issue.

On August 10, 2011, the trial court granted partial summary judgment in favor of the Association and against the Developer. The trial court denied the Developer’s motion for rehearing, and on February 13, 2012, the trial court entered partial final summary judgment in favor of the Association and ordered the Developer to immediately turn over to the Association any limited common elements still in its possession. This appeal followed.

II. STANDARD OF REVIEW

The standard of review for a summary judgment is de novo. Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). A trial court’s interpretation of a condominium’s declaration is also reviewed de novo. First Equitable Realty III, Ltd. v. Grandview Palace Condo. Ass’n, 46 So.3d 1088, 1090 (Fla. 3d DCA 2010).

III. ANALYSIS

We start our analysis with that portion of the Declaration that addresses the common elements at issue, specifically, Section 3.3 of the Declaration, entitled “Limited Common Elements,” and Section 3.3(a)(i), entitled “Automobile Parking Spaces and Storage Spaces.” Section 3.3(a)(i) designates certain parking areas and storage spaces shown in the condominium survey as limited common elements, and provides:

One or more parking spaces and/or storage spaces may be assigned to a Condominium Unit as a Limited Common Element. Such parking spaces and storage spaces shall initially be assigned by the Developer, and the Developer may receive compensation from a purchaser in connection with the assignment of a parking space and/or storage space to a Unit. Any parking spaces and storage spaces that have not been assigned by the time Developer has sold all Units owned by it will become common elements and become the property of the Association. The Association may promulgate rules and regulations regarding the transfer of parking spaces and storage spaces among Unit Owners.

Significantly, Section 3.3(a)(i) states that “parking spaces and storage spaces shall initially be assigned by the Developer, and ... [a]ny parking spaces and storage spaces that have not been assigned by the time Developer has sold all Units owned by it mil become common elements and become the property of the Association.” (emphasis added).

The Association, however, argues that under Section 3.4(i) of the Declaration, the Developer’s rights to the remaining parking and storage spaces terminated upon Turnover, and the spaces then became the property of the Association. Specifically, the Association contends that the rights granted to the Developer under Section 3.3(a)® of the Declaration are limited by a portion of Section 3.4® of the Declaration, which states that “[njotwith-standing the foregoing, Developer’s rights to the common elements shall terminate upon transfer of association control, or when Developer ceases to offer units for sale, whichever occurs first.” In sum, the Association contends that the Developer is allowed to assign the limited common elements until either it stops offering units for sale or it turns over control to the Association, whichever occurs first.

Such an interpretation, however, is untenable. Although the Association correctly argues that the legal effect of a contract must be determined from the words of the entire contract, “[a] court may not violate the clear meaning of a contract in order to create an ambiguity.” Hoffman v. Robinson, 213 So.2d 267, 268 (Fla. 3d DCA 1968). Section 3.3(a)® is clear and unambiguous and should not be given any construction other than that which is evident from a reading thereof.

To read the last sentence of Section 3.4® as a limitation on the rights granted to the Developer in Section 3.3(a)®, would be to “violate the clear meaning of [the] contract in order to create an ambiguity.” Section 3.4 concerns easements, not the limited common elements at issue here, which are specifically addressed by Section 8.3(a)(i). Section 3.4 creates easements within the condominium for various purposes, including the easement created by subsection (i) for “Developer Activities,” which grants the Developer the right to use various portions of the Common Elements in connection with the construction and development of the Condominium. Given that the language relied upon by the Association is located at the end of Section 3.4(i) and is prefaced by the words “[n]ot-withstanding the foregoing,” this Court finds that the language more appropriately reads as a limitation on the easement rights granted to the Developer in the text immediately preceding it, namely that of Section 3.4(i), and does not apply to the limited common elements specifically addressed by Section 3.3(a)(i). This interpretation gives meaning and effect to the statement without creating a conflict with Section 3.3(a)(i). Such a reading complies with the rule of construction requiring courts to read provisions of a contract harmoniously in order to give effect to all portions of a contract. See City of Homestead v. Johnson, 760 So.2d 80, 84 (Fla.2000).

Based on the foregoing, we hold that the limited common elements at issue did not become the property of the Association upon Turnover. The Developer retained the right to assign the exclusive use of the limited common elements until such time as it had “sold all Units owned by it.”

We, therefore, reverse the partial final summary judgment in favor of the Association and remand for the trial court to enter partial final summary judgment in favor of the Developer.

Reversed and remanded for proceedings consistent with this opinion.

      . We have jurisdiction. See Fla. R.App. P. 9.130(a)(3)(C)(ii) (orders that determine "the right to immediate possession of property” are appealable non-final orders).

      . It is undisputed that the Developer still owns unsold units in the Condominium.

      . Section 3.4(i) of the Declaration, entitled "Easements,” states in pertinent part:
      The following easements are hereby created (in addition to any easements created under the Act and any other provisions of this Declaration):

      (i) Developer Activities: Until such time as the Developer completes and sells all of the Units in the Condominium, the Developer reserves the right to utilize various portions of the Common Elements or the uncompleted Units in connection with such construction and development of the Condominium. No Unit Owner or such Owner's guests or invitees shall in any way interfere or hamper the Developer, its employees, successors or assigns, in connection with such construction. Thereafter, during such time as the Developer, its successors or assigns, own any Units within the Buildings and is carrying on any business in connection therewith, including the selling, renting or leasing of such Units, the Unit Owners, their guests and invitees shall in no way interfere with such activities or prevent access to such Units by the Developer, its employees, its successors or assigns. Notwithstanding the foregoing, Developer's rights to the common elements shall terminate upon transfer of association control, or when Developer ceases to offer units for sale, whichever occurs first.

      . Because we hold that the limited common elements did not become the property of the Association upon Turnover, but rather, remained the property of the Developer until such time as it had sold the last of its units pursuant to Section 3.3(a)(i), we need not reach the issue raised by the Association concerning the validity of the Developer’s transfer of the limited common elements prior to Turnover. Given our conclusion that the limited common elements remained the property of the Developer following Turnover, any issue as to whether the Developer’s transfer of the limited common elements to one of its unsold units prior to Turnover was proper is moot.


source: Caselaw Access Project

author: WELLS, J.

license: Public Domain

text:
    CURRENT BUILDERS OF FLORIDA, INC., Travelers Casualty and Surety Company of America, Key West Seaside, LLC., CB Development, Inc., and Michael Taylor, Appellants, v. CERTIFIED LOWER KEYS PLUMBING, a Florida corporation, Appellee.
    No. 3D11-2570.
    District Court of Appeal of Florida, Third District.
    Dec. 19, 2012.

      Vincent F. Vaccarella and Craig R. Lewis, Ft.Lauderdale, for appellants.
    The Law Firm of Garcia & Smith, Peter Rysman and Manuel E. Garcia, Key West, for appellee.
    Before WELLS, C.J., and LAGOA and EMAS, JJ.
   WELLS, J.

Subcontractor Certified Lower Keys Plumbing, Inc. (“CLKP”), seeking payment for work performed, asserted claims below against general contractor Current Builders of Florida, Inc. (“CBF”), its sister company CB Development, Inc. (“CBD”), president of the Current companies Michael Taylor, Travelers Casualty and Surety Company of America, and property owner/developer Key West Seaside, LLC, for breach of contract, lien foreclosure, breach of bond, fraudulent conveyance, and unjust enrichment. The trial court ruled in favor of defendant Seaside, but against all of the remaining defendants. We affirm these rulings in all but one minor respect — the starting date used in assessing prejudgment interest; on this single point, we reverse and remand.

CBF was hired by Seaside to construct improvements on Seaside’s property. CBF in turn subcontracted with CLKP to perform plumbing work on the project with CLKP agreeing to receive payment when CBF was paid by Seaside. When Seaside subsequently became unable to pay CBF, CBF first accepted a note and mortgage from Seaside in lieu of final payment and then ultimately received title to one of the units (Unit 51) at the development. This transfer of an asset valued at some $2.5 million dollars was made to CBF “[i]n consideration of a full satisfaction of all prior claims” against Seaside.

Although this transfer far exceeded the $130,482.17 CBF owed to CLKP, CBF did not pay CLKP as required by the terms of their subcontract. Rather, CBF transferred Unit 51 to its sister corporation CBD, and as the trial court found, “falsely declared] to the State of Florida in its [CBF’s] articles of dissolution that no debt of the corporation remained unpaid.” In the suit which followed, the trial court rejected CBF’s position, the essence of which was that with no assets in its possession, it had no obligation to pay CLKP, and instead, granted judgment in favor of Seaside, finding it had paid CBF, and in favor of CLKP as to all of the remaining claims and defendants.

We reject appellants’ numerous claims of error including the claim that the trial court erred in denying surety Travelers’ exceptions to a magistrate’s report and thereafter entering final judgment against the payment bond at issue, and the claim that the trial court erred in holding CBD and Taylor individually liable for unjust enrichment.

