author: PALMER, J.

text:
    FORD MOTOR COMPANY, Appellant, v. Peggy T. STIMPSON and Ralph M. Stimpson, Appellees.
    No. 5D11-2787.
    District Court of Appeal of Florida, Fifth District.
    April 19, 2013.
    Rehearing and Rehearing En Banc Denied June 21, 2013.

      Wendy F. Lumish, Alina Alonso Rodriguez and David L. Luck of Carlton Fields, P.A., Miami, and Peter D. Webster of Carlton Fields, P.A., Tallahassee, for Appellant.
    Angela C. Flowers of Kubicki Draper, Ocala, and Erika Z. Jones of Mayer Brown LLP, Washington, D.C., for Alliance of Automobile Manufacturers, Inc., Amicus Curiae for Appellant.
    Roy D. Wasson of Wasson & Associates, Chartered, Miami, Roy L. Glass of Law Offices of Roy L. Glass, P.A., St. Peters-burg, Thomas J. Murray and Molly S. O’Neill of Sandusky, OH, and Leon M. Boyajan II, Inverness, for Appellees.
    Philip M. Burlington of Burlington & Rockenbach, P.A., West Palm Beach, for Florida Justice Association, Amicus Curiae for Appellees.
   PALMER, J.

Ford Motor Company (Ford) appeals the order entered by the trial court granting Peggy and Ralph Stimpson various forms of post-judgment relief. We reverse and remand for reinstatement of the judgment.

In January 2004, Peggy and Ralph Stimpson filed a products liability lawsuit against Ford based on an October 2008 automobile accident during which the Stimpsons’ 1991 Ford Aerostar van allegedly suddenly accelerated from a standstill position. Peggy Stimpson was seriously injured in the accident. The Stimpsons’ theory of liability was that their van’s cruise control system was defectively designed/manufactured because (1) the system was susceptible to allowing electromagnetic interference (EMI) to cause a malfunction that would unexpectedly open the throttle without driver input (pressure on the gas pedal), causing sudden acceleration (SA) from a standstill position, and (2) Ford was aware of, but did nothing to address, the defect. The foundation for the Stimpsons’ claim was the theory that the root cause of SA is the interaction between electronics in the engine and in the cruise control system. Notably, in order to overcome Florida’s products liability statute of repose, the Stimpsons sought to invoke the statutory provision which tolls the repose period for any time during which the manufacturer actively conceals the defect.

The Stimpsons filed a pre-trial motion seeking to strike Ford’s answer and affirmative defenses. The motion alleged that Ford committed fraud on the court by concealing, from both government regulators and the public, its knowledge that its vehicles could suddenly accelerate, and by promoting the erroneous defense theory that the instant accident was caused by Mr. Stimpson’s pedal misapplication (stepping on the gas pedal instead of the brake pedal). The trial court reserved ruling on the motion.

The matter proceeded to a four-week trial. The jury returned a special verdict in favor of Ford, finding that (1) Ford did not place the 1991 Ford Aerostar on the market with a defect that was the legal cause of Peggy Stimpson’s injury, and (2) there was no negligence on the part of Ford that was a legal cause of Peggy Stimpson’s injury. The trial court entered judgment on the verdict.

The Stimpsons filed motions seeking alternative forms of post-judgment relief, including rule 1.540(b)(8) relief from judgment and a new trial. They sought relief based primarily on the theory that Ford committed fraud on the court by presenting its pedal misapplication defense because Ford knew, since the early 1980s, that SA was caused by EMI. Ford responded there could be no finding of fraud on the court because all of the evidence regarding the Stimpsons’ concealment theory was presented to the jury on the statute of repose issue, and because Mr. Stimpson testified at trial that he may have touched the gas pedal during the alleged SA incident.

The trial court conducted extensive post-judgment hearings. The court thereafter granted the Stimpsons rule 1.540(b)(3) relief based on its finding that Ford committed fraud on the court. The court struck Ford’s answer and affirmative defenses, entered judgment on liability in favor of the Stimpsons, and ordered a trial on the issue of damages. The court also entered an alternative ruling conditionally granting the Stimpsons a new trial based upon findings both of fundamental error and that the jury’s verdict was against the manifest weight of the evidence. Ford challenges these rulings.

Ford first seeks reversal of the trial court’s grant of rule 1.540(b)(3) relief, arguing that the court erred in concluding that Ford committed fraud on the court during the instant proceedings. We agree.

A trial court’s decision concerning whether to impose a sanction against a party for committing fraud on the court “is subject to review under the abuse of discretion standard.” Ramey v. Haverty Furniture Cos., 993 So.2d 1014, 1018 (Fla. 2d DCA 2008). Accord Suarez v. Benihana Nat’l of Fla. Corp., 88 So.3d 349, 352 (Fla. 3d DCA 2012).

Fraud on the court is “an egregious offense against the integrity of the judicial system.” Wells Fargo Bank, N.A. v. Reeves, 92 So.3d 249, 252 (Fla. 1st DCA 2012).

Fraud on the court occurs where “it can be demonstrated, clearly and convincingly, that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate a matter by improperly influencing the trier of fact or unfairly hampering the presentation of the opposing party’s claim or defense.” Cox v. Burke, 706 So.2d 43, 46 (Fla. 5th DCA 1998).

Robinson v. Weiland, 988 So.2d 1110, 1111 n. 1 (Fla. 5th DCA 2008). Accord Andrews v. Palmas De Majorca Condo., 898 So.2d 1066, 1069 (Fla. 5th DCA 2005).

In Parker v. Parker, 950 So.2d 388, 392 (Fla.2007), the Florida Supreme Court discussed fraud as a basis for relief from judgment and used the terms “fraud on the court” and “extrinsic fraud” interchangeably. The court distinguished extrinsic fraud from intrinsic fraud, quoting from its opinion in DeClaire v. Yohanan, 458 So.2d 375, 377 (Fla.1984):
In essence, extrinsic fraud is conduct which prevents a party from trying an issue before the court, and the prevention itself becomes a collateral issue to the cause; whereas intrinsic fraud is the presentation of misleading information on an issue before the court that was tried or could have been tried.
950 So.2d at 391-92. DeClaire explained that only what was defined as “extrinsic fraud” could be considered “fraud on the court.”

Coleman (Parent) Holdings, Inc. v. Morgan Stanley & Co., 20 So.3d 952, 957-958 (Fla. 4th DCA 2009).

The trial court’s order stated four grounds to support its conclusion that Ford committed fraud on the court. We will address each ground separately.

The trial court first found that Ford committed fraud on the court by unlawfully destroying evidence indicating that there was a defect in Ford’s cruise control system. The court stated:

Ford deemed its Service Investigation Reports relating to sudden acceleration to be unrelated to safety, and thus destroyed them within one year after they were created. However, those reports were patently relevant to safety and thus required by federal law to be kept for five years. Because Ford unlawfully disposed of those documents, numerous engineering reports identifying the cruise control electronics as the cause of sudden acceleration were concealed from [the National Highway Traffic Safety Administration].

The record does not support this ruling.

The Stimpsons presented evidence suggesting that, during the late 1980s through 2002, Ford unlawfully disposed of its Service Investigation Reports (SIRs) by failing to retain them for five years. However, there was no evidence presented, either at trial or during post-judgment proceedings, showing that the SIRs contained engineering reports identifying a defect in the cruise control system as being the cause of SA, nor any other evidence to support the trial court’s conclusion that, because of Ford’s alleged unlawful destruction of SIRs, “numerous engineering reports identifying the cruise control electronics as the cause of sudden acceleration were concealed from NHTSA.” Accordingly, the trial court abused its discretion by finding that Ford committed fraud on the court in its handling of the SIRs. Additionally, even if Ford did improperly dispose of its SIRs from the 1980s through 2002, such action would not constitute fraud on the court in this matter because, at the time of Ford’s alleged improper action, the Stimpsons’ accident had not yet taken place, this lawsuit had not yet been filed, there was no matter pending between the parties, and there was no evidence showing that the instant action was foreseeable by Ford. As such, there was no proof that Ford’s handling of its SIRs was calculated to interfere with the proper adjudication of this matter. See generally Palmas Y Bambu, S.A. v. E.I. Dupont De Nemours & Co., 881 So.2d 565, 579 n. 11 (Fla. 3d DCA 2004) (listing cases where a duty to preserve evidence is said to arise once a party knows of litigation or potential for litigation). See also Osmulski v. Oldsmar Fine Wine, Inc., 93 So.3d 389 (Fla. 2d DCA 2012); Am. Hospitality Mgmt. Co. of Minn. v. Hettiger, 904 So.2d 547 (Fla. 4th DCA 2005).

The trial court next concluded that Ford committed fraud on the court by making false representations to the National Highway Traffic Safety Administration (NHTSA) regarding EMI’s ability to cause SA. The court wrote:

Ford represented to NHTSA that it had identified no components that could cause sudden acceleration; that there were no design changes in its throttle control system that were correlated with sudden acceleration; and that if sudden acceleration were caused by a design failure, it would leave physical evidence of multiple component failures. These claims were false and are contradicted by the SIRs, the Updegrove study, and the engineering reports commissioned by Ford’s Technical Affairs Committee. Accordingly, Ford knew that NHTSA’s 1989 “Examination of Sudden Acceleration” was predicated upon false information. Ford’s copious use of that report throughout the trial was likewise misleading and fraudulent.

This finding is also not supported by the record.

Neither the SIRs, nor the Updegrove study, nor Ford’s engineering reports expressly contradicted Ford’s representations to NHTSA. Compare Wenwei Sun v. Aviles, 53 So.3d 1075 (Fla. 5th DCA 2010) (holding that actions of plaintiffs in repeatedly lying, over the course of six years, as to motorist’s employment and ability to perform even the most basic functions of daily life warranted dismissal of their personal injury action for perpetrating fraud on the court. Additionally, the trial court abused its discretion in finding that Ford committed fraud on the court by using NHTSA’s 1989 SA report during trial because any improper use would have been intrinsic, not extrinsic, fraud. Coleman. Moreover, even if Ford did make false representations to NHTSA, those representations occurred more than 10 years before the Stimpsons’ accident; therefore, they did not constitute fraud on the court in this case because there was no showing that such conduct was calculated to interfere with the proper adjudication of this lawsuit. Osmulski; Am. Hospitality; Palmas.

The trial court also concluded that Ford committed fraud on the court by cross-examining the Stimpsons’ expert, Dr. William Berg, about his exemplar testing. The court wrote:

Notwithstanding that Ford had moved in limine to prevent plaintiffs’ expert Dr. Berg from discussing his exemplar testing, it proceeded to inquire about those tests on cross-examination and implied to the jury that Dr. Berg’s findings were unreliable because the tests had not been videotaped.

Again, this finding is not supported by the evidence.

