text:
    Jorge YERO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-2931.
    District Court of Appeal of Florida, Third District.
    May 21, 2014.

      Carlos J. Martinez, Public Defender, and Shannon Healy, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Marlon J. Weiss, Assistant Attorney General, for appellee.
    Before SUAREZ, LAGOA, and LOGUE, JJ.
   LOGUE, J.

Jorge Yero appeals his conviction of third-degree grand theft, arguing the trial court erred in denying his motion to dismiss the information. At trial, the State relied on the testimony of three witnesses who described Yero’s actions as they appeared in a surveillance video. The video itself, however, was not played for the jury because it had been destroyed. Yero argues the State’s failure to preserve the surveillance video warrants a reversal. We disagree and affirm.

FACTS AND PROCEDURAL BACKGROUND

In an amended information, the State charged Yero with third-degree grand theft stemming from the theft of a woman’s wallet in a restaurant. Yero moved to dismiss the charge prior to trial. He alleged that the State’s failure to retrieve and preserve the restaurant’s surveillance video prevented him from preparing an adequate defense and deprived him of his right to confront the witnesses against him under the Sixth Amendment of the United States Constitution. The State filed a response alleging that an officer attempted to retrieve the video on several occasions, but was unsuccessful due to the inadvertent overwrite of the footage by the restaurant’s security system.

Without holding an evidentiary hearing, the trial court denied the motion to dismiss after concluding that the State did not act in bad faith. Defense counsel renewed the motion at the close of trial. He did not, however, move to exclude testimony describing the content of the video prior to trial or object to the admission of such testimony at trial.

The testimony presented at trial reflected the victim, Katherine Ashurst, was on vacation in Islamorada, Florida with her flaneé, Nigel Jackson. On the evening that the crime occurred, at around 2:00 a.m., they visited a restaurant where they sat down at the far end of the bar. Ash-urst hung her purse over the back of her chair. The purse contained a wallet of the type that does not fold and is long enough to hold a checkbook, sometimes referred to as a woman’s clutch or checkbook wallet. Within the wallet was $2,500 in cash and several credit cards.

Ashurst and Jackson were approached by only one patron that night, Yero. At one point, Yero stood between the couple’s chairs by Ashurst’s purse. He later excused himself for a few minutes before returning to buy the couple drinks, pay his bar tab, and leave. Ashurst noticed that her wallet was missing approximately five minutes after Yero left the bar, which was around 3:00 a.m.

The Sheriffs office was called and a deputy sheriff arrived on the scene shortly thereafter. After learning that the restaurant had surveillance video cameras, Ash-urst, Jackson, and the deputy viewed the video footage from that evening. At trial, they testified to the contents of the video. The video indicated that Yero did not at first have a bulge in his left pocket, but that, after he had positioned himself between Ashurst and Jackson with his arm near Ashurst’s purse, he had a bulge in his left pocket matching the size and shape of Ashurst’s wallet. The video also showed that Yero went outside the bar and then returned. When Yero returned to the bar, the object was no longer in his pocket. The area around the bar was searched, but the wallet was never found.

The video was not played at trial because it had been overwritten by the restaurant’s security system. The deputy described his efforts to preserve the video recording. He requested the video on the same night of the incident, but a bar manager informed him that “he wasn’t able to do it at the time, that he would have one of the managers or IT get to it.” The deputy was not informed that the recording would be automatically overwritten within five days. By the time the deputy followed up on his request approximately nine days later, he was told that the recording had been overwritten. He attempted to retrieve the video recording on another occasion, but he was again informed that the recording had been overwritten.

The jury found Yero guilty of third-degree grand theft. The trial court sentenced him to ten years as a habitual offender. This appeal followed.

ANALYSIS

Yero contends that the State’s reliance on testimony regarding the contents of the destroyed surveillance video violated his rights to due process under the Fourteenth Amendment and to confront witnesses under the Sixth Amendment of the United States Constitution. He also maintains that the evidence should have been excluded. We will address each issue in turn.

I. Due Process

A body of law has developed which discusses when the State’s failure to preserve evidence rises to the level of a violation of due process. This analysis requires a court to “first consider whether the missing evidence was ‘materially exculpatory’ or only ‘potentially useful.’ ” State v. Bennett, 111 So.3d 943, 944 (Fla. 2d DCA 2013) (reversing the dismissal of a case because the State did not act in bad faith by failing to preserve potentially useful evidence to the defendant, a surveillance video of the defendant’s altercation with victims).

On the one hand, if the evidence is materially exculpatory, the State has a duty to preserve it and the failure to do so constitutes a due process violation. California v. Trombetta, 467 U.S. 479, 488,104 S.Ct. 2528, 81 L.Ed.2d 413 (1984); Bennett, 111 So.3d at 944. But to meet this standard of constitutional materiality, the evidence must possess an exculpatory value that was apparent before its destruction and the defendant must be unable to obtain comparable evidence by other reasonably available means. Trombetta, 467 U.S. at 489, 104 S.Ct. 2528. A due process violation in this context does not turn on whether the State acted in bad faith. See Illinois v. Fisher, 540 U.S. 544, 549, 124 S.Ct. 1200, 157 L.Ed.2d 1060 (2004) (holding, in the context of destroyed evidence, that a defendant’s burden to show bad faith on the part of the State depends on whether the evidence was “material exculpatory” or “potentially useful”).

On the other hand, the State’s failure to preserve evidence that is only “potentially useful” to a defendant does not constitute a due process violation unless the defendant can show bad faith on the part of the State. Arizona v. Youngblood, 488 U.S. 51, 58, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988); Guzman v. State, 868 So.2d 498, 509 (Fla.2003); State v. Gomez, 915 So.2d 698, 700 (Fla. 3d DCA 2005). “In the context of destroyed evidence, ... bad faith [is] ‘a flagrant and deliberate act done ... with the intention of prejudicing the defense.’ ” Bennett, 111 So.3d at 945 (quoting State v. Powers, 555 So.2d 888, 890 (Fla. 2d DCA 1990)).

Yero fails to meet the requirements to prove a due process violation. Yero did not argue below that the video was exculpatory, and he conceded in his initial brief and at oral argument that this case does not involve exculpatory evidence. In any event, the testimony of Ashurst, Jackson, and the deputy indicated that the contents of the video were inculpatory and incriminating, not exculpatory.

Yero also failed to allege, and the trial court did not find, bad faith on the part of the State. The deputy requested a copy of the video recording on the night of the incident and was assured that it would be made available; when the deputy requested the video on the night of the incident, he was not informed that the recording would be automatically overwritten by new footage within five days; the deputy followed up on his request on more than one occasion; and the deputy testified that the video depicted Yero in possession of an item that matched the physical description of Ashurst’s wallet (thus, the deputy viewed the evidence as having inculpatory value).

In State v. Hampton, 113 So.3d 109, 110 (Fla. 5th DCA 2013), the Fifth District held that similar conduct did not constitute bad faith. There, the State failed to retrieve and preserve a surveillance video from the retail store where the defendant had been arrested. Id. at 109. “[T]he sheriffs office had requested a copy of the videotape at the time of [the defendant’s] arrest and the store was to make it available.” Id. at 110. When the arresting deputy returned to the store to retrieve the surveillance video on more than one occasion, however, “he was told that there was no tape and any tape would have been erased within 24 hours.” Id. The defendant moved to dismiss the case as a result of the State’s failure to preserve the evidence, and the trial court granted the motion. Id. The Fifth District reversed pursuant to Youngblood, holding that the defendant failed to show bad faith on the part of the State. Id. Similarly, we hold that Youngblood’s bad-faith requirement controls in this case and that the record does not reflect a “flagrant and deliberate act done with the intention of prejudicing the defense.”

Yero argues that Youngblood’s bad-faith requirement should not apply to evidence central to the State’s case. The Supreme Court expressly rejected this argument: “the applicability of the bad-faith requirement in Youngblood depended not on the centrality of the contested evidence to the prosecution’s case or the defendant’s defense, but on the distinction between ‘material exculpatory’ evidence and ‘potentially useful’ evidence.” Fisher, 540 U.S. at 549, 124 S.Ct. 1200 (reversing the dismissal of drug possession charges where the State in good faith destroyed the alleged cocaine before the defendant’s expert tested it). Thus, no due process violation occurred.

II. The Sixth Amendment Right to Confrontation

We also reject the notion that the State’s failure to preserve the surveillance video violated Yero’s right to confrontation under the Sixth Amendment of the United States Constitution, because the right does not encompass physical evidence.

Yero directs this court to the case of Johnson v. State, 249 So.2d 470, 472 (Fla. 3d DCA 1971), which held it was reversible error to permit a ballistics expert to testify as to markings on a bullet that corresponded to markings on a pistol where the State could not produce the bullet for examination by the defendant’s own expert. In so reasoning, this court stated: “[w]e think that appellant’s right to examine tangible evidence is a part of his right to the confrontation of witnesses against him and the right to a full and complete cross-examination of the witnesses who are to be presented against him.” Id.

The authority of Johnson as precedent has been undermined over the decades. Whether the State’s failure to preserve evidence violates a defendant’s constitutional rights is an issue that arises under the Due Process Clause, not the Confrontation Clause. To the extent Johnson suggests otherwise, its reasoning has been soundly rejected by this court and other courts.

In Harrison v. State, 403 So.2d 565, 566 (Fla. 3d DCA 1981), for example, this court affirmed the trial court’s finding that the defendant violated his probation by possessing brass knuckles, where the State relied on testimony from an officer that led to the introduction of a photograph rather than the actual knuckles into evidence. After noting “the officer who discovered the knuckles testified at the probation revocation hearing and was subject to cross-examination,” this court went on to hold that a defendant’s “right to confrontation under the Sixth Amendment of the United States Constitution is restricted to witnesses and does not encompass physical evidence.” Id. (citing United States v. Herndon, 536 F.2d 1027, 1029 (5th Cir.1976)). Likewise, in this case, the witnesses who testified concerning the content of the surveillance video were subject to cross-examination at trial. This satisfied Yero’s right to confrontation under the Sixth Amendment.