We do, however, adopt appellants’ argument that under the subcontract between CBF and CLKP, prejudgment interest should have been calculated from the date Seaside paid CBF, not from the date CLKP completed its work as the court below determined. As even CLKP seems to accept, the date that CBF surrendered its rights under its construction contract and accepted from Seaside a note and mortgage in lieu thereof, was July 11, 2007, the earliest date from which prejudgment interest could be calculated. See Capitol Envtl. Servs. Inc. v. Earth Tech, Inc., 25 So.3d 593, 597 (Fla. 1st DCA 2009) (“Once the jury sets the amount of damages to be awarded, the damages are retroactively considered liquidated damages, and the plaintiff is entitled to prejudgment interest back to the date that the damages were due.”); Reimbursement Recovery, Inc. v. Indian River Mem’l Hosp., Inc., 22 So.3d 679, 682-83 (Fla. 4th DCA 2009) (“Where a disputed claim becomes liquidated by the trier of fact as to the amount recoverable, interest should be awarded from the date the payment was due. Id. [Berloni v. Della Casa, 972 So.2d 1007 (Fla. 4th DCA 2008).] (quoting Celotex Corp. v. Buildex, Inc., 476 So.2d 294, 295 (Fla. 3d DCA 1985)).”); see e.g., Bevins v. Antuna, 68 So.3d 420, 420 (Fla. 4th DCA 2011) (“Antunas should recover from the Bevins the accrued prejudgment interest on their escrow deposit from the date the funds should have been returned to them.”); Santini v. Cleveland Clinic Fla., 65 So.3d 22, 34 n. 15 (Fla. 4th DCA 2011) (“[I]f the trial court were basing the prejudgment interest on the ‘agreement’ of the parties, then interest would not accrue until Dr. Santini actually received the proceeds (sometime after September 26, 2007). See McCarthy [v. Estate of Krohn,] 16 So.3d [193,] 195 [ (Fla. 4th DCA 2009) ] (holding that where an agreement between a client and an attorney makes payment contingent on the proceeds of recovery, prejudgment interest is calculated from date the client actually receives the proceeds).”). Prejudgment interest should, therefore, have been calculated from that date and not the date on which CLKP completed performance.

In all other respects we find no error in the trial court’s analysis. Accordingly, the final judgment is reversed and remanded for recalculation of the prejudgment interest award; the balance of the judgment is affirmed.

      . The trial court also awarded attorney’s fees to CLKP which we similarly find entirely proper.

      . The trial court concluded:
      Based upon the evidence in the case, the court finds that CBF was, in fact, paid in full by the owner as a consequence of the settlement wherein CBF received the deed to Unit 51. The court further finds that the attempted transfer of Unit 51 to a related corporation and the subsequent dissolution of CURRENT BUILDERS OF FLA., INC., constituted a fraudulent transfer, in an attempt to evade the lawful claim of Plaintiff, and in violation of Florida law. The court further finds that the lien claimed against the property of Defendant KEY WEST SEASIDE, LLC, was timely filed and further that as a consequence of factual findings by the Special Magistrate on a motion for partial summary judgment, and based upon the evidence received by this court at trial of the matter, the lien claimed was successfully transferred to the bond issued by Defendant TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA.

      . Travelers filed Exceptions to the Special Master’s Report. However Travelers failed to maintain a record of the proceedings before the Special Master. A factual review is limited to the record that was presented to the Special Master. See Robinson v. Robinson, 928 So.2d 360, 362 (Fla. 3d DCA 2006). The Trial Court issued an order affirming the findings of fact and conclusions of law of the Special Master and adopted the Master’s Recommendations. Having failed to preserve a record of the proceedings before the Special Master, Travelers is now precluded from attacking the Master’s Report here.

      . The trial court’s order in relevant part concluded:
      Count III: Judgment is hereby rendered in favor of the Plaintiff and against Defendant TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA, INC., in the amount of $130,482.17 plus pre-judgment interest, post-judgment interest, costs and attorney’s fees to be determined at a post-judgment hearing. The court’s prior order affirming the Magistrate's report dated June 23, 2010, is hereby reaffirmed, thereby disposing of Defendant TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA’S renewed argument regarding the Magistrate’s report dated June 23, 2010.

      . Montage Group, Ltd. v. Athle-Tech Computer Sys., Inc., 889 So.2d 180, 196 (Fla. 2d DCA 2004) (quoting Circle Fin. Co. v. Peacock, 399 So.2d 81, 84 (Fla. 1st DCA 1981) (citations omitted)), explains:
      Unjust enrichment is characterized as the effect of a failure to make restitution for property received by one under such circumstances as to give rise to a legal or equitable obligation, thereby requiring such person to account for his retention of the property. Stated differently, the doctrine is a recognition that a person is accountable to another on the ground that if the former were not required to do so, he would unjustly benefit, or the other would unjustly suffer loss.


author: ROTHENBERG, J.

text:
    Carmen M. SUEIRO, Appellant, v. Manuel G. GALLARDO, Appellee.
    No. 3D12-2153.
    District Court of Appeal of Florida, Third District.
    Dec. 21, 2012.

      Elena Vigil-Fariñas, Key Largo, for appellant.
    Manuel G. Gallardo, in proper person.
    Before ROTHENBERG, SALTER, and EMAS, JJ.
   ROTHENBERG, J.

Carmen M. Sueiro (“mother”) appeals from a post-dissolution order granting the former husband’s, Manuel G. Gallardo (“father”), Petition for Modification and the father’s Motion(s) to Enforce Against the Former Wife. We affirm, in part, and reverse, in part.

In September 2005, a final judgment of dissolution of marriage was entered, ratifying and approving the mediated settlement agreement entered into by the mother and the father (collectively, “the parties”). The agreement provides that the parties shall have shared parental responsibility of their three minor children, the children’s primary residence will be with the mother, and the father shall have liberal visitation. The parties’ oldest child, a girl, was born in April 1999, and the parties’ two younger children are twins, a girl and a boy, who were born in October 2003.

Starting in October 2010, more than five years after the final judgment of dissolution of marriage was entered, the father filed several petitions or motions seeking, in part, enforcement of the parties’ time-sharing provisions of the final judgment, modification of child support, and modification of the final judgment of dissolution of marriage as to several issues, including child custody.

Commencing in April 2012, the petitions/motions were heard before the trial court, with the parties acting pro se. Approximately four months later, the trial court entered an order granting the father’s motions/petitions. The trial court’s order addresses several issues, however, only issues relating to the custody and visitation of the minor children merit discussion.

In its order, the trial court found that the father had established a substantial change in circumstances warranting a change in the child custody arrangement. Specifically, the trial court found that Dr. Miguel Firpi, a clinical psychologist appointed by the trial court to assist with the reunification process between the children and the father, had “confirmed parental alienation by [the mother].” Specifically, the trial court found:

[T]he older child’s influence over her younger siblings, as allowed by the [mother], is so controlling and so detrimental to the [father’s] relationship with the twins that Dr. Firpi has recommended not only excluding her from timesharing with the [father] but not even advising her in advance when the twins will be seeing their father.

Based on this finding of “alienation,” the trial court: (1) awarded sole parental responsibility of the twins to the father; (2) awarded sole parental responsibility of the oldest child to the mother; (3) held that, on a temporary basis, there shall be no timesharing between the twins and their mother, however, once the twins have become stable in their new environment, the trial court would “welcome recommendations” from the twins’ therapists; and (4) ordered that the transfer of the twins to the father shall immediately take place. The mother’s timely appeal followed.

The issue presented in this appeal is whether the trial court abused its discretion by altering the parties’ child custody arrangement set forth in the mediated settlement agreement that was incorporated into the final judgment of dissolution of marriage. A custody provision set forth in a final judgment of dissolution of marriage can be “materially modified only if (1) there are facts concerning the welfare of the child that the court did not know at the time the decree was entered, or (2) there has been a change in circumstances shown to have arisen since the decree.” See Wade v. Hirschman, 903 So.2d 928, 932 (Fla.2005). “The degree of change in the conditions and circumstances since the date of the previous decree must be of a substantial character.” Id. at 933. To satisfy the substantial change of circumstances test, the party seeking modification “must show both that the circumstances have substantially, materially changed since the original custody determination and that the child’s best interests justify changing custody.” Id. at 931 n. 2 (quoting Cooper v. Gress, 854 So.2d 262, 265 (Fla. 1st DCA 2003) (citations omitted)); see also Cheek v. Hesik, 73 So.3d 340, 344 (Fla. 1st DCA 2011) (“The best interests of the child are always the paramount concern in child custody and time-sharing matters.”); Sanchez v. Hernandez, 45 So.3d 57, 61 (Fla. 4th DCA 2010) (“In seeking a modification of custody, the mov-ant must show both that the circumstances have substantially, materially changed since the original custody determination and that the child’s best interests justify changing custody.”); Martinez v. Kurt, 9 So.3d 54, 57 (Fla. 3d DCA 2009); Paskiewicz v. Paskiewicz, 967 So.2d 277 (Fla. 3d DCA 2007).

Based on this standard, we conclude the trial court’s order modifying the child custody and visitation arrangement in the mediated settlement agreement must be reversed for the following two reasons. First, the trial court’s finding that there was parental alienation by the mother “as confirmed by Dr. Miguel Fir-pi,” is not supported by competent, substantial evidence. See McKinnon v. Staats, 899 So.2d 357, 361 (Fla. 1st DCA 2005) (holding that a finding of parental alienation, “if based on competent, substantial evidence can justify a post-dissolution modification of custody”). Our independent review of Dr. Firpi’s testimony demonstrates that, although the oldest child made every attempt to thwart visitation with the father and to negatively influence her younger siblings’ view toward the father, there was no evidence that the mother encouraged the oldest child’s behavior. Rather, the evidence showed that the mother allowed the children to attend the visitations that were scheduled as part of the reunification process, and when the children would refuse to enter the vehicle or the “play room,” the mother would encourage the children to go. Therefore, because the trial court’s finding as to parental alienation is not supported by competent, substantial evidence, we reverse the portions of the trial court’s order altering the child custody and visitation arrangement in the mediated settlement agreement.

Secondly, we conclude that based on Dr. Firpi’s testimony, the immediate change of custody, at least at that point, was not in the best interest of the twins. Specifically, Dr. Firpi clearly testified that any transition of the children to the father’s home should take place slowly, not immediately, as ordered by the trial court:

Well, you know, ... I’m not sure that the children should be transferred to [the father’s] house. I’m not sure that that’s the remedy at his point, because I think they have been living in their mother’s house, and to transfer them would probably be very traumatic and may actually make [the father’s] situation worse, so I would be really hesitant to engage in that kind of a drastic environment.
If [the father] take[s][his] children and [the father] move[s] them from the mother’s home to [his] home, A, it’s probably going to harm them, which is something I know you don’t want — ... and B, it’s going to make — it’s going to make their relationship with [the father] worse, or at least there’s a big chance that that’s going to happen.