Two exemplar testing episodes were undertaken by the Stimpsons: the first was pre-trial, and the second took place during trial. The testing was performed for the purpose of explaining how tire marks, like those found at the accident scene, could be created. Ford did not receive prior notice of either episode. The first episode was not recorded by the Stimpsons; therefore, Ford filed a pretrial motion in limine seeking to prohibit the Stimpsons’ expert, Dr. Berg, from testifying about the testing. However, in lieu of having the trial court rule on the motion, counsel for the Stimpsons agreed to refrain from discussing the testing during Dr. Berg’s direct examination, with the understanding that if Ford cross-examined Dr. Berg about the testing, then the Stimpsons’ counsel could question him about it on re-direct. Cross-examination of Dr. Berg did include questioning about the first testing episode and, thereafter, re-direct (as well as rebuttal) testimony was submitted. As such, Ford’s cross-examination of Dr. Berg about the first episode was not improper because the cross-examination took place as contemplated by the parties. Accordingly, this cross-examination did not constitute fraud on the court because there was no showing of any unconscionable scheme calculated by Ford to interfere with the judicial system’s ability to adjudicate this matter. Cox. Also, any improper cross-examination of Dr. Berg would have constituted intrinsic, not extrinsic, fraud. Coleman.

The trial court’s final finding of fraud on the court was based on its conclusion that Ford’s reconstruction experts presented false and misleading testimony. The court’s order states:

Through its reconstruction experts Joe Kent and Karl Stopschinski, Ford presented false and misleading testimony by telling the jury that the only way the tire marks could be made would be if Mr. Stimpson had mistakenly applied the accelerator full throttle before gear engagement.

The record does not contain evidence supporting this finding either.

At trial, the focus of Kent’s and Stop-schinski’s opinion testimony was that, based on their accident reconstruction, which included consideration of the fact that Mr. Stimpson claimed to have been braking during the entire SA incident, tire marks could not have been created at the scene of the Stimpsons’ accident because tire marks can only occur at 100% throttle with no braking. Notably, Dr. Berg agreed that there could be no tire marks if, as Mr. Stimpson claimed, he was applying the brakes. As such, Ford’s experts did not present false and misleading testimony because they did not testify that the only way tire marks could be created was by pedal misapplication, but rather, they testified that tire marks could not have been created in this case if Mr. Stimpson were braking. Accordingly, the court abused its discretion in finding that Ford committed fraud on the court because Kent and Stopschinski did not present testimony which improperly influenced the trier of fact. Cox. Compare Hoegh v. Estate of Johnson, 985 So.2d 1185, 1186 (Fla. 5th DCA 2008) (recognizing that appellant’s act of knowingly seeking to have a forged will admitted to probate constituted egregious conduct and an attempt to perpetrate a fraud on the court). Also, even if there had been improper conduct by Ford in presenting their expert’s testimony, such conduct would have constituted intrinsic, not extrinsic, fraud. Coleman.

Ford also seeks reversal of the trial court’s conditional grant of a new trial. The court granted the Stimpsons a new trial on two alternative grounds: (1) fundamental error, and (2) the verdict was against the manifest weight of the evidence. Each ground will be addressed separately.

A trial court’s grant of a new trial is reviewed for an abuse of discretion. Allstate Ins. Co. v. Daugherty, 638 So.2d 612, 613 (Fla. 5th DCA 1994).

First, as to the court’s finding of fundamental error, in Fravel v. Haughey, 727 So.2d 1033 (Fla. 5th DCA 1999), our court explained the concept of fundamental error as it applies to civil lawsuits. Citing Hagan v. Sun Bank of Mid-Florida, N.A., 666 So.2d 580, 586 (Fla. 2d DCA 1996), our court explained that the error must be “so extreme that it could not be corrected by an instruction if an objection had been lodged, and that it so damaged the fairness of the trial that the public’s interest in our system of justice justifies a new trial even when no lawyer took the steps necessary to give a party the right to demand a new trial.” 727 So.2d at 1037 n. 4.

The trial court’s first finding of fundamental error was based on the circumstances surrounding the Stimpsons’ tire-mark exemplar testing. The trial court concluded that Ford’s cross-examination of Dr. Berg regarding his exemplar testing, coupled with Ford’s comments in closing argument regarding the testing, constituted fundamental error:

After filing a motion in limine to preclude Dr. Berg’s exemplar testing, plaintiff agreed not to elicit that testimony and adhered to that agreement. Nonetheless, Ford, reversing its position, drew out the testing on cross-examination and impeached Dr. Berg by implying that the reason his testing was not videotaped was that plaintiffs wanted to protect themselves if the results didn’t turn out the way they wanted and, further, that they had acted improperly by not inviting Ford to observe the tests. .... This theme was carried over into closing argument, where Ford’s counsel suggested that it was plaintiffs’ counsel who had committed fraud and concealment and that Ford’s counsel was “really upset about that,” injecting his personal beliefs for the assessment of the jury. It is reasonable to conclude that the jury went along with Ford’s counsel’s exhortation to be angry with plaintiffs’ counsel and Dr. Berg for committing these allegedly fraudulent acts. This misconduct sullied the entire proceedings and deprived plaintiffs of a fair trial and constitutes fundamental error.

We concluded earlier that Ford’s cross-examination of Dr. Berg concerning the first testing episode was not improper. Through direct and cross-examination, the jury was made aware that Dr. Berg had repeated his exemplar testing during the course of the trial. Thus, counsel for Ford was entitled to question Dr. Berg concerning the circumstances surrounding the second testing. Furthermore, the court’s allowance of Ford’s closing argument relating to the exemplar testing was not error, because all of Ford’s statements referred to matters and inferences created by the evidence during trial. As such, the court abused its discretion by granting a new trial on the basis of Ford’s handling of Dr. Berg’s exemplar testing.

The trial court also found that fundamental error occurred during trial because Ford improperly impugned the integrity of opposing counsel. The court wrote:

Ford’s cross-examination of Dr. Berg and its closing argument were tantamount to accusing plaintiffs’ counsel of orchestrating a conspiracy between plaintiffs and their expert in an attempt to trick the jury, hide evidence, and perpetrate a fraud on the court. This devastated any chance plaintiffs might have had to secure a fair trial in front of a jury who had been told not to trust plaintiffs’ counsel.

The court abused its discretion in so ruling because, as discussed above, the cross-examination and closing argument submitted by Ford’s counsel relating to Dr. Berg’s exemplar testing were proper since they were made in direct response to what occurred during trial, in front of the jury. Without any objection from the Stimpsons, the jury was made aware that Dr. Berg’s first exemplar testing was not documented, and that he performed his second exemplar testing during the trial so that the testing could be videotaped. The jury was also told that the second testing was done by Dr. Berg on the Stimpsons’ request and unbeknownst to Ford or the court.

The trial court further concluded that a new trial was warranted because Ford presented fraudulent accident reconstruction evidence through its experts. The court wrote:

Ford’s reconstruction expert Joe Kent told the jury that the only way the tire marks in the Stimpsons’ carport could have been made was by Mr. Stimpson depressing the accelerator pedal to the floor, full throttle, before the car was placed into drive gear. Ford’s other expert Karl Stopschinski likewise told the jury that the only way he was able to create tire marks during his exemplar testing was through the same type of pedal error. However, Mr. Stopschinski admitted during the post-trial hearing that he was aware all along that tire marks could also be made by a cruise control malfunction, as posited by the plaintiffs. Ford knew Mr. Kent’s testimony was untrue and it was therefore fraudulent and misleading for Ford to have represented to the jury that a pedal error by Mr. Stimpson was the only way the tire marks could have been created.

The evidence of record does not support this ruling.

The focus of Ford’s expert accident reconstruction testimony was that tire marks cannot be created if the driver is braking. Both Kent and Stopschinski based then-accident reconstruction theories on the evidence relating to the instant accident, including Mr. Stimpson’s claim that he was putting pressure on the brake the entire time the SA incident was occurring. Both Kent and Stopschinski opined that, instead of pressing the brake, Mr. Stimpson was actually pressing the accelerator pedal and, therefore, the tire marks were created. On this record, the trial court abused its discretion in granting a new trial based on Ford’s accident reconstruction evidence, because Kent’s and Stopschinski’s trial testimony addressed not the general issue of how tire marks can be created, but the specific issue of how tire marks were created during the Stimpsons’ accident.

Alternatively, the trial court granted the Stimpsons a new trial based on its conclusion that the jury’s verdict was against the manifest weight of the evidence. A trial court’s decision to grant a new trial on the ground that the verdict is contrary to the manifest weight of the evidence is reviewed for an abuse of discretion. Corbett v. Wilson, 48 So.3d 131, 138 (Fla. 5th DCA 2010).

The trial court held:

The verdict finding no causal defect in the Aerostar’s cruise control system and no causal negligence on the part of Ford was against the manifest weight of the evidence.
The proofs introduced at trial include various patents owned by Ford showing that electronic malfunctions in the cruise control system can cause sudden, unintended acceleration, in addition to reports from Ford’s engineers, including SIRs and CQIS reports, diagnosing sudden acceleration as a problem with the cruise control system. Ford’s Ishikawa engineering diagram likewise shows that EMI is a cause of sudden unintended acceleration.
Ford offered no evidence to contradict those admissions. The only evidence it offered was the testimony of its two reconstruction experts, who opined that the Stimpson accident could have been caused only by pedal error. However, as noted above, that testimony was misleading in that Ford was well aware at the time it elicited that testimony that a cruise control malfunction could also cause the tire marks.
The Stimpsons proved, by substantial factual and legal support, that Ford concealed the defect of sudden unexpected full throttle acceleration caused by electronic interference in the 1991 Aerostar van. This threshold finding underpins the unique foundation of this case and the conclusions of law.
Accordingly, the only reasonable inference from the evidence is that Ford’s electronic cruise control system was negligently designed in that Ford knew or should have known that the system was susceptible to sudden unintended throttle opening, and likewise that there was a design defect in the 1991 Aerostar that was a cause of the Stimpsons’ accident.

The trial court abused its discretion in so ruling.

Conflicting testimony was presented during the Stimpsons’ case-in-chief concerning whether there was a causal defect in the van’s cruise control system, as well as whether there was causal negligence by Ford. Also, there was conflicting evidence concerning Mr. Stimpson’s pedal misapplication. As such, the trial court erred in concluding that the only reasonable inference from the evidence was that the cruise control system was negligently designed. Additionally, “[a] jury’s verdict is generally not against the manifest weight of evidence if the record shows conflicting testimony from two or more witnesses.” Lindon v. Dalton Hotel Corp., 113 So.3d 985 (Fla. 5th DCA March 8, 2013).

REVERSED and REMANDED.

ORFINGER, C.J., and SAWAYA, J., concur.

      . See § 95.03l(2)(b), Fla. Stat. (2003).