Moreover, as discussed above, subsequent decisions by the United States and Florida Supreme Courts have established that the issue raised' by the State’s failure to preserve evidence must be addressed under the Due Process Clause in the manner discussed above. See Trombetta, 467 U.S. at 481, 104 S.Ct. 2528; Youngblood, 488 U.S. at 52, 109 S.Ct. 333; Guzman, 868 So.2d at 509; see also State v. Farr, 558 So.2d 437, 438 (Fla. 4th DCA 1990) (“Although the confrontation clause of the Sixth Amendment refers to witnesses and does not encompass physical evidence, federal decisions hold that the due process clause of the Fifth Amendment and fundamental fairness entitles a defendant access to relevant and material evidence which is necessary to his defense.”) (internal citations omitted). It is the analysis under those cases which is controlling.

III. Section 90.954(1), Florida Statutes

Finally, Yero maintains that the trial court erred in failing to exclude the testimony describing the content of the video. This claimed error, however, was unpreserved by a specific objection. See Corona v. State, 64 So.3d 1232, 1242 (Fla.2011). In any event, the testimony was admissible under section 90.954(1), Florida Statutes (2012).

The best evidence rule states “[ejxcept as otherwise provided by statute, an original writing, recording, or photograph is required in order to prove the contents of the writing, recording, or photograph.” § 90.952, Fla. Stat. (2012). An exception to this rule provides that “[t]he original of a writing, recording, or photograph is not required ... and other evidence of its contents is admissible when ... [a]ll originals are lost or destroyed, unless the proponent lost or destroyed them in bad faith.” § 90.954(1), Fla. Stat. This exception recognizes “[t]he need for relevant evidence trumps the dangers of inaccuracy and fraud—issues left to the trier in assessing probative force .... ” US. ex rel. El-Amin v. George Washington Univ., 522 F.Supp.2d 135,147 (D.D.C.2007) (quoting 6 Weinstein’s Federal Evidence § 1004.20). It also reflects an ancillary purpose of protecting against the possible inference that the failure to preserve evidence stems from design. 2 McCormick On Evidence § 237 (7th ed.).

Casebooks are replete with prosecutions based upon the testimony of the contents of writings or recordings that are unavailable. In England v. State, 940 So.2d 389, 401 (Fla.2006), for example, the Florida Supreme Court upheld a conviction of first-degree murder based in part upon the contents of a destroyed letter. In doing so, the Court noted there was “no evidence or assertion that the State, the proponent of the destroyed writing, lost or destroyed the letter in bad faith.” Id. Indeed, in a case whose facts are remarkably similar to this case, an appellate court in New Mexico held that the testimony of two officers describing the contents of a destroyed surveillance video properly provided the basis for an adjudication of delinquency. State v. Timothy P., No. 32, 130, 2013 WL 6662708 (N.M.Ct.App. Nov. 21, 2013).

CONCLUSION

Because the surveillance video was not exculpatory and because the State did not act in bad faith when it failed to preserve it, the trial court properly denied the motion to dismiss the information.

Affirmed.

      . The Second District has recognized that "the law is somewhat unsettled as to which side bears the burden of establishing whether the destroyed evidence is materially exculpatory or potentially useful.” Bennett, 111 So.3d at 945 (citing Bennett v. State, 23 So.3d 782, 792-94 (Fla. 2d DCA 2009)). We do not reach the issue of whether Yero had the burden to show that the destroyed evidence was materially exculpatory under the facts of this case. Even if we were to assume that the State had the burden, the State met' that burden based on the testimony of the three witnesses.


source: Caselaw Access Project

author: LOGUE, J.

license: Public Domain

text:
    U.S. BANK NATIONAL ASSOCIATION, etc., Appellant, v. Mary BEVANS, etc., et al., Appellees.
    No. 3D12-3445.
    District Court of Appeal of Florida, Third District.
    May 21, 2014.

      Timothy D. Padgett, P.A., and Timothy D. Padgett, Matthew E. Bryant, Evan S. Singer, and Preston C. Davis, Tallahassee, for appellant.
    The Offices of Roman Groysman, P.A., and Roman Groysman, Fort Lauderdale, for appellees.
    Before WELLS, EMAS, and LOGUE, JJ.
   LOGUE, J.

U.S. Bank National Association challenges an order that (1) vacated a final judgment of foreclosure entered in favor of the Bank; and (2) elevated above the Bank’s mortgage the interest of a party that obtained title to the subject property through the foreclosure of a junior lien. We reverse and remand for further proceedings.

FACTS AND PROCEDURAL BACKGROUND

In November 2007, Mary Bevans borrowed money from a financial institution to purchase a condominium. Bevans executed a note and mortgage. The mortgage was recorded in January 2008 and was subsequently assigned to the Bank. At some point, Bevans stopped making her mortgage payments and stopped paying her condominium fees. In 2009, the Condominium Association recorded a lien against the property for unpaid assessments. At that point in time, there were two relevant liens on the property: the Bank’s senior mortgage lien and the Association’s junior lien.

In January 2010, the Association filed a foreclosure action. That case is not before us, but developments in that case bear directly on the issues in this case. In the Association’s foreclosure action, it did not name the Bank as a defendant. The court in that case entered a final judgment of foreclosure in favor of the Association in July 2010. Final Judgment, Palm Residences of S. Beach Condo. Ass’n v. Bevans, 10-1895-CC-28 (Fla. 11th Cir. July 19, 2010).

In February 2011, the Bank filed the present case to foreclose on its mortgage. The Bank’s action was filed before the judicial sale on the Association’s foreclosure took place. The Bank named the Association as a defendant but failed to record a notice of lis pendens, although there is an unresolved dispute in the record whether this failure was caused by the Bank or the Clerk of the Court.

In March 2011, after the Bank had filed its foreclosure action, the judicial sale based on the Association’s foreclosure took place. At the sale, IES Holdings, LLC purchased the subject property. IES then sold the property to Appellee Striding Figure Holdings, LLC by quit-claim deed in July 2011.

The trial court subsequently entered a judgment of foreclosure in favor of the Bank in this case. Striding, which held legal title to the subject property by that time, filed a notice of limited appearance in the Bank’s foreclosure suit. Striding moved to vacate the final judgment. In Striding’s motion, it argued that it took title to the subject property free of the Bank’s claims. This was so, Striding reasoned, because a notice of lis pendens was not properly recorded in the Bank’s foreclosure action and because the Bank did not name Striding as a party in that suit. The trial court agreed and entered an order vacating the final judgment. Besides vacating the Bank’s final judgment of foreclosure, the order states: “Striding Figure Holdings, LLC shall keep the property exempt from the claims of U.S. Bank, N.A. (‘Plaintiff).”

ANALYSIS

We first consider whether Striding obtained an interest exempt from the Bank’s mortgage. Striding purchased its interest in the property at a judicial sale that resulted from the Association’s foreclosure. The Association did not and, in fact, normally could not name a superior lienholder like the Bank as a defendant in the Association’s suit to foreclose on its junior lien. See Gonzalez v. Chase Home Fin. LLC, 37 So.3d 955, 957 (Fla. 3d DCA 2010) (“[PJarties claiming title superior to the lien of a mortgage being foreclosed are not proper parties to the foreclosure suit.”) (internal quotations and citations omitted). Thus, the final judgment of foreclosure entered in favor of the Association in the Association’s foreclosure action did not eliminate the Bank’s senior mortgage interest because “[fjoreclosure does not terminate interests in the foreclosed real estate that are senior to the mortgage being foreclosed.” Garcia v. Stewart, 906 So.2d 1117, 1120 (Fla. 4th DCA 2005) (citations omitted). Accordingly, the Bank’s senior interest in the property survived the Association’s foreclosure.

Striding, however, argues that it took title free and clear of the Bank’s senior mortgage because it acquired title while the Bank’s mortgage foreclosure action was pending and the Bank failed to cause the Clerk to record a lis pendens. In support, Striding cites section 48.23(b), Florida Statutes (2012), which reads, in pertinent part:

1. An action that is filed for specific performance or that is not based on a duly recorded instrument has no effect, except as between the parties to the proceeding, on the title to, or any lien upon, the real or personal property unless a notice of lis pendens has been recorded and has not expired or been withdrawn or discharged.
2. Any person acquiring for value an interest in the real or personal property during the pendency of an action described in subparagraph 1 ... shall take such interest exempt from all claims against the property that were filed in such action by the party who failed to record a notice of lis pendens or whose notice expired or was withdrawn or discharged, and from any judgment entered in the proceeding ... as if such person had no actual or constructive notice of the proceeding or of the claims made therein or the documents forming the causes of action against the property in the proceeding.

(emphasis added).

Striding argues that under this statutory language, its actual or constructive notice of the Bank’s mortgage is irrelevant because the Bank did not file a lis pen-dens. Striding’s argument in this regard fails because the statute specifically provides that this provision is inapplicable to actions based on a duly recorded instrument. The Bank’s foreclosure action was based upon a duly recorded instrument, namely the Bank’s recorded mortgage. The language relied upon by Striding, therefore, does not apply to the Bank’s mortgage or foreclosure action.

This statutory scheme makes sense. A person that acquires property for value can protect itself by checking the public records for duly recorded instruments that reflect superior liens. In the instant case, Striding had at least constructive knowledge of the Bank’s mortgage when it purchased the property because the mortgage was recorded in the public records. When Striding purchased the property, therefore, it assumed the position that its predecessors-in-interest held: it obtained legal title to the property subject to the Bank’s senior mortgage. See Garcia, 906 So.2d at 1120. Accordingly, we reverse that portion of the order that provides “Striding Figure Holdings, LLC shall keep the property exempt from the claims of U.S. Bank.”

