author: SUAREZ, J.

text:
    CONSTRUCTION SYSTEMS OF AMERICA, INC., a Florida corporation, Petitioner, v. TRAVELERS CASUALTY & SURETY COMPANY OF AMERICA, etc., and MK Contractors, LLC, etc., Respondents.
    No. 3D12-3397.
    District Court of Appeal of Florida, Third District.
    Aug. 7, 2013.

      Herman M. Braude and Richard Y. Rho, Washington, DC, for petitioner.
    Peterson & Espino and Michael P. Peterson, Jose I. Baldor and Matthew Mar-anges, Miami, for respondents.
    Before SUAREZ and LOGUE, JJ., and SCHWARTZ, Senior Judge.
   SUAREZ, J.

Construction Systems of America, Inc. (“CSA”) petition for a writ of certiorari seeking quashal of two orders entered against the recommendation of the special magistrate. The first order compels CSA to return inadvertently disclosed privileged documents. The second order disqualifies CSA’s counsel. We grant the petition for certiorari in part and deny in part.

The litigation underlying this petition has been pending since 2006. In February 2011, Appellee MK Contractors, LLC (“MKC”) arranged for CSA’s lead trial counsel, Herman Braude, to conduct a document review at its attorneys’ office in response to CSA’s request for production. Mr. Braude marked various documents to be duplicated by a copy service and forwarded to his firm, including the two binders now at issue. In November 2011, MKC’s counsel realized the binders contained privileged documents. It ultimately filed a motion to compel return of the documents and a motion to disqualify Mr. Braude’s law firm, which motions were referred to a special magistrate.

After a ten-hour evidentiary hearing, the special magistrate issued a report and recommendation finding the documents constituted fact work product. However, he concluded MKC had waived the privilege and recommended denial of both motions. Upon reviewing MKC’s exceptions to the report, the trial court rejected the recommendation and granted the motions. It concluded MKC had not waived the privilege and that the possibility CSA had gained an unfair informational advantage from the disclosure required disqualification.

A trial court reviews exceptions to a magistrate’s report to determine whether the factual findings and conclusions are supported by competent substantial evidence and to determine whether the magistrate misconceived the legal effect of the evidence or whether the conclusions are clearly erroneous. Cerase v. Dewhurst, 935 So.2d 575, 578 (Fla. 3d DCA 2006). This review is governed by the abuse of discretion standard set forth in Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980). Anderson v. Anderson, 736 So.2d 49, 51 (Fla. 5th DCA 1999) (“The review of the entire record is to ascertain whether the master’s finding is supported by competent evidence and to see if the master’s conclusions pass the Canakaris test.”).

This Court has adopted a five-factor relevant circumstances test to determine whether a party waived privilege through inadvertent disclosure:

(1) The reasonableness of the precautions taken to prevent inadvertent disclosure in view of the extent of the document production; (2) the number of inadvertent disclosures; (3) the extent of the disclosure; (4) any delay and measures taken to rectify the disclosures; and (5) whether the overriding interests of justice would be served by relieving a party of its error.

Abamar Hous. & Dev., Inc. v. Lisa Daly Lady Decor, Inc. (Abamar I), 698 So.2d 276, 278-79 (Fla. 3d DCA 1997). Upon reviewing the magistrate’s report and the trial court’s order on the motion to compel, we conclude the trial court did not exceed its authority. It accepted the facts as found by the magistrate but correctly determined the magistrate misconceived the legal effect of the evidence. See Cerase, 935 So.2d at 578. We therefore deny the petition for certiorari as to the order compelling return of the documents. However, we grant the petition as to the order disqualifying counsel and, upon review, quash that order.

A two-part test governs the determination of whether receipt of an inadvertent disclosure warrants disqualification. Moriber v. Dreiling, 95 So.3d 449, 454 (Fla. 3d DCA 2012). The movant must establish that “the inadvertently disclosed information is protected, either by privilege or confidentiality” and that “there is a ‘possibility’ that the receiving party has obtained an ‘unfair’ ‘informational advantage’ as a result of the inadvertent disclosure.” Id. (citing Atlas Air, Inc. v. Greenberg Traurig, P.A., 997 So.2d 1117, 1118 (Fla. 3d DCA 2008), and Abamar Hous. & Dev., Inc. v. Lisa Daly Lady Decor, Inc. (Abamar II), 724 So.2d 572, 573-74 (Fla. 3d DCA 1998)). Although the magistrate’s report and recommendation pre-dates Moriber, it ignores the then-existing standard set forth in Aba-mar II and Atlas. The magistrate made no findings regarding the extent of Mr. Braude’s review of the privileged documents or the possibility that his firm received an “unfair informational advantage” from the disclosure. The trial court, however, made extensive findings under the Moriber standard. Most notably, the court made credibility determinations based on testimony presented to the magistrate. This was error. Upon determining the privilege was not waived, the trial court should have remanded the matter to the magistrate for further findings.

For the foregoing reasons, we deny, in part, the petition for certiorari, and affirm the order granting the motion to compel return of the documents at issue. We grant the petition for certiorari, however, as to the order disqualifying counsel for CSA, and quash that order. The trial court is instructed to remand the disqualification issue to the magistrate for further findings consistent with the trial court’s ruling on the motion to compel and the standard set forth in Moriber v. Dreiling, 95 So.3d 449 (Fla. 3d DCA 2012).


source: Caselaw Access Project

author: WELLS, Judge.

license: Public Domain

text:
    The STATE of Florida, Appellant, v. Juan MEDINA, Appellee.
    No. 3D12-1014.
    District Court of Appeal of Florida, Third District.
    Aug. 7, 2013.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Nikole Hiciano, Assistant Attorney General, Miami, for appellant.
    Carlos J. Martinez, Public Defender, and Stephen J. Weinbaum, Assistant Public Defender, for appellee.
    Before WELLS and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.
   WELLS, Judge.

The State of Florida appeals from an order granting Juan Medina’s motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850. Because we find that Medina failed to satisfy the two-part test enunciated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), we reverse.

In case number F05-26150, Medina was charged with possession of cocaine with intent to sell. On September 6, 2005, Medina entered a negotiated plea and was placed on drug offender probation. While on probation, Medina was arrested and charged with attempted second-degree murder with a firearm and misdemeanor battery in case number F06-2603. The alleged victim of these crimes was Medina’s girlfriend, with whom he was living at the time.

Following his arrest on these charges, the State sought to revoke Medina’s probation in case number F05-26150, asserting that Medina had violated the conditions of his probation by: (1) committing the offense of attempted second-degree murder; (2) committing the offense of battery; and (3) being in possession of a firearm while on probation. The probation case was set for a probation violation hearing while the new substantive case was still pending. Medina’s primary defense was that his probation should not be revoked because he was acting in self-defense when he shot his girlfriend.

The testimony at the probation revocation hearing came from three witnesses: Medina’s probation officer, his girlfriend, and his girlfriend’s sister. The probation officer testified as to the terms of Medina’s probation, which required him to refrain from engaging in any further criminal acts and from possessing, owning, or carrying any firearm. Medina’s girlfriend testified that during a verbal altercation at her apartment, Medina punched her in the face giving her two black eyes and that, when she attempted to flee the apartment with her child, Medina locked himself in a bedroom with the keys to her car. She further testified that after she pried the bedroom door open with a knife and a fork, Medina grabbed her by the arms, causing her to drop the knife and fork, reached for a gun and shot her in the neck. The girlfriend’s sister testified that Medina had called her a number of times immediately after the shooting, first telling her that the girlfriend had been shot while she and Medina were playing around, but later admitting that the gun had gone off during an argument. At no time did Medina ever tell the sister that he shot his girlfriend in self-defense. Medina called no witnesses at the probation violation hearing and did not testify on his own behalf.

Finding that the State had established by a preponderance of the evidence that Medina had violated the conditions of his probation by possessing a firearm, and by committing attempted second-degree murder, and by committing misdemeanor battery, the trial court revoked Medina’s probation and sentenced him to fifteen years in state prison on the underlying drug offense in case number F05-26150. On October 28, 2008, Medina entered a nolo contendere plea to the attempted second-degree murder and misdemeanor battery charges in case number F06-2603. As part of that plea, the parties stipulated that the plea would be set aside if the revocation of his probation in case number F05-26150 was overturned either on appeal or in any post-conviction proceeding.

This court subsequently affirmed revocation of Medina’s probation in case number F05-26150. Medina v. State, 7 So.3d 1111 (Fla. 3d DCA 2009). Medina then filed the instant Rule 3.850 post-conviction motion seeking to vacate the probation revocation order. In that motion, Medina argued that trial counsel was ineffective in advising him not to testify at the revocation hearing without telling him it was his right to do so, and that had he been so advised of that right and the risks and benefits of testifying, he would have testified and would have established that he acted in self-defense. According to Medina, he would have testified that what started out as play resulted in him locking himself in the bedroom to avoid further conflict with his girlfriend and that when she kicked the bedroom door open and came at him with a steak knife, he grabbed a gun and accidentally shot her. He also claimed that had he been allowed to so testify, that the testimony of two detectives, detectives Simpo and Byrd, would have bolstered his defense by confirming that after the shooting the girlfriend had told them that the events were initiated during “play-fighting,” and that the girlfriend had initially stated that the shooting was an accident.

Although Medina’s motion addresses the attempted second-degree murder charge and defense counsel’s alleged failure to present Medina’s testimony to establish self-defense for the shooting, there is no allegation that defense counsel’s performance was deficient with regard to the other violations of probation: possessing a firearm and committing a battery upon Medina’s girlfriend.

To prevail on a post-conviction motion claiming ineffective assistance of counsel, a defendant must show not only that counsel’s performance was deficient, but also that the defendant was prejudiced by the deficient performance:

First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction ... resulted from a breakdown in the adversary process that renders the results unreliable.

Strickland, 466 U.S. at 687,104 S.Ct. 2052; see also Whitfield v. State, 923 So.2d 375, 379 (Fla.2005) (confirming that an ineffective assistance claim under Strickland has two “prongs,” deficient performance and prejudice stemming therefrom, and that both prongs must be established to justify post-conviction relief).