      . See § 95.03l(2)(d), Fla. Stat. (2003).

      . Rule 1.540(b) of the Florida Rules of Civil Procedure sets forth several grounds upon which a court may relieve a party from a final judgment, and one such ground is fraud:
      Rule 1.540. Relief From Judgment, Decrees, or Orders
      (b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud; etc. On motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, decree, order, or proceeding for the following reasons: ... (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party....

      . We have jurisdiction to review this order pursuant to rule 9.130(a)(5) of the Florida Rules of Appellate Procedure because, although the order is non-final because it contemplates that a trial will be held on the issue of damages, the rule permits review of a non-final order entered on a rule 1.540 motion.


source: Caselaw Access Project

author: MORRIS, Judge.

license: Public Domain

text:
    Andrea STONE; The Unknown Spouse of Andrea Stone; any and all Unknown Parties Claiming by, Through, Under, and Against the Herein Named Individual Defendant(S) who are not known to be Dead or Alive, Whether said Unknown Parties may Claim an Interest as Spouses, Heirs, Devisees, Grantees, or other Claimants; Tenant # 1; Tenant # 2; Tenant # 3, and Tenant # 4 the names being fictitious to account for parties in possession, Appellants, v. BANKUNITED, Appellee.
    No. 2D12-980.
    District Court of Appeal of Florida, Second District.
    May 3, 2013.
    Rehearing Denied June 19, 2013.

      Jacqulyn Mack of The Mack Law Firm, Chtd., Englewood, for Appellant Andrea Stone.
    No appearance for remaining Appellants.
    Gary M. Carman of GrayRobinson, P.A., Miami, for Appellee.
   MORRIS, Judge.

Andrea Stone appeals a final judgment of foreclosure entered after a nonjury trial. We affirm the decision of the trial court and write to address Stone’s argument that BankUnited failed to establish that it had standing to foreclose on the mortgage when it filed the complaint.

On April 16, 2010, BankUnited, a national bank, filed a one-count complaint for mortgage foreclosure to collect $248,569.76 borrowed by Andrea Stone pursuant to a promissory note and secured by Stone’s homestead in Sarasota, Florida. As exhibits to the complaint, BankUnited attached a mortgage and a promissory note naming another entity as the lender, BankUnited, FSB, a federal savings bank. On September 17, 2010, BankUnited filed the original note and mortgage, and both of these documents named BankUnited, FSB, as the original lender. The subsequent filing of the original note and mortgage also included an “allonge to promissory note,” which contained a blank endorsement from Ban-kUnited, FSB. The allonge stated on its face that it “is affixed and becomes a permanent part of said Note.” In her answer and affirmative defenses and at trial, Stone challenged BankUnited’s standing to maintain the action. After a nonjury trial, the trial court entered a judgment of foreclosure in favor of BankUnited.

When reviewing a judgment rendered after a nonjury trial, the trial court’s findings of fact come to the appellate court with a presumption of correctness and will not be disturbed unless they are clearly erroneous. Taylor v. Richards, 971 So.2d 127, 129 (Fla. 4th DCA 2007) (citing Universal Beverages Holdings, Inc. v. Merkin, 902 So.2d 288, 290 (Fla. 3d DCA 2005)).

“The party seeking foreclosure must present evidence that it owns and holds the note and mortgage to establish standing to proceed with a foreclosure action.” Mazine v. M & I Bank, 67 So.3d 1129, 1131 (Fla. 1st DCA 2011) (citing Servedio v. U.S. Bank Nat’l Ass’n, 46 So.3d 1105 (Fla. 4th DCA 2010)). “Because a promissory note is a negotiable instrument and because a mortgage provides the security for the repayment of the note, the person having standing to foreclose a note secured by a mortgage may be either the holder of the note or a nonholder in possession of the note who has the rights of a holder.” Id. (citing § 673.3011, Fla. Stat. (2009)). A plaintiff may prove that it has standing to foreclose “through evidence of a valid assignment, proof of purchase of the debt, or evidence of an effective transfer.” BAC Funding Consortium Inc. ISAOA/ATIMA v. Jean-Jacques, 28 So.3d 936, 939 (Fla. 2d DCA 2010); see McLean v. JP Morgan Chase Nat’l Ass’n, 79 So.3d 170, 173 (Fla. 4th DCA 2012) (holding that plaintiff may demonstrate standing by submitting the note bearing a special endorsement in favor of the plaintiff or a blank endorsement, evidence of an assignment from the payee to the plaintiff, evidence of equitable transfer, or other evidence of ownership proving the plaintiffs status as the holder of the note).

On appeal, Stone argues that Ban-kUnited failed to prove that it owned the note at the inception of the case and that the allonge endorsed in blank did not cure the problem because the allonge was not dated. Stone relies on McLean, which held that “[wjhere the plaintiff contends that its standing to foreclose derives from an endorsement of the note, the plaintiff must show that the endorsement occurred prior to the inception of the lawsuit.” Id. at 174. We note that McLean was an appeal from a summary judgment of foreclosure and therefore turned on whether the documents filed with the court showed “•without genuine issue of material fact” that the plaintiff had standing to sue. Id. at 175. The court held that the plaintiffs documents did not demonstrate when the plaintiff became the owner and holder of the note, and the court noted that on remand, “[a]n evidentiary hearing may ... be required.” Id. at 174-75.

Here, an evidentiary hearing was held and BankUnited presented the testimony of BankUnited employee Patricia Fall-man. Fallman testified that she worked for the original lender, BankUnited, FSB, at the time that it was seized and placed into receivership by the FDIC on May 21, 2009. She remained an employee of the new BankUnited. By virtue of the receivership and pursuant to a purchase assumption agreement, the new BankUnited acquired all of the assets of BankUnited, FSB, including the note and mortgage in question. Fallman also testified that BankUnited collected payments on Stone’s loan after May 21, 2009, that Ban-kUnited only services loans that it owns, and that it serviced Stone’s loan. Therefore, BankUnited presented competent, substantial evidence that it owned the note and mortgage and thus had standing to foreclose. Stone argues that the al-longe indorsed in blank was invalid because it was not affixed to the original note, but this argument carries no weight in light of Fallman’s testimony demonstrating that BankUnited acquired ownership of the note and mortgage through the purchase assumption agreement.

Affirmed.

SILBERMAN, C.J., and NORTHCUTT, J., Concur.


author: SILBERMAN, Chief Judge.

text:
    Hilda GIRA, Appellant, v. Norma WOLFE and John Wolfe, individually and jointly, Appellees.
    No. 2D11-6465.
    District Court of Appeal of Florida, Second District.
    May 8, 2013.
    Rehearing Denied June 19, 2013.
    Raymond T. Elligett, Jr., of Buell & Elligett, P.A., Tampa, and Christopher N. Ligori of Christopher N. Ligori, P.A., Tampa, for Appellant.
    Richard A. Sherman, Sr., and James W. Sherman of Richard A. Sherman, P.A., Fort Lauderdale, and Manuel J. Alvarez and Kerry C. McGuinn, Jr., of Rywant, Alvarez, Jones, Russo & Guyton, P.A., Tampa, for Appellees.
   SILBERMAN, Chief Judge.

Hilda Gira appeals a final judgment in favor of defendants Norma and John Wolfe. The trial court entered judgment after granting the Wolfes’ motion to enforce settlement in Gira’s negligence action arising from an automobile accident. Because the parties did not reach a binding settlement, we reverse and remand for further proceedings.

On July 6, 2010, an automobile accident occurred in which Norma Wolfe was driving and struck Gira, a pedestrian, causing Gira severe injuries. The Wolfes were insured under a policy issued by Southern-Owners Insurance Company that included bodily injury coverage. Southern-Owners is a subsidiary of Auto-Owners Insurance Company. Gira’s claim against the Wolfes was assigned to Jeremy Moore, a claims representative employed by Auto-Owners.

In a letter to Moore dated July 14, 2010, Gira’s attorney requested certain information, including “all the statements, documentation, and all of the information required to be disclosed pursuant to Section 627.4137, Florida Statutes, in the manner and form as required by statute.” As discussed below, section 627.4137, Florida Statutes (2010), provides for the disclosure to a claimant of insurance information for the insured. In a letter dated July 20, 2010, Moore tendered the policy limits of $50,000 for Gira’s injury claim, enclosing a check for payment and a release. In a letter to Gira’s attorney dated August 5, 2010, Moore enclosed a “Disclosure of Insured Information” which indicated that the Southern-Owners’ policy provided $50,000 coverage for bodily injury. The disclosure form further stated that “[ojther insurance which may be available to the above named insured which is known to Southemr-Owners at this time is as follows.” The space for other insurance to be listed was left blank.

In a letter dated August 6, 2010, Gira’s attorney returned the $50,000 check and release to Moore. Counsel explained that he had not yet completed his investigation and that Gira was not physically in a position to consider settlement. In November 2010, Moore contacted Gira’s attorney and asked if he had completed his investigation and if Gira was in a position to settle.

Gira’s attorney sent a letter to Moore dated December 7, 2010, that made a formal offer to settle all claims for the bodily injury policy limits of $50,000. The letter further stated that

[t]he offer and relevant conditions are as follows: in order to verify that we are receiving all available coverage, Auto Owners must also forward all documents, statements and all information required to be disclosed pursuant to Section 627.4137 Florida Statutes, in the manner and form required by the statute. Compliance with all conditions, including delivery of Auto Owners’ fifty thousand dollar ($50,000) policy limits, must be received in my office within 21 days from the date of this letter.

The letter also requested $440 for personal property lost in the accident. Further, the letter advised that Auto-Owners’ release form was not in the form approved by The Florida Bar, and Gira’s attorney enclosed an approved release. The letter informed Moore that “all conditions mentioned herein are material and should not be construed otherwise.”

In response by letter dated December 13, 2010, Moore stated that Gira’s demand gave numerous conditions as part of the settlement. Moore sought clarification to avoid confusion, not to make a counteroffer. Moore stated that the proper carrier was Southern-Owners, not Auto-Owners. He also clarified that the insureds were Norma and John Wolfe and requested that John Wolfe’s name be added to the release. By letter dated December 17, 2010, Gira’s attorney enclosed a corrected release that included Norma and John Wolfe.

In a letter dated December 20, 2010, Moore enclosed checks for $50,000 and for $440. He indicated his agreement with the corrected release. Further, he stated, “Also,. per your request, enclosed is all information required to be disclosed pursuant to section 627.4137 of the Florida Statutes.” The disclosure of insurance information form again stated that “[o]ther insurance which may be available to the above named insured which is known to Southemr-Owners at this time is as follows.” Again, the area to list other policies was left blank.

On December 27, 2010, Gira’s attorney provided a further revised release form that included both Norma and John Wolfe and also added Southern-Owners, as Moore had requested. The release was not signed.