(emphasis added). As Dr. Firpi’s testimony was the only evidence presented regarding how to transition the children in a manner that is in their best interest, there was no competent substantial evidence to support the trial court’s decision to immediately transfer the children to the father.

Accordingly, we conclude the trial court abused its discretion by modifying the child custody provisions set forth in the parties’ mediated settlement agreement, and reverse the portions of the trial court’s order pertaining, directly or indirectly, to a change in child custody and/or visitation. All other aspects of the order under review are affirmed. Further, the transition of the twins back to the mother shall take place immediately, notwithstanding the filing of a motion for rehearing.

Affirmed in part; reversed in part.

      . The effect of this opinion is to nullify the trial court’s order issued December 21, 2012.


author: SCHWARTZ, Senior Judge.

text:
    UNIVERSAL MUSIC VENEZUELA, S.A., a foreign corporation, Appellant, v. Hector E. Reglero MONTANER, a/k/a Ricardo Montaner, Appellee.
    No. 3D12-1580.
    District Court of Appeal of Florida, Third District.
    Dec. 26, 2012.

      Berger Singerman and Elaine Johnson James and Monica F. Rossbach, Boca Ra-ton, for appellant.
    Ricardo Pines, Coral Gables, for appel-lee.
    Before WELLS, C.J., and LOGUE, J., and SCHWARTZ, Senior Judge.
   SCHWARTZ, Senior Judge.

This is an appeal from an order denying a motion to dismiss for lack of personal jurisdiction. We reverse.

The plaintiff is a composer and recording artist who attempted to assert Florida long-arm jurisdiction, § 48.193(l)(a), (l)(g), (2), Fla. Stat., over the appellant, a Venezuelan corporation, which operates an independent music company and record label. The action arises out of a series of contracts, executed in Venezuela, which provided that they were to be governed by Venezuelan law, and that any payments due to the plaintiff were to be made in Venezuela with Venezuelan currency, for the distribution of recordings made by the plaintiff in Venezuela. Although it is admitted that the defendant-appellant, Universal Music Venezuela, S.A., has no agents or employees and does no business itself in Florida, the plaintiff claims, and the trial judge apparently agreed, that personal jurisdiction may be asserted against it here because of the activities of an affiliated, but entirely separate corporation, Universal Music Latino, which, under a contract with the appellant, does distribute its products in this state. Because, however, there is no evidence that the appellant in any way controlled or directed the operations of Universal Music Latino, this claim may not be sustained. See Goodyear Dunlop Tires Operations, S.A. v. Brown, — U.S. -, -, 131 S.Ct. 2846, 2857, 180 L.Ed.2d 796 (2011) (holding that foreign subsidiaries’ attenuated connections with North Carolina did not show “‘the continuous and systematic general business contacts’ necessary to empower North Carolina to entertain suit against them on [unrelated] claims”); J. McIntyre Mach., Ltd. v. Nicastro, — U.S. -, -, 131 S.Ct. 2780, 2791, 180 L.Ed.2d 765 (2011) (holding that foreign corporation did not “engage in any activities in New Jersey that reveal an intent to invoke or benefit from the protection of its laws [and therefore] its exercise of jurisdiction would violate due process”); Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984) (holding that foreign corporate defendant’s purchases and attendant activity in state were insufficient to confer Texas with general jurisdiction); Schwartzberg v. Knobloch, 98 So.3d 173, 182 (Fla. 2d DCA 2012) (holding that evidence of out-of-state defendants’ “indirect ownership interests in the nursing home’s operating and management companies” insufficient to establish personal jurisdiction in Florida); Am. Express Ins. Servs. Eur. Ltd. v. Duvall, 972 So.2d 1035 (Fla. 3d DCA 2008) (holding that that foreign corporation that acted as agent for retail customers within the United Kingdom had insufficient contacts with Florida to permit the trial court to exercise personal jurisdiction over the corporation); Blankenship v. Interim Servs., Inc., 700 So.2d 429 (Fla. 3d DCA 1997) (holding that out-of-state defendants, who furnished intangibles and services in West Virginia and Ohio, and entered into agreement in which a Florida corporation served as financier and supervisor of enterprises’ business aspects, did not submit themselves to Florida jurisdiction); Vaughn v. AAA Emp’t, Inc., 511 So.2d 1045, 1046 (Fla. 2d DCA 1987) (holding that “no acts by the [out-of-state defendant] ... would place her within the Florida long-arm statute” in entering into a contract with a Florida resident “for an office to be run in Mississippi”). In sum, there was no showing of any, let alone the minimum contacts between Florida and the appellant, see Int’l Shoe Co. v. Wash., 326 U.S. 310, 66 S.Ct, 154, 90 L.Ed. 95 (1945), or, putting it the other way, that it purposefully availed itself of the benefits and protections of Florida law so as to satisfy the requirements of due process. Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958). Therefore, the order is reversed for dismissal for lack of personal jurisdiction.

Reversed and remanded.


author: PER CURIAM.

text:
    Dwain WRIGHT, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-2679.
    District Court of Appeal of Florida, Third District.
    Dec. 26, 2012.
    Dwain Wright, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before CORTINAS, FERNANDEZ and LOGUE, JJ.
   PER CURIAM.

Affirmed. See Harris v. State, 810 So.2d 1093, 1094 (Fla. 5th DCA 2002) (“Scoresheet errors are harmless when the sentence is the result of a negotiated plea agreement.”).


text:
    Tania CORDOVES, Appellant, v. Lazaro CORDOVES, Appellee.
    No. 3D11-2492.
    District Court of Appeal of Florida, Third District.
    Dec. 26, 2012.
    Scott Jay Feder, P.A., and Scott Jay Feder, for appellant.
    Harvey D. Rogers, P.A., and Harvey D. Rogers and Nory Diaz, for appellee.
    Before CORTIÑAS, FERNANDEZ and LOGUE, JJ.
   PER CURIAM.

Affirmed. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979)(“When there are issues of fact the appellant necessarily asks the reviewing court to draw conclusions about the evidence. Without a record of the trial proceedings, the appellate court cannot properly resolve the underlying factual issues so as to conclude that the trial court’s judgment is not supported by the evidence or by an alternative theory.”); see also Fla. R.App. P. 9.200(b)(4) (2012) (providing a method for preparing a statement of the evidence and proceedings when a transcript is unavailable).


text:
    David WADDELL, Appellant, v. Joseph F. DELORENZO, Appellee.
    No. 5D12-2100.
    District Court of Appeal of Florida, Fifth District.
    Dec. 28, 2012.
    Rehearing Denied Jan. 29, 2013.
    Jay W. Livingston, of Livingston, Wol-verton & Sword, P.A., Flagler Beach, for Appellant.
    Joseph F. Delorenzo, Palm Coast, pro se.
   PER CURIAM.

David Waddell appeals from the entry of a Final Judgment of Injunction for Protection Against Repeat Violence, which prohibits him from having any contact with his neighbor, Joseph DeLorenzo. At the hearing, DeLorenzo presented evidence that Waddell had cussed at him and yelled vague threats at him, from a distance, on several occasions. On cross-examination, DeLorenzo admitted that Waddell had never taken any observed action toward violence. Rather, DeLorenzo seemed primarily concerned about the stress caused to both him and his wife by Waddell’s “sly remarks, looks[,]” and pervasive use of profanity. Although DeLorenzo did not testify to a single act of violence against him, the trial judge announced that he was going to enter an injunction to provide a “cooling off period” of about two years “for the sake of peace in the neighborhood.” Because petitioner’s evidence was legally insufficient to support entry of a repeat violence injunction, see, e.g., Russell v. Doughty, 28 So.3d 169, 170 (Fla. 1st DCA 2010) (holding that yelling profanities and threats at the petitioner, even after a previous battery by respondent against petitioner, was not sufficient for a finding of “repeat violence” without evidence that respondent took an action creating a “well-founded fear that violence was imminent”), we reverse.

REVERSED.

PALMER, LAWSON and COHEN, JJ., concur.


author: CORTINAS, J.

text:
    ESPRESSO DISPOSITION CORP. 1 and Rowland Coffee Roasters, Inc., Appellants, v. SANTANA SALES & MARKETING GROUP, INC., Appellee.
    No. 3D12-1147.
    District Court of Appeal of Florida, Third District.
    Jan. 2, 2013.

      Vila, Padrón & Diaz and Kara D. Phin-ney, Coral Gables, for appellants.
    Piedra & Associates and Jorge L. Pie-dra, Miami, and Alejandro R. Alvarez, Miami and D. Grayson Kelly, for appellee.
    Before CORTIÑAS, ROTHENBERG and FERNANDEZ, JJ.
   On Motion for Rehearing

CORTINAS, J.

We grant Santana Sales & Marketing Group, Inc.’s (“Appellee”) amended motion for rehearing, withdraw our former opinion dated November 14, 2012, and substitute the following opinion in its stead:

Espresso Disposition Corporation 1 and Rowland Coffee Roasters, Inc. (collectively “Appellants”) seek review of the trial court’s order denying their motions to dismiss Appellee’s third amended complaint. Appellants claim that the trial court erred in denying their motions to dismiss because the plain and unambiguous language in the parties’ brokerage agreement contains a mandatory forum selection clause requiring that all lawsuits brought under the agreement shall be in Illinois. We agree.

Espresso Disposition Corporation 1 and Santana and Associates entered into the brokerage agreement in 2002. The agreement provides for a mandatory forum selection clause in paragraph 8. The provision states:

The venue with respect to any action 'pertaining to this Agreement shall be the State of Illinois. The laws of the State of Illinois shall govern the application and interpretation of this Agreement.