We next consider the slightly-different issue of whether the Bank’s foreclosure action eliminated Striding’s inferior interest in light of the fact that the Bank did not file a lis pendens and Striding was not a party to the Bank’s foreclosure. Striding was the legal title holder of the subject property at the time the court entered a final judgment of foreclosure in favor of the Bank. As legal title holder, Striding would normally be an indispensable party to the Bank’s foreclosure action and the lower court could not normally adjudicate the suit in Striding’s absence. Davanzo v. Resolute Ins. Co., 346 So.2d 1227, 1228 (Fla. 3d DCA 1977); English v. Bankers Trust Co. of Cal., N.A., 895 So.2d 1120, 1121 (Fla. 4th DCA 2005).

One exception to this rule is when a lis pendens had been properly filed in the public records giving notice of the Bank’s foreclosure action. A lis pendens “serves as constructive notice of the claims asserted against the property in the pending litigation” with respect “to one acquiring an interest in the property after’ the lis pendens is filed.” Westburne Supply, Inc. v. Cmty. Villas Partners, Ltd., 508 So.2d 431, 434 (Fla. 1st DCA 1987). “One who purchases property subject to a lis pen-dens ⅛ bound by the judgment or decree rendered against the party from whom he makes the purchases as much so as though he had been a party to the judgment or decree himself.’ ” U.S. Bank Nat. Ass’n v. Quadomain Condo. Ass’n, 103 So.3d 977, 979 (Fla. 4th DCA 2012) (quoting Greenwald v. Graham, 100 Fla. 818, 130 So. 608, 611 (1930)). That said, there was no properly recorded lis pendens giving notice of the Bank’s foreclosure action in this case.

Another exception to this rule concerns a party who acquires an interest in property with actual or constructive knowledge of another party’s lawsuit concerning the property. This common law exception was modified in part by section 48.23(b), but, as explained above, the modification does not apply to actions based on duly recorded instruments. For actions based on a duly record instrument, like the Bank’s mortgage in this case, the common law rule still applies: the filing of a notice of lis pendens is not required in order to enforce a lien against a subsequent purchaser who has actual or constructive knowledge of the pending litigation. See Westbume, 508 So.2d at 435.

Based on the record before us, we do not know whether Striding had actual or constructive knowledge of the Bank’s foreclosure action when it purchased the property. Until that issue is resolved, the Bank’s foreclosure cannot be set aside. For this reason, we also reverse that portion of the order vacating the Bank’s final judgment. If Striding had actual or constructive knowledge of the Bank’s foreclosure before it purchased the property, the Bank’s foreclosure terminated Striding’s junior interest; if Striding did not have such knowledge, the Bank will have to include Striding in a foreclosure action to eliminate Striding’s interest.

Reversed and remanded for further proceedings.


text:
    Richard Graham YOUNG, et al., Appellants, v. NORWEGIAN SEAFARERS’ UNION, etc., and Royal Caribbean Cruises, Ltd., Appellees.
    No. 3D13-866.
    District Court of Appeal of Florida, Third District.
    May 21, 2014.

      Lipcon, Margulies, Alsina & Winkleman, P.A., and Carlos Felipe Llinas Negret and Michael A. Winkleman, Miami, for appellants.
    Phillips, Richard & Rind, P.A., and Kathleen M. Phillips and Holly E. Van Horsten; Holland & Knight LLP, and Sanford L. Bohrer and Scott D. Ponce, Miami; Dodson, Hooks & Frederick and Richard J. Dodson, Baton Rouge, Louisiana, Amicus Curiae, for appellees.
    Before SHEPHERD, C.J., and SALTER and LOGUE, JJ.
   LOGUE, J.

Appellants (“the Seafarers”) seek review of a trial court order that dismissed their complaint for declaratory relief against ap-pellee Norwegian Seafarers’ Union (“the Union”). We affirm.

FACTS AND PROCEDURAL HISTORY

The Seafarers are non-resident foreign nationals that work as stateroom attendants aboard foreign-flagged cruise ships operated by Royal Caribbean Cruises, Ltd. The Union is a Norwegian corporation with an office and property in Florida. It has historically represented various seamen worldwide in contract negotiations with foreign employers. On behalf of the Seafarers’ collective bargaining unit, the Union entered into a collective bargaining agreement with Royal Caribbean which, among other things, requires the Seafarers to arbitrate wage and hour claims under Norwegian law.

In an effort to avoid the arbitration provision, the Seafarers filed a class action complaint against the Union for declaratory judgment, seeking a declaration under general Florida contract and agency law that the Union does not have the authority to represent the Seafarers and that the collective bargaining agreement negotiated by the Union with Royal Caribbean was invalid. Royal Caribbean intervened in the lawsuit. The Union and Royal Caribbean filed motions to dismiss, which the trial court granted. This appeal followed.

ANALYSIS

The United States Supreme Court has held that federal labor laws will not be interpreted to extend to labor disputes between a foreign vessel and a foreign crew, unless Congress clearly states otherwise. The reason for this rule of construction is that such foreign labor disputes concern only the internal operations of the foreign ship and interference in such matters may implicate matters of international relations outside the competency of courts.

For example, in Benz v. Compania Naviera Hidalgo, S.A., 353 U.S. 138, 142, 77 S.Ct. 699, 1 L.Ed.2d 709 (1957), the Supreme Court was confronted with a labor dispute over wages between a foreign vessel and its foreign employees. The dispute arose while the ship was docked at an American port, and an American labor union intervened by picketing the ship on behalf of the foreign employees. Id. In holding that the National Labor Relations Act did not govern the dispute, the Supreme Court noted that

Our study of the Act leaves us convinced that Congress did not fashion it to resolve labor disputes between nationals of other countries operating ships under foreign laws. The whole background of the Act is concerned with industrial strife between American employers and employees.

Id. at 143-44, 77 S.Ct. 699. Speaking to the issue of why federal courts would not intervene in such a dispute concerning the internal affairs of a foreign ship absent a clear Congressional directive, the Supreme Court stated:

For us to run interference in such a delicate field of international relations there must be present the affirmative intention of the Congress clearly expressed. It alone has the facilities necessary to make fairly such an important policy decision where the possibilities of international discord are so evident and retaliative action so certain.

Id. at 147, 77 S.Ct. 699.

Similarly, in McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U.S. 10, 83 S.Ct. 671, 9 L.Ed.2d 547 (1963), the Supreme Court again considered a dispute between a foreign-flagged ship and foreign employees. In McCulloch, an American labor union attempted to take the place of the Honduran labor union that had previously represented the employees, and which had negotiated the bargaining agreement that those employees were then working under. Id. at 13-14, 83 S.Ct. 671. The Court held that the federal labor laws would not be interpreted to reach this dispute because “[s]uch activity would raise considerable disturbance not only in the field of maritime law but in our international relations as well.” Id. at 19, 83 S.Ct. 671. In these circumstances, “[t]he possibility of international discord cannot therefore be gainsaid.” Id. at 21, 83 S.Ct. 671.

In a case remarkably similar to the present case, the Eleventh Circuit Court of Appeals affirmed the dismissal of a case brought by a foreign, non-resident seaman against his union and his employer, a foreign-flagged cruise line that operated out of American ports. Lobo v. Celebrity Cruises, Inc., 704 F.3d 882, 890 (11th Cir. 2013). The court held that a wage dispute between a foreign-flag vessel and its foreign crew fell within the internal affairs of the ship and therefore outside the reach of federal law. Id. at 888. Citing to McCul-loch and Benz, the Court held, “[b]ecause the Supreme Court has already determined that wage disputes between a foreign vessel and its foreign crew fall within the internal affairs of a ship, we are foreclosed from revisiting the question.” Id. at 889. In so holding, the Court noted “Benz clearly illustrates that the concern for international comity in these cases is general in nature and not allayed by a case-by-case effects-oriented inquiry.” Id. at 890.

Because labor disputes between foreign vessels and foreign crews concern only the internal affairs of the ship, they are treated differently than matters impacting the American public or even labor disputes between foreign vessels and American longshoremen. See, e.g., Spector v. Norwegian Cruise Line Ltd., 545 U.S. 119, 122, 125 S.Ct. 2169, 162 L.Ed.2d 97 (2005) (applying the Americans with Disabilities Act to foreign-flagged cruise ships); Int’l Longshoremen’s Local 1416, AFL-CIO v. Ariadne Shipping Co., 397 U.S. 195,198-201, 90 S.Ct. 872, 25 L.Ed.2d 218 (1970) (applying the National Labor Relations Act to a dispute between foreign ships and American longshoremen).

We believe that similar principles caution Florida courts not to adjudicate labor disputes between a foreign union and foreign employees working aboard foreign-flagged cruise ships. Florida’s statutory labor laws extend only to State public employees. See Chapter 447, Fla. Stat. (2013). For the reasons that the federal courts in Benz, McCulloch, and Lobo declined to interpret federal law as extending to such foreign labor disputes, absent an express statement by Congress to do so, we similarly decline to extend Florida statutory or common law to reach such disputes, absent an express statement by the Legislature otherwise. Accordingly, the trial court properly dismissed the Seafarers’ claim.

Affirmed.


author: PER CURIAM.

text:
    Joann HABERL, Appellant, v. 21ST MORTGAGE CORPORATION, et al., Appellee.
    No. 5D12-4839.
    District Court of Appeal of Florida, Fifth District.
    May 23, 2014.
    Carl J. Hognefelt and Barry M. Elkin, of Elkin & Hognefelt, Tampa, for Appellant.
    Thomas A. Valdez, of Quintairos, Prieto, Wood & Boyer, P.A., Tampa, and Sonya Daws, of Quintairos, Prieto, Wood & Boyer, P.A., Tallahassee, for Appellee.
   PER CURIAM.