Following an evidentiary hearing, the court below granted Medina’s motion for post-conviction relief and vacated his convictions and sentences in both cases, finding that Medina’s counsel was ineffective (1) because “there is no record evidence from the probation [violation] proceeding, such as a colloquy by the judge, that the defendant was made aware of his right to testify, and that he himself made the requisite knowing and intelligent decision to waive his right to testify,” and (2) because “the record is completely devoid of the issue [of the potential benefits and risks of testifying, particularly with regard to Mr. Medina’s self-defense claim] ever having been addressed with [Medina].” The first of these conclusions does not satisfy the first Strickland prong because there is no requirement that a defendant waive the right to testify on the record or be colloquied on the issue to assure he has made a knowing and voluntary waiver. See Lawrence v. State, 831 So.2d 121, 131-32 (Fla.2002) (concluding that counsel’s performance was not deficient for failing to obtain a “waiver of [a defendant’s] right to testify on-the-record to ensure that the waiver was knowing and intelligent”). The second conclusion is simply and conclusively refuted by the record. The attorney who represented Medina at the probation revocation hearing testified at the post-conviction evidentiary hearing that he explained to Medina that, in light of the pending case on the substantive attempted murder charge, it would be in Medina’s best interest not to testify at the revocation proceeding to avoid compromising his defense at the upcoming attempted murder trial. This same attorney also testified that he made it “clear to Mr. Medina that the decision to testify or not was his and not [his attorney’s],” and when asked whether “he [Medina] was satisfied with what was going on ... and whether he [Medina] wanted to testify,” Medina said no. Therefore, and contrary to the trial court’s order, the record is not “completely devoid” of evidence on this issue. We nonetheless assume that, by ruling as it did, the court rejected the testimony of Medina’s counsel.

However, even assuming that counsel’s performance was deficient in this regard, Medina still would be entitled to no relief because he failed to satisfy the prejudice prong enunciated in Strickland. See Oisorio v. State, 676 So.2d 1363, 1364-65 (Fla.1996) (holding that “in order to obtain postconviction relief, a defendant claiming his or her right to testify was violated must show that counsel’s performance was deficient and that the deficient performance prejudiced the defense”). “In order to establish the prejudice prong under Strickland, ‘[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ ” Preston v. State, 970 So.2d 789, 803 (Fla.2007) (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052). Considering the totality of the evidence in this case, that burden was not met. See Williamson v. State, — So.3d —, 38 Fla. L. Weekly S278, 2013 WL 1830934 (Fla.2013) (“ ‘In making this determination, a court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury.’ ” (quoting Strickland, 466 U.S. at 695, 104 S.Ct. 2052)).

Medina’s Rule 3.850 motion focused solely on purported deficiencies in counsel’s representation regarding the attempted second-degree murder charge. That motion does not address how counsel’s representation was deficient as to the other two grounds on which his probation was revoked: the gun possession and the battery charges. While the post-conviction motion in a single footnote does state that “[t]he gun is an antique,” the motion does not state how counsel was deficient in failing to establish this as a fact, and does not allege how Medina would have established that the gun was an antique had he been properly advised and allowed to testify at the revocation hearing. See § 790.001(1), (6) Fla. Stat. (2006) (defining “antique firearm” as “any firearm manufactured in or before 1918 ... or replica thereof, whether actually manufactured before or after the year 1918, and also any firearm using fixed ammunition manufactured in or before 1918, for which ammunition is no longer manufactured in the United States and is not readily available in the ordinary channels of commercial trade,” and providing that “[t]he term ‘firearm’ does not include an antique firearm unless the antique firearm is used in the commission of a crime”). Based on the record, this failure most likely may be ascribed to the fact that, at the evidentiary hearing, Medina’s lawyer testified without contradiction that the gun was not an antique.

In fact, Medina’s defense to the gun violation charge was not that the gun was an antique but that possession of it is purportedly a specific intent crime and that because Medina believed the gun was an antique he did not have the requisite intent and could not, therefore, have violated his probation. Indeed, the totality of his testimony on this subject at the eviden-tiary hearing was that he “thought it [the gun] was an antique.”

Medina’s attorney was not deficient for failing to establish this “fact.” The transcript of the probation revocation confirms that Medina’s attorney elicited testimony from Medina’s girlfriend that Medina believed the gun was an antique. This testimony — elicited without having to call Medina as a witness and subjecting him to cross-examination and creation of a record that might be used against him in the upcoming battery and attempted second-degree murder trial — makes cumulative any testimony from Medina to the same effect and thus negates any finding of Strickland prejudice. See Jones v. State, 928 So.2d 1178, 1187 (Fla.2006) (stating “[ejounsel does not render ineffective assistance by failing to present cumulative evidence”). And, as the transcript of the evidentiary hearing confirms, had Medina testified at the probation revocation hearing that he believed the gun was an antique, the State would have elicited from him on cross-examination that which-he admitted on cross-examination at the evi-dentiary hearing: (1) that he knew the gun was operative; (2) that he had discharged it once before at the apartment he shared with his girlfriend; and (3) because he lived in a dangerous neighborhood, he carried this gun with him every day for personal protection. Medina’s counsel’s representation regarding this ground was not deficient and his probation was properly revoked for this reason alone, making it impossible for Medina to demonstrate the prejudice necessary to entitle him to post-conviction relief.

The same analysis applies to the third ground on which Medina’s probation was revoked, the misdemeanor battery charge. As with the gun possession charge, Medina’s Rule 3.850 motion does not assert that his attorney’s representation regarding this aspect of the probation violation was deficient. Nor did he testify at the evidentiary hearing what testimony he would have given at the probation revocation hearing to exculpate himself on this charge had he been allowed to testify at the probation violation hearing. To the contrary, he admitted at the evidentiary hearing that he and his girlfriend had gotten into a “physical altercation prior to the shooting,” that the altercation “escalated to the point” of becoming “physically violent between the two of [them],” and that his girlfriend “ended up with a black eye” because he “punched her in the eye.” This is hardly exculpatory. More to the point, this testimony was not elicited to demonstrate any shortcoming in counsel’s representation regarding this claim. This testimony went instead solely to support Medina’s claim that he acted in self-defense when he shot his girlfriend: that is, that “a moment of horse-playing turned into a serious struggle between [the girlfriend] and [Medina]” after which he locked himself in the bedroom where the girlfriend came after him with a knife impelling him to shoot her in self-defense. Because no deficiency in counsel’s representation regarding the battery charge was alleged or demonstrated below, Medina was unable to demonstrate the prejudice required by Strickland to entitle him to post-conviction relief.

In short, even if counsel’s performance was deficient in failing to advise Medina as to the benefits and risks of taking the stand to assert self-defense as to the attempted second-degree murder charge (prong 1 of Strickland), his probation still would have been properly revoked on the gun possession and battery charges. See Green v. State, 19 So.3d 449, 449-50 (Fla. 2d DCA 2009) (concluding that while the evidence was insufficient to support violation of probation on one condition of probation, it nevertheless was sufficient to support revocation based on violation of three other conditions); Casana v. State, 546 So.2d 794, 795 (Fla. 3d DCA 1989) (affirming revocation of probation where, even though there was insufficient evidence to revoke defendant’s probation based on conspiracy to traffic in cocaine, the evidence “was more than sufficient to revoke the defendant’s probation for trafficking in cocaine and for failure to file monthly probation reports”). For this reason, the prejudice Strickland prong was not met.

Moreover, we cannot discern, from either the evidentiary hearing transcripts or the court’s written order, any finding of prejudice with respect to counsel’s representation on the attempted second-degree murder charge. Rather, it appears the court below expressly avoided making such a determination, finding that “[tjhis Court, does not, at this time, address the credibility of Mr. Medina’s specific testimony regarding his claim of self-defense.”

Accordingly, because we find that Medina failed to satisfy Strickland’s two-pronged test for evaluating an ineffective assistance of counsel claim, we reverse and remand with instructions to reinstate the vacated judgments and convictions in case numbers F05-26150 and F06-2603.

Reversed and remanded with instructions.

      . See Fla. Stat. § 948.03(1)(1) (2006) (general condition of probation prohibiting a probationer from possessing, carrying or owning any firearm).

      . As to the firearm possession, Medina’s motion, in a footnote, alleges the firearm was an "antique.” No further allegation is made in support of this contention.

      . The trial court expressly rejected Medina’s argument that counsel was ineffective for failing to call officers Byrd and Simpo.

      . It should be noted that the trial court, prior to commencing the probation violation hearing, did colloquy Medina on the defense’s decision not to call any witnesses at the hearing. Had the court, at the conclusion of the State’s case, colloquied the defendant on the record regarding whether he wished to testify in his own defense, it might well have eliminated any basis for the post-conviction claim. The Florida Supreme Court has approved of the use of such a colloquy, when directed to one of the four decisions a defendant has unilateral right to make: (1) to plead guilty or not guilty; (2) to waive trial by jury: (3) to testify in his or her own behalf; and (4) to appeal. See Nixon v. State, 758 So.2d 618, 623-25 (Fla.2000), reversed on other grounds, 543 U.S. 175, 125 S.Ct. 551, 160 L.Ed.2d 565 (2004).

      . It must also be kept in mind that the standard of proof at a probation violation hearing is preponderance of the evidence, a significantly lower standard than that required at trial. In assessing the Strickland prejudice prong, the defendant has the burden of establishing a reasonable probability that the outcome of the probation violation hearing would have been different. Given the lesser standard to be met by the State at a probation violation hearing, the defendant’s burden to establish a reasonable probability of a different outcome is proportionally higher.

      . Because we find no Strickland prejudice has been established, it is unnecessary for us to determine whether Medina established counsel’s performance was deficient in this regard.


author: ROTHENBERG, J.

text:
    ALTOS POINTE INVESTMENT, LLC., etc., et al., Appellants, v. MUNB LOAN HOLDINGS, LLC., etc., Appellee.
    No. 3D12-1284.
    District Court of Appeal of Florida, Third District.
    Aug. 7, 2013.
    Roberta G. Mandel, for appellants.
    Pathman Lewis, LLP, and Anthony V. De Yurre and John A. Moore, Aventura, for appellee.
    Before ROTHENBERG, SALTER and LOGUE, JJ.
   ROTHENBERG, J.

On January 10, 2012, the trial court entered a Final Judgment of Foreclosure against Altos Pointe Investment, LLC (“Altos”), as charged in Count I in the complaint. Pursuant to the Final Judgment of Foreclosure entered, the property was sold on February 14, 2012. Thereafter, on April 16, 2012, the trial court entered summary judgment as to Count II (an action on the promissory note against Altos); Count III (against Altos for breach of a letter agreement to pay an exit fee), and Count IV (to recover damages against Edward D. Pascoe (“Pascoe”)).