(Emphasis added). However, Appellee filed a lawsuit against Appellants alleging a breach of the agreement in Miami-Dade County, Florida. In fact, Appellee filed four subsequent complaints — an initial complaint, amended complaint, second amended complaint, and third amended complaint — after each and every previous pleading’s dismissal was based upon venue as provided for in the agreement’s mandatory forum selection clause. Appellee’s third amended complaint alleges the forum selection clause was a mistake that was made at the time the agreement was drafted. Additionally, Appellee attached an affidavit which states that, in drafting the agreement, Appellee’s principal copied a form version of an agreement between different parties, and by mistake, forgot to change the venue provision from Illinois to Florida. In response, Appellants filed their motions to dismiss the third amended complaint, which the trial court denied. Because the trial court erred in denying Appellants’ motions to dismiss that sought to enforce a forum selection clause, we reverse and remand for entry of an order dismissing the third amended complaint.

Florida appellate courts interpret a contractual forum selection clause under a de novo standard of review. Am. Safety Cas. Ins. Co. v. Mijares Holding Co., LLC, 76 So.3d 1089, 1091 (Fla. 3d DCA 2011) (citations omitted). Likewise, “[a]s the trial court’s order denying [appellant’s] motion to dismiss is based on the interpretation of the contractual forum selection clause, this Court’s standard of review is de novo.” Celistics, LLC v. Gonzalez, 22 So.3d 824, 825 (Fla. 3d DCA 2009). Therefore, the narrow issue before this Court is whether the brokerage agreement provides for a mandatory forum selection clause that is enforceable under Florida law.

Florida courts have long recognized that “forum selection clauses such as the one at issue here are presumptively valid.” Corsec, S.L. v. VMC Int’l Franchising, LLC, 909 So.2d 945, 947 (Fla. 3d DCA 2005) (enforcing forum selection clause in agreement that stated: “[t]he parties expressly submit to the jurisdiction of the courts and tribunals of the capital City of Madrid_”). This is because forum selection clauses “provide a degree of certainty to business contracts by obviating jurisdictional struggles and by allowing parties to tailor the dispute resolution mechanism to their particular situation.” Am. Safety Cas., 76 So.3d at 1091 (quoting Manrique v. Fabbri, 493 So.2d 437, 439 (Fla.1986)). Moreover, “[fjorum selection clauses reduce litigation over venue, thereby conserving judicial resources, reducing business expenses, and lowering consumer prices.” Am. Safety Cas., 76 So.3d at 1091.

Because Florida law presumes that forum selection clauses are valid and enforceable, the “party seeking to avoid enforcement of such a clause must establish that enforcement would be unjust or unreasonable.” Am. Safety Cas., 76 So.3d at 1092; see also Corsee, 909 So.2d at 947; Manrique, 493 So.2d at 440, n. 4. Under Florida law, the clause is only considered unjust or unreasonable if the party seeking avoidance establishes that enforcement would result in “no forum at all.” Am. Safety Cas., 76 So.3d at 1092 (quoting Corsee, 909 So.2d at 947); see also Golden Palm Hospitality, Inc. v. Steams Bank Nat’l Ass’n, 874 So.2d 1231, 1235 (Fla. 5th DCA 2004) (“Thus, it is generally appropriate for a court in Florida, as a procedural issue, to determine the validity and enforceability of a forum selection clause despite a choice of law provision in the agreement.”). There is absolutely no set of facts that Appellee could plead and prove to demonstrate that Illinois state courts do not exist. Illinois became the twenty-first state in 1818, and has since established an extensive system of state trial and appellate courts. Clearly, Appel-lee failed to establish that enforcement would be unreasonable since the designated forum — Illinois—does not result in Ap-pellee’s having “no forum at all.”

Further, “[a]s we have said on a number of occasions, if a forum selection clause ‘unambiguously’ mandates that litigation be subject to an agreed upon forum, then it is reversible error for the trial court to ignore the clause.” Sonus-USA, Inc. v. Thomas W. Lyons, Inc., 966 So.2d 992, 993 (Fla. 5th DCA 2007). Generally, the clause is mandatory where the plain language used by the parties indicates “exclusivity.” Sonus-USA Inc., 966 So.2d at 993 (quoting Golden Palm Hospitality, Inc., 874 So.2d at 1236. Importantly, “[i]f the forum selection clause state[s] or clearly indicated] that any litigation must or shall be initiated in a specified forum, then it is mandatory.” Sonus-USA, Inc., 966 So.2d at 993 (quoting Shoppes L.P. v. Conn, 829 So.2d 356, 358 (Fla. 5th DCA 2002) (internal quotation marks omitted) (emphasis added). Here, the agreement’s plain language provides that the venue for any action relating to a controversy under the agreement any litigation “shall be the State of Illinois.” See Sonus-USA, Inc., 966 So.2d at 993 (holding that the agreement’s use of the word shall indicated the forum selection clause was a mandatory provision that must be enforced); see also Corsee, S.L., 909 So.2d at 946. The clear language unequivocally renders the forum selection clause mandatory.

Appellee would have us create an exception to our jurisprudence on mandatory forum selection clauses based on their error in cutting and pasting the clause from another agreement. Of course, the origin of “cutting and pasting” comes from the traditional practice of manuscript-editing whereby writers used to cut paragraphs from a page with “editing scissors,” that had blades long enough to cut an 8½" —wide page, and then physically pasted them onto another page. Wikipedia, http://en.wikipedia.org/wiki/Cut,_copy,_ ancLpáste (last visited September 17, 2012). Today, the cut, copy, and paste functions contained in word processing software render unnecessary the use of scissors or glue. However, what has not been eliminated is the need to actually read and analyze the text being pasted, especially where it is to have legal significance. Thus, in reviewing the mandatory selection clause which Appellant seeks to enforce, we apply the legal maxim “be careful what you ask for” and enforce the pasted forum.

Accordingly, we reverse trial court’s denial of the motions to dismiss Appellee’s third amended complaint on the basis of improper venue, and remand for entry of an order of dismissal.

Reversed and remanded.

      . Rowland assumed the agreement in May 2011. Rowland purchased Espresso Disposition Corporation f/k/a Rowland Coffee Roasters. Thus, Rowland acquired Rowland Coffee Rosters. As such, the Rowland Coffee Roasters named in the 2002 agreement in now Espresso Disposition Corporation.

      . During the pendency of the underlying lawsuit, Appellants filed and served three separate motions for sanctions pursuant to section 57.105, Florida Statutes, claiming that Appel-lee’s lawsuit was frivolous given the well-established law on mandatory forum selection provisions and the substantive deficiencies in Appellee's allegations.

      . Appellee did not argue unilateral mistake to the trial court. However, even if Appellee had so argued, any purported unilateral mistake resulted from an inexcusable lack of due care on the part of Appellee’s counsel, thereby precluding relief under a theory of unilateral mistake. See Stamato v. Stamato, 818 So.2d 662 (Fla. 4th DCA 2002); BMW of N. Am., Inc. v. Krathen, 471 So.2d 585 (Fla. 4th DCA 1985).
      Although Appellee argued mutual mistake, that argument was equally meritless as there was simply no evidence in the record of any mistake whatsoever by Appellants. See Keystone Creations, Inc. v. City of Delray Beach, 890 So.2d 1119 (Fla. 4th DCA 2004); Feldman v. Kritch, 824 So.2d 274, 277 (Fla. 4th DCA 2002) (”It is never the role of the trial court to rewrite a contract to make it more reasonable for one of the parties or to relieve a party from what turns out to be a bad bargain.”).


text:
    Porfirio Alberto CUENCO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-3116.
    District Court of Appeal of Florida, Third District.
    Jan. 2, 2013.
    Porfirio Cuenco, in proper person, and Koltun & Lazar and Jessica T. Laleh, for appellant.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SHEPHERD and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Hernandez v. State, — So.3d - (Fla.2012); State v. Green, 944 So.2d 208 (Fla.2006).


author: GERBER, J.

text:
    Mark VALLEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-1551.
    District Court of Appeal of Florida, Fourth District.
    Jan. 9, 2013.
    Rehearing Denied Feb. 13, 2013.

      Carey Haughwout, Public Defender, and Jeffrey L. Anderson, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and George Francis, Assistant Attorney General, West Palm Beach, for appellee.
   GERBER, J.

The defendant appeals from the circuit court’s denial of his motion to withdraw plea and his Florida Rule of Criminal Procedure 3.800(b)(2) motion to correct sentence. On the motion to withdraw plea, the defendant argues that the court departed from its neutral role in denying the motion. On the motion to correct sentence, the defendant argues that his sentence exceeded the statutory maximum for the offense to which he pled. We affirm as to both arguments. We write to address only the first argument.

The state charged the defendant with two counts of attempted second degree murder with a weapon. The defendant notified the court that he intended to enter an open no contest plea and move for a downward departure. His change of plea form included the following statements: “I understand the maximum penalty provided by law is: 60 yrs,” and “My guideline recommended range is 142.5 mos — 60 yrs.” The defendant initialed both statements. The defendant’s motion for downward departure stated that a court-appointed psychologist “conducted a comprehensive mental health evaluation and diagnosed [the defendant] with a major mental health disorder requiring treatment.” The motion further stated that treatment was available, and that he would “receive a Certificate of Eligibility for participation in Mental Health court.”

At the change of plea hearing, the court and the defendant engaged in the following colloquy:

COURT: The maximum penalty for each count is 30 years Florida State Prison. The bottom of your guidelines are 142.5 months Florida State Prison and it’s an open plea to the Court. It’s a motion for downward departure and transfer to Mental Health Court. Other than that, has anyone made any promises to you to what would happen here today?
DEFENDANT: (No response.)
COURT: Has anyone promised you anything else?
DEFENDANT: No, ma'am.
COURT: Has anyone forced you in any way or threatened you into this plea?
THE DEFENDANT: No[,] ma'am.

After the colloquy, the defendant entered his no contest plea. The court accepted the plea, noting the defendant had a “certificate of eligibility for Mental Health Court.”

The court later considered the defendant’s downward departure motion. The state indicated that the defendant pled to first degree felonies and was facing a maximum of sixty years imprisonment. When the court asked defense counsel if she had any comment, she replied: “No, Your Honor. My client’s aware of potentials.” The court ultimately denied the downward departure motion. The court then sentenced the defendant to serve, concurrently on each count, fifteen years imprisonment, followed by one year of community control, followed by five years of mental health probation.