In a letter to Moore dated December 31, 2010, after the time to comply specified in the December 7 letter had expired, Gira’s attorney stated that

you have not fully complied with my previous demand letter regarding fulfilling the requirements of Florida Statute § 627.4137 otherwise known as Florida’s Insurance Disclosure Statute. Specifically, you have failed to provide me with a statement from the insured or the insured’s insurance agent stating the name and coverage of each known insurer [to] the claimant ... As you are aware, this disclosure is required under Florida’s Insurance Disclosure Statute and is crucial to determining if there is any other insurance that would be available to help pay for Ms. Gira’s substantial medical bills and other damages.

Gira’s attorney returned the settlement drafts and enclosed a courtesy copy of a complaint filed on behalf of Gira. The two-count complaint alleged negligence against Norma Wolfe in count I and dangerous instrumentality liability against John Wolfe in count II.

The Wolfes filed an answer and affirmative defenses that included the affirmative defense that Gira “made an offer of settlement which was accepted on behalf of the [Wolfes] prior to suit being filed and therefore there is an enforceable settlement agreement.” The Wolfes filed a motion to enforce settlement, and Gira filed a motion for partial summary judgment as to the settlement defense. After a hearing, the trial court rendered an order granting the Wolfes’ motion to enforce settlement. The trial court subsequently rendered a final judgment in favor of the Wolfes.

On appeal, Gira contends that the trial court erred in entering judgment for the Wolfes based on a settlement defense when they failed to comply with a material term of the settlement offer. Gira argues that she made the Wolfes’ disclosure of their insurance a material element of her settlement offer and that Southern-Owners’ statement that it knew of no other coverage did not satisfy the requirement that the Wolfes disclose coverage. Because the Wolfes did not provide all of the insurance disclosure information that was required by the terms of the offer, Gira asserts that the parties did not reach a settlement. We agree.

Gira’s settlement offer made it a condition that the insurer provide “all documents, statements and all information required to be disclosed pursuant to section 627.4137” and that the disclosure be “in the manner and form required by the statute.” The offer stated that all conditions stated in the offer were material. Section 627.4137(1) provides that a liability insurer shall provide a statement under oath setting forth certain information regarding each known policy of insurance within thirty days of a written request by a claimant. Section 627.4137(1) further provides as follows:

In addition, the insured, or her or his insurance agent, upon written request of the claimant or the claimant’s attorney, shall disclose the name and coverage of each known insurer to the claimant and shall forward such request for information as required by this subsection to all affected insurers. The insurer shall then supply the information required in this subsection to the claimant within 30 days of receipt of such request.

The disclosure Southern-Owners made as the insurer stated only what it knew about the Wolfes’ insurance and did not contain a representation from the Wolfes or their insurance agent. And as to other insurance, the disclosure form was left blank. We reject the Wolfes’ argument on appeal that they met all the conditions of settlement because Gira did not object to the insufficiency of the insurance disclosure until after the time to accept the settlement offer had passed.

Contract law governs the interpretation of settlement agreements. Schlosser v. Perez, 832 So.2d 179, 182 (Fla. 2d DCA 2002); Cheverie v. Geisser, 783 So.2d 1115, 1118 (Fla. 4th DCA 2001). “Although the law favors settlement agreements and their enforcement whenever possible, the evidence must clearly demonstrate that there was mutual agreement to the material settlement terms.” Cheverie, 783 So.2d at 1119. “‘The making of a contract depends not on the agreement of two minds in one intention but on the agreement of two sets of external signs.’ ” Id. (quoting Robbie v. City of Miami, 469 So.2d 1384, 1385 (Fla.1985)). Here, the required mutuality of assent did not exist regarding the material term of the insurance disclosure. See Spring Lake NC, LLC v. Holloway, 110 So.3d 916, 918 n. 1 (Fla. 2d DCA 2013) (acknowledging that the term “meeting of the minds” traditionally has been used to describe the formation of a contract but noting that “criticism has prompted courts to analyze contracts as requiring a ‘mutuality of assent,’ as a more objective concept”).

By enacting section 627.4137, the legislature has recognized the importance of a claimant’s access to the type of insurance information covered in the statute in order for a claimant to make settlement decisions. Cheverie, 783 So.2d at 1119 (determining that production of the policy affidavit required by section 627.4137 was essential to a settlement acceptance and not a mere “technicality” when the plaintiff had made repeated demands for the policy affidavit). This court has also determined that an insurance disclosure in accordance with section 627.4137 was an essential term of a settlement offer in Schlosser, 832 So.2d at 183.

Schlosser made a settlement offer to the insurer that requested “all the information required by ” section 627.4137. Id. at 180. The offer stated that acceptance would be “only by strict performance and not a promise to perform by you and/or your insureds.” Id. at 180-81. The managing general agent for the insurer disclosed information regarding the insurer’s policy with the defendant, Perez; however, no further disclosure or disclaimer was made, even after a second request for the information, regarding whether Perez had other policies of insurance. The essential term at issue was “the requirement that Perez or his insurer disclose the name and coverage of each of his insurers in compliance with section 627.4137.” Id. at 182.

This court determined that an express reference to a request for all information required by section 627.4137 constituted a requested disclosure of each of the defendant’s known insurers. Id. at 183. The statute permits the request for disclosure “to be made to ‘the insured, or her or his insurance agent.’ ” Id. (quoting section 627.4137(1)). This court recognized that even if Schlosser had not objected to the lack of complete disclosure, “the insurance disclosure is an essential term under Chev-erie. Because Perez failed to provide the disclosure, his acceptance was not identical to the essential terms of the offer.” Id. Therefore, without the acceptance of an essential term of the offer, there was no settlement. Id.

Here, Gira’s settlement offer contained in the letter of December 7, 2010, stated that a condition of the offer was the disclosure of all information required under section 627.4137. The letter further stated that all conditions were material. Section 627.4137(1) requires the insurer to provide information upon request regarding each known policy of insurance; it also requires the insured or the insurance agent to disclose each known insurer to the claimant. Although Southern-Owners disclosed information regarding its policy, it is undisputed that there was no disclosure from the Wolfes or their insurance agent about whether they had any additional coverage and no disclosure from Southern-Owners purporting to relay the Wolfes’ knowledge. Although Moore, as claims representative for Auto-Owners, may have had a subjective belief that he fulfilled the requirements of the offer, Gira was entitled to an acceptance of the offer that she made, including disclosure of all the information required by section 627.4137. That material term of the offer was not accepted, and the parties did not reach a settlement.

Therefore, we reverse the order granting the Wolfes’ motion to enforce settlement and the final judgment in favor of the Wolfes, and we remand for further proceedings.

Reversed and remanded.

NORTHCUTT and DAVIS, JJ„ Concur.


author: KELLY, Judge.

text:
    Claude DABBS, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-4761.
    District Court of Appeal of Florida, Second District.
    May 8, 2013.
    Rehearing Denied June 21, 2013.
   KELLY, Judge.

Affirmed without prejudice for Claude Dabbs to file an amended motion under Florida Rule of Criminal Procedure 3.800(a) properly attaching the sentencing transcript. See Williams v. State, 957 So.2d 600, 604 (Fla.2007).

DAVIS and SLEET, JJ„ Concur.


author: BLACK, Judge.

text:
    Shane L. WITTENBERG, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-4382.
    District Court of Appeal of Florida, Second District.
    May 8, 2013.
    Rehearing Denied June 20, 2013.

      Shane L. Wittenberg, pro se.
   BLACK, Judge.

Shane L. Wittenberg appeals the order summarily denying his motion for postcon-viction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the denial of all of the grounds of Witten-berg’s motion except ground two.

Wittenberg was convicted after a jury trial of capital sexual battery and lewd or lascivious molestation. In his rule 3.850 motion, he argued that trial counsel was ineffective for failing to properly move for judgment of acquittal. Indeed, the portion of the trial transcript Wittenberg attached to his motion shows that counsel made a legally insufficient boilerplate motion for judgment of acquittal. See Woods v. State, 733 So.2d 980, 984-85 (Fla.1999). However, in his rule 3.850 motion, Wittenberg failed to “state sufficient facts to show that ‘[he] may very well have prevailed on a more artfully presented motion for acquittal based upon the evidence he alleges was presented against him at trial.’ ” Neal v. State, 854 So.2d 666, 670 (Fla. 2d DCA 2003) (quoting Boykin v. State, 725 So.2d 1203, 1203 (Fla. 2d DCA 1999)). The post-conviction court abused its discretion when it failed to strike ground two and allow Wittenberg an opportunity to amend it. See Spera v. State, 971 So.2d 754, 761 (Fla.2007).

We affirm the order denying Witten-berg’s postconviction motion in all respects save with regard to ground two. We reverse and remand with directions to allow Wittenberg a reasonable amount of time in which to amend ground two.

CASANUEVA and SLEET, JJ., Concur.


author: PER CURIAM.

text:
    Phyllis BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-2168.
    District Court of Appeal of Florida, Fifth District.
    May 21, 2013.
    Rehearing Denied June 21, 2013.

      James S. Purdy, Public Defender, and Dee Ball, Assistant Public Defender, Day-tona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Delestre v. State, 103 So.3d 1026 (Fla. 5th DCA 2012).

GRIFFIN, PALMER and TORPY, JJ., concur.


author: LaROSE, Judge.

text:
    STATE of Florida, Appellant, v. Vincent STUART, Jr., Appellee.
    No. 2D12-1572.
    District Court of Appeal of Florida, Second District.
    May 22, 2013.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Christina Zuccaro, Assistant Attorney General, Tampa, for Appellant.
    Howard L. Dimmig, II, Public Defender, and Allyn M. Giambalvo, Assistant Public Defender, Bartow, for Appellee.
   LaROSE, Judge.

The State appeals an order dismissing charges of cocaine possession and sale against Vincent Stuart. See § 893.13(1)(a)(1), (6)(a), Fla. Stat. (2008). We review the order de novo, see Randles v. Moore, 780 So.2d 158, 159 (Fla. 2d DCA 2001), and reverse.

Background

Sometime in 2008, a confidential informant introduced undercover Detectives McKee and Regula to a man called “Scoo-ney.” Scooney sold crack cocaine to Detective McKee. Believing that Scooney’s real name was Eric Long, Detective McKee secured the crack cocaine in a container, marked the container with the name Eric Long, and sent the package to a laboratory for testing.

Later that day, Detective McKee viewed a photo of Eric Long and concluded that Long was not the person who sold him the cocaine. That evening, Scooney called Detective McKee to make a second sale. Detectives McKee, Regula, and Halstead met Scooney in a park, where Scooney sold Detective McKee $80 worth of crack cocaine. Still unsure of Scooney’s real name, the detectives placed this cocaine in a container under the name Eric Long and sent it off for testing.