Joann Haberl appeals a summary final judgment of foreclosure entered in favor of 21st Mortgage Corporation. Because the notice of default attached to the affidavit in support of 21st Mortgage’s motion for summary judgment does not comply with the pre-acceleration notice requirements set forth in paragraph 22 of the mortgage, we reverse the summary final judgment of foreclosure and remand for further proceedings. See Samaroo v. Wells Fargo Bank, 137 So.3d 1127, 2014 WL 1255428, 39 Fla. L. Weekly D670 (Fla. 5th DCA Mar. 28, 2014) (summary final judgment of foreclosure reversed where default letter that mortgagee sent to mortgagors failed to satisfy the pre-acceleration notice requirement of the mortgage as a condition precedent to foreclosure).

REVERSED and REMANDED.

TORPY, C.J., EVANDER and BERGER, JJ., concur.

      . The notice of default failed to inform Haberl of the right to reinstate after acceleration and the right to assert in the foreclosure proceeding the non-existence of a default or other defense of borrower to acceleration and foreclosure.


author: BERGER, J.

text:
    Margaret BURT, Appellant, v. HUDSON & KEYSE, LLC, etc., Appellee.
    No. 5D13-715.
    District Court of Appeal of Florida, Fifth District.
    May 23, 2014.
    Roberto Cruz, of Legal Advocacy Center of Central Florida, Sanford, for Appellant.

      Ryan D. Gesten and David M. Vogel, of The Law Offices of Ryan D. Gesten, P.A., Davie, for Appellee.
   BERGER, J.

Margaret Burt appeals a summary final judgment entered in favor of Hudson & Keyse, LLC, (H&K), an assignee of Bank of America, N.A., (BOA), for account stated and money lent and/or credit extended. Burt argues it was error to enter summary judgment when genuine issues of material fact remained as to whether Burt was the proper debtor, and whether H&K actually owned the credit card debt. We agree and reverse.

H&K filed a four count complaint against Burt for breach of contract (Count I), money lent and/or credit extended (Count II), account stated (Count III), and unjust enrichment (Count IV), naming her as Margaret Burt-Hosmer-Crist-Caudill-Brown. H&K alleged that BOA assigned all of its rights, title and interest in Burt’s account to H&K and that Burt was in default and had failed to cure the default by paying the unpaid balance.

Specifically, in its claim for money lent and/or credit extended, H&K alleged that Burt obtained and used a credit card from BOA to make purchases and/or obtain cash advances, that she agreed to repay the borrowed monies, and as a result owes H&K $85,192.22, the amount due, plus interest. In its claim for account stated, H&K alleged that BOA and Burt had entered business agreements, and that Burt agreed to pay and/or failed to timely dispute the resulting balance. At the hearing on its motion for summary judgment, H&K produced the following documents to support its claims for account stated and money lent and/or credit extended:

1) Affidavit of Claim generally stating that based on the entries in books kept in the regular course of business, Burt owed H&K, as assignee of BOA, $35,192.22, plus interest.
2) Statement of Account listing the debtor as Margaret Lynn Burt-Hosmer-Crist-Caudill-Brown at 12341 Hallmark Avenue, Brooks-ville, FL, 34613-5639, the original creditor and account number and the balance due.
3) Return of Service verifying service of H&K’s complaint on Margaret Burt aka Hosmer-Crist>-Caudill-Brow [sic] at address 12341 Hallmark Ave., Brooksville, FL. The Deputy Sheriff noted that Margaret Burt denied going by the names Brow or Hosmer.
4) May 13, 2006 statement from BOA for Margaret L. Hosmer, address 1805 South Stoney Brook St., Brooksville, FL 34613, showing a balance of $21,542.45; June 22, 2006 statement from BOA account in the name of Margaret L. Hosmer at the address 1805 South Stoney Brook St., Brooksville, FL 34613, showing a balance of $22,301.33.
5) Notarized Bill of Sale executed on April 30, 2008, representing sale of the BOA account of Margaret L. Hosmer, address 2944 Bamberg PL, Brooksville, FL in the amount of $35,192.22.
6) May 21, 2009 letter from H&K addressed to Margaret Burt-Hosmer-Crist Caudill-Brow at 12341 Hallmark Avenue, Brooksville, FL 34613-5639, informing her that her BOA account had been transferred to H&K and that if she did not make arrangements to satisfy the debt within ten days from the date of the letter, a lawsuit for the principal amount owed plus interest would be filed.
7) Non-Military Affidavit.

In opposition to H&K’s motion, Burt filed an affidavit stating that H&K did not loan her money, did not confer on her any benefit, and that she did not owe them $85,192.22. She swore that she never received notice from H&K or its predecessors in interest that the debt had been assigned as required by section 559.715, Florida Statutes. Burt also suggested that H&K had sued the wrong Margaret Burt as another Margaret Burt also lived in Hernando County.

We review the entry of summary judgment de novo. Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126,130 (Fla.2000). “The party moving for summary judgment is required to conclusively demonstrate the nonexistence of a material fact, and the court must draw every possible inference in favor of the party against whom a summary judgment is sought.” Laughlin v. Household Bank, Ltd., 969 So.2d 509, 513 (Fla. 1st DCA 2007) (citations omitted). Summary judgment is only proper if the facts are so crystallized that nothing remains but questions of law. Id. (citing McCraney v. Barberi, 677 So.2d 355, 357 (Fla. 1st DCA 1996)). “If the evidence will permit different reasonable inferences, it should be submitted to a jury as a question of fact.” Id.

Burt has maintained throughout the litigation that the debt is not hers. And, despite her admission that she had a BOA account at one time, H&K has failed to conclusively prove that the Margaret L. Burt aka “Hosmer-Crist-Caudill-Brow [sic]” at 12341 Hallmark Avenue, Brooks-ville, FL, 34613, is the same person as Margaret L. Hosmer at 1805 South Stoney Brook St., Brooksville, FL 34613-5639, the debtor listed on the BOA account statements, or the Margaret L. Hosmer at 2944 Bamberg PL, Brooksville, FL 34613, the debtor listed on the “Charge Off” ledger attached to the Bill of Sale.

As to the notice of assignment, the only evidence of notice is a copy of a letter, from H&K, addressed to “Margaret Burt-Hosmer-Crist-Caudill-Brow [sic],” regarding the assignment. Generally, proof of mailing creates a rebuttable presumption of receipt. Star Lakes Estates Ass’n v. Auerbach, 656 So.2d 271, 274 (Fla. 3d DCA 1995). However, while H&K produced a letter that was addressed to Burt, H&K offered no proof that it mailed the letter, such as a return receipt, an affidavit swearing the letter was actually mailed to Burt, or proof of regular business practices. See id., 656 So.2d at 274; Brake v. State of Florida, Unemployment Appeals Comm’n, 473 So.2d 774, 774 (Fla. 3d DCA 1985). Because Burt swore in her affidavit that she did not receive notice of the assignment, an issue of fact was created as to whether the notice was actually sent. See Camerota v. Kaufman, 666 So.2d 1042, 1045 (Fla. 4th DCA 1996) (explaining affidavit denying receipt may not conclusively rebut the presumption of receipt, but it can create an issue of fact that must be resolved by the trier of fact).

Finally, even if H&K had established that Burt was the proper defendant, it failed to prove conclusively the amount in dispute. In order to establish a claim for account stated, H&K was required to prove that there was “ ‘an agreement between persons who have had previous transactions, fixing the amount due in respect of such transactions, and promising payment.’ ” Farley v. Chase Bank, U.S.A., N.A., 37 So.3d 936, 937 (Fla. 4th DCA 2010) (quoting Martyn v. Amold, 36 Fla. 446, 18 So. 791, 793 (1895) (citation omitted)). The agreement does not need to be explicit. When a debtor has been issued an account statement and the debt- or fails to object in a reasonable time, it is presumed that the account is correct and the debtor is liable. Id. However, the failure to object only becomes an implied agreement when the plaintiff establishes that it had a practice of periodic billing in the regular course of dealing with the defendant. See F.D.I.C. v. Brodie, 602 So.2d 1358, 1361 (Fla. 3d DCA 1992). By producing two bills from BOA addressed to Ms. Hosmer, H&K produced some evidence of a practice of periodic billing in the regular course of dealing. Yet, neither of those account statements indicate that the account holder owes BOA the amount set forth in H&K’s complaint. Furthermore, as explained above, there is no evidence that Burt received the letter addressed to her from H&K, or the Statement of Account attached to H&K’s affidavit. Consequently, H&K failed to establish that there is an implicit agreement as to the amount alleged in its complaint.

Based on the foregoing, we conclude that genuine issues of material fact remain that preclude summary judgment. Accordingly, we reverse the entry of summary judgment and remand for further proceedings.

REVERSED and REMANDED.

ORFINGER and WALLIS, JJ„ concur.

      . Counts I and IV, the breach of contract and unjust enrichment claims, were voluntarily dismissed by H&K after the trial court granted summary judgment on Counts II and III.

      . In her answer and affirmative defenses, Burt alleged that she closed her only account with BOA and had proof of payment in full. She claimed that she was the victim of fraud and had reported same to BOA.

      . The return of service, a document asserted by H&K as proof of Burt’s identity, actually creates a question of fact, as she told the deputy at the time of service that she has never used the surname Hosmer.


author: WALLACE, Judge.

text:
    James A. HAWKINS, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-5325.
    District Court of Appeal of Florida, Second District.
    May 23, 2014.

      Howard L. “Rex” Dimmig, II, Public Defender, and Megan Olson, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appel-lee.
   WALLACE, Judge.