A few days later, the defendant, through new counsel, filed a motion to withdraw plea. He argued that his plea was not knowing and voluntary because his former counsel advised him that if he pled open to the court, he would “go to Mental Health Court and not get a prison sentence.” He claimed that without this misadvice, he would not have pled to the charges. He also alleged that he was supposed to undergo a competency evaluation, but the evaluation did not occur before he pled to the charges.

The court set an evidentiary hearing on the motion. The court, on its own, requested the presence of the defendant’s former counsel and the psychologist who performed the defendant’s downward departure evaluation. The defendant did not object to the request.

At the evidentiary hearing, the defendant testified that his former counsel advised him that if he pled to the charges, he would be sentenced to a treatment program. According to the defendant, his former counsel did not advise him that he still could be sentenced to prison.

The state’s cross-examination mostly consisted of a review of the defendant’s plea form and the plea colloquy. The defendant admitted that, at the plea hearing: he initialed his understanding of facing up to sixty years imprisonment;' the court informed him of the minimum and maximum sentences he was facing; and he said he had not been promised anything for his plea nor been forced into his plea.

At the end of the defendant’s testimony, the following exchange occurred:

COURT [to new defense counsel]: Call your next witness.
[NEW DEFENSE COUNSEL]: I have no more witnesses, your Honor.
COURT: State, call your next witness.
[STATE]: I have no witnesses, your Honor.
COURT: What is [the psychologist] here for?
[NEW DEFENSE COUNSEL]: You requested [him] here.
COURT: Okay. [Psychologist], come up. It was me. And [former defense counsel], we don’t need her for anything?
[NEW DEFENSE COUNSEL]: Judge, you requested both of them here.
COURT: All right. I’ll take it from here.

The court then called the psychologist as a witness. Without defense objection, the court asked the psychologist, in pertinent part: “If [the defendant] was not competent, would you have been able to complete [the downward departure] evaluation or would you have noted that in that evaluation?” The psychologist answered that if he had any concern about the defendant’s competency, he would have raised it, and nothing stood out to make him believe the defendant was not competent. New defense counsel cross-examined the psychologist, and the court followed up with one question on redirect. The state did not question the psychologist.

The court next called former defense counsel as a witness. Without defense objection, the court asked former defense counsel: “Did you tell [the defendant] that there was no possibility of him going to prison if he went to mental health court?” Former counsel answered: “I never told [the defendant] that, Judge.” New defense counsel and the state then questioned former defense counsel, with the state’s questions focused solely on the plea sheet and form, and whether the defendant “seem[ed] to understand all the conditions of this plea.” Former defense counsel answered: “He did.”

At the end of the hearing, the court stated:

The motion to vacate plea is denied. The Court finds by review of the transcript that clearly [the defendant] was advised of his rights, of the maximum penalty, of the bottom of the guidelines, that there was no guarantee what was going to happen. It was an open plea and transferred to mental health court.
By his own testimony, he went through the entire plea form and initialed and signed it, and he remembers doing that. He understood that he was advised of the maximum and minimum penalties.
According to [the psychologist], he was clearly competent when he evaluated him. And to say that now, somehow, [former defense counsel] is up here lying and not saying what actually happened, I think is completely uncredible [sic] at this point. I’m sure she did advise him of what the possibilities were of going to mental health court.

(emphasis added).

This appeal followed. The defendant argues that the court departed from its neutral role by: requesting former defense counsel’s presence at the evidentiary hearing; calling former defense counsel as a witness after the state declined to call any witnesses; and eliciting former defense counsel’s testimony upon which the court relied to deny the motion. The state responds that because the defendant did not object to the court’s actions, his argument is not preserved. The defendant’s reply acknowledges the lack of preservation, and argues that the court’s departure from its neutral role amounted to fundamental error.

Based on the foregoing arguments, we have reviewed the record to determine whether the court’s actions amount to fundamental error on the facts of this case. See Abdool v. State, 53 So.3d 208, 220 (Fla.2010) (“[The fundamental error] standard imposes a high burden on the defendant to establish that the error goes to the foundation of the case or the merits of the cause of action and is equivalent to a denial of due process.”) (citations and quotations omitted).

We conclude that the court’s actions do not amount to fundamental error on the facts of this case. First, however, we recognize that the court departed from its neutral role. In McFadden v. State, 732 So.2d 1180 (Fla. 4th DCA 1999), we stated:

While it is permissible for a trial judge to ask questions deemed necessary to clear up uncertainties as to issues that appear to require it, the trial court departs from a position of neutrality, which is necessary to the proper functioning of the judicial system, when it sua sponte orders the production of evidence that the state itself never sought to offer into evidence.

Id. at 1185 (citation and quotations omitted). Here, the judge’s actions went beyond asking questions to clear up uncertainties. Instead, the court sua sponte ordered the production of evidence that the state itself never sought to offer into evidence. The court requested former defense counsel’s presence, called former defense counsel as a witness after the state declined to call any witnesses, and elicited former defense counsel’s testimony upon which the court relied in part to deny the motion. Thus, the court departed from its neutral role.

Despite this departure, however, the court’s actions do not rise to the level of fundamental error. The record here conclusively refuted the defendant’s allegations before the court elicited consistent supporting evidence from former defense counsel. As the court found in denying the motion to -withdraw plea:

The Court finds by review of the transcript that clearly [the defendant] was advised of his rights, of the maximum penalty, of the bottom of the guidelines, that there was no guarantee what was going to happen. It was an open plea and transferred to mental health court.
By his own testimony, he went through the entire plea form and initialed and signed it, and he remembers doing that. He understood that he was advised of the maximum and minimum penalties.

Based on those findings alone, the court could have, and should have, denied the defendant’s motion. See Nelfrard v. State, 34 So.3d 221, 223 (Fla. 4th DCA 2010) (“[T]he plea colloquy itself may conclusively refute a defendant’s allegations that counsel misrepresented the length of time the defendant would serve.”); Scheele v. State, 953 So.2d 782, 785 (Fla. 4th DCA 2007) (“A plea conference is not a meaningless charade to be manipulated willy-nilly after the fact; it is a formal ceremony, under oath, memorializing a crossroads in the case. What is said and done at a plea conference carries consequences.”).

The fact that the court went further by eliciting consistent supporting evidence from former defense counsel does not cause fundamental error on this record. See Mathew v. State, 837 So.2d 1167, 1170 (Fla. 4th DCA 2003) (“[N]ot every act or comment that might be interpreted as demonstrating less than neutrality on the part of the judge will be deemed fundamental error.”); cf. Nichols v. State, 721 So.2d 807, 808 (Fla. 5th DCA 1998) (court’s asking witness to identify the defendant after the prosecutor chose not to did not rise to the level of fundamental error where the defendant: (1) was followed from the scene and kept in view until being arrested; (2) confessed to the crime after being arrested; and (3) raised as his sole defense at trial that he did not remember committing the crime because he was intoxicated when the incident occurred).

We distinguish the cases upon which the defendant relies for the proposition that a court’s departure from its neutral role may amount to fundamental error. In those cases, the trial court’s actions allowed the state to prove its case when it otherwise may not have done so. See Padalla v. State, 895 So.2d 1251, 1252 (Fla. 2d DCA 2005) (trial court questioned the state’s witnesses during a probation revocation hearing without the prosecutor having done so, generating the evidence which the court used to find that the defendant violated his probation); Lee v. State, 789 So.2d 1105, 1106-07 (Fla. 4th DCA 2001) (where the defense was misidentification, the trial court instructed the prosecutor to ask a witness to identify the defendant’s tattoos after the prosecutor had not done so); Lyles v. State, 742 So.2d 842, 842-43 (Fla. 2d DCA 1999) (after the state rested and the defendant’s attorney pointed out the deficiency in the state’s proof, the trial court sua sponte ordered the defendant’s fingerprints and bifurcated the hearing to allow additional testimony benefitting the state); McFadden, 732 So.2d at 1182-83 (after the state failed to establish a prima facie case for a violation of probation, the trial court, among other things, sua sponte identified the state’s omissions, asked the state if it wanted to reopen its case, and after the state’s proof remained insufficient, elicited further evidence upon which it found a violation).

Unlike Padalla, Lee, Lyles, and McFadden, the record here conclusively refuted the defendant’s allegations before the court elicited consistent supporting evidence from former defense counsel. Again, while we disapprove of the court’s actions, we hold that the court’s actions did not rise to fundamental error on this record.

Based on the foregoing, we affirm the denial of the defendant’s motion to withdraw plea. Also, as stated above, we affirm the denial of the defendant’s rule 3.800 motion to correct sentence without further discussion.

Affirmed.

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

      . We note that the motion to withdraw plea included statements which arguably raised a question regarding the defendant’s competency. In this respect, the court’s questioning of the psychologist did not constitute fundamental error either. See generally Lane v. State, 388 So.2d 1022, 1025 (Fla.1980) ("The law is now clear that the trial court has the responsibility to conduct a hearing for competency to stand trial whenever it reasonably appears necessary, whether requested or not, to ensure that a defendant meets the standard of competency....").


text:
    Nasra M. ARAFAT, Appellant, v. Mohamed JHALIL, Appellee.
    No. 4D11-4722.
    District Court of Appeal of Florida, Fourth District.
    Jan. 9, 2013.
    Rehearing Denied Feb. 19, 2013.
    Nasra M. Arafat, Coral Springs, pro se.
    Mohamed Jhalil, Sunrise, pro se.
   PER CURIAM.

Affirmed. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979) (“Without a record of the trial proceedings, the appellate court can not properly resolve the underlying factual issues so as to conclude that the trial court’s judgment is not supported by the evidence or by an alternative theory.”).