A few hours later, Detectives McKee and Regula determined from an entry log from a business that required entrants to provide identification that Scooney’s real name was Vincent Charles Stuart. When they saw Mr. Stuart’s driver’s license photo, they confirmed that Mr. Stuart was Scooney. A month later, the detectives bought more cocaine from Scooney and sent it to the laboratory in a container marked with the name Vincent Stuart.

Some fourteen months later in 2009, the State filed an information charging Mr. Stuart with possession and sale of cocaine. The State delayed in proceeding against Mr. Stuart to protect the confidential informant’s identity. Law enforcement officers finally arrested Mr. Stuart about another fourteen months later in 2011.

Mr. Stuart moved to dismiss the charges because the State unreasonably delayed in charging and arresting him. Mr. Stuart contended that the delays prejudiced his defense; he could no longer remember what he was doing at the times of the alleged transactions, and the recollections of any potential alibi witnesses would be stale. He also argued that the delays hindered his ability to obtain evidence, including potentially exculpatory cell phone records.

The defense learned for the first time at a February 2012 hearing on the motion to dismiss that the detectives originally thought that the suspect was Eric Long. Mr. Stuart filed an additional motion to dismiss, seeking dismissal of the charges as a sanction for the State’s failure to disclose the information about Eric Long. The trial court granted the motions after an evidentiary hearing.

Discovery Violation

The trial court found a potential Brady violation in the State’s failure to reveal that Eric Long was the original name given for the suspect. Ultimately, the trial court concluded that the State did not willfully withhold that evidence. See Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) (“[Suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”). Accordingly, the trial court refused to dismiss the charges on that basis. We see no error in this conclusion.

The State’s Delays

The delay between the dates of the offenses and the filing of charges is examined under the Due Process Clause; the delay between the filing of the charges and trial is addressed under the Sixth Amendment Speedy Trial Clause. United States v. MacDonald, 456 U.S. 1, 8, 102 S.Ct. 1497, 71 L.Ed.2d 696 (1982). Although we proceed under separate rubrics, the focal point is undue prejudice to the criminal defendant.

[T]he purposes of the due process and speedy trial provisions, as well as the time periods to which each is applicable, are different. Similarly, the analysis for determining violations of the respective rights is different, although there is one underlying theme common to both rights: both seek to avoid actual prejudice, and, for all practical purposes, the prejudice that can result to a defendant due to a pre-arrest delay is often indistinguishable from that arising from a post-arrest delay.

Howell v. State, 418 So.2d 1164, 1168 (Fla. 1st DCA 1982).

The right to a speedy trial attaches upon arrest. United States v. Marion, 404 U.S. 307, 321, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971) (explaining that until arrest the defendant’s liberty is not restrained and he has not been accused pub-lically). This right reduces the risk of lengthy pretrial incarceration, impairment of liberty during release on bail, and the life disruption that arrest and unresolved criminal charges inflict. MacDonald, 456 U.S. at 8, 102 S.Ct. 1497. It is “not primarily intended to prevent prejudice to the defense caused by passage of time; that interest is protected primarily by the Due Process Clause and by statutes of limitations.” Marion, 404 U.S. at 321, 92 S.Ct. 455; MacDonald, 456 U.S. at 8, 102 S.Ct. 1497.

The State has no duty to file charges once it has probable cause to arrest. State v. Grady, 657 So.2d 1254, 1255 (Fla. 2d DCA 1995) (citing State v. Bennett, 382 So.2d 811 (Fla. 2d DCA 1980)). But, if the defendant shows that the prear-rest delay actually prejudiced his right to a fair trial and that the government delayed intentionally to gain a tactical advantage, the Due Process Clause requires dismissal. Marion, 404 U.S. at 325, 92 S.Ct. 455; see also State v. Robbins, 359 So.2d 39, 41 (Fla. 2d DCA 1978) (stating defendant may be entitled to dismissal for denial of due process if prearrest delay actually prejudiced his defense); Bennett, 382 So.2d at 812 (same). Actual prejudice is the material impairment of the defendant’s ability to prepare a defense. Howell, 418 So.2d at 1168 n. 1 (citations omitted).

Prearrest Delay — Due Process Violation

In evaluating whether prearrest delay violates due process, the trial court must balance the reasons for the delay against the prejudice, if any, to the defendant. Howell, 418 So.2d at 1170 (citing United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977); Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468). Howell described three categories of delay: deliberate, negligent, and justified. 418 So.2d at 1171-73 (citing United States v. Avalos, 541 F.2d 1100, 1111-14 (5th Cir.1976)). “[I]ntentional delay inelude[s] forum-shopping, harassment of the defendant, or delay to gain a tactical advantage.” Id. at 1172 (citing Avalos, 541 F.2d at 1111-12). Negligent delay “includes delays attributable to such factors as an overcrowded court docket.” Id. (citing Barker v. Wingo, 407 U.S. 514, 531, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972)). Justified delay occurs where the State undergoes “considerable legitimate difficulty” in bringing the case to trial timely. Id. Here, the trial court correctly concluded that the prearrest delay was justified by the need to protect the confidential informant’s identity for ongoing investigations.

Speedy Trial Violation

In examining whether the delay between Mr. Stuart’s arrest and the hearing on his motions to dismiss violated his right to a speedy trial, the trial court must balance four factors: “(1) whether the length of the delay is presumptively prejudicial; (2) the reason for the delay; (3) whether the appellant has timely asserted his rights; and (4) whether actual prejudice has resulted from the delay.” State v. Union, 469 So.2d 840, 841 (Fla. 2d DCA 1985); see Kennedy v. Bonnano, 571 So.2d 14, 15 (Fla. 2d DCA 1990). The length of the delay is a “threshold triggering mechanism,” and the court need not consider the other factors unless the delay is so long as to be presumptively prejudicial. Howell, 418 So.2d at 1171 (citing State v. Bonamy, 409 So.2d 518, 519 (Fla. 5th DCA 1982)); compare Union, 469 So.2d at 840 (holding fifteen-month prear-rest delay and seventeen-month delay from filing of information until hearing on motion to dismiss presumptively prejudicial); and Howell, 418 So.2d at 1171 (holding fourteen-and-one-half-month delay from information until hearing presumptively prejudicial) with State v. Borges, 467 So.2d 375, 378 (Fla. 2d DCA 1985) (holding eight-and-one-half-month delay not presumptively prejudicial).

The trial court considered the four factors and found that (1) the postarrest delay was “somewhat presumptively prejudicial”; (2) the State asserted no valid reason, and thus the delay was negligent; (3) Mr. Stuart, by waiting a year to file his motion to dismiss, failed to timely assert his rights; and (4) Mr. Stuart’s claim of prejudice from the passage of time regarding faded memories was vague and suggested merely possible prejudice. See Union, 469 So.2d at 841-42. Penultimately, however, the trial court concluded that the aggregated delays, combined with the State’s failure to divulge the Eric Long information, resulted in actual prejudice. The trial court reasoned that this delay violated Mr. Stuart’s due process rights because he could no longer craft a misiden-tification defense.

The trial court erred in this conclusion. Even though the officers thought for a few hours after the first sale that the seller was Eric Long, they soon learned the truth. The officers bought drugs from Scooney three times. Mr. Stuart does not claim that he and Eric Long look alike or go by the same moniker. The record amply establishes that the detective bought cocaine from Mr. Stuart. We must also note that our record suggests neither that Mr. Stuart knew Eric Long nor that he identified potential alibi witnesses.

Mr. Stuart argues that the detectives’ identification is insufficient to convict him. The trial court expressed concern that by the time of the hearing on the motions to dismiss, three-and-a-half years after the offenses, the detectives could be wrong in identifying Mr. Stuart in the courtroom as the seller. This concern about courtroom identification is illusory. At the time of the offenses three officers identified Scoo-ney as the seller. They promptly discovered Scooney’s identity and made one purchase after making the connection. Quite simply, Mr. Stuart fails to show how any delay actually and materially prejudiced his defense. See Borges, 467 So.2d at 378.

Reversed.

NORTHCUTT and KELLY, JJ., Concur.

      . ‘‘[T]he speedy trial guaranty of the Sixth Amendment ... is applicable to the states through the Fourteenth Amendment.” Dickey v. Circuit Court, Gadsden Cnty., Quincy, Fla., 200 So.2d 521, 527 (Fla.1967) (citing Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967)).

      . The law provides statutes of limitation “to guard against possible as distinguished from actual prejudice resulting from the passage of time between crime and arrest or charge.... These statutes provide predictability by specifying a limit beyond which there is an irre-buttable presumption that a defendant's right to a fair trial would be prejudiced.” Marion, 404 U.S. at 322, 92 S.Ct. 455.


text:
    Lewis LYTTLE and Gladys Lyttle, Appellant, v. BANKUNITED, Assignee of the FDIC, as Receiver, etc., Appellee.
    No. 5D10-3790.
    District Court of Appeal of Florida, Fifth District.
    May 24, 2013.
    Rehearing Denied June 19, 2013.
    George M. Gingo and James E. Orth, Mims, for Appellant.
    Katherine J. Walke, Thomas M. Moon and Reena Patel, of Van Ness Law Firm, P.A., Deerfield Beach, for Appellee.
   PER CURIAM.

This is an appeal of a summary judgment entered in a mortgage foreclosure case where the name of the payee on the note was not the name of the plaintiff in the foreclosure action. Appellee was the plaintiff in the trial proceedings. In Richards v. HSBC Bank USA, 91 So.3d 233 (Fla. 5th DCA 2012), this court held:

A plaintiff must tender the original promissory note to the trial court or seek to reestablish the note under section 673.3091, Florida Statutes (2010). If the note does not name the plaintiff as. the payee, the note must bear an endorsement in favor of the plaintiff or a blank endorsement. [Gee v. U.S. Bank Nat’l Ass’n, 72 So.3d 211, 213 (Fla. 5th DCA 2011)]. Alternatively, the plaintiff may submit evidence of an assignment from the payee to the plaintiff or an affidavit of ownership to prove its status as a holder of the note.

Id. at 234 (citation omitted). Because the original promissory note was not payable to Appellee or endorsed in blank and because Appellee did not comply with the alternative requirements as stated in Richards, issues of fact remain to be resolved precluding entry of summary judgment in Appellee’s favor.

Accordingly, we reverse the summary judgment of foreclosure under review and remand this case for further proceedings.

REVERSED and REMANDED.

ORFINGER, C.J., GRIFFIN and SAWAYA, JJ., concur.


text:
    Willie J. BARNES, Jr., Appellant, v. Charlie CRIST, Governor; Jerry, Hill, State Attorney; Bill McCollum, Attorney General; James King, Jr., President, Florida Senate; and Johnnie B. Byrd, Jr., Speaker, Florida House of Representatives, Appellees, and Pamela Jo Bondi, Attorney General, Intervenor/Appellee.
    No. 2D12-5335.
    District Court of Appeal of Florida, Second District.
    May 24, 2013.
    Rehearing Denied June 20, 2013.
    Willie J. Barnes, Jr., pro se.
    No appearance for Appellees.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Robert Dietz, Assistant Attorney General, Tampa, for Intervenor/Ap-pellee.
   PER CURIAM.