James A. Hawkins appeals his judgments and sentences imposed in five separate cases following his negotiated pleas of no contest. Because the circuit court erred in ruling that Mr. Hawkins willfully violated his furlough agreement by failing to appear for sentencing on account of an arrest in another county, we reverse the sentences imposed and remand for resen-tencing in accordance with the plea agreement.

I. THE FACTS AND PROCEDURAL BACKGROUND

Initially, the State charged Mr. Hawkins in three separate informations with the offense of uttering a forged instrument. Mr. Hawkins allegedly committed the three offenses in July 2011. Later, the State filed two separate informations charging Mr. Hawkins with the failure to appear for pretrial conferences on December 2, 2011. The offenses in the two infor-mations for failure to appear overlapped. One information charged Mr. Hawkins with the failure to appear on December 2, 2011, in two of the uttering cases. The other information charged Mr. Hawkins with the failure to appear on the same day in all three of the uttering cases.

On February 3, 2012, Mr. Hawkins entered negotiated pleas of no contest to the three counts of uttering a forged instrument and the two counts of failing to appear as charged in the five informations. The pleas were entered with the understanding that Mr. Hawkins would be sentenced on each of the five charges to one year in the county jail. The sentences were to run concurrently. In addition, Mr. Hawkins agreed to pay restitution to the victims on the uttering charges. As part of the plea bargain, Mr. Hawkins was to be furloughed for six weeks to give him an opportunity to raise the money to pay the required restitution. If he paid the restitution amounts due before sentencing, then the sentences were to be for time served only. When Mr. Hawkins entered his plea, the circuit court informed him that if he failed to appear for sentencing as scheduled or was arrested on a new charge, he would be facing sentences totaling twenty-five years in the state prison.

During his furlough, Mr. Hawkins was arrested on new charges of robbery and attempted robbery in Orange County. As a result, he was unable to return for sentencing in Pinellas County as scheduled on March 23, 2012. Later, Mr. Hawkins moved to withdraw his pleas on the grounds that he had not been furloughed on Friday, February 3, 2012, the day that he entered his no contest pleas. Instead, he was not released until the following Monday, February 6. Mr. Hawkins maintained that the delay in obtaining his release had made it impossible for him to collect the funds to pay the required restitution to his victims. The circuit court denied the motion to withdraw pleas.

At the sentencing hearing held on September 4, 2012, the circuit court noted that Mr. Hawkins had' violated the terms of his plea agreement by being arrested on new charges in Orange County. For this reason, the circuit court sentenced him to five years in prison on each of the pending charges. The circuit court designated the sentences to run concurrently.

On October 1, 2012, the circuit court held a hearing on a motion filed by Mr. Hawkins for the reconsideration of his sentences. By then, the State had nolle prossed the Orange County charges. Based on this change in circumstances, the circuit court granted the motion to reconsider the sentences and reduced the sentences from five years to thirty months in the state prison. Once again, the circuit court designated the sentences to run concurrently. This appeal followed.

II. MR. HAWKINS’ APPELLATE ARGUMENTS

On appeal, Mr. Hawkins makes three arguments. First, the circuit court’s acceptance of his pleas to two counts of failure to appear violated double jeopardy when the limited facts recited at the hearing on the change of pleas reflect that his failure to appear was not willful and when the charges stemmed from the same event. Second, the sentences imposed in excess of the one-year negotiated sentences were in error when Mr. Hawkins’ failure to appear for sentencing was not willful. Third, the circuit court erred in denying Mr. Hawkins’ motion to "withdraw his pleas because the sheriffs failure to release him from jail on the Friday when he entered his pleas and continued detention until the following Monday violated the plea agreement. Mr. Hawkins’ third argument is without merit and does not warrant further discussion. We turn now to a-discussion of his first two arguments.

III. DISCUSSION

A. The Double Jeopardy Argument.

It appears that Mr. Hawkins’ convictions on two offenses for failure to appear for pretrial on December 2, 2011, violate double jeopardy because both offenses are based upon his failure to appear at a single pretrial conference. See Hilton v. State, 832 So.2d 923, 924 (Fla. 5th DCA 2002) (“The gravamen of the offense is the failure to appear at the scheduled place and time, not the number of offenses pending and scheduled for that particular occasion”). However, we agree with the State’s argument that Mr. Hawkins waived his double jeopardy argument by entering into negotiated pleas to both charges and then failing to raise the issue in his motion to withdraw pleas.

“As a general rule, a negotiated plea and sentence precludes an appeal of convictions and sentences on double jeopardy grounds.” Long v. State, 678 So.2d 925, 927 (Fla. 1st DCA 1996); see also Rosado v. State, 867 So.2d 440, 442 (Fla. 4th DCA 2004) (“[Ejven fundamental errors such as double jeopardy may be waived when the dual conviction arises from a negotiated plea agreement”). “There is an exception to this general rule when (a) the plea is a general plea as distinguished from a plea bargain; (b) the double jeopardy violation is apparent from the record; and (c) there is nothing in the record to indicate a waiver of the double jeopardy violation.” Long, 678 So.2d at 927. Here, the exception to the rule does not apply because Mr. Hawkins negotiated his pleas in exchange for specific sentences. It follows that Mr. Hawkins waived his double jeopardy argument.

Similarly, Mr. Hawkins’ entry of the no contest pleas constituted his acceptance that the underlying facts established a willful failure to appear, thereby barring his challenge to his convictions based upon the sufficiency of the evidence on appeal when he did not object or seek to withdraw his pleas on that basis. See D.P.J. v. State, 779 So.2d 291 (Fla. 2d DCA 1998); see also Brawley v. State, 815 So.2d 789 (Fla. 4th DCA 2002). Accordingly, we find no reversible error on Mr. Hawkins’ first argument.

B. The Failure to Appear for Sentencing While on Furlough.

Mr. Hawkins’ furlough arrangement required that he avoid arrest on any new charges and that he appear for sentencing on March 23, 2012. At Mr. Hawkins’ sentencing on September 4, 2012, the State indicated that it was not pursuing sentences in excess of the plea agreement based upon Mr. Hawkins’ arrest on new charges in violation of his furlough agreement. Accordingly, it did not put on any evidence about the facts surrounding Mr. Hawkins’ arrest in Orange County. Rather, the State pursued increased sentences based upon Mr. Hawkins’ failure to appear for sentencing on March 23, 2012, as required by his furlough agreement. Mr. Hawkins’ defense was that his failure to appear was not willful because he was involuntarily placed under arrest in Orange County and was unable to appear on the scheduled date.

As articulated by the circuit court, the State’s position was that “[h]ad [Mr. Hawkins] not gotten arrested on new charges, which is a voluntary volitional act, he would have been able and available to appear for sentencing.” The circuit court found Mr. Hawkins in willful violation of the furlough agreement, and it ultimately sentenced him to thirty months’ prison on all of the outstanding charges. The resulting thirty-month sentence substantially exceeded the one-year county jail term provided for in the plea agreement.

We agree with Mr. Hawkins that the circuit court erred in concluding that he willfully violated his furlough agreement by failing to appear for sentencing as a result of his arrest.

“Where timely appearance for sentencing is made a condition of a plea agreement, a non-willful failure to appear will not vitiate the agreement and permit the trial court to impose some greater sentence.” Johnson v. State, 501 So.2d 158, 160-61 (Fla. 3d DCA 1987).... [I]t is crucial [that] a trial court make a factual determination as to whether a defendant’s failure to appear at sentencing was willful, prior to ruling on whether said absence was violative of a negotiated plea agreement. See Neeld v. State, 977 So.2d 740, 745 (Fla. 2d DCA 2008).

Palmore v. State, 82 So.3d 1004, 1005 (Fla. 1st DCA 2011); see also Gee v. State, 38 So.3d 806, 807 (Fla. 2d DCA 2010) (noting same); Peacock v. State, 77 So.3d 1285, 1288 (Fla. 4th DCA 2012) (noting same).

If a defendant’s failure to appear is beyond his control, only in the most merciless and draconian system of justice could such failure result in a forfeiture of the bargained-for sentence. Thus, where a defendant’s failure to appear is found to be non-willful, the defendant is entitled to the bargained-for mitigation of his or her sentence.

Peacock, 77 So.3d at 1288 (citation omitted) (internal quotation marks omitted).

Here, the trial court found that Mr. Hawkins’ arrest was a “voluntary volitional act” that prevented him from appearing at his sentencing. But this court has observed that an “ ‘[ajrrest’ is an action by a police officer based on that officer’s evaluation of probable cause, not a willful action of the defendant.” Neeld v. State, 977 So.2d 740, 744 n. 6 (Fla. 2d DCA 2008); see also Schwingdorf v. State, 16 So.3d 835, 836 (Fla. 2d DCA 2009) (quoting Neeld for the foregoing proposition). Thus a defendant’s “arrest, standing alone, is insufficient to establish [his] willful violation of’ a furlough agreement conditioned on his appearance at sentencing when the arrest prevents the defendant from attending. Schwingdorf, 16 So.3d at 836.

In addition, the State waived any argument that Mr. Hawkins had violated his furlough agreement based upon his arrest on new charges and elected to pursue an enhanced sentence on the sole ground of Mr. Hawkins’ failure to appear for sentencing. Thus, unlike what this court did in Schwingdorf, we need not remand for the circuit court to determine whether Mr. Hawkins violated his furlough agreement based upon his arrest on new offenses. As noted above, the record reflects that the State ultimately nolle prossed all of the new charges.

IV. CONCLUSION

For the foregoing reasons, we affirm the judgments but reverse the sentences imposed on Mr. Hawkins. We remand for the circuit court to resentence Mr. Hawkins in accordance with the terms of the plea agreement. Because it appears that Mr. Hawkins will be entitled to immediate release from custody upon resentencing, the circuit court is directed to expedite this matter on remand.