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


text:
    Lymon BELL, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-5848.
    District Court of Appeal of Florida, First District.
    Jan. 10, 2013.
    Lymon Bell, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

DAVIS, LEWIS, and ROBERTS, JJ., concur.


author: GROSS, J.

text:
    CONGRESS PARK OFFICE CONDOS II, LLC, a Florida limited liability corporation, Yoram Galel, Jeffrey Morris, and Congress Park Owners Associations, Inc., Appellants, v. FIRST-CITIZENS BANK & TRUST COMPANY, a foreign banking corporation, Appellee.
    No. 4D11-4479.
    District Court of Appeal of Florida, Fourth District.
    Jan. 16, 2013.
    Rehearing Denied Feb. 13, 2013.

      Robin Bresky and Jonathan Mann of Law Offices of Robin Bresky, Boca Raton, for appellants.
    James S. Telepman of Cohen, Norris, Wolmer, Ray, Telepman & Cohen, North Palm Beach, for appellee.
   GROSS, J.

The borrowers in a commercial real estate transaction appeal an order of' the trial court granting final judgment of foreclosure in favor of First-Citizens Bank & Trust Co. We affirm, holding that (1) the trial court did not abuse its discretion in granting summary judgment while discovery was outstanding and (2) the borrowers have shown no material issues of fact that would preclude summary judgment.

In 2006, the borrowers executed a promissory note for the sum of $825,000 in favor of Sun American Bank. To secure payment of the note, the borrowers executed and delivered a mortgage and security agreement to Sun. Thereafter, the borrowers executed a renewal promissory note, which increased the principal balance of the debt to $925,000.

In 2010, Sun failed and was put into receivership, with the Federal Deposit Insurance Corporation appointed as the receiver. Thereafter, the FDIC assigned the promissory note and mortgage to First-Citizens, which, on April 5, 2010, provided the borrowers with written notice that they were in default of their February 2010 payment and that First-Citizens intended to accelerate the mortgage.

On September 1, 2010, First-Citizens filed a four count complaint to obtain (1) judgment on the notes, (2) foreclosure of the mortgage, (3) action on the security agreement, and (4) action on the guarantees. The borrowers filed an answer and four affirmative defenses: (1) failure of contractual condition precedent, (2) unclean hands, (3) failure to comply with certain unspecified conditions, and (4) failure to produce the original note and mortgage.

As to the first affirmative defense — failure of contractual condition precedent— the borrowers alleged that First-Citizens failed to provide adequate notice of default and intent to accelerate, thereby “den[ying the borrowers] a good faith effort, pursuant to the Mortgage and the servicing obligations of [First-Citizens,] to avoid acceleration and ... foreclosure.” Furthermore, the borrowers alleged that First-Citizens “fail[ed] to engage in any foreclosure loss mitigation, as required,” or to “pursue effective foreclosure prevention strategies,” such as “evaluating] the particular circumstances surrounding their claimed default.” The borrowers did not, however, cite any portion of the loan documents or case law that would impose such fiduciary obligations on the lender in a commercial loan transaction.

For their second affirmative defense— unclean hands — the borrowers generally alleged that First-Citizens “intentionally fail[ed] to comply with the material terms of the mortgage and note in terms of notice of default and intent to accelerate,” such that foreclosure of the mortgage and “acceleration of the note would be inequitable, unjust, and ... unconscionable.” Once again, the borrowers failed to provide any specific allegations of impropriety-

On February 14, 2011, First-Citizens moved for summary judgment, alleging that there were no genuine issues of fact remaining. As to the defense of “failure of condition precedent,” First-Citizens argued that paragraph 9.2 of the renewal note “provide[d] that upon default, [First-Citizens,] at its option, had the right to accelerate the entire unpaid principal balance thereof “without notice or demand.’ ” Alternatively, if the loan documents required notice, First-Citizens had “provide[d the borrowers with] notice of default and acceleration.”

As to the borrowers’ unclean hands defense, First-Citizens argued that the defense was “unsupported by any factual allegation whatsoever ..., [wa]s made in bad faith, and [wa]s insufficient to overcome the evidence established by the Bank in support of its Motion for Summary Judgment.”

On March 10, 2011, the borrowers filed a request for the production of 146 documents and propounded 22 interrogatories. First-Citizens moved for a protective order. On April 12, 2011, Judge John J. Hoy denied First-Citizens’ motion without prejudice, with instructions to specially set a hearing on the protective order at a later date. In addition, Judge Hoy cancelled the upcoming summary judgment hearing and ordered that it be re-set for a date on or after May 27, 2011.

Thereafter, the ease was re-assigned to Judge Glenn Kelley. On August 11, 2011, upon First-Citizens’ request, Judge Kelley set a hearing on its summary judgment motion for October 18, 2011. At that point, First-Citizens had not complied with the discovery requests.

On October 4, 2011, just two weeks before the scheduled summary judgment hearing, the borrowers moved to compel discovery and for sanctions. Additionally, on October 11, 2011, the borrowers filed a response to First-Citizens’ motion for summary judgment, alleging for the first time an affirmative defense of “fraud.” Along with their response, the borrowers relied upon an affidavit submitted by one of them, which stated that a representative of Sun “promised that the principal plus interest payments would be readjusted back to interest only payments.” According to the affidavit, “[djespite Sun[’s] numerous representations that the loan would be readjusted back to interest only payments, the adjustment was never made.”

On October 17, 2011, the day before the summary judgment hearing, the parties submitted an agreed order, whereby First-Citizens was required to respond to three interrogatories and outstanding document production requests. The next day, however, notwithstanding the discovery order, the trial court conducted the hearing on First-Citizens’ motion for summary judgment, the contents of which are not included in the record. On October 20, 2011, the trial court entered a final judgment of foreclosure in favor of First-Citizens.

Standard of Review

A circuit court’s order granting summary judgment is reviewed de novo. Sunshine State Ins. Co. v. Jones, 77 So.3d 254, 257 (Fla. 4th DCA 2012). “ ‘Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law.’ ” Id. (quoting Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000)). The plaintiff “must either factually refute the alleged affirmative defenses or establish that they are legally insufficient to defeat summary judgment.” Knight Energy Servs., Inc. v. Amoco Oil Co., 660 So.2d 786, 788 (Fla. 4th DCA 1995) (citations omitted). If the moving party sustains its initial burden of proof by tendering competent evidence in support of the motion, then the non-moving party has the “burden of coming forward with evidence establishing genuine ... issues [of material fact].” Latour Auto Sales, Inc. v. Stromberg-Carlson Leasing Corp., 335 So.2d 600, 601 (Fla. 3d DCA 1976).

Analysis

On appeal, the borrowers argue that the trial court erred by prematurely granting summary judgment in favor of First-Citizens while discovery was pending. They contend that the requested discovery would have presented genuine issues of fact regarding the affirmative defenses of “standing, fraud, and unclean hands.” They also argue that the defenses of fraud and unclean hands “were inappropriate for summary judgment due to genuine disputed issues of material fact.”

The Borrowers’ Failure to Properly Plead Lack of Standing and Fraud as Affirmative Defenses Constituted Waiver

As a preliminary matter, the borrowers failed to properly plead the affirmative defenses of lack of standing and fraud, so they were not properly before the circuit court at the time it granted the motion for summary judgment.

Florida Rule of Civil Procedure 1.110(d) provides that “a party shall set forth affirmatively ... any ... matter constituting an avoidance or affirmative defense.” Application of this rule means “that affirmative defenses must be pleaded or they are considered waived.” Kersey v. City of Riviera Beach, 337 So.2d 995, 997 (Fla. 4th DCA 1976) (citations omitted); see also Fla. R. Civ. P. 1.140(b) (“Every defense in law or fact to a claim for relief in a pleading shall be asserted in the responsive pleading[.]”). In this regard, lack of standing and fraud are affirmative defenses that must be pled to avoid waiver. See Schuster v. Blue Cross & Blue Shield of Fla., Inc., 843 So.2d 909, 912 (Fla. 4th DCA 2003) (“There is no question that lack of standing is an affirmative defense that must be raised by the defendant and that the failure to raise it generally results in waiver.”); Cocoves v. Campbell, 819 So.2d 910, 913 (Fla. 4th DCA 2002) (“An affirmative defense of fraud that is not pleaded with particularity is deemed waived.”).

In the trial court, the borrowers failed to plead, or even argue, lack of standing as an affirmative defense. Furthermore, although the borrowers suggested fraud as a defense in their response to First-Citizens’ motion for summary judgment, such a filing did not discharge their duty to amend their pleadings in compliance with the rules of civil procedure. See Accurate Metal Finishing Corp. v. Carmel, 254 So.2d 556, 557 (Fla. 3d DCA 1971) (“Affirmative defenses must be pleaded and it is not sufficient to sustain a defense to a summary judgment motion to allege such in affidavits.” (citations omitted)); cf. B.B.S. v. R.C.B., 252 So.2d 837, 839 (Fla. 2d DCA 1971) (“An affirmative defense must be pleaded and not raised by a motion for summary judgment supported by an affidavit.” (citations omitted)). If the borrowers sought to raise these two defenses, they were required to obtain leave of court or the written consent of First-Citizens. See Fla. R. Civ. P. 1.190(a); Gray v. Purchase Corp., 573 So.2d 205, 206 (Fla. 1st DCA 1991).

By failing to properly plead lack standing and “fraud,” the borrowers waived their right to assert these affirmative defenses in response to First-Citizens’ summary judgment motion. Any requested discovery intended to prove either defense is therefore superfluous and cannot create a genuine issue of fact warranting reversal. In addition, the outstanding discovery requests would not have led to evidence that would have created an issue of material fact as to the defense of unclean hands since the requested discovery related only to the defenses of standing and, tangentially, to “fraud,” both of which were waived. In such a situation, “if the incomplete discovery will not raise future disputed issues of material fact, summary judgment may be properly granted.” Osorto v. Deutsche Bank Nat’l Trust Co., 88 So.3d 261, 268 (Fla. 4th DCA 2012) (citing Estate of Herrera v. Berlo Indus., Inc., 840 So.2d 272, 272 (Fla. 3d DCA 2003)).