Because “no preliminary basis for reversal has been demonstrated” from the initial brief and the record on appeal, we affirm. See Fla. R.App. P. 9.315(a).

ALTENBERND, CASANUEVA, and VILLANTI, JJ., Concur.


author: ALTENBERND, Judge.

text:
    In the Interest of M.K.B. and W.S.B., children. O.B., Appellant, v. Department of Children and Family Services and Guardian Ad Litem Program, Appellees.
    No. 2D12-6151.
    District Court of Appeal of Florida, Second District.
    May 24, 2013.

      Ronald S. Frankel, St. Petersburg, for Appellant.
    Bernie McCabe, State Attorney, and Leslie M. Layne, Assistant State Attorney, Clearwater, for Appellee Department of Children and Family Services.
    Laura E. Lawson, Tavares, for Appellee Guardian ad Litem Program.
   ALTENBERND, Judge.

We affirm the final judgment of involuntary termination of parental rights of the father in this case. We strike the portion of paragraph sixty-two of the judgment that “finds that the children are at substantial risk of prospective abuse, neglect or abandonment,” because it is misleading and unnecessary to support the final judgment.

We write primarily to comment that the structure of the final judgment in this case makes it difficult for both the attorneys and this court to review the judgment to determine its adequacy. The judgment has seventy enumerated paragraphs. Its structure does not appear to be based on. form 8.983 of the Florida Rules of Juvenile Procedure. Many trial courts, including some in the Sixth Judicial Circuit, have created an excellent standard form that is actually more helpful than the form in the rule book. That form separates the order into easily identifiable sections that include: (1) the date or dates of the adjudicatory hearing and the individuals who were present at the hearing, (2) the procedural history of the case, (3) a confirmation that the parent’s right to counsel has been fulfilled, (4) a delineation of each of the alleged statutory grounds for termination as to each parent, (5) findings of fact in an orderly structure, (6) a declaration that each alleged statutory ground has or has not been proven by clear and convincing evidence, (7) a finding on single parent grounds, (8) a sufficient consideration of the best interests of each affected child, (9) a determination that termination of parental rights is the least restrictive means of protecting the child under the applicable guidelines, and (10) a conclusion stating the trial court’s adjudication and order. The use of this type of form also assists the trial court in addressing the elements that must be established to terminate parental rights. See generally § 89.802, Fla. Stat. (2011) (stating the allegations that must be set forth in a petition for termination of rights); R.L. v. Dep’t of Children & Families, 63 So.3d 920, 921-22 (Fla. 5th DCA 2011) (“To terminate parental rights, the State must establish: (1) the existence of one of the statutory grounds set forth in Chapter 39; (2) that termination is in the best interest of the child; and (3) that termination is the least restrictive means of protecting the child from harm.”). We would encourage the trial court to consider the use of such a form.

Affirmed.

CASANUEVA and LaROSE, JJ., Concur.

      . Such a finding is not necessarily applicable in all cases, but if applicable, the inclusion of a finding on single parent grounds might support the affirmance of a termination order as to one parent even though the order must be reversed as to the other parent. See In re L.C., 908 So.2d 568, 573 (Fla. 2d DCA 2005).


author: THOMAS, J.

text:
    JOHNS EASTERN COMPANY and Indian River County BCC, Appellants, v. Steve SCHRAW, Appellee.
    No. 1D12-5513.
    District Court of Appeal of Florida, First District.
    June 3, 2013.
    Rehearing Denied June 24, 2013.
    William H. Rogner and Paul Westcott of Hurley, Rogner, Miller, Cox, Waranch & Westcott, P.A., Winter Park, for Appellants.
    Barbara A. Eagan and Stacy J. Ford of Eagan Appellate Law, P.L.L.C., Orlando; Kelli Biferie Hastings of the Law Office of Kelli B. Hastings, P.L.L.C, Orlando, for Appellee.
   THOMAS, J.

The Employer/Carrier (E/C) appeals an order of the Judge of Compensation Claims (JCC) awarding benefits, based on a finding that Claimant, a firefighter, established compensability of his pre-ventri-cular contraction condition, pursuant to section 112.18, Florida Statutes. The E/C raises two points on appeal.

Because competent, substantial medical evidence supports the JCC’s finding that Claimant suffered from an impairment in health and other conditions caused by heart disease, we affirm that point without further comment. We find reversible error on the second issue, regarding the JCC’s failure to rule on the misrepresentation defense raised by the E/C at final hearing.

Claimant argues on appeal that the E/C’s fraud defense was asserted untimely. Claimant argued below, however, only that the allegations had no merit. Regardless of the merits of either of Claimant’s arguments (and we make no ruling on such), the JCC failed to provide any ruling on the E/C’s fraud defense, making meaningful appellate review impossible. We therefore remand for the JCC to make a ruling on the E/C’s misrepresentation defense, based solely on the record previously established. See Betancourt v. Sears Roebuck & Co., 693 So.2d 680, 682 (Fla. 1st DCA 1997) (holding where JCC fails to rule on fully tried issue ripe for adjudication and does not reserve jurisdiction, absence of ruling constitutes reversible error).

AFFIRMED in part, REVERSED in part, and REMANDED for ruling on fraud defense.

BENTON, C.J., and CLARK, J., concur.


text:
    Narciso VIVOT, Appellant, v. BANK OF AMERICA, NA, Successor by Merger to Countrywide Bank, FSB, Appellee.
    No. 2D12-2757.
    District Court of Appeal of Florida, Second District.
    June 7, 2013.

      Dane T. Stanish of Law Offices of Dane Stanish, P.A., Hollywood, for Appellant.
    Jason F. Joseph of Gladstone Law Group, P.A., Boca Raton, for Appellee.
   SILBERMAN, Chief Judge.

Narciso Vivot appeals an order denying his motion for attorney’s fees in this foreclosure action that was filed by Bank of America’s predecessor in interest and was dismissed for failure to prosecute. Because Vivot was the prevailing party in the action, we reverse the order and remand for further proceedings.

On November 28, 2005, Vivot executed a promissory note and mortgage in favor of Mackinac Savings Bank. The note and mortgage were subsequently transferred to Countrywide Bank, and Bank of America is the successor by merger to Countrywide Bank. On April 15, 2009, Countrywide filed a complaint to foreclose the mortgage and to enforce the note based on Vivot’s alleged default. Later, the trial court entered an order amending the plaintiffs name to Bank of America.

Vivot filed an answer and affirmative defenses in which he requested an award of attorney’s fees. On October 22, 2009, Bank of America filed a motion for summary judgment of foreclosure. On June 2, 2011, Vivot filed a notice of lack of record activity and on August 10, 2011, filed a motion to dismiss for lack of prosecution. On December 12, 2011, the trial court rendered a final order dismissing the case for lack of prosecution. Vivot filed a timely motion for attorney’s fees. He alleged that he was entitled to fees as the prevailing party based on the provisions of the note and mortgage and section 57.105(7), Florida Statutes (2005). After a hearing the trial court denied the motion, stating that there was no prevailing party in the case.

In this appeal, Vivot again claims attorney’s fees under the terms of the note and mortgage and section 57.105(7). When entitlement to attorney’s fees rests on the interpretation of a statute or contract, appellate review is de novo. Raza v. Deutsche Bank Nat’l Trust Co., 100 So.3d 121, 123 (Fla. 2d DCA 2012). The mortgage provides in paragraph 22 that “Lender shall be entitled to collect all expenses incurred in pursuing the remedies provided in this Section 22, including, but not limited to, reasonable attorneys’ fees and costs of title evidence.” The note provides in paragraph 7(E) that the note holder has the right to be reimbursed for reasonable attorney’s fees in enforcing the note. Under section 57.105(7), if a contract provides for “attorney’s fees to a party when he or she is required to take any action to enforce the contract, the court may also allow reasonable attorney’s fees to the other party when that party prevails in any action, whether as plaintiff or defendant, with respect to the contract.” Based on the above provisions in the note and mortgage, section 57.105(7) allows Vivot an award of attorney’s fees if he is the prevailing party in this action. See Raza, 100 So.3d at 124-25.

In Raza, the trial court involuntarily dismissed a mortgage foreclosure suit based on the bank’s failure to comply with the court’s directives. Id. at 128. This court determined that Raza “was entitled to claim fees as long as Deutsche Bank had proper notice and a statute or contract provided for such relief.” Id. at 124. This court recognized Raza as the prevailing party as the result of the involuntary dismissal. Id. In its analysis, this court discussed Stout Jewelers, Inc. v. Corson, 639 So.2d 82 (Fla. 2d DCA 1994). See Razo, 100 So.3d at 123.

In Stout Jewelers, the trial court dismissed the landlord’s action against a tenant for failure to prosecute but denied the tenant’s motion for prevailing party attorney’s fees. 639 So.2d at 83. This court noted that the dismissal was of the entire action, including the tenant’s counterclaim. We concluded that, under those circumstances, the tenant was the prevailing party for the purposes of an attorney’s fee award because the defendant successfully obtained an involuntarily dismissal of the case. Id. at 84; see also J.P. Morgan Mortg. Acquisition Corp. v. Golden, 98 So.3d 220, 223 (Fla. 2d DCA 2012) (determining that the defendant was the prevailing party when the foreclosure action was dismissed for failure to give proper notice of intent to foreclose and that the defendant was entitled to a fee award based on the provisions of the note and mortgage even though the suit could be refiled); Norland v. Vills. at Country Creek Master Ass’n, 851 So.2d 770, 771 (Fla. 2d DCA 2003) (“The appellees became the prevailing party when Norland’s claim was dismissed for failure to prosecute.”).

Here, Vivot became the prevailing party when the foreclosure suit was dismissed for failure to prosecute. He gave notice of his claim for fees in his answer and timely filed his motion for attorney’s fees. Pursuant to section 57.105(7), the provisions of the note and mortgage permit Vivot to claim attorney’s fees as the prevailing party. See Raza, 100 So.3d at 125.

Therefore, we reverse the order denying Vivot’s motion for attorney’s fees and remand for further proceedings.

NORTHCUTT and LaROSE, JJ., Concur.


text:
    Dan C. HAZEN, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 5D12-3935.
    District Court of Appeal of Florida, Fifth District.
    June 11, 2013.
    James S. Purdy, Public Defender, and Rose M. Levering, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Parks v. State, 96 So.3d 474 (Fla. 1st DCA 2012).