Affirmed in part, reversed in part, and remanded for resentencing.

KELLY and CRENSHAW, JJ., Concur.

      . The two informations for failure to appear on December 2, 2011, do not identify the cases for which Mr. Hawkins failed to appear. We base our conclusions on the two clerk's witness affidavits issued with the informa-tions. One of the witness affidavits asserts that Mr. Hawkins failed to appear on December 2 on two of the uttering cases; the other witness affidavit asserts that Mr. Hawkins failed to appear on the same day in all three cases.

      . We reject the State's argument that this issue was not preserved for appellate review.


author: MORRIS, Judge.

text:
    Kyle Benton EVANS, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-5452.
    District Court of Appeal of Florida, Second District.
    May 23, 2014.
    Howard L. Dimmig, II, Public Defender, and Brooke Elvington, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   MORRIS, Judge.

Kyle Benton Evans appeals his convictions and sentences for armed kidnapping and home-invasion robbery with a weapon. We affirm without comment but remand for correction of a scrivener’s error in the judgment. The judgment lists a conviction for home-invasion robbery while armed with a deadly weapon. However, the jury found that the weapon possessed by Evans was not a deadly weapon, and the trial court orally adjudicated Evans guilty of “home[-]invasion robbery with a weapon.” Therefore, we remand for the trial court to amend Evans’ judgment to reflect a conviction for home-invasion robbery with a weapon. See Willingham v. State, 48 So.3d 173 (Fla. 2d DCA 2010).

Affirmed; remanded.

SILBERMAN and CRENSHAW, JJ„ Concur.


author: ALTENBERND, Judge.

text:
    Ira Demetrius McPHERSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-192.
    District Court of Appeal of Florida, Second District.
    May 23, 2014.
    Ira Demetrius McPherson, pro se.
   ALTENBERND, Judge.

Ira D. McPherson appeals the postcon-viction court’s order summarily denying his motion seeking resentencing for a felony murder that occurred in 1994. He claims that his sentence to life imprisonment with parole eligibility after twenty-five years is cruel and unusual because he was sixteen at the time of the offense and was merely a principal to a felony murder.

The standard two-year period authorized for the filing of a postconviction motion in Mr. McPherson’s case expired many years ago. Mr. McPherson claims that he can file an untimely motion because his claim is supported by a recent change in law that amounts to a newly established “fundamental constitutional right.” See Fla. R. Crim. P. 8.850(b)(2). He relies primarily on the United States Supreme Court decisions in Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), and Miller v. Alabama, — U.S.—, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012).

The decisions in Graham and Miller do not involve life sentences with parole eligibility after a term of years. See Atwell v. State, 128 So.3d 167, 169 (Fla. 4th DCA 2013) (holding Miller does not affect a sentence of life imprisonment with parole eligibility after twenty-five years); Lewis v. State, 118 So.3d 291 (Fla. 3d DCA 2013) (declining to apply Graham to a comparable sentence in a postconviction proceeding). Neither the Florida Supreme Court nor the United States Supreme Court has announced new law directed to a sentence like Mr. McPherson’s. Accordingly, we conclude that the motion was untimely and without legal basis. See Jackson v. State, 849 So.2d 321, 322 (Fla. 2d DCA 2003) (“A retroactive change in the law must be announced by the Florida Supreme Court or the United States Supreme Court to warrant post-conviction relief, not a sister intermediate court of appeal.”). Cf La-Fountain v. State, 83 So.3d 881 (Fla. 2d DCA 2012) (refusing postconviction relief for a juvenile’s sentence of life without the possibility of parole for felony murder pri- or to the decision in Miller).

Affirmed.

CASANUEVA and SLEET, JJ„ Concur.


text:
    Anissa LAWSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-902.
    District Court of Appeal of Florida, Second District.
    May 23, 2014.
    Howard L. Dimmig, II, Public Defender, and Megan Olson, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   MORRIS, Judge.

Anissa Lawson appeals her convictions and sentences for the offenses of procuring a person under eighteen for prostitution (seven counts); using a child in a sexual performance; principal to lewd or lascivious battery, victim over twelve but under sixteen (six counts); and child abuse, intentional act without great bodily harm. We affirm without comment but remand for correction of Lawson’s written sen-tenee on the child abuse count in count fifteen. The trial court orally sentenced Lawson to five years in prison on that count, but the written sentence reflects a fifteen-year sentence. Therefore, we remand for the trial court to correct the written sentence to conform to the oral pronouncement. See Carlton v. State, 86 So.3d 1194,1194 (Fla. 2d DCA 2012).

Affirmed; remanded.

SILBERMAN and CRENSHAW, JJ., Concur.


text:
    Brian McCALL and Tire Warehouse of Clifton Park, Petitioners, v. FIRST DARTMOUTH REALTY, INC., Respondent.
    No. 2D14-1765.
    District Court of Appeal of Florida, Second District.
    May 23, 2014.
    J. Andrew Crawford of J. Andrew Crawford, P.A., St. Petersburg, for Petitioners.
    Paul J. Kelly of Bacon & Bacon, P.A., St. Petersburg, for Respondent.
   PER CURIAM.

The petition for writ of prohibition is treated as an appeal of final orders. See Fla. R.App. P. 9.040(c). Upon the respondent’s concession of error, we reverse the order of contempt and the order to show cause and remand with directions for the trial court to vacate these orders.

DAVIS, C.J., and KELLY and MORRIS, JJ., Concur.


text:
    Karen BENNETT and T. Reppard Bennett, Co-Trustees of the Karen B. Bennett Revocable Trust, Appellants, v. WALTON COUNTY, a Political Subdivision of the State of Florida, Appellee.
    No. 1D14-1305.
    District Court of Appeal of Florida, First District.
    May 23, 2014.
    Steven Geoffrey Gieseler and Nicholas M. Gieseler, Port St. Lucie, for Appellants.
    William G. Warner, Panama City; Mark D. Davis, of Andrews & Davis, DeFuniak Springs (no appearances), for Appellee.
   PER CURIAM.

DISMISSED. Newman v. Newman, 858 So.2d 1273 (Fla. 1st DCA 2003); Malu v. City of Gainesville, 872 So.2d 445 (Fla. 1st DCA 2004).

WOLF, PADOVANO, and RAY, JJ., concur.


author: CONNER, J.

text:
    Jonathan COKELY, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-1846.
    District Court of Appeal of Florida, Fourth District.
    May 28, 2014.

      Carey Haughwout, Public Defender, and Dea Abramschmitt, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for appellee.
   CONNER, J.

The defendant appeals his judgment and sentence for felony battery. He argues that the trial court erred in denying the presentation of favorable testimony by a defense witness because the witness was present in the courtroom, in violation of court ordered sequestration of witnesses. We agree with the defendant that the trial court did not conduct the proper analysis before ruling that the witness could not testify. We hold the error was not harmless, and we reverse for a new trial.

Factual Background and Trial Court Proceedings

The defendant was charged with felony battery to which the defendant asserted a stand-your-ground defense. The trial court conducted a pretrial evidentiary hearing on the defense motion to dismiss, at which the rule of sequestration was invoked. A brief summary of the evidence presented at the motion to dismiss hearing follows.

Before the incident, the defendant was engaged to the victim’s daughter. They had been living together for nine years and had three children. The defendant and the victim lived three or four houses away from each other.

The defendant and the victim agreed to do some plumbing work for a friend of the victim and decided they would split the money received for the job. The friend testified that the defendant did “about ninety-eight percent” of the work. The friend paid the victim $1150 for the job. However, the victim only gave the defendant $80 as his portion of payment. When the defendant discovered that he had been cheated, he testified that he confronted the victim and told him never to come to his house again or ask him for anything.

The defendant also testified that on the day of the incident, he was on his porch when the victim approached aggressively and asked for his granddaughter’s bicycle. The defendant told the victim that the bicycle was broken and then turned his head around to see what his son was doing. As the defendant turned his head back toward the victim, the victim lunged at him. The defendant testified, “so I stepped back and I threw two blows and that was it.” The victim fell to the ground. The defendant testified that he did not approach the victim or strike him again. Additionally, the defendant explained that the victim had previously threatened him with a shotgun four times, which put him “on the defensive side” when the victim approached him on the porch.

The victim testified that on the day of the incident, his granddaughter told him that her bicycle was broken. The victim and the granddaughter went to the defendant’s house so that the victim could try to fix the bicycle. As he and his granddaughter were approaching the defendant’s house, the defendant pushed the granddaughter. When the victim bent down to help his granddaughter, the defendant punched him in the face. The victim testified that he did not lunge at the defendant, raise his hands, or run towards the defendant before the defendant punched him. The victim also testified that the defendant punched him a second time.

During cross-examination, the victim acknowledged that the defendant told him the day before the incident that he never wanted to work with him again. However, the victim denied that the defendant told him that he did not want the victim to come to his house anymore or that the defendant did not “want anything to do with” him.

The defendant’s fiancée (the victim’s daughter) was present during the cross-examination of the victim. Immediately after the victim testified as to what the defendant told him the day before the incident, the court advised the fiancée, “you may step out.” The record vaguely indicates that the court perceived the fian-cée to have engaged in some kind of disturbance or distraction.

The court denied the motion to dismiss after considering the evidence and arguments presented at the hearing.

At trial, the victim essentially gave the same testimony that he gave at the stand-your-ground hearing. Consistent with his testimony at that hearing, the victim denied that the defendant told him the day before the incident never to come to his house again. However, unlike the motion to dismiss hearing, the denial came during direct examination, rather than cross-examination.

