author: LABARGA, J.

text:
    SOUTH FLORIDA WATER MANAGEMENT DISTRICT, Petitioner, v. RLI LIVE OAK, LLC, Respondent.
    No. SC12-2336.
    Supreme Court of Florida.
    May 22, 2014.

      Carolyn Stroud Ansay, James Edward Nutt, Ruth A. Holmes, and Alison L. Kelly of the South Florida Water Management District, West Palm Beach, FL, for Petitioner.
    M. Christopher Bryant and Kenneth G. Oertel of Oertel, Fernandez, Bryant & Atkinson, P.A., Tallahassee, FL, for Respondent.
    Matthew Zane Leopold, General Counsel, and Barney J. Chisolm, Jr., Deputy General Counsel, Florida Department of Environmental Protection, Tallahassee, FL, for Amicus Curiae, Florida Department of Environmental Protection.
    Pamela Jo Bondi, Attorney General, Allen C. Winsor, Solicitor General, and Leah A. Sevi, Deputy Solicitor General, Tallahassee, FL, for Amicus Curiae, State of Florida.
   LABARGA, J.

This case is before the Court for review of the decision of the Fifth District Court of Appeal in RLI Live Oak, LLC v. South Florida Water Management District, 99 So.3d 560 (Fla. 5th DCA 2012). The South Florida Water Management District subsequently filed a motion for certification, which the Fifth District granted, certifying the following question to be of great public importance:

UNDER THE HOLDING OF DEPARTMENT OF BANKING & FINANCE V. OSBORNE STERN & CO., 670 So.2d 932 (Fla.1996), IS A STATE GOVERNMENTAL AGENCY WHICH BRINGS A CIVIL ACTION IN CIRCUIT COURT REQUIRED TO PROVE THE ALLEGED REGULATORY VIOLATION BY CLEAR AND CONVINCING EVIDENCE BEFORE THE COURT MAY ASSESS MONETARY PENALTIES?

Pennington v. State, 100 So.3d 193 (Fla. 5th DCA 2012), review granted, So. Fla. Water Mgmt. Dist. v. RLI Live Oak, LLC, SC12-2336, 2013 Fla. LEXIS 879 (Fla. order entered Mar. 7, 2013). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. Because we conclude that the question as certified by the district court is too broad, we rephrase the district court’s certified question as follows: ‘

WHERE THE LEGISLATURE STATUTORILY AUTHORIZES A STATE GOVERNMENTAL AGENCY TO RECOVER A “CIVIL PENALTY” IN A “COURT OF COMPETENT JURISDICTION” BUT DOES NOT SPECIFY THE AGENCY’S BURDEN OF PROOF, IS THE AGENCY REQUIRED UNDER DEPARTMENT OF BANKING & FINANCE V. OSBORNE STERN & CO., 670 So.2d 932 (Fla.1996), TO PROVE THE ALLEGED VIOLATION BY CLEAR AND CONVINCING EVIDENCE BEFORE THE COURT MAY ASSESS THE CIVIL PENALTY?

We answer the rephrased certified question in the negative and hold that where the Legislature statutorily authorizes a state governmental agency to recover a “civil penalty” in a “court of competent jurisdiction” but does not specify the agency’s burden of proof, the agency is not required under Osborne to prove the alleged violation by clear and convincing evidence, but rather by a preponderance of the evidence. Thus, we reverse the district court’s decision.

FACTS

The underlying facts, as stated in the district court’s opinion, are as follows:

RLI Live Oak, LLC (“RLI”), land developers who own property in Osceola County, filed suit in circuit court seeking a declaratory judgment for a determination that the property it owned did not contain any wetlands and, therefore, was not under the jurisdiction of the South Florida Water Management District (“the District”). The District counterclaimed against RLI alleging that RLI participated in unauthorized dredging, construction activity, grading, diking, culvert installation, and filling of wetlands without first obtaining the District’s approval. After a non-jury trial, the court found for the District on all counts and awarded the District $81,900 in civil penalties.

RLI, 99 So.3d at 560-61. In its analysis, the district court considered the burden of proof that the District was required to satisfy in order to obtain an award of civil penalties. The court stated:

The trial court based its findings on a preponderance of the evidence standard and not the clear and convincing evidence standard. This was error. In Department of Banking and Finance, Division of Securities & Investor Protection v. Osborne Stern & Co., 670 So.2d 932 (Fla.1996), the Florida Supreme Court held that when a court is asked to impose civil fines against a party, it is necessary for the moving party to prove the alleged violations by clear and convincing evidence. As a result of the court’s applying the improper evidentiary standard, we reverse the portion of the judgment imposing civil penalties and remand for further proceedings. On remand, before the trial court may impose civil fines on RLI, the District must prove RLI’s alleged violations by clear and convincing evidence.

REVERSED and REMANDED.

Id. at 561. On motion for rehearing or certification, the panel denied rehearing. However, the Fifth District stated that it agreed with “the South Florida Water Management District ... that this case presents an issue of great public importance that should be addressed by the Florida Supreme Court,” and certified its question for a determination by this Court of the proper burden of proof. So. Fla. Water Mgmt. Dist. v. RLI Live Oak, LLC, 100 So.3d 193, 37 Fla. L. Weekly D2528 (Fla. 5th DCA Oct.26, 2012), review granted, SC12-2336, 2013 Fla. LEXIS 879 (Fla. order entered Mar. 7, 2013).