ORFINGER, C.J., PALMER and TORPY, JJ., concur.


text:
    Richard N. WATTS, Esquire, Petitioner, v. JUSTICE ADMINISTRATIVE COMMISSION, Respondent.
    No. 2D12-5751.
    District Court of Appeal of Florida, Second District.
    June 12, 2013.
    J. Andrew Crawford of J. Andrew Crawford, P.A., St. Petersburg, for Petitioner.
    Christian D. Lake, Assistant General Counsel, The Justice Administrative Commission, Tallahassee, for Respondent.
   SILBERMAN, Chief Judge.

Richard N. Watts seeks certiorari review of an order awarding him attorney’s fees in an amount less than he requested for his services as court-appointed counsel to a defendant in a criminal case. Watts argues that the circuit court departed from the essential requirements of the law by awarding fees without making a finding regarding the number of reasonable hours worked and the corresponding hourly rate. We grant the petition and remand for reconsideration of Watts’ fee motion.

Watts was appointed to represent a defendant charged with second-degree murder with a firearm in October 2011. Approximately five months later, the defendant entered a plea pursuant to an agreement negotiated by Watts in which the State reduced the charge to manslaughter and waived the twenty-five-year minimum mandatory sentence. Watts submitted a bill to the Justice Administrative Commission (JAC) for $9885 in attorney’s fees for 131.8 hours of work at $75 per hour. JAC objected, and Watts filed a motion for fees in the circuit court and set a hearing on the matter.

At the fee hearing, counsel for JAC did not argue that the hours expended by Watts were unreasonable but simply informed the court that the statutory flat fee was $2500. See § 27.5304(5)(a)(2), Fla. Stat. (2011). Watts argued that the court should exceed the statutory flat fee because the case was extraordinary and unusual and any fee below that which he requested would be confiscatory. Watts explained that the case involved a shooting in a neighborhood that had experienced seven other shootings within a year, some of which were related to his ease. Watts had to investigate these shootings as well as the charged shooting. Watts also had to track down witnesses for depositions because no one except law enforcement and the medical examiner appeared for their depositions. He had to knock on doors, go to juvenile detention centers, travel to jails, and travel the streets to locate his witnesses. Watts claimed that he invested more than twice the flat fee in his overhead and in time which was taken away from other clients. The Assistant State Attorney who was assigned to the case opposite Watts testified that the case was complicated by the occurrence of multiple crimes in the neighborhood and confirmed that many of the witnesses were reluctant to appear for depositions.

The circuit court agreed that Watts’ case was extraordinary. and unusual but did not award Watts the $10,027.50 he requested. Instead, the court awarded Watts twice the statutory flat fee, or $5000. It did not reject the reasonableness of the number of hours Watts expended or the corresponding hourly rate but simply stated that $5000 was not confiscatory. This was error.

Section 27.5304(5)(a)(2) provides for a flat fee of $2500 for representation of an indigent defendant charged with a non-capital, nonlife felony at the trial level. The court is permitted to award fees at a percentage above this flat fee if the case “required extraordinary and unusual efforts.” § 27.5304(12)(d). But if the court seeks to exceed 200 percent of the statutory flat fee, it must make a finding that 200 percent of the flat fee is confiscatory. In such a case, the court should award fees at an hourly rate that does not exceed $75 per hour for a noncapital case and $100 for a capital case. This fee award “shall be only that amount necessary to ensure that the total fees paid are not confiscatory.” Id.

It is the right of indigent defendants to competent and effective representation, as opposed to counsel’s right to be compensated, that makes it necessary for courts to exceed the statutory flat fee. White v. Bd. of Cnty. Comm’rs of Pinellas Cnty., 537 So.2d 1376, 1379-80 (Fla.1989). Courts should be aware that the quality of representation may be affected by the knowledge that, counsel will not be adequately compensated for his or her services. Thus, courts should focus on the time counsel has spent on the case and the impact of the case on counsel’s availability to other clients in fashioning a fee award. Id. at 1380.

In this case, it does not appear that the circuit court considered these factors in determining the extent it should exceed the statutory fee cap. The court made the requisite finding of extraordinary and unusual efforts to support its decision to exceed the statutory fee under section 27.5304(12)(d). But the court did not explain why it capped the fees at 200 percent of the flat fee except to summarily determine that this amount was not confiscatory. Without making a finding regarding the reasonable number of hours Watts expended the court could not make such a determination. See Zelman v. Justice Admin. Comm’n, 78 So.3d 105, 107 (Fla. 1st DCA 2012); see also Kelly v. Justice Admin. Comm’n, 99 So.3d 627, 628 (Fla. 2d DCA 2012) (“In awarding fees to an attorney appointed pursuant to statute, the trial court must find that appointed counsel reasonably expended a certain number of hours in representing the indigent client, and then, using the established hourly rate, compute the fee.”).

JAC acknowledges the circuit court’s error in failing to make a finding regarding the reasonable number of hours expended. JAC argues that this error does not constitute a departure from the essential requirements of the law because the award of $5000 based on 133.7 hours would amount to $37.40 per hour which is not confiscatory as a matter of law. In support of this argument, JAC points to the supreme court’s decision in Sheppard & White, P.A. v. City of Jacksonville, 827 So.2d 925 (Fla.2002), upholding fees at a rate of $40 per hour. JAC also points to this court’s decision in Kelly v. State, 75 So.3d 1257 (Fla. 2d DCA 2011) (table), upholding fees at a rate of $50 per hour.

However, Sheppard was decided under the predecessor to section 27.5304, which provided for hourly fees at a rate set by the chief judge. Sheppard, 827 So.2d at 929 (quoting § 925.036(1), Fla. Stat. (1997)). And during the period in which services were rendered in that case, which was over fifteen years ago, the fixed hourly rate was $40. As for Kelly v. State, the circuit court in that case concluded that, while $50 per hour was not confiscatory, $34.93 per hour was confiscatory. Accordingly, we are not persuaded that Sheppard and Kelly support a denial of certiorari in this case on the basis that $37.40 is not confiscatory as a matter of law. Furthermore, Watts provided unrebutted evidence that twice the statutory fee would be confiscatory based on his testimony that he invested more than that in overhead and in time which was taken away from other clients on a time-consuming case involving reluctant witnesses. We therefore grant the petition for writ of certiorari and remand for reconsideration of the fee motion.

Petition granted.

KELLY and SLEET, JJ., Concur.

      . In this motion, Watts requested $10,042.50 for 133.9 hours of work at $75 per hour. He later agreed to strike .2 hours as administrative and ultimately requested $10,027.50 for 133.7 hours at $75 per hour.


author: DAVIS, Judge.

text:
    Charles J. CAMPBELL, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-4303.
    District Court of Appeal of Florida, Second District.
    June 12, 2013.
   DAVIS, Judge.

Charles J. Campbell appeals the order dismissing his postconviction motion for failure to contain the proper oath. See Fla. R.Crim. P. 3.850(c). We reverse.

The postconviction court dismissed Campbell’s motion for failure to contain the correct oath without prejudice to file a motion with the proper oath within the time limitations of rule 3.850(b). But the oath Campbell signed in his motion is virtually identical to the oath required in the absence of a notary by Florida Rule of Criminal Procedure 3.987: “Under penalties of perjury, I declare that I have read the foregoing motion and that the facts stated in it are true.” In his motion, Campbell included the following oath: “I hereby state under penalty of perjury the foregoing is based upon true facts, [sic] oath pursuant to 92.525 FSA done this 13 day of May 2012.” Because the oath Campbell signed is virtually identical to the form oath, the posteonviction court erred in dismissing his motion based on an insufficient oath. See Braden v. State, 779 So.2d 365, 366 (Fla. 2d DCA 2000) (holding that oath that was virtually identical to the rule 3.987 form oath rendered postconviction motion procedurally sufficient).

Accordingly, we reverse and remand with directions that the postconviction court consider Campbell’s rule 3.850 motion on its merits.

Reversed and remanded.

KELLY and KHOUZAM, JJ., Concur.


author: WALLACE, Judge.

text:
    PRESIDIO NETWORKED SOLUTIONS, INC., Petitioner, v. Kenneth H. TAYLOR, III, and Debra S. Taylor, Respondents.
    No. 2D12-6006.
    District Court of Appeal of Florida, Second District.
    June 14, 2013.

      Alan S. Wachs and Chris T. Harris of Volpe, Bajalia, Wickes, Rogerson and Wachs, P.A., Jacksonville, for Petitioner.
    No appearance for Respondents.
   WALLACE, Judge.

Presidio Networked Solutions, Inc. petitions for certiorari review of an order entered in the underlying dissolution proceeding between its employee, Kenneth H. Taylor, III, and his wife, Debra S. Taylor. Presidio argues that the circuit court departed from the essential requirements of the law, thereby causing it irreparable harm, when, without giving Presidio notice or an opportunity to be heard, it entered an order directing Presidio to retroactively reinstate Mr. Taylor’s health insurance policy after the policy lapsed absent any fault of Presidio. We agree and grant the petition, quash the order on review, and remand for further proceedings.

“To obtain certiorari relief on an interlocutory order, the petitioner must demonstrate (1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case (3) that cannot be corrected on postjudgment appeal.” Trucap Grantor Trust 2010-1 v. Pelt, 84 So.3d 369, 371 (Fla. 2d DCA 2012) (quoting Reeves v. Fleetwood Homes of Fla., Inc., 889 So.2d 812, 822 (Fla.2004) (internal quotation marks omitted)). We review the final two elements first because they are jurisdictional. Id.

Here, the circuit court ordered Presidio to reinstate Mr. Taylor’s health insurance policy retroactively without giving Presidio notice or an opportunity to be heard. This complete denial of due process to Presidio in connection with the underlying proceedings constitutes the type of irreparable harm that is subject to certiorari review. See K.G. v. Fla. Dep’t of Children & Families, 66 So.3d 366, 368 (Fla. 1st DCA 2011) (observing that if a mother’s allegation that she was denied an opportunity to be heard on a shelter petition was true, the resulting harm would be irreparable unless immediately addressed; otherwise “the entire proceeding [would be] based on a denial of her due process rights”); see also A.G. v. Fla. Dep’t of Children & Families, 65 So.3d 1180, 1182 (Fla. 1st DCA 2011) (holding that the denial of counsel to a father at a shelter hearing constituted a denial of due process renewable by certiorari).

Moreover, because Presidio is not a party to the underlying dissolution proceeding, it cannot challenge the order on direct appeal. Other than certiorari review, the only way that Presidio could challenge the circuit court’s order would be to risk contempt for failure to comply with the order and then appeal an order of contempt. See Nussbaumer v. State, 882 So.2d 1067, 1072 (Fla. 2d DCA 2004) (citing Briggs v. Salcines, 392 So.2d 263, 266 (Fla. 2d DCA 1980)). “However, this is ‘too great a price’ to require [Presidio] to pay.” Id. (quoting Briggs). Accordingly, the jurisdictional prong for certiorari review is met in this case.