On the morning of the final day of trial, the State informed the court that the defense had just provided a revised witness list which included the defendant’s fiancée. The defendant’s counsel explained that when the victim testified the previous day that the defendant had not told him to stay away from his house, the defendant whispered to him that his fiancée had been present and heard the defendant tell the victim to stay away. Defense counsel contacted the fiancée around 9:00 p.m. after court ended, verified that she would testify that she heard the conversation, and gave the amended witness list to the State the next morning. Defense counsel told the court that striking the fiancée’s testimony was a severe sanction and that the court could hold a recess to allow the State to controvert her testimony or depose her.

The court stated:

My problem is this. I was told by the defense during the stand your ground motion and the hearing that she was not a witness. She sat through that whole proceeding. Unfortunately, that’s the bed that the defense laid. That testimony that apparently pricked [the defendant] was the same testimony that was given at the stand your ground hearing. So, I think it’s not genuine on his part to tell his counsel at this point, and you are the same counsel that assisted during the stand your ground hearing. So I’m not going to allow her to testify.
She sat through this whole proceeding. The defense actually requested — the State or parties actually requested sequestration of those or the rule — invoke the rule of the witnesses not being here to hear that testimony. She’s had the benefit of hearing all of the testimony, sat here and the defense says she is not a witness, she’s not going to be a witness. So, I’m not going to allow her to testify.

The court allowed defense counsel to proffer the fiancée’s testimony. She testified that when she went with the defendant to the victim’s house the day before the incident, the defendant told him “that he knows [the friend] paid him in full, and from this point on ... don’t ask me for anything. And don’t come down to the house and ask for ehange, cigarettes or whatever, you know. From this point on, the relationship is over.” The State did not cross-examine the fiancée. The court verified with the fiancée that she had heard the parties say she would not be a witness and that she did not know she would be a witness until the night before the final day of the trial.

The defendant chose not to testify at trial. The only defense witness was the friend of the victim who requested and paid for the plumbing work. The jury found the defendant guilty of felony battery causing great bodily harm, permanent disability, or permanent disfigurement.

Legal Analysis

The defendant argues that the trial court erred by excluding his fiancée’s testimony because of a violation of the rule of sequestration without conducting an inquiry into whether her testimony changed as a result. A trial judge’s decision to exclude evidence, including potential defense witnesses, is reviewed for an abuse of discretion. Scott v. State, 17 So.3d 766, 768 (Fla. 4th DCA 2009) (citations omitted).

When a defense witness violates the rule of sequestration, “a mere violation of the rule” must typically give way to the defendant’s Sixth Amendment right to present witnesses. Judd v. State, 781 So.2d 440, 446 (Fla. 4th DCA 2001) (quoting Dumas v. State, 350 So.2d 464, 466 (Fla.1977)). Application of the sequestration rule as a strict rule of law is error. Hines v. State, 719 So.2d 358, 359 (Fla. 1st DCA 1998); see also Wright v. State, 473 So.2d 1277, 1280 (Fla.1985), cert. denied, 474 U.S. 1094, 106 S.Ct. 870, 88 L.Ed.2d 909 (1986). Instead,

“[w]hen a party seeks to call a nonse-questered witness, a trial court must conduct an inquiry into whether the witness’ testimony was substantially affected by the previous testimony the witness heard and to what extent would the testimony be different had he or she not heard the other witnesses.”

Judd, 781 So.2d at 446 (citing Steinhorst v. State, 412 So.2d 332, 336 (Fla.1982); Dumas, 350 So.2d at 465)).

Before [the trial court] excludes testimony on the ground that the sequestration rule was violated, the trial court must determine that the witness’s testimony was affected by other witnesses’ testimony to the extent that it substantially differed from what it would have been had the witness not heard the testimony.

Wright, 478 So.2d at 1280; see also McKinzie v. State, 845 So.2d 316, 318 (Fla. 1st DCA 2003) (citing Steinhorst, 412 So.2d at 336).

In Dumas, our supreme court held, consistent with Atkinson v. State, 317 So.2d 807 (Fla. 4th DCA 1975), that it was error to preclude a witness who violated the rule of sequestration from testifying unless the trial court conducted an inquiry to determine if the rule violation was with the “knowledge, consent, procurement of the defendant or his counsel.” Dumas, 350 So.2d at 466. In Steinhorst, the supreme court noted that Dumas, which was decided seven years earlier, did not outline the circumstances under which a trial court may properly exclude a witness for violating the rule. Steinhorst, 412 So.2d at 336. It then stated, “[t]he test, however, is whether the testimony of the challenged witness was substantially affected by the testimony he heard, to the extent that his testimony differed from what it would have been had he not heard testimony in violation of the rule.” Id. Thus, a twofold inquiry must be made: first, whether the violation was intentional or inadvertent, and second, whether the witness’ testimony was substantially affected by the testimony heard as a result of the rule’s violation. See McKinzie; Charles W. Ehrhardt, Florida Evidence (2012 ed.), § 616.1 at 675.

In this case the trial court erroneously applied the sequestration rule as a strict rule of law, rather than balancing the violation of the rule against the defendant’s Sixth Amendment right to present witnesses. See Wright, 473 So.2d at 1280. Assuming that the court’s comments finding the defendant was “not genuine” in revealing the fiancée’s information until the day of trial, the court still failed to inquire into whether the fíancée’s testimony changed based upon hearing the testimony of the victim. While the record is scant on this issue, nothing suggests that she fabricated her testimony. The fact that the fiancée seemingly caused a disturbance in the courtroom, just after her father testified at the stand your-ground hearing that the defendant had not told him never to come to his house, provides an inference that she disagreed with his statement then, thus suggesting that her testimony would have contradicted her father.

The State argues that regardless of whether the trial court erred by excluding testimony based on a violation of the rule, the fiancée’s testimony would have been inadmissible because it constituted impeachment on a collateral matter. The rule on collateral impeachment is that “[w]hen a witness is testifying on cross-examination, any answer to a non-material collateral matter is conclusive and cannot be impeached by normal means of impeachment, including contradictory testimony by another witness.” Mitchell v. State, 862 So.2d 908, 913 (Fla. 4th DCA 2003) (emphasis added) (citation omitted). In this case, the fiancée’s testimony would have contradicted the victim’s testimony on direct examination, not cross-examination, so the rule on collateral impeachment would not apply.

Further, even if the fíancée’s testimony were to impeach the victim’s testimony during cross-examination, the subject of the testimony was material.

The test is whether the proposed testimony can be admitted into evidence for any purpose independent of the contradictions. There are two types of evidence that pass this test: (1) facts relevant to a particular issue; and (2) facts which discredit a witness by pointing out the witness’ bias, corruption, or lack of competency.

Id. (citation omitted). Here, the issue of whether the defendant had prohibited the victim from visiting his home was relevant to support the defendant’s claim that he reasonably believed himself to be in danger when the victim arrived uninvited at his house.

The erroneous exclusion of a non-sequestered witness is subject to harmless error review. See Wright, 478 So.2d at 1280-81; McKinzie, 845 So.2d at 318. In this case, it cannot be said that the error was harmless beyond a reasonable doubt. The fíancée’s testimony affected the credibility of the defendant and the victim, which were both central aspects of the case. See Hines v. State, 719 So.2d 358, 359 (Fla. 1st DCA 1998) (finding that erroneous exclusion of non-sequestered witness was not harmless because it could have affected credibility of important State witnesses). The fíancée’s testimony may have also influenced the jury on the issue of whether the victim unlawfully entered the defendant’s property, an issue pertinent to the defendant’s stand-your-ground defense. Further, the defendant’s perceived need for self-defense may have seemed more reasonable if the jury believed that the victim was approaching the defendant’s house after the defendant explicitly prohibited the victim from going there. We therefore hold the error in excluding the fíancée’s testimony was not harmless and a new trial is required.

Reversed and remanded.

WARNER and CIKLIN, JJ„ concur.

      . The defense was based on section 776.013, Florida Statutes (2011).

      . The pretrial hearing was conducted pursuant to section 776.032, Florida Statutes (2011).

      . The court was referring to the victim's testimony about the conversation the day before the incident, in which the victim claimed that the defendant did not tell him to never come to his house again.

      . We do not address whether the trial court conducted a proper Richardson hearing because the fiancée’s testimony was excluded after the court determined she violated the rule of sequestration, not because she was an undisclosed witness. See Judd v. State, 781 So.2d 440, 447 n. 3 (Fla. 4th DCA 2001) ("A trial court must conduct a Richardson hearing when a party seeks to call an unlisted witness. Further analysis of this issue is not necessary because the court did not exclude the witness on grounds of non-disclosure.”) (citation omitted).


author: STEVENSON, J.

text:
    David Allen EDWARDS a/k/a Allen Edwards a/k/a D. Allen Edwards, Appellant, v. AIRLINE SUPPORT GROUP, INC., Appellee.
    No. 4D13-1068.
    District Court of Appeal of Florida, Fourth District.
    May 28, 2014.

      Stephen Yerbit of Stephen R. Verbit, P.A., Cooper City, for appellant.
    Joseph P. Klapholz of Joseph P. Kla-pholz, P.A., Hollywood, for appellee.
   STEVENSON, J.

David Allen Edwards (“Edwards”) appeals a non-final order denying his motion to dismiss for lack of personal jurisdiction a complaint filed against' him under the Uniform Fraudulent Transfers Act, Chapter 726, Florida Statutes (2018). Because we find that an alleged fraudulent transfer is not a “tortious act” under Florida’s long-arm statute, and because there were no allegations specifying where the fraudulent transfer occurred, we reverse.

Facts

In 2008, Airline Support Group, Inc. (“ASG”), filed a complaint against DAE Industries, Inc. (“DAE1”), and DAE Holdings, LLC (“DAE2”). ASG is a Florida corporation, DAE1 is an Indiana corporation, and DAE2 is a Kentucky corporation. Edwards is an Indiana resident.