To the extent that the appellants, Altos and Pascoe (“appellants”) seek review of the Final Judgment of Foreclosure entered on January 10, 2012, we note that no notice of appeal has been filed as to that judgment and that the notice of appeal filed on May 16, 2012, and the revised notice of appeal filed on May 23, 2012, are untimely as to that judgment. To the extent that Altos seek review of the summary judgment as to Counts II and III, entered on April 16, 2012, we dismiss the appeal as the order entering summary judgment as to those counts is a non-final, non-appealable order. As the trial court’s order and the record clearly reflect, Count V seeks foreclosure of a security interest against Altos; Count V is interrelated to and interdependent upon the other causes of action alleged and now resolved in the complaint; and the trial court reserved jurisdiction regarding Count V, which remains pending. Thus, the summary judgment order as to Altos is a partial summary judgment and this appeal is premature. See Blue v. Covington Cnty. Bank, 77 So.3d 909 (Fla. 1st DCA 2012) (dismissing appeal as premature where trial court had reserved jurisdiction in its summary judgment order to determine the value of property in connection with a mortgage foreclosure); Hamilton v. Ryan Foods Co., 867 So.2d 1217 (Fla. 1st DCA 2004) (dismissing appeal as premature, finding the order under review was a nonfinal order because the trial court had reserved jurisdiction to determine collateral source set-offs); see also Hallock v. Holiday Isle Resort & Marina, Inc., 885 So.2d 459, 461-62 (Fla. 3d DCA 2004) (holding that an appeal from a partial summary judgment is only appealable if the pending claims are not interdependent upon the claims that have been resolved).

Regarding Count IV, in which the plaintiff sought to recover damages against Pascoe, we conclude the trial court’s order entering summary judgment in favor of the plaintiff and against Pascoe, represents a final appealable order. Finding no error as to the trial court’s ruling in Count IV, we affirm that portion of the order. To recap, we dismiss Altos’ appeal as to Counts I, II, and III; and we affirm the trial court’s order as to Count IV.

Affirmed in part; dismissed in part.


author: PER CURIAM.

text:
    Derrell TURNER, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-4836.
    District Court of Appeal of Florida, First District.
    Aug. 8, 2013.
    Derrell Turner, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Anne C. Conley, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Bradley v. State, 111 So.3d 203 (Fla. 4th DCA 2013).

PADOVANO, MARSTILLER, and MAKAR, JJ., concur.


text:
    Susan A. MORROW, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-3326.
    District Court of Appeal of Florida, First District.
    Aug. 8, 2013.
    Susan A. Morrow, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Baker v. State, 878 So.2d 1236 (Fla.2004).

PADOVANO, MARSTILLER, and MAKAR, JJ., concur.


text:
    Jason Daniel KIRK, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-3471.
    District Court of Appeal of Florida, First District.
    Aug. 8, 2013.
    Jason D. Kirk, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

PADOVANO, MARSTILLER, and MAKAR, JJ., concur.


author: SILBERMAN, Judge.

text:
    Tamara S. CORREA, Appellant, v. U.S. BANK NATIONAL ASSOCIATION, as Trustee for BACF 2006-D; Jimmy Correa; and Indymac Bank, Appellees.
    No. 2D12-2209.
    District Court of Appeal of Florida, Second District.
    Aug. 9, 2013.

      Mark P. Stopa and Philip Healy of Stopa Law Firm, Tampa, for Appellant.
    Owen H. Sokolof of Morris Hardwick Schneider, Tampa, for Appellee U.S. Bank National Association.
    No appearance for remaining Appellees.
   SILBERMAN, Judge.

Tamara S. Correa seeks review of the final judgment of foreclosure entered in favor of U.S. Bank National Association. Correa argues that U.S. Bank failed to provide adequate notice of trial and failed to present sufficient evidence to reestablish the lost note. While Correa has waived the notice issue, we agree that U.S. Bank failed to meet its burden of proof to reestablish the lost note. Accordingly, we reverse.

In 2007, Indymac Bank filed a foreclosure complaint against Correa and others that also included a count to reestablish and enforce a lost note and mortgage. Indymac obtained a clerk’s default in early 2008, but it failed to obtain a default judgment. The proceedings were then delayed by a bankruptcy action filed by Correa in July 2009. In early 2010, Indymac assigned the mortgage to OneWest Bank, and OneWest filed an amended complaint but did not seek to reestablish the note and mortgage. OneWest assigned the mortgage to U.S. Bank later that year, and U.S. Bank filed a second amended complaint with a copy of the note and mortgage but without a count to reestablish the note and mortgage. U.S. Bank filed a third amended complaint in December 2011 and added a count to enforce the lost note. A copy of the lost note was attached to this complaint. The trial court entered an order directing the defendants to respond to the third amended complaint.

Although the record does not reflect the filing of any responses, trial was set for February 20, 2012. But there was some confusion regarding whether the trial was scheduled to start at 9:00 a.m. or 1:30 p.m. Correa appeared at 9:00 a.m., but counsel for U.S. Bank did not have its witness scheduled to arrive until 1:30 p.m. The court indicated it would recall the case at 1:30 p.m., but Correa said she did not have childcare available during that time period. Both parties agreed to continue the trial to March 19, 2012, and counsel for U.S. Bank sent Correa a written notice of nonjury trial on February 27, 2012.

At trial, U.S. Bank’s sole witness was Alex Gomez, an employee of U.S. Bank’s servicer, Indymac Mortgage Services. Gomez identified a copy of the note and mortgage, the loan payment history, and the assignments. Gomez testified that Correa had defaulted on the note in May 2007 and owed $625,625.67. Gomez also verified that U.S. Bank had sent Correa a demand letter. Counsel then stated that U.S. Bank had no further questions. The court pointed out that U.S. Bank had also filed a claim to reestablish a lost note. Counsel for U.S. Bank then resumed questioning as follows:

Q. Can you tell us about the lost note? Do you know how it was lost?
A. I do not.
Q. Do you know if it was ever assigned to anyone or sent to anyone as part of an agreement?
A. I do not.
Q. Do you know whether the lost note is inclusive with the mortgage? Was it assigned at the same time, to your knowledge?
A. Yes.
[U.S. BANK’S COUNSEL]: Judge, do you require anything else?
THE COURT: No explanation as to how it got lost?
THE WITNESS: No, ma’am.
Q. Do you have any explanation at all?
A. No. I’m not aware of how it was lost, Your Honor.

Correa appeared pro se and focused most of her cross-examination on the issues of Indymac Bank’s standing to file the original complaint and the amount due. When Correa inquired about the circumstances regarding the loss of the note, Gomez could not add anything to his testimony on direct that he did not know how or when the note was lost.

On redirect, counsel for U.S. Bank introduced the loan payment history into evidence as exhibit 1. Counsel also solicited Gomez’s testimony that OneWest was entitled to enforce the note when it was lost. When counsel asked Gomez what led him to that belief, Gomez replied, “As servicer of the note, it is endorsed in blank. All the assignments and mortgage are in place.” After the close of evidence, the trial court permitted counsel for U.S. Bank to reopen its case and enter the demand letter into evidence. But counsel never entered the copy of the lost note or any assignments into evidence. The court found Gomez’s testimony sufficient to reestablish the lost note and entered a final judgment of foreclosure.

Correa raises two arguments on appeal. First, Correa argues that the trial court erred in setting the case for trial without providing her thirty days of written notice as required by Florida Rule of Civil Procedure 1.440(c). However, Cor-rea waived the notice requirements of rule 1.440(c) by agreeing to the rescheduled trial date and proceeding at trial without objection. See Zumpf v. Countrywide Home Loans, Inc., 43 So.3d 764, 766-67 (Fla. 2d DCA 2010) (holding that appellant waived any objection under rule 1.440(c) by fully participating in the hearing without objection).

Second, Correa argues that U.S. Bank failed to present sufficient evidence to reestablish the lost note. U.S. Bank responds that the issue cannot be reviewed because Correa did not object to the testimony regarding the lost note. We conclude that Correa has not waived review of the sufficiency of the evidence by failing to make an objection on this exact basis at the bench trial. See Fla. R. Civ. P. 1.530(e) (“When an action has been tried by the court without a jury, the sufficiency of the evidence to support the judgment may be raised on appeal whether or not the party raising the question has made any objection thereto in the trial court or made a motion for rehearing, for new trial, or to alter or amend the judgment.”).

For the requirements to reestablish a lost note we look to section 673.3091, Florida Statutes (2007). Section 673.3091(1) provides as follows:

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

Section 673.3091(2) requires a person seeking enforcement of a lost, destroyed, or stolen instrument to “prove the terms of the instrument and the person’s right to enforce the instrument” under section 673.3091(1). It also provides that a court may not enter judgment enforcing a lost, destroyed, or stolen instrument “unless it finds that the person required to pay the instrument is adequately protected against loss that might occur by reason of a claim by another person to enforce the instrument.” Id.

In this case, U.S. Bank proved that the note was lost under section 673.3091(l)(c) and that it “acquired ownership of the instrument from a person who was entitled to enforce the instrument when loss of possession occurred” under section 673.3091(l)(a). However, U.S. Bank failed to prove the terms of the note under section 673.3091(2) or its right to enforce the note under section 673.3091 (l)(b). As for the terms of the note, U.S. Bank did not question Gomez on these specifies. And although Gomez identified a copy of the lost note, U.S. Bank did not enter the document into evidence. See Beaumont v. Bank of N.Y. Mellon, 81 So.3d 553, 555 n. 2 (Fla. 5th DCA 2012) (holding that the plaintiff did not present competent evidence of an assignment because, even though the document was contained in the record, it was not entered into evidence at trial). Further, nothing in the record reflects any admission by Correa as to the terms of the note.

Under subsection (l)(b), U.S. Bank was required to prove that “[t]he loss of possession was not the result of a transfer by the person or a lawful seizure.” § 673.3091(1)(b). Gomez did not address this requirement and apparently could not make any such assertion because he had no knowledge of the circumstances of the loss. In fact, when counsel for U.S. Bank asked Gomez whether he knew if the note was ever assigned or transferred to anyone else, Gomez replied that he did not. Cf. Deakter v. Menendez, 830 So.2d 124, 128 (Fla. 3d DCA 2002) (concluding that the plaintiff met the requirements of section 673.3091(l)(b) by averring under oath that the original note was lost or destroyed and he did not assign or transfer it). Gomez admitted that he had no idea how or when the note was lost, and he did not know if the loss occurred while OneWest was in possession of it.