For similar reasons, we conclude that the circuit court departed from the essential requirements of the law in entering the subject order. The circuit court made a factual finding that “[Mr. Taylor’s] policy of insurance was mistakenly cancelled,” without giving Presidio the opportunity to explain the circumstances under which the policy had lapsed, and it directed Presidio to take action that it may be unable to take without first giving Presidio notice and an opportunity to be heard. “Denial of due process [to Presidio] constitutes a departure from the essential requirements of law.” Dep’t of Revenue v. Freeman, 762 So.2d 580, 581 (Fla. 5th DCA 2000); see Quincoces v. Quincoces, 10 So.3d 657, 659 (Fla. 3d DCA 2009) (same).

Accordingly, we grant the petition, quash the order on review, and remand the case for further proceedings.

KHOUZAM and CRENSHAW, JJ., Concur.

      . The Taylors have not participated in this proceeding and have not filed briefs.

      . We also note that because Presidio is not a party to the underlying proceeding, the circuit court's jurisdiction to order Presidio to retroactively reinstate Mr. Taylor's insurance policy is highly questionable.


text:
    James Edward MATTHEWS, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-2233.
    District Court of Appeal of Florida, Fifth District.
    June 14, 2013.
    James S. Purdy, Public Defender, and John M. Selden, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

James Matthews appeals an award of restitution in the amount of $10,378.61, entered following an evidentiary hearing held after he pled no contest to petit theft for stealing various items from the victim’s car. We affirm as to the amounts ordered for towing, rental car expenses, the GPS device, the tennis racquets, and the watches. We reverse as to the remaining items, finding the State failed to present competent evidence as to the fair market value of those items. The depreciation amounts assigned by the judge were effectively pulled out of thin air because the State made no effort to properly value the items. See J.D.H. v. State, 931 So.2d 241, 242 (Fla. 5th DCA 2006) (“A determination of the fair market value takes into consideration the original market cost, the manner in which the item was used, the general condition and quality of the item, and the percentage of depreciation.”). We remand to allow for additional evidence of the fair market value of those remaining items.

AFFIRMED IN PART; REVERSED IN PART; and REMANDED.

SAWAYA, COHEN and BERGER, JJ„ concur.


text:
    Christopher D. CLAYTON, Petitioner, v. STATE of Florida, Respondent.
    No. 5D13-1052.
    District Court of Appeal of Florida, Fifth District.
    June 14, 2013.
    Karla M. Reyes, Orlando, for Petitioner.
    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 judgment and sentence in Case No.2012-CF-007914, in the Circuit Court in and for Orange County, Florida. See Fla. RApp. P. 9.141(c)(6)(D).

PETITION GRANTED.

GRIFFIN, SAWAYA and TORPY, JJ„ concur.


text:
    Damian Arness RICHARDSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-2438.
    District Court of Appeal of Florida, First District.
    June 18, 2013.
    Damian A. Richardson, 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.

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


text:
    Joe DiSALVO, III, and Elizabeth Ann DiSalvo, Appellants, v. SUNTRUST MORTGAGE, INC., Appellee.
    No. 2D11-2707.
    District Court of Appeal of Florida, Second District.
    June 19, 2013.
    Michael E. Rodriguez of Foreclosure Defense Law Firm, PL, Tampa, for Appellants.
    Trida J. Duthiers and Frank P. Cuneo of Liebler, Gonzalez & Portuondo, P.A., Miami, for Appellee.
   WALLACE, Judge.

Joe DiSalvo, III, and Elizabeth Ann Di-Salvo challenge the entry of a summary judgment resulting in a final judgment of foreclosure. Because the mortgagee, Sun-Trust Mortgage, Inc., failed to present competent evidence that it provided the DiSalvos with the requisite notice and an opportunity to cure the default before the acceleration of the mortgage debt, we reverse.

In July 2009, SunTrust filed a complaint seeking to foreclose a mortgage made by the DiSalvos. Paragraph 9 of the complaint contained a general allegation that all of the conditions precedent to the acceleration of the mortgage had been performed. Soon after, SunTrust filed a motion for final summary judgment of foreclosure.

In their answer, the DiSalvos denied paragraph 9 of the complaint. The answer recited the terms of the mortgage contract contained in Section 22, which provided that the lender was required to give notice to the borrower before acceleration and that the notice must specify the default, the action required to cure the default, and a date final for cure of the default. The notice must also inform the borrower that the failure to cure the default before the specified date could result in acceleration or foreclosure. In addition, Section 22 provided that the notice must inform the borrower of the right to reinstate the mortgage after acceleration and the right to assert the nonexistence of default or any other defense in a subsequent foreclosure proceeding. The DiSalvos denied that they had received the required notice and alleged that SunTrust had not complied with any of the conditions precedent expressed in Section 22 of the mortgage. The DiSalvos’ affirmative defense # 5 contained essentially the same language as the denial paragraph in their answer.

In January 2010, SunTrust filed a copy of a default letter with the trial court and simultaneously moved to strike the DiSal-vos’ affirmative defenses. With regard to the DiSalvos’ fifth affirmative defense, SunTrust’s motion alleged:

Defendant was served with this complaint on July 24, 2009. Plaintiff served its notice of the default and the amount owed under the subject note and mortgage more than 30 days from the date the complaint was served as evidenced by a copy of the letter filed under separate cover.

On November 30, 2010, the trial court granted SunTrust’s motion to strike the DiSalvos’ affirmative defenses without a hearing. In April 2011, the DiSalvos moved for leave to file an amended answer and affirmative defenses, but the motion was never set for a hearing. On May 12, 2011, the trial court held a hearing on SunTrust’s motion for summary judgment. After the hearing, the trial court granted SunTrust’s motion for summary judgment and subsequently entered a final judgment of foreclosure.

We conclude that the trial court erred in granting summary judgment and in entering a final judgment of foreclosure for two reasons. First, a mortgagee’s right to the security for a mortgage is dependent upon its compliance with the terms of the mortgage contract, and it cannot foreclose until it has proven compliance. See F.A. Chastain Constr., Inc. v. Pratt, 146 So.2d 910, 913 (Fla. 3d DCA 1962). But the filing of a copy of the default notice by SunTrust, without proper authentication, failed to prove such compliance:

The unauthenticated copies of default letters purportedly sent to Bryson by BB & T were insufficient for summary judgment purposes because only competent evidence may be considered in ruling on a motion for summary judgment.
... In this case, the letters at issue were not admitted by the pleadings, nor were they accompanied by an affidavit of a record custodian or other proper person attesting to their authenticity or correctness.

Bryson v. Branch Banking & Trust Co., 76 So.3d 783, 786 (Fla. 2d DCA 2011) (citations omitted); see also Finnegan v. Deutsche Bank Nat’l Trust Co., 96 So.3d 1093, 1094 (Fla. 4th DCA 2012) (‘While the bank filed copies of letters allegedly sent to her, these were not sworn and could not be considered on a motion for summary judgment.”); Morrison v. U.S. Bank, N.A., 66 So.3d 387, 387 (Fla. 5th DCA 2011) (holding that the' bank’s filing of an unauthenticated notice letter failed to support summary judgment where the defendant asserted she had not received a notice of default); Bifulco v. State Farm Mut. Auto. Ins. Co., 693 So.2d 707, 709 (Fla. 4th DCA 1997) (“Merely attaching documents which are not ‘sworn to or certified’ to a motion for summary judgment does not, without more, satisfy the procedural strictures inherent in Fla. R. Civ. P. 1.510(e).”). In this case, at the hearing on its motion for summary judgment, SunTrust argued that the notice it had filed was sufficient and “meets its burden as far as Paragraph 22” (referring to section 22 of the mortgage contract). This statement was incorrect, and the trial court’s reliance on the unauthenticated copy of the notice as evidence supporting summary judgment was error.

Second, the trial court erred in finding that no issues of material fact remained which would prevent it from granting Sun-Trust’s motion for summary judgment. At the hearing, counsel for SunTrust argued as follows:

Furthermore, there is no answer and affirmative defenses in this case as of right now. His affirmative defenses have been stricken since November. There is no affidavit from the defense counsel or from his — from the borrower stating these things. The only evidence before the Court at this motion for summary judgment is the affidavit of indebtedness from the bank. The original note has been filed. A copy of the mortgage was filed with the complaint. We also supplemented with the original mortgage....
... There’s [sic] no issues as to standing. There’s [sic] no issues before the Court whatsoever.

The trial court agreed and announced that it would grant summary judgment. But despite the striking of the DiSalvos’ affirmative defenses, the argument that there were no issues before the court at the time of the hearing on SunTrust’s motion was wrong. The trial court only struck the DiSalvos’ affirmative defenses; it did not strike their denials of the allegations of the complaint. Moreover, the DiSalvos’ denial of paragraph # 9 of the complaint was made with sufficient specificity and particularity to comply with Florida Rule of Civil Procedure 1.120(c) (“A denial of performance or occurrence [of a condition precedent] shall be made specifically and with particularity.”). See Frost v. Regions Bank, 15 So.3d 905, 906 (Fla. 4th DCA 2009) (holding that the bank failed to prove that the Frosts’ defense of lack of notice and opportunity to cure was legally insufficient, despite the omission by the Frosts— unlike in the instant case — to cite specifically the language from the mortgage in their answer to the complaint).

On appeal, SunTrust also argues, as it did at the summary judgment hearing, that “[t]he [Property Owners] ... did not make a showing in support of their claim as they failed to file any affidavits and/or other materials in opposition to the [motion for summary judgment].” This argument misses the mark because there is no requirement for a party to file a competing affidavit or any other “materials” to defeat a motion for summary judgment. See Cerron v. GMAC Mortg., LLC, 93 So.3d 456, 457 (Fla. 2d DCA 2012):

GMAC maintains that Cerrón had the burden to file an affidavit stating that he never received a notice of default, at which point GMAC would have been required to refute the contention with contrary evidence. That is incorrect. A plaintiff moving for summary judgment must either conclusively refute the factual bases for the defendant’s affirmative defenses or show that the defenses are legally insufficient.... [W]hen Cer-rón alleged GMAC’s failure to provide a contractually required notice of default, GMAC’s burden on summary judgment was to show that it had satisfied this condition precedent. It failed to do so.

See also Frost, 15 So.3d at 906 (holding that the defendants’ argument that the bank had failed to address their affirmative defense of lack of notice was sufficient to counter the bank’s motion for summary judgment, despite the failure of the defendants to file any papers or affidavits in opposition).

Accordingly, because the copy of the notice-of-default letter did not constitute admissible evidence and because the Di-Salvos’ answer was legally sufficient to dispute SunTrust’s allegation that all conditions precedent had been met, a genuine issue of material fact remained preventing the entry of summary judgment.

Reversed and remanded for further proceedings.

CASANUEVA and MORRIS, JJ., Concur.