The underlying lawsuit concerned the sale and transfer of property jointly owned by ASG and DAE1. As alleged by ASG, DAE1 and ASG worked together to lease and sell airline ground support equipment. This arrangement started in 1996 and continued until 2008, when DAE1 sold, without notification to ASG, its interest, holdings and substantially all of its assets to DAE2. The sale purportedly, left DAE1 insolvent and unable to pay debts owed to ASG.

In 2010, the trial court entered an order preventing ASG, DAE1 or DAE2 from selling or leasing specific jointly-owned property. Then, in March of- 2012, ASG filed a third amended complaint. This amended complaint added Edwards as a defendant, and included a count brought solely against Edwards. ASG alleged that Edwards was an “affiliate” and “insider” of DAE1 as defined in section 726.102, Florida Statutes (2013), and that Edwards has “received or is in the process of receiving distribution of sale proceeds resulting from the transfers of assets of DAE1.” Edwards filed a motion to dismiss for lack of personal jurisdiction and to dismiss Count IV of ASG’s third amended complaint. The trial court denied this motion, and this appeal followed.

The Uniform Fraudulent Transfers Act

Pursuant to section 726.108, Florida Statutes (2013), ASG brought an action for avoidance of a fraudulent transfer against Edwards. In general, actions under section 726.108 are brought against a recipient or transferee of assets or property, and not a transferor (ASG alleges Edwards was both a transferee and transfer- or). See Friedman v. Heart Inst, of Port St. Lucie, Inc., 863 So.2d 189, 191 (Fla. 2003) (“Tn section 726.108[,] the Act authorizes the court to grant a creditor broad relief against the transferee of a fraudulent transfer, including an injunction against further disposition of the asset or the appointment of a receiver to take charge of the asset.’ ”) (quoting Friedman v. Heart Inst, of Port St. Lucie, Inc., 806 So.2d 625, 626-27 (Fla. 4th DCA 2002)) (emphasis added). Therefore, even if Edwards was both a transferor and transferee, the only actions relevant to an analysis of whether Florida’s long-arm statute applies are those actions related to Edwards’s role as a transferee.

Analysis

The standard of review of a trial court’s ruling on a motion to dismiss for lack of personal jurisdiction is de novo. Wendt v. Horowitz, 822 So.2d 1252, 1256 (Fla.2002). To obtain personal jurisdiction over a non-resident defendant, a plaintiff must satisfy the two-step inquiry laid out in Venetian Salami Co. v. Parthenais, 554 So.2d 499 (Fla.1989). First, a plaintiffs complaint must “ ‘allege[ ] sufficient jurisdictional facts to bring the action within the ambit of the statute.’” Id. at 502 (quoting Unger v. Publisher Entry Serv., Inc., 513 So.2d 674, 675 (Fla. 5th DCA 1987)). If the first step is met, “ ‘the next inquiry is whether sufficient ‘minimum contacts’ are demonstrated to satisfy due process requirements.’ ” Id.

At issue here is the first inquiry-whether ASG’s third amended complaint alleged sufficient jurisdictional facts, as it relates to Edwards, to establish either general or specific jurisdiction over Edwards. Our main focus is on whether an alleged fraudulent transfer, giving rise to a claim under section 726.108, is a “tortious act” under section 48.193(l)(a)2., Florida Statutes (2013). When faced with the same determination, the third and fifth districts each found that a fraudulent transfer is not a tortious act for purposes of Florida’s long-arm statute. See Brown v. Nova Info. Sys., Inc., 903 So.2d 968, 969 (Fla. 5th DCA 2005); Beta Real Corp. v. Graham, 839 So.2d 890, 891-92 (Fla. 3d DCA 2003). Moreover, this court previously noted that the majority of courts nationwide have found a fraudulent transfer does not constitute a tortious act for purposes of Florida’s long-arm statute. Dinn v. Haynes, 705 So.2d 686, 687 n. 1 (Fla. 4th DCA 1998).

We agree with these authorities. A fraudulent transfer is not a “tortious act” because section 726.108 does not “speak in terms of ‘liability’ for a wrongful act or in terms of ‘money damages.’ ” Cf. Branch v. F.D.I.C., 825 F.Supp. 384, 419 (D.Mass. 1993) (noting that the legislative theory for similar claims of fraudulent conveyances under the Bankruptcy Code is “ ‘cancellation, not the creation of liability for the consequences of a wrongful act’ ”) (quoting Robinson v. Watts Detective Agency, Inc., 685 F.2d 729, 738 (1st Cir.1982)). Instead, section 726.108 is more “in the nature of contract,” as it allows a creditor to avoid a transfer or allows a court to appoint a receiver to take charge of the property transferred. F.D.I.C. v. S. Prawer & Co., 829 F.Supp. 453, 455 (D.Me.1993); see Branch, 825 F.Supp. at 419 (“ ‘The [Bankruptcy Code] carefully speaks of conveyances of property as being ‘null and void,’ and authorizes suit by the trustee to ‘reclaim and recover such property or collect its value.’ ”) (quoting Robinson, 685 F.2d at 738). Because a person is not “liable” for receipt of a fraudulent transfer under section 726.108, we hold a fraudulent transfer is not a “tortious act” under Florida’s long-arm statute.

In addition, the allegations contained in ASG’s third amended complaint failed to specify where the alleged fraudulent transfer occurred. To properly allege a basis for specific jurisdiction, the plaintiff must allege that the defendant committed “a tortious act within this state.” § 48.193(l)(a)2., Fla. Stat. (2013) (emphasis added). ASG’s third amended complaint lacks any allegation about whether Edwards was transferred any property while in Florida or whether he received any property that was located in Florida. See Blumberg v. Steve Weiss & Co., 922 So.2d 361, 364 (Fla. 3d DCA 2006) (“While a defendant’s physical presence in the state is not required, it is not, however, enough that the actions of a defendant committed outside of Florida ultimately have consequences in Florida. Instead, [the defendant’s] actions must directly cause injury or damage within the state.”) (citing Korman v. Kent, 821 So.2d 408, 410-11 (Fla. 4th DCA 2002)). If anything, it appears Edwards received the monetary proceeds while in Indiana. ASG’s failure to specifically mention where the transfer occurred prevents us from determining whether any act was committed within this state.

Accordingly, we reverse the trial court’s order denying appellant’s motion to dismiss for lack of personal jurisdiction.

Reversed.

TAYLOR and CONNER, JJ., concur.

      .Section 726.108 provides:
      (1) In an action for relief against a transfer or obligation under ss. 726.101-726.112, a creditor, subject to the limitations in s. 726.109 may obtain:
      (a) Avoidance of the transfer or obligation to the extent necessary to satisfy the creditor’s claim;
      (b) An attachment or other provisional remedy against the asset transferred or other property of the transferee in accordance with applicable law;
      (c) Subject to applicable principles of equity and in accordance with applicable rules of civil procedure:
      1. An injunction against further disposition by the debtor or a transferee, or both, of the asset transferred or of other property;
      2. Appointment of a receiver to take charge of the asset transferred or of other property of the transferee; or
      3. Any other relief the circumstances may require.
      (2) If a creditor has obtained a judgment on a claim against the debtor, the creditor, if the court so orders, may levy execution on the asset transferred or its proceeds.


author: GERBER, J.

text:
    Joyce L. LEWIS, Appellant, v. J.P. MORGAN CHASE BANK, as Trustee, Appellee.
    No. 4D13-1389.
    District Court of Appeal of Florida, Fourth District.
    May 28, 2014.

      Joyce L. Lewis, Fort Pierce, pro se.
    Marc James Ayers of Bradley Arant Boult Cummings LLP, Birmingham, AL, for appellee.
   GERBER, J.

The borrower appeals from the circuit court’s foreclosure judgment for the bank. The borrower argues that the bank did not have standing to pursue the foreclosure action because it acquired the note and mortgage and was substituted as the plaintiff during the pendency of the action. We disagree with the borrower’s argument because the original lender possessed the note and mortgage when it filed suit against the borrower before assigning the note and mortgage to the bank during the pendency of the action. Thus, we affirm the foreclosure judgment.

We recognize that on repeated occasions, we have held that “a party must have standing to file suit at its inception and may not remedy this defect by subsequently obtaining standing.” See, e.g., Gascue v. HSBC Bank, U.S.A., 97 So.3d 263, 264 (Fla. 4th DCA 2012); Rigby v. Wells Fargo Bank, N.A., 84 So.3d 1195, 1196 (Fla. 4th DCA 2012); Venture Holdings & Acquisitions Grp., LLC v. A.I.M. Funding Grp., LLC, 75 So.3d 773, 776 (Fla. 4th DCA 2011). However, in each of those cases, the party which filed suit did not have standing to file suit because the party did not own, or had not been assigned, the note and mortgage at the time the party filed suit. See Gascue, 97 So.3d at 264-65; Rigby, 84 So.3d at 1196; Venture Holdings, 75 So.3d at 775 n. 1.

Here, though, the party which filed suit — the original lender — had standing to file suit at its inception because it owned the note and mortgage at the time it filed suit. Thus, unlike the situations in Gas-cue, Rigby, and Venture Holdings, this is a situation where the party which filed suit had standing to file suit at its inception, and merely assigned the note and mortgage during the pendency of the suit to another party, which then was substituted properly as the plaintiff. See Fla. R. Civ. P. 1.260(c) (2006) (“In case of any transfer of interest, the action may be continued by or against the original party, unless the court upon motion directs the person to whom the interest is transferred to be substituted in the action or joined with the original party.”) (emphasis added). As a result, no standing defect exists.

We have considered the borrower’s other arguments on appeal, and conclude without further discussion that those arguments also lack merit.

Affirmed.

GROSS and FORST, JJ., concur.