Having determined that U.S. Bank failed to present sufficient evidence to reestablish the lost note, the next question is the appropriate disposition of this case. Correa asserts that this court should reverse and remand with directions for the trial court to enter an involuntary dismissal of the complaint. But Correa also concedes that there is authority reversing and remanding under similar circumstances with directions for the court to afford the plaintiff another opportunity to reestablish a lost note. See Guerrero v. Chase Home Fin., LLC, 88 So.3d 970 (Fla. 3d DCA 2012).

“[AJppellate courts do not generally provide parties with an opportunity to retry their case upon a failure of proof.” Morton’s of Chi., Inc. v. Lira, 48 So.3d 76, 80 (Fla. 1st DCA 2010). “The primary function of this court is to correct errors committed by the lower tribunal, not to serve as a conduit for unnecessarily protracted, piecemeal litigation.” Id. (citation omitted); see also Carlough v. Nationwide Mut. Fire Ins. Co., 609 So.2d 770, 771-72 (Fla. 2d DCA 1992) (“[U]pon remand, Nationwide should not be given a second bite at the apple to present evidence which it failed to produce at the scheduled eviden-tiary hearing.”); State ex rel. City of Naples v. Cooper (In re Forfeiture of 1987 Chevrolet Corvette), 571 So.2d 594, 596 (Fla. 2d DCA 1990) (holding that a forfeiture defendant failed to meet his burden of rebutting the sheriffs probable cause showing and declining to afford the defendant “a second bite at the apple by way of a new hearing”); Teca, Inc. v. WM-TAB, Inc., 726 So.2d 828, 830 (Fla. 4th DCA 1999) (rejecting the argument that a plaintiff is entitled to have “a second bite at the apple when there has been no proof at trial concerning the correct measure of damages”).

We are not persuaded that the Third District’s decision in Guerrero supports a departure from this principle. In Guerrero, counsel for the plaintiff informed the court at trial that it could not find the original note and mortgage and sought to amend the complaint to add a lost note claim. 83 So.3d at 972. The defendants objected, and the court reserved ruling and took testimony. At the close of testimony, the defendants argued that the court should enter judgment in their favor because the plaintiff had not properly asserted its lost note claim and failed to present sufficient evidence to reestablish the lost note. Id. at 973. Even though the trial court never ruled on the plaintiffs request to amend, it rejected these arguments and entered the foreclosure judgment.

The Third District held that it was error to enter a foreclosure judgment without a proper reestablishment of the note and mortgage. Id. However, the court also concluded that the trial court had the authority to allow the plaintiff to amend to add the lost note claim at trial. The court therefore reversed and remanded with directions for the trial court to allow the plaintiff to properly reestablish the note and mortgage “this time on a proper pleading, naming the appropriate parties, and upon competent evidence.” Id.

While the facts and procedural posture of Guerrero are in some respects similar to those in this case, Guerrero is distinguishable because the plaintiff asserted the lost note claim for the first time at trial and the court never ruled on the motion to amend the complaint. Thus, remand was necessary for proper amendment and proceedings on the amended claim. At the time of trial in this case, the lost note claim had languished with minimal prosecution for over four years. Counsel for U.S. Bank should have been fully aware of its burden to reestablish the lost note and fully prepared to meet that burden, yet it made minimal effort to address this issue even after prodding by the trial court. There is simply no reason to afford it a second opportunity to prove its case. Accordingly, we reverse and remand with directions for the trial court to enter an involuntary dismissal of the complaint.

Reversed and remanded with directions.

NORTHCUTT and LaROSE, JJ., Concur.

      . In the third amended complaint, U.S. Bank omitted any reference to the mortgage being lost.

      . We also note that the trial court erred by failing to determine whether "the person required to pay the instrument is adequately protected against loss that might occur by reason of a claim by another person to enforce the instrument,” as required by section 673.3091(2). See Beaumont, 81 So.3d at 555. The concept of adequate protection is important in cases such as this in which the note is endorsed in blank and there is uncertainty regarding the circumstances surrounding the loss of the note. See Connelly v. Matthews, 899 So.2d 1141, 1143 n. 3 (Fla. 4th DCA 2005). If the court is concerned that another person might attempt to enforce the original note, it may require security in favor of the payor to ensure adequate protection. Id. at 1143. Although there was sufficient evidence [or the court to have addressed this issue, see id. at 1143 n. 3, it failed to do so. However, Correa has not preserved review of this error because she did not raise the issue or object on this basis in the trial court.


author: WALLACE, Judge.

text:
    PULTE HOME CORPORATION, Appellant, v. BAY AT CYPRESS CREEK HOMEOWNERS’ ASSOCIATION, INC., Appellee.
    No. 2D13-316.
    District Court of Appeal of Florida, Second District.
    Aug. 9, 2013.

      Theodore D. Estes and Collin W. McLeod of Divine & Estes, P.A., Orlando, for Appellant.
    Alan E. Tannenbaum and Melissa Karp Elsbree of Tannenbaum Hanewich, P.L., Sarasota, for Appellee.
   WALLACE, Judge.

Pulte Home Corporation (Pulte) seeks review of the circuit court’s order denying its renewed motion to compel arbitration of an action brought by Bay at Cypress Creek Homeowners’ Association, Inc. (the HOA), for alleged building code violations under section 553.84, Florida Statutes (2011). We reverse the order under review on the authority of Pulte Home Corp. v. Vermillion Homeowners Ass’n, 109 So.3d 233 (Fla. 2d DCA 2013).

The HOA made a tactical decision to plead its amended complaint as an action based on a statutory violation instead of as an action for breach of warranty. The HOA argues that it cannot be compelled to arbitrate its statutory claim. We disagree. The agreement to arbitrate applies to statutory claims as well as to claims for breach of warranty. See Reeves v. Ace Cash Express, Inc., 937 So.2d 1136, 1137 (Fla. 2d DCA 2006) (requiring the arbitration of a claim under the Florida Consumer Collection Practices Act); Orkin Exterminating Co. v. Petsch, 872 So.2d 259, 261-62 (Fla. 2d DCA 2004) (noting that claims under the Florida Deceptive and Unfair Trade Practices Act may be submitted to arbitration); Beazer Homes Corp. v. Bailey, 940 So.2d 453, 461-62 (Fla. 5th DCA 2006) (same); Aztec Med. Sens., Inc. v. Burger, 792 So.2d 617, 622 (Fla. 4th DCA 2001) (collecting cases in which statutory claims have been held to be subject to arbitration). We also reject the HOA’s argument that subsequent purchasers of the units at the development are not bound by the arbitration agreement. Because the subsequent purchasers are permitted to assume Pulte’s Limited Warranty in favor of the initial purchasers, the subsequent purchasers are “third party beneficiaries to the Limited Warranty and can be compelled to arbitrate.” Fla. Farm Bureau Ins. Cos. v. Pulte Home Corp., 2005 WL 1345779, at *4 (M.D.Fla. June 6, 2005); see also J. Douglas Uloth & J. Hamilton Rial, III, Equitable Estoppel as a Basis for Compelling Nonsignatories to Arbitrate — A Bridge Too Far?, 21 Rev. Litig. 593, 602 (Summer 2002) (“[A]s a basic derivative of the principle that a third-party beneficiary steps into the shoes of a contracting party and is subject to all provisions of contract, a third-party beneficiary of a contract containing an arbitration provision can be compelled to arbitrate.”).

We have considered the HOA’s remaining arguments for affirmance, and we find them to be without merit. The remaining arguments do not warrant discussion.

We reverse the order denying Pulte’s renewed motion to compel arbitration, and we remand this case for further proceedings consistent with this opinion.

Reversed and remanded.

SILBERMAN and VILLANTI, JJ., Concur.

      . We have jurisdiction in accordance with Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iv).


author: SLEET, Judge.

text:
    Eric WILSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-3050.
    District Court of Appeal of Florida, Second District.
    Aug. 9, 2013.
    Eric Wilson, pro se.
   SLEET, Judge.

Eric Wilson appeals the order summarily denying his motion filed under Florida Rule of Criminal Procedure 3.850. We affirm in all respects except with regard to Wilson’s claim that trial counsel was ineffective for failing to investigate and depose James Thompson and Bruce Warren, who were listed in the defense notice of alibi. Wilson’s claim was facially insufficient because it failed to allege that these witnesses were available to testify. See Nelson v. State, 875 So.2d 579, 584 (Fla.2004) (holding that to establish prejudice from counsel’s failure to call a witness, a movant must allege that the witness would have been available to testify).

Accordingly, we reverse the postconviction court’s order insofar as it denied this claim and remand with directions for the court to allow Wilson thirty days to amend this claim if he can do so in good faith. See Spera v. State, 971 So.2d 754, 762 (Fla.2007). The order is affirmed in all other respects.

Affirmed in part, reversed in part, and remanded.

VILLANTI and WALLACE, JJ„ Concur.


text:
    STATE of Florida, Appellant, v. Abraheem FIRST-PAGE, Appellee.
    No. 5D12-1515.
    District Court of Appeal of Florida, Fifth District.
    Aug. 9, 2013.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellant.
    James S. Purdy, Public Defender, and Robert E. Wildridge, Assistant Public Defender, Daytona Beach, for Appellee.
   PER CURIAM.

After a jury found Appellee guilty of a first-degree felony, the trial court, over the State’s objection, withheld adjudication of guilt and imposed a probationary sentence. The State appeals the trial court’s failure to adjudicate Appellee guilty. We reverse because section 775.08435(l)(a), Florida Statutes (2009), prohibits a court from withholding an adjudication of guilt upon a defendant who is found to have committed a first-degree felony. See State v. Foster, 114 So.3d 422 (Fla. 5th DCA 2013); State v. Ketchum, 111 So.3d 197 (Fla. 3d DCA 2013). The judgment and sentence are otherwise affirmed.

AFFIRMED, in part; REVERSED, in part; and REMANDED for entry of an adjudication of guilt.

PALMER, EVANDER and COHEN, JJ., concur.

      . Appellate review is authorized pursuant to Florida Rule of Appellate Procedure 9.140(c)(l)(L) ("The state may appeal an order ... withholding adjudication of guilt in violation of general law.”).


author: COHEN, J.

text:
    Chaubert FRANCOIS, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-2167.
    District Court of Appeal of Florida, Fifth District.
    Aug. 9, 2013.
    James S. Purdy, Public Defender, and Kevin R. Holtz, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   COHEN, J.

Chaubert Francois appeals from the judgment and sentence entered after a jury found him guilty of burglary of a dwelling. While the trial court erred in failing to conduct a Richardson hearing, under the facts of this case-where Francois and his codefendant were observed by law enforcement kicking in the front door of the dwelling and were apprehended upon fleeing from the home-the error was harmless. See State v. Schopp, 653 So.2d 1016, 1020 (Fla.1995). Accordingly, we affirm.