The Trial Court Did Not Err in Granting Summary Judgment Pending Discovery Because the Borrowers Failed to Act Diligently

Another reason why the trial court did not abuse its discretion in granting First-Citizens’ motion for summary judgment is that the borrowers failed to act diligently in seeking the discovery. A trial court does not abuse its discretion in granting a motion for summary judgment, despite the pendency of discovery, where the non-moving party has failed to act diligently in taking advantage of discovery opportunities. See, e.g., Leviton v. Philly Steak-Out, Inc., 533 So.2d 905, 906 (Fla. 3d DCA 1988) (affirming a trial court’s order granting summary judgment despite the pendency of discovery where the defendants conducted very little discovery over a seven-month period and did not request a continuance of the summary judgment hearing to complete discovery).

For example, in Southern California Funding, Inc. v. Hutto, 438 So.2d 426, 431 (Fla. 1st DCA 1983), about six months after the commencement of the lawsuit, the defendant propounded discovery through requests for interrogatories and the production of documents. In response, the plaintiff timely objected to some of the demands for production. Id. Over two months later, the plaintiff served notice of a summary judgment hearing to be held on April 5. Id. The defendant took no action until two weeks before the hearing, at which point the defendant “served notice that their motion for continuance and to compel discovery would be called on for hearing on April 5,” the same day as the summary judgment hearing. Id. Under these circumstances, the first district held that the trial court did not abuse its discretion in entering summary judgment, despite the pendency of discovery, because the defendant “had not been diligent in seeking discovery.” Id. at 431-32.

The facts in this case more closely resemble those in Allen v. Shows, 532 So.2d 1304 (Fla. 2d DCA 1988). Allen held that the trial court did not abuse its discretion in granting summary judgment, despite the pendency of discovery, where it had given the non-moving party sufficient time to pursue discovery, but the party failed to do so. Id. at 1305. There, the second district affirmed an order granting summary judgment where the plaintiff failed to depose a witness where the trial judge had “deferred ruling on the summary judgment for nearly two months to permit” the plaintiff the opportunity to do so. Id.

In the ease at hand, the borrowers initially sought discovery on March 10, 2011, six months after commencement of the suit, and were met by First-Citizens’ motion for a protective order. The trial court denied First-Citizens’ motion for a protective order without prejudice and deferred the summary judgment hearing, giving the borrowers time to resolve the discovery dispute. However, by failing to act for another six months, and waiting until two weeks before the later-set summary judgment hearing to file a motion to compel, the borrowers failed to act diligently in seeking discovery. By that time, the trial court was entitled to believe that the real purpose of discovery was delay, rather than the discovery of relevant information.

The Borrowers’ Claim of Unclean Hands, as Pled, Was Insufficient to Withstand First-Citizens’ Motion for Summary Judgment

The final basis raised for reversal is the borrowers’ perfunctory argument that First-Citizens did not eliminate the unclean hands defense. Unclean hands is an equitable defense that is akin to fraud; its “purpose is to discourage unlawful activity.” Original Great Am. Chocolate Chip Cookie Co. v. River Valley Cookies, Ltd., 970 F.2d 273, 281 (7th Cir.1992). “It is a self-imposed ordinance that closes the doors of a court of equity to one tainted with inequitableness or bad faith relative to the matter in which he seeks relief[.]” Precision Instrument Mfg. Co. v. Auto. Maint. Mach. Co., 324 U.S. 806, 814, 65 S.Ct. 993, 89 L.Ed. 1381 (1945). This court has equated

“sneaky and deceitful” with “unclean hands”.... “Equity will stay its hand where a party is guilty of conduct condemned by honest and reasonable men. Unscrupulous practices, overreaching, concealment, trickery or other uncon-scientous conduct are sufficient to bar relief.” 22 Fla.Jur.2d, Equity, § 50.

Hensel v. Aurilio, 417 So.2d 1035, 1038 (Fla. 4th DCA 1982); see also Precision Instrument, 324 U.S. at 819, 65 S.Ct. 993 (indicating that the unclean hands doctrine justifies dismissal of a plaintiffs claim where “inequitable conduct impregnate^ the] entire cause of action”).

Like fraud, unclean hands “is not so subtle a concept that it cannot be described with precision.” Flemenbaum v. Flemenbaum, 636 So.2d 579, 580 (Fla. 4th DCA 1994). “ ‘One who has defrauded his adversary to his injury in the subject matter of the action will not be heard to assert a right in equity.’ ” Original Great Am., 970 F.2d at 281 (quoting Fruhling v. Champaign County, 95 Ill.App.3d 409, 51 Ill.Dec. 508, 420 N.E.2d 1066, 1071 (1981) (discussing the equitable defense of unclean hands)). However, the party seeking to raise the defense should be well aware of those egregious facts that justify its application.

Here, the only facts asserted to support the defense of unclean hands were that First-Citizens “intentionally] fail[ed] to comply with material terms of the mortgage and note in terms of notice of default and intent to accelerate.” A failure to comply with the material terms of a loan document may be a breach of contract, and it may not be nice, but it does not amount to unclean hands.

A common problem we encounter in mortgage foreclosure appeals is that the appellant slings legal terminology in a brief — fraud, unclean hands, estoppel, TILA violation — without tying the legal concept to any set of real-world facts established in the trial court. As the Florida Supreme Court has aptly observed, “when a decree of the trial court is brought ... on appeal the duty rests upon the appealing party to make error clearly appear.” Lynn v. City of Fort Lauderdale, 81 So.2d 511, 513 (Fla.1955) (citing FEC News Co. v. Pearce, 58 So.2d 843 (Fla.1952)). To this end,

[a]n appellant does not discharge this duty by merely posing a question with an accompanying assertion that it was improperly answered in the court below and then dumping the matter into the lap of the appellate court for decision. Under such circumstances it must be held ... that [the appellate court is] under no duty to answer the question.

Id.

Following this principle, without further support, the borrowers’ cursory argument that the defense of unclean hands blocked summary judgment, because the lender failed to comply with “material terms of the mortgage,” is insufficient to warrant reversal. The borrowers failed to bring out those egregious facts that would have transformed such a “failure to comply” into an unclean hands defense sufficient to bar relief in equity.

In the summary judgment context, once the moving party has submitted evidence entitling it to relief, “[i]t is not enough for the opposing party merely to assert that an issue [of fact] does exist.” Landers v. Milton, 370 So.2d 368, 370 (Fla.1979) (citing Harvey Bldg., Inc. v. Haley, 175 So.2d 780 (Fla.1965); Farrey v. Bettendorf, 96 So.2d 889 (Fla.1957)). “Rather, it is ‘incumbent upon [the opposing party] to come forward with competent evidence revealing a genuine issue of fact[.]’ ” The Florida Bar v. Mogil, 763 So.2d 303, 307 (Fla.2000) (quoting Landers, 370 So.2d at 370).

Affirmed.

MAY, C.J., and GERBER, J., concur.

      . The trial court entered a default judgment against one of the borrowers, Congress Park Owners Association, Inc.

      . The borrowers raised two other affirmative defense related to the Florida Consumer Practices Act and the Florida Deceptive and Unfair Trade Practices Act, both of which were later withdrawn.

      .This affirmative defense was effectively nullified when First-Citizens filed the original loan documents with the court on April 15, 2011.

      . We use the term "fraud” only because that is the term used by the borrowers. We do not agree that the borrowers produced any set of facts that comprised the traditional elements of fraud: "(1) a false statement of material fact; (2) the maker of the false statement knew or should have known of the falsity of the statement; (3) the maker intended that the false statement induce another's reliance; and (4) the other party justifiably relied on the false statement to its detriment.” Prieto v. Smook, Inc., 97 So.3d 916, 917 (Fla. 4th DCA 2012) (quoting Shakespeare Found., Inc. v. Jackson, 61 So.3d 1194, 1199 n. 1 (Fla. 1st DCA 2011) (internal quotations omitted)).

      . In fact, the borrowers' affidavit would have been insufficient to raise fraud even if it been properly pleaded. The affidavit alleged nothing more than a promise to modify a loan, stating “that the principal plus interest payment would be readjusted back to interest only payments.” The affidavit discloses no loss or change of position in reliance on this agreement. At best, the purported fraud was nothing more than a promise to modify the subject loan, an oral credit agreement as contemplated by Florida’s Banking Statute of Frauds, defined in section 687.0304, Florida Statutes (2010). See § 687.0304(l)(a), Fla. Stat. (2010) (defining a credit agreement as an “agreement to lend or forbear repayment of money, goods, or things in action, to otherwise extend credit, or to make any other financial accommodation").

      . Discussing the limitations on the application of the equitable defense in the modem world, Judge Posner has written,
      [t]oday, "unclean hands” really just means that in equity as in law the plaintiff’s fault, like the defendant's, may be relevant to the question of what if any remedy the plaintiff is entitled to. See Chafee, Coming Into Equity With Unclean Hands [II], 47 Mich. L.Rev. 1065, 1092 (1949). An obviously sensible application of this principle is to withhold an equitable remedy that would encourage, or reward (and thereby encourage), illegal activity, as where the injunction would aid in consummating a crime, the issue in Johnson v. Yellow Cab Transit Co., 321 U.S. 383, 64 S.Ct. 622, 88 L.Ed. 814 (1944). In what may have been the earliest application of the principle of unclean hands, a highwayman was refused an accounting against his partner in crime (and later hanged, to boot, along with the partner). See Everet v. Williams (Ex. 1725), belatedly reported in Note, The Highwayman’s Case, 35 L.Q. Rev. 197 (1893), and briefly discussed in Prosser and Keeton on the Law of Torts, § 50, at p. 336 n. 4 (5th ed.1984).