AFFIRMED.

GRIFFIN and LAWSON, JJ., concur.

      . Richardson v. State, 246 So.2d 771 (Fla.1971).

      . We do not condone the actions of the assistant state attorney, who, two days before trial, became aware of the existence of discoverable material possessed by an agency other than that which effectuated the arrest in the case, and yet failed to disclose that information to the defense. See Fla. R.Crim. P. 3.220(b).


text:
    Carla HINTON, Petitioner, v. STATE of Florida, Respondent.
    No. 5D13-2119.
    District Court of Appeal of Florida, Fifth District.
    Aug. 9, 2013.
    Carla Hinton, Ocala, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the order denying the motion for post-conviction relief in Case No.2011-CF-002642, in the Circuit Court in and for Lake County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

ORFINGER, PALMER and WALLIS, JJ., concur.


text:
    John P. LILLY, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 5D13-1813.
    District Court of Appeal of Florida, Fifth District.
    Aug. 9, 2013.
    John P. Lilly, Jr., Lake Butler, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the order denying his motion to correct sentence-jail credit in Case No. 11-1373-CF-53, in the Circuit Court in and for Putnam County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

PALMER, LAWSON and WALLIS, JJ., concur.


text:
    Allihondra MOODY, Petitioner, v. STATE of Florida, Respondent.
    No. 5D13-1265.
    District Court of Appeal of Florida, Fifth District.
    Aug. 9, 2013.
    Allihondra Moody, Perry, pro se.
    Pamela J. Bondi, Attorney General, Tallahassee and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the judgment and sentence in Case Number 48-2010-CF-03399-A, in the Circuit Court in and for Orange County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

GRIFFIN, COHEN and EVANDER, JJ., concur.


text:
    Manuel SANTANA, Petitioner, v. The FLORIDA PAROLE COMMISSION, Respondent.
    No. 1D12-4149.
    District Court of Appeal of Florida, First District.
    Aug. 9, 2013.
    Manuel Santana, pro se, Petitioner.
    Sarah J. Rumph, General Counsel, Florida Parole Commission, Tallahassee, for Respondent.
   PER CURIAM.

Consistent with the Florida Parole Commission’s concession of error, the petition for writ of certiorari is GRANTED. The circuit court’s order denying Santana’s petition for writ of mandamus is QUASHED and this matter is REMANDED for further proceedings consistent with Alday v. Fla. Parole Comm’n, 58 So.3d 327 (Fla. 1st DCA 2011).

WOLF, CLARK, and RAY, JJ., concur.


text:
    Billy BOONE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-5963.
    District Court of Appeal of Florida, First District.
    Aug. 9, 2013.
    Billy Boone, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is dismissed as untimely filed. See Fla. R.App. P. 9.141(c)(5)(A).

BENTON, SWANSON, and OSTERHAUS, JJ., concur.


text:
    Odell HALL, Sr., Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-0453.
    District Court of Appeal of Florida, First District.
    Aug. 9, 2013.
    Odell Hall, Sr., pro se, Petitioner.

      Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Because the trial court has ruled on the pleading pending below, the petition for writ of mandamus is denied as moot.

BENTON, SWANSON, and OSTERHAUS, JJ., concur.


text:
    Marshall COMBS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-1396.
    District Court of Appeal of Florida, First District.
    Aug. 9, 2013.
    Marshall Combs, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. Petitioner shall be allowed a belated appeal from the August 29, 2012, order denying the petitioner’s motion for post-conviction relief, in Suwannee County Circuit Court case number 1998-368-CF. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R.App. P. 9.141(c)(5)(D).

BENTON, SWANSON, and OSTERHAUS, JJ., concur.


text:
    Jerry L. WILSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-2777.
    District Court of Appeal of Florida, First District.
    Aug. 9, 2013.
    Jerry L. Wilson, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Pro se appellant has sought review of an order on his petition for writ of habeas corpus. The lower tribunal rendered its Order Dismissing Defendant’s Petition for Writ of Habeas Corpus on April 23, 2013. Appellant’s notice of appeal was filed on June 5, 2013. Therefore, the Court’s jurisdiction was not timely invoked, and the appeal must be dismissed as untimely. The filing of a notice of appeal is jurisdictional. Florida courts are required to dismiss an appellate proceeding if it was not initiated within the applicable time limit. See Miami-Dade County v. Peart, 843 So.2d 363 (Fla. 3d DCA 2003).

The Court notes, however, that it appears that the April 23, 2013, order was not served on appellant. It appears that another Department of Corrections inmate with the same name as appellant was served with the April 23, 2013, order. Although appellant may be entitled to some relief in this respect, any remedy appellant may have lies with the lower tribunal. See Brown v. State, 708 So.2d 1041 (Fla. 1st DCA 1998).

DISMISSED.

THOMAS, ROWE, and SWANSON, JJ., concur.


author: VAN NORTWICK, J.

text:
    CMH HOMES, INC., a foreign corporation, Appellant, v. LSFC COMPANY, LLC, a Florida limited liability company; Fort Atkinson Plantation, LLC, a Florida limited liability company; Gary H. Baker, Assignee; Marvin E. Buchanan; Peggy N. Buchanan, Appellees.
    No. 1D12-3454.
    District Court of Appeal of Florida, First District.
    Aug. 13, 2013.
    N. Mark New and William Grimsley of McGlinchey Stafford, PLLC, Jacksonville, for Appellant.
    C. David Harper and Adam R. Alaee of Foley <& Lardner, LLP, Tampa, for Appel-lee LSFC Company, LLC, a Florida limited liability company.
   VAN NORTWICK, J.

CMH Homes, Inc., appeals a final summary judgment of foreclosure entered in favor of LSFC Company, LLC, appellee, arguing that the trial court erred in granting summary judgment when LSFC had not established that CMH’s affirmative defense of unjust enrichment was legally insufficient. Because the elements of unjust enrichment cannot be established under the undisputed facts in this record, we affirm the summary judgment.

Fort Atkinson Plantation, LLC, executed the subject notes and mortgages in 2006 to finance a development in Lafayette County, Florida. Approximately one year later, CMH and Fort Atkinson entered into an agreement under which CMH would construct a model home on lot 9 within the development. Under the agreement, CMH would be paid when the model home was sold, but not until other residences in the development were first constructed. In addition, in the agreement CMH acknowledged that Fort Atkinson possessed title to lot 9 “free and clear of all liens and encumbrances except for the mortgage indebtedness” that Fort Atkinson executed in 2006.

The subject notes and mortgages were repeatedly assigned and eventually came to be owned by LSFC. In 2011, LSFC filed a complaint to foreclose the subject mortgages, naming CMH as a defendant. In defending the foreclosure action, CMH argued that it would be inequitable to allow the lender to take control, possession or title to the model home without paying fair value for that property. At the hearing on LSFC’s motion for summary judgment, the merits of this unjust enrichment affirmative defense were argued. After the hearing, the trial court entered a final judgment of foreclosure on all mortgage property including the lot on which the model home was constructed, implicitly rejecting the unjust enrichment defense.

We hold that, under the undisputed facts here, LSFC was not unjustly enriched. To establish unjust enrichment, a party must show that:

(1) a benefit was conferred upon [the party allegedly enriched], (2) that [the enriched party] either requested the benefit or knowingly and voluntarily accepted it, (3) that a benefit flowed to the [enriched party], and (4) that under the circumstances, it would be inequitable for the [enriched party] to retain the benefit without paying the value thereof.

W.R. Townsend Contracting, Inc. v. Jensen Civil Constr., Inc., 728 So.2d 297, 303 (Fla. 1st DCA 1999).

We find instructive E & M Marine Corp. v. First Union National Bank, 783 So.2d 311 (Fla. 3d DCA 2001). There, a party purchased a boat using a loan from First Union. The boat required extensive repairs, for which the purchaser was unable to pay; the purchaser also defaulted on the loan. First Union moved to recover the boat by a writ of replevin. E & M Marine, the marine repair business, argued that it was entitled to the cost of the repairs on a theory of unjust enrichment. The reviewing court affirmed the trial court’s ruling that E & M Marine could not recover on a theory of unjust enrichment explaining:

First Union did not request that E & M Marine repair the vessel. The engine repairs were made before [the purchaser] had defaulted on the loan and First Union had any right to seek possession. First Union had no knowledge of the vessel’s whereabouts until more than three months after E & M Marine salvaged the vessel and made the electrical repairs. First Union only gained control of the vessel because it was forced to repossess it after [the purchaser] defaulted on the loan payments.... First Union did not knowingly and voluntarily accept the benefit of E & M Marine’s repairs. Consequently, E & M Marine cannot recover due to unjust enrichment.

Id. at 312-313; see also Coffee Pot Plaza Partnership v. Arrow Air Conditioning, 412 So.2d 883 (Fla. 2d DCA 1982).

As in E & M Marine, we find no benefit conferred upon LSFC by CMH’s construetion of the model home. The decision to lend to Fort Atkinson made by the predecessor in interest to LSFC was made prior to CMH’s construction of the model, and the home was constructed prior to any default by Fort Atkinson under the loan. Further, there is no evidence that any benefit was either requested or knowingly and voluntarily accepted by LSFC or its predecessor. Finally, under the agreement between Fort Atkinson and CMH, the interests of CMH are expressly inferi- or to the security interest of LSFC.

AFFIRMED.

CLARK and OSTERHAUS, JJ., concur.


text:
    William S. JOHNSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-1503.
    District Court of Appeal of Florida, First District.
    Aug. 13, 2013.
    William S. Johnson, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Brittany Rhodaback, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. Petitioner shall be allowed a belated appeal from the April 24, 2012, and July 12, 2012, Orders on Defendant’s Motion for Post-Conviction Relief, in Duval County Circuit Court case number 16-2006-CF-1639-AXXX-MA. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R.App. P. 9.141(c)(5)(D).

THOMAS, ROWE, and SWANSON, JJ., concur.


text:
    Stephen B. BROOKS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-3290.
    District Court of Appeal of Florida, First District.
    Aug. 13, 2013.
    Stephen B. Brooks, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. Petitioner shall be allowed a belated appeal from the May 20, 2010, judgment and sentence, in Duval County Circuit Court case number 09-CF-0015518-AXXX-MA. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. RApp. P. 9.141(c)(6)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

THOMAS, ROWE, and SWANSON, JJ., concur.


author: PER CURIAM. MAKAR, J.

text:
    Jerral PARRIS, Appellant, v. CUMMINS POWER SOUTH, Appellee.
    No. 1D13-0123.
    District Court of Appeal of Florida, First District.
    Aug. 13, 2013.
    Jerral Parris, pro se, Appellant.
    Brent C. Bell and Jennifer P. Sommer-ville of Shutts & Bowen LLP, Orlando, for Appellee.
   PER CURIAM.

AFFIRMED.

WOLF, and OSTERHAUS, JJ. concur.

MAKAR, J. concurs with opinion.

MAKAR, J.

Concurring.

Jerral Parris claims error in the trial court’s dismissal of his lawsuit against the defendant boat-repair company, whose lawyers successfully argued the concepts of res judicata and collateral estoppel to bar his ease. A main focus of this appeal is Parris’s contention that the company (and presumably its lawyers) “chose to dredge up these esoteric terms from a dead language to confound, stupefy, [and] isolate” him to deny him his day in court. He says the “use of Latin is a violation of [his] Constitutional Rights as a citizen of the United States of America” and that the legal profession embraces a culture of allowing attorneys to “extract a fee by chanting unknown terms from a dead language.” He claims that the use of these phrases prevented him from understanding the proceedings below and thereby violated due process.

As a general linguistic truth, the use of archaic Latin phrases does not facilitate understanding of the adjudicatory process and should be avoided. Examples of “needless Latinity” abound, such as “capa-citas rationalis” and “res gestae.” Bryan A. Garner, A Dictionary of Modem Legal Usage, 501-02 (“Latinisms”) (2d ed.1995). As Professor Garner states: “The rightful objects of our condemnation are the bombastic, vestigial Latinisms that serve no purpose but to give the writer a false sense of erudition. These terms convey no special legal meanings, no delicate nuances apprehended only by lawyers. They are pompous, turgid deadwood.” Id. at 501. He notes that more than ninety percent of our legal terminology is of Latin origin, id., so the outright condemnation of words and phrases of Latin origin sweeps with too broad a brush.

Many terms and phrases, despite their linguistic lineage or perceived ostenta-tiousness, continue to have utility in the profession, even if they are poorly understood. Legal lingo, like the specialized vocabularies of other professions such as medicine, is imbued with phraseology that can obscure meaning and detract from comprehension even for those laboring within the guild. As Professor Garner points out, collateral estoppel and res judi-cata “have long caused confusion among judges and advocates.” Garner, supra, at 169 (“collateral estoppel”).

To that extent only, Parris has a point (i.e., that res judicata and collateral estop-pel can be confusing). But his commentary on the state of legal language does not form a claim for relief. The assertion that lawyers (and presumably judges too) who speak in legalisms violate litigants’ constitutional rights is frivolous. Beyond that, the record shows that Parris is no stranger to legal proceedings and has exercised his rights to access courts as his own attorney in a manner that shows familiarity with legal process and terminology. Because he must pay attorneys’ fees under the applicable unfair and deceptive trade practices statute, section 59.46, Florida Statutes, the imposition of fees under section 57.105, Florida Statutes, becomes unnecessary.

      . Res judicata (originally res adjudicata) is of Latin origin, Black’s Law Dictionary 1336 (8th ed.2004); collateral estoppel seems a bit of a mixed breed, apparently a fusion of Middle English, Medieval Latin and Old French. 3 The Oxford English Dictionary 473 (2d ed.1989); 5 The Oxford English Dictionary 411 (2d ed.1989).


author: NORTHCUTT, Judge.

text:
    REGIONS BANK, as successor by merger to AmSouth Bank, Appellant, v. MDG FRANK HELMERICH, LLC, MDG Capital Corporation, W. Patrick McCuan, and William L. Klohn, Appellees.
    No. 2D12-2427.
    District Court of Appeal of Florida, Second District.
    Aug. 14, 2013.
    Cathy S. Reiman and Christopher D. Donovan of Roetzel & Andress, LPA, Naples, for Appellant.

      Jon D. Parrish and Kirt R. Posthuma of Parrish, Lawhon & Yarnell, P.A., Naples, for Appellees.
   NORTHCUTT, Judge.

Regions Bank’s predecessor lent money to MDG Frank Helmerich, LLC, under a commercial loan agreement. W. Patrick McCuan and William L. Klohn guaranteed the loan. After the borrower and the guarantors defaulted, Regions foreclosed on the security and obtained a deficiency judgment against MDG, McCuan, and Klohn, jointly and severally. The bank then proceeded with discovery in aid of execution against the individual debtors. In this nonfinal appeal, Regions challenges the circuit court’s decisions on its motion to compel discovery of the debtors’ tax returns and information about their interests in trusts. We affirm in part, reverse in part, and remand for further proceedings.

Tax Returns

Regions sought production of all tax returns McCuan and Klohn filed “for the last three (3) years, including W-2s and 1099s.” They lodged identical objections to the request:

[Objection is made to the extent that the Defendant has filed a joint tax return with his wife as she has and asserts her right to privacy and confidentiality as provided by Florida and Federal law.

At the hearing on Regions’ motion to compel discovery, its counsel explained that the bank sought information about assets the debtors held individually or jointly with others; it did not seek discovery of assets that the spouses owned individually. The circuit court ruled that Regions was “not entitled to third party financial information that may appear on the tax returns.” It ordered the debtors to produce copies of their 2008, 2009, and 2010 tax returns, but insofar as any portion of those returns related to third parties, the returns would be subject to an in-camera, inspection.

McCuan produced his 2008 and 2010 returns and Klohn produced his 2008 and 2009 returns, all of which were extensively redacted. The court “conducted an in-camera review of both the redacted and unredacted tax returns.” The correspondence between counsel and the court shows that no other documents, such as bank or brokerage account statements, stock certificates, or the like, were provided for the court’s review. The court ruled that the tax returns were properly redacted.

We recognize that a person’s financial information is private and that discovery should be limited to matters relating to contested issues in the case. See Woodward v. Berkery, 714 So.2d 1027, 1035-36 (Fla. 4th DCA 1998); see also Fla. R. Civ. P. 1.280(b) (“Parties may obtain discovery regarding any matter ... that is relevant to the subject matter of the pending action-”). Thus in prejudgment discovery, a party is entitled only to the opponent’s financial records that pertain to the pending action.

But in postjudgment discovery, the dispute in the original civil action has been resolved. The matters relevant for discovery no longer involve theories such as negligence or breach of contract; they are concerned with information that will enable the judgment creditor to collect the debt. See Citibank, N.A. v. Plapinger, 461 So.2d 1027 (Fla. 3d DCA 1985); cf. Gibson v. Progress Bank of Fla., 54 So.3d 1058 (Fla. 2d DCA 2011) (comparing prejudgment and postjudgment discovery rules). To illustrate, in prejudgment discovery, information about assets jointly owned with a spouse are irrelevant to and not discoverable in a suit on a loan guarantee where only one spouse was the guarantor. See Rappaport v. Mercantile Bank, 17 So.3d 902 (Fla. 2d DCA 2009). But Rappaport and other cases addressing prejudgment discovery are not pertinent in a case that has already proceeded to judgment. In those cases, the creditor has the right to discover any assets the debtor might have that could be subject to levy or execution to satisfy the judgment, or assets that the debtor might have recently transferred. See Jim Appley’s Trur-Arc, Inc. v. Liquid Extraction Sys. Ltd. P’ship, 526 So.2d 177 (Fla. 2d DCA 1988); see also Capco Props., LLC v. Monterey Gardens of Pinecrest Condo., 982 So.2d 1211 (Fla. 3d DCA 2008); Plapinger, 461 So.2d at 1027. Broad discovery of a debtor’s assets is permitted postjudgment — the debtor’s assets, whether held individually or jointly, are relevant to collecting the debt owed. See, e.g., Fla. R. Civ. P. 1.560; Form 1.977.

The circuit court erred when it allowed McCuan to redact tax returns to the extent that they disclosed accounts held jointly with his wife. See Jim Appley’s, 526 So.2d at 179. The court also erred in permitting Klohn to redact his tax returns at all. He objected only to production of “joint returns” on the grounds that his wife’s assets were confidential, but his listed filing status on the returns was “single.” Moreover, the court orally ruled that if the returns contained no information about a spouse’s assets, the objection would be denied.

We reverse the order on Regions’ motion to compel and the supplementary order entered after the court’s in-camera review. We remand for further proceedings, and we direct the circuit court to require McCuan and Klohn to produce their tax returns to Regions. The appendix in a companion case, MDG Helmerich, LLC v. Regions Bank, 2D12-2658, suggests that Klohn is now married. If the debtors’ returns were jointly filed and they contain information about a spouse’s individual assets, the court may permit their redaction after an in-camera review. But McCuan and Klohn must submit documents that establish that the assets are indeed held by the spouses individually. If Klohn’s returns were filed when he was unmarried, the court shall require that they be produced unredacted.

Interests in Trusts

Regions requested production of documents from each individual debtor that related to “[a]ll trusts to which you are a grantor, trustee or beneficiary.” The debtors again filed identical responses:

Objection. This request is overbroad and neither relevant nor reasonably calculated to lead to the discovery of admissible evidence. Without waiving the aforementioned objection, there are no documents responsive to this request except insofar as the Defendant may be a trustee and those documents would not be relevant to this action and disclosing them would violate the confidentiality and privacy rights of a third person.

The court sustained the debtors’ objections to production based on this response. At the hearing, the court noted that if Regions suspects the debtors are receiving income from a trust or have transferred money to a trust, it could serve interrogatories under Florida Rule of Civil Procedure 1.340 or require the debtors to complete the fact information sheet in form 1.977. We agree.

We affirm the court’s ruling on the objections to trust information. But Regions is free to continue its quest to discover information about any trusts that may exist. We note that a debtor bears the burden of proving the validity of his objection to discovery, Carson v. City of Fort Lauderdale, 173 So.2d 743, 744 (Fla. 2d DCA 1965), and proving that any property discovered is exempt from collection, Cadle Co. v. G & G Assocs., 757 So.2d 1278, 1279 (Fla. 4th DCA 2000).

Affirmed in part, reversed in part, and remanded.

WALLACE and LaROSE, JJ., Concur.

      . See Fla. R.App. P. 9.130(a)(4); DeLeo v. Wachovia Bank, N.A., 946 So.2d 626, 627 n. 1 (Fla. 2d DCA 2007).