        Shondel v. McDermott, 775 F.2d 859, 868 (7th Cir.1985).


text:
    John Marion BIVINS, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-2147.
    District Court of Appeal of Florida, Fourth District.
    Jan. 16, 2013.

      John Marion Bivins, Madison, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See State v. Adkins, 96 So.3d 412 (Fla.2012); Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011).

POLEN, GROSS and DAMOORGIAN, JJ., concur.


text:
    Shawn SMOAK, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-2059.
    District Court of Appeal of Florida, Fourth District.
    Jan. 16, 2013.
    Shawn Smoak, Malone, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See State v. Adkins, 96 So.3d 412 (Fla.2012); Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011).

POLEN, GROSS and CONNER, JJ., concur.


text:
    Kyle MARTIN, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-1633.
    District Court of Appeal of Florida, Fourth District.
    Jan. 16, 2013.
    Kyle Martin, Moore Haven, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See State v. Adkins, 96 So.3d 412 (Fla.2012); Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011).

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


text:
    Willie F. BRINSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-1227.
    District Court of Appeal of Florida, Fourth District.
    Jan. 16, 2013.

      Carey Haughwout, Public Defender, and Narine N. Austin, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. Adkins v. State, 963 So.2d 737 (Fla.2007).

DAMOORGIAN, GERBER and LEVINE, JJ., concur.


text:
    James M. FORD, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-806.
    District Court of Appeal of Florida, Fourth District.
    Jan. 16, 2013.
    James M. Ford, Lake City, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Robinson v. State, 943 So.2d 860, 861 (Fla. 4th DCA 2006).

GROSS, CIKLIN and CONNER, JJ., concur.


text:
    Josue DELGADO, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-4040.
    District Court of Appeal of Florida, Fourth District.
    Jan. 16, 2013.

      Carey Haughwout, Public Defender, and Gary Lee Caldwell, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   GROSS, J.

We affirm appellant’s conviction of robbery. Appellant entered a bank, handed the teller a note which stated “this is a robbery,” and demanded money. Although the teller said she “wasn’t afraid of what was happening,” she gave appellant the money because of “the threat in the note.”

Appellant argues that he did not commit a robbery because he did not put the victim in fear. Specifically, he contends that, applying the wording of section 812.13(1), Florida Statutes (2011), the State failed to prove that “in the course of the taking there [wa]s the use of force, violence, assault, or putting in fear.”

Under Florida law, for there to be a “fear”-based robbery within the meaning of the statute, the trier of fact must determine whether the defendant’s conduct would have placed a reasonable person, not just the actual victim, in fear of death or great bodily harm. See, e.g., Diaz v. State, 14 So.3d 1156, 1158 (Fla. 4th DCA 2009); Brown v. State, 397 So.2d 1153, 1155 (Fla. 5th DCA 1981) (citing Flagler v. State, 189 So.2d 212 (Fla. 4th DCA 1966), aff'd, 198 So.2d 313 (Fla.1967); Thomas v. State, 183 So.2d 297 (Fla. 3d DCA 1966)). “[T]he controlling factor is not necessarily the victim’s subjective state of mind, but whether a jury could conclude that a reasonable person, under like circumstances, would have felt sufficiently threatened to accede to the robber’s demands.” Magnotti v. State, 842 So.2d 963, 965 (Fla. 4th DCA 2003); see also Bryant v. State, 30 So.3d 591, 595 (Fla. 2d DCA 2010); Thomas v. State, 989 So.2d 735, 736 (Fla. 1st DCA 2008); State v. Hawkins, 790 So.2d 492, 496 (Fla. 5th DCA 2001); Wayne R. LaFave & Austin W. Scott, Jr., Handbook on Criminal Law § 94, p. 700 (1972) (recognizing that Florida follows the rule “that the threat of harm, for robbery, must be such as would, under the circumstances, arouse in the victim a reasonable fear of harm, or cause a reasonable man to be apprehensive of harm, or induce a reasonable person to part with his property”).

Contrary to appellant’s argument, this line of cases does not conflict with Montsdoca v. State, 84 Fla. 82, 93 So. 157 (1922). That case applied neither an objective nor a subjective standard of the “putting in fear” element of the robbery statute; the Supreme Court merely concluded that a robbery had occurred “upon either of two methods by which it was charged” — (1) there “was an assault upon the victim and a violent or forceful taking possession of the automobile which he was driving, and he was not permitted to depart until he paid the defendants,” or (2) the defendant grabbed the victim “by both shoulders and shook him and ordered him to get out of the car” and would not let him go unless he paid $100. Id. at 159-60.

Affirmed.

MAY, C.J., and GERBER, J., concur.


text:
    Otis HEARD, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-2991.
    District Court of Appeal of Florida, Fourth District.
    Jan. 16, 2013.
    Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See State v. Adkins, 96 So.3d 412 (Fla.2012); Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011).

WARNER, GERBER and LEVINE, JJ., concur.


text:
    Sandra PINEIRO, Appellant, v. AMERICAN EXPRESS CARD SERVICES COMPANY, Barry S. Franklin & Associates, P.A., formerly known as Franklin & Criscuolo, Appellees.
    No. 4D10-4612.
    District Court of Appeal of Florida, Fourth District.
    Jan. 16, 2013.
    Rehearing Denied Feb. 19, 2013.

      Sandra Acevedo, f/k/a Sandra Pineiro, Boca Raton, pro se.
    Barry S. Franklin of Barry S. Franklin & Associates, P.A., Aventura, for appellee, Barry S. Franklin & Associates, P.A.
   GROSS, J.

Sandra Pineiro appeals from a final judgment in continuing garnishment authorizing garnishee American Express Card Services Company to withhold money from her net disposable earnings. The judgment authorized the withholding “until the sum of $18,398.10, plus all accrued statutory interest from January 20, 2004, plus garnishment court costs in the amount of $15,231.36, are paid in full.” We reverse the final judgment to the extent that attorney’s fees incurred by the plaintiff in the collection process are included in the $15,231.36 figure.

In 2002, Pineiro hired appellee Barry S. Franklin & Associates, P.A., then Franklin & Criseuolo, to represent her in divorce litigation. She signed a retainer agreement that contained a provision entitling the law firm to recover any attorney’s fees incurred by the firm in “legal proceedings” taken to enforce the retainer agreement. After the attorney-client relationship ended, the law firm recovered a final judgment against Pineiro for $18,398.10.

In 2010, pursuant to section 77.0305, Florida Statutes (2010), the law firm secured the issuance of a continuing writ of garnishment directed at American Express. Its motion for a continuing writ of garnishment after judgment asserted that it held a 2004 judgment for “[t]he sum of $18,398.10 [which] remains unpaid.” American Express filed an answer to the writ confirming that it would deduct a certain amount from Pineiro’s earnings. Pineiro challenged the issuance of a final judgment in continuing garnishment by arguing that she was entitled to a head of family exemption.

During an evidentiary hearing, the circuit court addressed the law firm’s claim for additional attorney’s fees incurred in collection. The court rejected Pineiro’s claimed exemption, determined that Pinei-ro owed an additional $15,231.36 in attorney’s fees and costs, and issued a final judgment of continuing garnishment. The final judgment authorized the writ to continue until the satisfaction of the underlying judgment and an additional $15,231.36 in attorney’s fees and costs.

We affirm the amount awarded as additional attorney’s fees incurred by the law firm in the “legal proceedings” seeking to enforce the $18,398.10 judgment. Although Pineiro complains on appeal that the law firm did not offer either expert or sworn testimony to support the rate charged, she failed to raise these objections in the trial court, so the issues were not properly preserved for appeal. See Rokicki v. Rokicki, 660 So.2d 362, 864 (Fla. 3d DCA 1995). As to the amount awarded, Pineiro has not carried her burden of demonstrating error. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979).

We reverse that portion of the final judgment that entitled the law firm to recover the additional $15,231.36 in attorney’s fees under the writ because Chapter 77 does not authorize the inclusion of this additional amount in the final judgment in garnishment. Unknown to the common law, garnishment is a statutory procedure controlled by Chapter 77, Florida Statutes (2010). Fla. Power & Light Co. v. Crabtree Constr. Co., 283 So.2d 570, 572 (Fla. 4th DCA 1973). “Garnishment statutes are strictly construed.” Gigliotti Contracting N., Inc. v. Traffic Control Prods. of N. Fla., Inc., 788 So.2d 1013, 1016 (Fla. 2d DCA 2001); see also Corbin v. St. Lucie River Co., 78 So.2d 396, 397 (Fla.1955)(stating that the statutory requirements of garnishment “must be strictly complied with”); Zivitz v. Zivitz, 16 So.3d 841, 847 (Fla. 2d DCA 2009) (indicating that “strict adherence” to the provisions of the garnishment statute is required).

Section 77.01, Florida Statutes (2010), states that “[e]very person or entity who ... has recovered [a] judgment in any court against any person or entity has a right to a writ of garnishment, in the manner hereinafter provided[.]” (Emphasis added). To garnish “salary or wages,” section 77.0305 provides that a continuing writ of garnishment is available “to satisfy a judgment.” “After [the] judgment has been obtained,” to secure the issuance of the writ, a plaintiff must file a motion “stating the amount of the judgment.” § 77.03, Fla. Stat. (2010). Reading sections 77.01, 77.03, and 77.0305 together, it is apparent that, for a post-judgment garnishment, the total amount sought to be garnished must be contained in a judgment that exists prior to the issuance of the writ. Here, the amount awarded by the court as additional attorney’s fees could not be included in the final judgment in continuing garnishment because that amount had not yet been reduced to a final judgment.

We therefore reverse the October 7, 2010, final judgment in continuing garnishment and direct the circuit court (1) to enter an amended final judgment in continuing garnishment that removes from the $15,231.36 figure that amount attributable to attorney’s fees and (2) to enter a separate final judgment for attorney’s fees incurred by the appellee in “legal proceedings” seeking to enforce the original final judgment.

Affirmed in part, reversed in part and remanded to the circuit court.

MAY, C.J., and GERBER, J., concur.