      . Regions supplemented our record with the documents examined in camera, under seal.


author: CRENSHAW, Judge. ALTENBERND, Judge,

text:
    ANGELO’S AGGREGATE MATERIALS, LTD., a Florida limited partnership, Appellant, v. PASCO COUNTY, Florida, a political subdivision of the State of Florida; and Debra M. Zampetti, in her capacity as zoning administrator, Appellees.
    No. 2D12-3112.
    District Court of Appeal of Florida, Second District.
    Aug. 14, 2013.

      Alan F. Wagner of Wagner, Vaughan & McLaughlin, P.A., Tampa; and Thomas G. Pelham, Tallahassee, for Appellant.
    Donald E. Hemke of Carlton Fields, P.A., Tampa; and Jeffrey N. Steinsnyder,. County Attorney, David A. Goldstein, Chief Assistant County Attorney, and W. Elizabeth Blair, Senior Assistant County Attorney, New Port Richey, for Appellees.
    Amy Taylor Petrick, West Palm Beach, for Amicus Curiae Florida Association of County Attorneys.
   CRENSHAW, Judge.

Angelo’s Aggregate Materials, Ltd. (Angelo’s) appeals the dismissal of its suit for declaratory relief against Pasco County and its zoning administrator, Debra Zam-petti (together the County). In the two-count complaint, Angelo’s sought a declaration of its vested rights under the prior land use regulation and a declaration that certain portions of the County’s Land Development Code (LDC) were unconstitutional. Because the circuit court erred in dismissing the complaint for failure to state a claim for relief and to exhaust administrative remedies based on county ordinances, we reverse.

Factual Background

Angelo’s requested a conditional use permit from Pasco County in order to build a landfill adjacent to another landfill Angelo’s operates. At the time of the application, the County’s comprehensive plan denominated the relevant future land use as “AG/R” with an “A-C zoning district,” which only required a conditional use permit for a landfill such as the one Angelo’s sought to construct. Angelo’s, based on communications with the County, also requested permits from the Florida Department of Environmental Protection. The Department required studies and filing fees of its own in addition to the resources Angelo’s expended in working with the County.

In 2009, the county attorney advised the Board of County Commissioners that county staff determined that a comprehensive plan future land use map amendment to a “P/SP” designation would be required for Angelo’s landfill. The prospect of an unexpected requirement for a comprehensive plan amendment upset Angelo’s expectations, as seeking such an amendment would require significantly more time and resources than a conditional use permit, and logically would extirpate Angelo’s investment in the permit. Subsequently, the County unanimously adopted the proposed changes over Angelo’s objections. The County then placed Angelo’s conditional use permit application on hold until there was a land use change to “P/SP.” The County has rejected Angelo’s appeals to the County placing the application “on hold.”

Angelo’s then brought a declaratory judgment action against Pasco County in circuit court in order to determine if Angelo’s had vested rights in having its application considered under the comprehensive plan in effect as of the time of the application for the conditional use permit. Relying on the LDC, the circuit court dismissed the count for “equitable estop-pel/vested rights” for Angelo’s failure to exhaust its administrative remedies. The circuit court dismissed Angelo’s claim that provisions of the LDC were unconstitutional for failing to state a cause of action. Angelo’s appeals, raising various constitutional challenges to the circuit court’s dismissal of its case.

“[Ajdhering ‘to the settled principle of constitutional law that courts should endeavor to implement the legislative intent of statutes and avoid constitutional issues,’ ” we need not discuss Angelo’s constitutional arguments in depth because our resolution of this dispute does not require it. State v. Boyd, 846 So.2d 458, 459-60 (Fla.2003) (quoting State v. Mozo, 655 So.2d 1115, 1117 (Fla.1995)). The cause of action before the circuit court was for declaratory relief pursuant to chapter 86, Florida Statutes. We note that the Declaratory Judgment Act specifically calls for its liberal construction, § 86.101, Fla. Stat. (2011), and dictates that the availability of another remedy does not preclude a declaratory judgment. § 86.111, Fla. Stat. Thus we are called upon to decide whether the circuit court could hear the case for a declaratory action.

Legal Framework

This court has previously addressed the standard of review on a motion to dismiss in an action for a declaratory judgment:

When ruling on a motion to dismiss for failure to state a cause of action, the trial court must accept the material allegations as true and is bound to a consideration of the allegations found within the four corners of the complaint. Thus, the question of whether a complaint states a cause of action is one of law and the standard of review is de novo.
A complaint for declaratory judgment should not be dismissed if the plaintiff established the existence of a justiciable controversy cognizable under the Declaratory Judgment Act, chapter 86, Florida Statutes (2007).

Murphy v. Bay Colony Prop. Owners Ass’n, 12 So.3d 924, 926 (Fla. 2d DCA 2009) (citations omitted). Specifically, the complaint must allege that

there is a bona fide dispute between the parties and that the moving party has a justiciable question as to the existence or non-existence of some right[ or] status, ... or as to some fact upon which the existence of such right[ or] status ... does or may de[p]end, that plaintiff is in doubt as to the right [or] status, ... and that there is a bona fide, actual, present need for the declaration.

Smith v. City of Fort Myers, 898 So.2d 1177, 1178 (Fla. 2d DCA 2005) (emphases added) (quoting Bell v. Associated Indeps., Inc., 143 So.2d 904, 908 (Fla. 2d DCA 1962)). Where a complaint for declaratory action meets these requirements it should not be dismissed for failure to state a cause of action. Id.; see also Murphy, 12 So.3d at 926.

In determining why this case is appropriate for declaratory relief, a historical account is instructive. The first supreme court case that fully considered the Declaratory Judgment Act states:

Viewed in its proper perspective, the ... Act is nothing more than a legislative attempt to extend procedural remedies to comprehend relief in cases where technical or social advances have tended to obscure or place in doubt one’s rights, immunities, status or privileges. It should be construed with this objective in view.... There is no reason whatever why the highway to justice should be strewn with hurdles and pitfalls that make one who secures it wonder if the “game is worth the candle.”

Ready v. Safeway Rock Co., 157 Fla. 27, 24 So.2d 808, 809 (1946). Justice Brown agreed:

I was impressed with the apparently almost unlimited scope of the [A]ct, and was reminded of the words of one of Shakespeare’s characters who said: “Give me a charter as wide as the wind, to blow on whom I please.” [sic] However, upon further study of the statute I became convinced of its usefulness if properly construed....

Id. at 810 (Brown, J., concurring specially). We determine that the complaint stated a facially sufficient claim for declaratory relief, and if that were the only question, it would end the matter. In this case, Angelo’s has a dispute with the County over which legal framework applies to its permit for a landfill. Angelo’s seeks a determination whether it has a vested right to proceed merely with a conditional use permit or whether the subsequent changes to the LDC, requiring a comprehensive plan land use amendment, apply. Without such a determination, Angelo’s must risk having made a significant investment in seeking the conditional use permit only to learn the expense was wasted by the need for a comprehensive plan amendment. For these reasons, and because the determination is a complex one, we conclude that this case is a quintessential one for declaratory relief.

The Ordinance Does Not Govern This Action

We must also determine whether the circuit court was bound to apply the County’s ordinance in this case. For the reasons that follow, we conclude it was not.

The ordinance governing vested rights determinations reads in pertinent part, “[t]he criteria and procedures set forth in this section are an administrative remedy that shall be exhausted: (a) pri- or to filing any claim or action against the county, for damages or injunctive relief .... ” Pasco County, Fla., Land Development Code § 109.1 (2011) (emphasis added). Angelo’s argues this provision conflicts with the circuit courts’ original, exclusive jurisdiction over cases in equity, pursuant to section 26.012(2)(c), Florida Statutes (2011), a general law. However, we construe the ordinance to apply only to damages and injunctions and not to declaratory actions, because of its plain language and because the ordinance must be construed in harmony with general law in order to preserve its constitutionality.

Municipal ordinances are subject to the same rules of construction as are state statutes. Rose v. Town of Hillsboro Beach, 216 So.2d 258 (Fla. 4th DCA 1968). Rose also stands for the substantive proposition that courts ... must give to a statute (or ordinance) the plain and ordinary meaning of the words employed by the legislative body (here the City Council).

Rinker Materials Corp. v. City of N. Miami, 286 So.2d 552, 553-54 (Fla.1973) (citation omitted). Noncharter counties, like charter counties, are endowed with broad home rule powers. See art. VIII, § 1(f), Fla. Const; § 125.011(1), Fla. Stat. (2011). However, the same provision of our constitution allowing for county home rule also circumscribes that home rule power by limiting the counties’ authority to enact ordinances to those that do not conflict with general law. Art. VIII, § 1(f), Fla. Const.; § 125.01(1)00, Fla. Stat. (“The ... county shall have the power to carry on county government. To the extent not inconsistent with general or special law, this power includes, but is not restricted to: ... [e]stablish[ing], coordinating], and enforcing] zoning .... ” (emphasis added)). With this limitation in mind, we hold that when construing a county ordinance, we must do so in such a way so as not to conflict with general law in order to preserve the ordinance. See Fla. Dep’t of Revenue v. City of Gainesville, 918 So.2d 250, 256 (Fla.2005) (applying the same rationale to a statute).

To the extent the ordinance attempts to prevent a circuit court from granting relief attending its declaratory judgment, the ordinance would conflict with various general laws, rendering it unconstitutional. See Shands Teaching Hosp. & Clinics, Inc. v. Mercury Ins. Co., 97 So.3d 204, 211 (Fla. 2012). Section 26.012, Florida Statutes, vests exclusive, original jurisdiction of both actions at law (not cognizable in county courts) and cases in equity in the circuit courts. § 26.012(2)(a), (c), Fla. Stat.; Haueter-Herranz v. Romero, 975 So.2d 511, 514 (Fla. 2d DCA 2008) (discussing the amount-in-controversy element of circuit courts’ law jurisdiction); Terex Trailer Corp. v. McIlwain, 579 So.2d 237, 241 (Fla. 1st DCA 1991) (discussing circuit courts’ equity jurisdiction). And of course the Declaratory Judgment Act itself confers jurisdiction in the circuit court which the County cannot contravene. See § 86.011, Fla. Stat.; see also Dep’t of Revenue v. Univ. Square, Inc., 336 So.2d 371 (citing § 26.012, Fla. Stat., and stating “circuit courts retain jurisdiction to determine ... assessments by way of declaratory judgment actions”).

Therefore, in order to avoid a constitutional quandary, we construe the ordinance not to encompass declaratory relief under chapter 86. Angelo’s filed a claim for declaratory relief pursuant to section 86.011, and therefore the requirement for exhaustion of administrative remedies in the ordinance is inapplicable to this case.

Conclusion

We determine that the trial court erred by dismissing Angelo’s claim as barred by the ordinance’s administrative remedies exhaustion requirement. Accordingly, there was nothing preventing the court from exercising its power to issue a declaratory judgment.

Reversed and remanded.

WALLACE, J., Concurs.

ALTENBERND, J., Concurs specially.

ALTENBERND, Judge,

Specially concurring.

I agree that it may be useful to have the trial court fully consider the constitutionality of these local ordinances before this court considers the issue. But it should be clear that we are remanding this case to have the trial court resolve the constitutional issue that we decline to reach in this opinion.

The main substantive issue in this case, as alleged in the second amended complaint, is whether Angelo’s has a vested right to have its applications for conditional use permits for a sanitary landfill determined under the comprehensive plan and land development code in effect at the time its applications were filed. In count one of this complaint, Angelo’s alleges that Pasco County is equitably estopped from requiring Angelo’s to comply with changes in the comprehensive plan and land development code that substantially alter its rights.

It is undisputed that Angelo’s would be entitled to bring the action alleged in count one in circuit court in many counties in this state, including several in the Second District. However, Pasco County has enacted ordinances adopting amendments to the land development code that require persons in doubt as to their vested rights to seek an “administrative remedy.” As amended, the land development code designates the elected Board of County Commissioners to sit as a quasi-judicial board to determine whether a landowner like Angelo’s has vested rights. According to the amendments, the Board’s written order can be appealed only to the local circuit court, and that court is restricted to reviewing the order as if the proceeding were a “firsttier certiorari” proceeding.

Count two of the second amended complaint seeks a declaration that these provisions of the county land development code are unconstitutional for several reasons. It should be obvious that the primary argument is that the amendments to the county ordinances conflict with the proper constitutional jurisdiction of the courts under article V of the Florida Constitution.

Pasco County moved to dismiss the second amended complaint. As to count one, it argued that the circuit court lacked subject matter jurisdiction because Angelo’s had not exhausted the above-described administrative remedy. As to count two, in a somewhat circular argument, it claimed that courts have consistently recognized the need to exhaust administrative remedies and that there is no need to examine the constitutionality of this procedure.

The order on appeal dismissed count one because Angelo’s had not exhausted its administrative remedies and dismissed count two for failure to state a cause of action. In other words, as to count one the circuit court enforced the amendments that Angelo’s sought to declare unconstitutional in count two. I agree with the majority that the circuit court erred in explaining that it was dismissing count two for failure to state a cause of action.

Our reversal will allow the parties to present these difficult constitutional issues to the circuit court in a thorough and orderly fashion. Hopefully, the circuit court will prepare an order addressing all of the constitutional theories. It seems obvious that this court will only be a way station on the trip to the supreme court to resolve these issues that affect one or more classes of constitutional officers.

      . The background is taken from the second amended complaint, and we construe the facts in the light most favorable to Angelo's as the nonmovant. See Smith v. City of Fort Myers, 898 So.2d 1177, 1178 (Fla. 2d DCA 2005).

      . We note that the County’s Land Development Code was significantly revised effective January 1, 2012. The record does not reflect the relationship, if any, between the rewrite and the County staff’s determination regarding the "P/SP” designation.

      . We observe that, in Florida, "equitable es-toppel is a defensive doctrine rather than a cause of action.” Meyer v. Meyer, 25 So.3d 39, 43 (Fla. 2d DCA 2009) (quoting Agency for Health Care Admin. v. MIED, Inc., 869 So.2d 13, 20 (Fla. 1st DCA 2004)).

        .See generally ch. 86, Fla. Stat. (2011). The law creating the Act only refers to the Act as such in its preamble, and there is therefore no reference to the "Declaratory Judgment Act” in the Florida statutes. Ch. 21820, Laws of Fla. (1943).

      . The Act has not since been amended.

      . A general law is one that “operates universally throughout the state, uniformly upon subjects as they may exist throughout the state, or uniformly within a permissible classification." Dep't of Bus. Regulation v. Classic Mile, Inc., 541 So.2d 1155, 1157 (Fla.1989). A special law, in Florida, includes local laws. Art. X, § 12(g), Fla. Const. A special law "is one relating to, or designed to operate upon, particular persons or things ... [A] local law is one relating to, or designed to operate only in, a specifically indicated part of the State....” Classic Mile, 541 So.2d at 1157 (quoting State ex rel. Landis v. Harris, 120 Fla. 555, 163 So. 237, 240 (1934)).

      . The fact that Pasco County is a noncharter county rather than a charter county does not affect this case. The constitution makes no distinction between charter and noncharter counties’ powers regarding general laws, only special laws. Compare art. VIII, § 1(f), Fla. Const., with art. VIII § 1(g), Fla. Const.

      . Under section 86.011, the circuit courts are vested with jurisdiction over declaratory judgments, but it is concurrent with the county courts' jurisdiction “within their respective jurisdictional amounts.”

      . The filing fee for this proceeding appears to be $1500, an amount significantly higher than the filing fee in circuit court.

      . If any district court has ruled on these constitutional issues, the parties have not cited to that case.


text:
    MDG HELMERICH, LLC, MDG Capital Corporation, W. Patrick McCuan, and William L. Klohn, Appellants/Cross-Appellees, v. REGIONS BANK, as successor by merger to AmSouth Bank, Appellee/Cross-Appellant.
    No. 2D12-2658.
    District Court of Appeal of Florida, Second District.
    Aug. 14, 2013.

      Jon D. Parrish and Kirt R. Posthuma of Parrish, Lawhon & Yarnelí, P.A., Naples, for Appellants/Cross-Appellees.
    Cathy S. Reiman and Christopher D. Donovan of Roetzel & Andress, LPA, Naples, for Appellee/Cross-Appellant.
   NORTHCUTT, Judge.

This appeal raises postjudgment discovery issues similar to those we addressed in a companion case, Regions Bank v. MDG Frank Helmerich, LLC, 2D12-2427 (Fla. 2d DCA Aug. 14, 2013). While this case involves a different commercial loan, the facts are similar: Regions Bank’s predecessor lent money to MDG Frank Helme-rich, LLC, and the loan was guaranteed by W. Patrick McCuan and William M. Klohn. After the borrower and the guarantors defaulted, Regions obtained a judgment against them. Regions then sought discovery of the guarantors’ assets in aid of execution.

We affirm the circuit court’s order on the debtors’ objections to the bank’s notice of production from non-parties, with one exception. The order denied discovery of some matters based on the other circuit court judge’s order in the companion case. We reversed that order in part in Regions Bank, 2D12-2427. We also reverse the order in this case to the extent that it was grounded on the other judge’s order. We remand for further proceedings consistent with our opinion in the companion case.

Affirmed in part, reversed in part, and remanded.

WALLACE and LaROSE, JJ., Concur.


author: LaROSE, Judge.

text:
    Ghassan MANSOUR, Appellant, v. Dalal Helmi MANSOUR, Appellee.
    No. 2D12-2664.
    District Court of Appeal of Florida, Second District.
    Aug. 14, 2013.

      Paul S. Maney of Maney, Damsker, Jones & Kuhlman, P.A., Tampa, for Appellant.
    No appearance for Appellee.
   LaROSE, Judge.

Ghassan Mansour appeals the trial court’s order, based on a magistrate’s report and recommendation, holding him in indirect civil contempt for failing to pay substantial child support arrearages to Da-lai Helmi Mansour, his former wife. The trial court failed to find that Mr. Mansour had notice of his former wife’s motion and of the hearing date. See Fla. Fam. L.R.P. 12.615(d)(2). Additionally, the record does not contain competent, substantial evidence to support the trial court’s finding that Mr. Mansour had the present ability to pay a $25,000 purge amount. We must reverse and remand for further proceedings.

Florida Family Law Rule of Procedure 12.615 provides, in pertinent part, as follows:

(c) Hearing. In any civil contempt hearing, after the court makes an express finding that the alleged contemnor had notice of the motion and hearing:
(1) the court shall determine whether the movant has established that a prior order directing payment of support was entered and that the alleged contemnor has failed to pay all or part of the support set forth in the prior order; and
(2) if the court finds the movant has established all of the requirements in subdivision (c)(1) of this rule, the court shall,
(A) if the alleged contemnor is present, determine whether the alleged contem-nor had the present ability to pay support and willfully failed to pay such support.
(d) Order and Sanctions. After hearing the testimony and evidence presented, the court shall enter a written order granting or denying the motion for contempt.
(e) Purge. If the court orders incarceration, a coercive fine, or any other coercive sanction for failure to comply with a prior support order, the court shall set conditions for purge of the contempt, based on the contemnor’s present ability to comply.

At the hearing on the contempt motion, all agreed that Mr. Mansour did not receive proper notice. Nevertheless, the trial court proceeded and found Mr. Mansour in indirect civil contempt. It also set a purge amount without imposing a coercive sanction that the purge would remove. The trial court ordered Mr. Mans-our to pay $25,000 within four weeks. It made no finding as to notice, either orally or in the written order, as rule 12.615(c) requires. This was error. See Dileo v. Dileo, 939 So.2d 181, 184 (Fla. 5th DCA 2006).

The trial court also erred in requiring Mr. Mansour to pay a purge amount without a sufficient evidentiary basis to demonstrate his ability to comply. Mr. Mansour owned a roughly thirty-three percent interest in Park Edge Enterprises. The entity’s 2010 receipts were under five million dollars. Over Mr. Mansour’s objection, the trial court appears to have valued Mr. Mansour’s interest in the entity based on gross receipts.

Gross receipts, however, are an insufficient basis for valuation; the trial court must determine the value of corporate stock. See Buchanan v. Buchanan, 932 So.2d 270, 270-71 (Fla. 2d DCA 2005) (reversing contempt order for lack of competent, substantial evidence of ability to pay where corporate tax return was only evidence of value of corporation). “The trial court is bound by the general master’s factual findings unless they are not supported by competent, substantial evidence or are clearly erroneous.” Carls v. Carls, 890 So.2d 1135, 1138 (Fla. 2d DCA 2004) (citing Garcia v. Garcia, 743 So.2d 1225, 1226 (Fla. 4th DCA 1999)); see also Thornton v. Byrnes, 537 So.2d 1088, 1089 (Fla. 3d DCA 1989) (citing Bragassa v. Bragassa, 505 So.2d 556 (Fla. 3d DCA 1987)). The record before us does not contain competent evidence to support the general master’s valuation of the business.

Accordingly, we reverse the contempt order and remand for proceedings consistent with this opinion and upon proper notice.

Reversed and remanded.

DAVIS, C.J., and CASANUEVA, J., Concur.