In addition to the briefs filed in this Court by the South Florida Water Management District (District) and RLI, the Office of the Attorney General of Florida and the Florida Department of Environmental Protection filed amicus briefs in support of the District.

ANALYSIS

The rephrased certified question requires this Court to consider the appropriate burden of proof that state agencies, when pursuing a statutorily authorized action against an entity in a court of competent jurisdiction, must satisfy before civil penalties may be imposed. Because the certified question presents a pure question of law, our review is de novo. See Jackson-Shaw Co. v. Jacksonville Aviation Auth., 8 So.3d 1076, 1085 (Fla.2008) (citing Macola v. Gov’t Emp. Ins. Co., 953 So.2d 451, 454 (Fla.2006)). We begin our analysis with an overview of the applicable law and a discussion of the preponderance of the evidence and the clear and convincing evidence standards. We then turn to the district court’s reliance on Osborne.

The Applicable Law and Burdens of Proof

“The Florida Legislature has clearly stated that it is a policy of the State to provide for the management of water and related land resources.” A. Duda & Sons, Inc. v. St. Johns River Water Mgmt. Dist., 17 So.3d 738, 740 (Fla. 5th DCA 2009). To that end, the Legislature established the “Florida Water Resources Act of 1972” as enumerated in chapter 373, Florida Statutes, and it authorized entities including the Department of Environmental Protection and the South Florida Water Management District to regulate and enforce compliance. §§ 373.013, 373.129, Fla. Stat. (2007). Section 373.129 provides that authorized entities may pursue “necessary actions and proceedings in any court of competent jurisdiction,” and section 373.129(5) authorizes such actions and proceedings for the recovery of civil penalties. The statute provides in relevant part:

Maintenance of actions. — The department, the governing board of any water management district, any local board, or a local government to which authority has been delegated pursuant to s. 373.103(8), is authorized to commence and maintain proper and necessary actions and proceedings in any court of competent jurisdiction for any of the following purposes:
(5) To recover a civil penalty for each offense in an amount not to exceed $10,000 per offense. Each date during which such violation occurs constitutes a separate offense.

§ 373.129(5), Fla. Stat. (2007).

However, while the recovery of a civil penalty is authorized under section 373.129(5), the statute does not expressly provide the required burden of proof that the complaining party must satisfy in order obtain a recovery. Traditionally, a preponderance of the evidence standard is the applicable burden of proof in civil cases. In Gross v. Lyons, 763 So.2d 276, 280 n. 1 (Fla.2000), we explained that “[a] ‘preponderance’ of the evidence is defined as ‘the greater weight of the evidence,’ Black’s Law Dictionary 1201 (7th ed. 1999), or evidence that ‘more likely than not’ tends to prove a certain proposition.” (citing Am. Tobacco Co. v. State, 697 So.2d 1249, 1254 (Fla. 4th DCA 1997) (quoting Bourjaily v. U.S., 483 U.S. 171, 175, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987))). “Because the preponderance-of-the-evidence standard results in a roughly equal allocation of the risk of error between litigants, we presume that this standard is applicable in civil actions between private litigants unless ‘particularly important individual interests or rights are at stake.’ ” Grogan v. Garner, 498 U.S. 279, 286, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991) (quoting Herman & MacLean v. Huddleston, 459 U.S. 375, 389-90, 103 S.Ct. 683, 74 L.Ed.2d 548 (1983)).

The District argues that a preponderance of the evidence standard is sufficient in this case, while RLI maintains that based on Osborne, clear and convincing evidence is the proper standard. Clear and convincing evidence is defined as an intermediate burden of proof that:

requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.

Inquiry Concerning a Judge, 645 So.2d 398, 404 (Fla.1994) (quoting Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983)). “One typical use of the [clear and convincing evidence] standard is in civil cases involving allegations of fraud or some other quasi-criminal wrongdoing by the defendant.” Addington v. Texas, 441 U.S. 418, 424, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979). Other contexts in which the clear and convincing evidence standard is applied include: involuntary civil commitment proceedings, deportation cases, denaturalization cases, civil theft, forfeitures, the revocation of a professional license, penalties for public officers under section 112.317(1)(a), Florida Statutes, and campaign finance violations under chapter 106, Florida Statutes.

In Osborne, this Court held that the clear and convincing evidence standard is the requisite burden of proof in administrative proceedings where administrative fines are sought for securities violations under chapter 517, Florida Statutes. 670 So.2d at 932. Then in RLI, relying on Osborne, the Fifth District held that the clear and convincing evidence standard applies to a state agency’s pursuit of civil penalties in circuit court. RLI, 99 So.3d at 561. We now turn to Osborne.

Osborne

The district court concluded that RLI was governed by Osborne, in which this Court determined the burden of proof required in an administrative proceeding before an administrative fine could be assessed. In Osborne, the Department of Banking and Finance began administrative proceedings against Osborne Stern and Company for securities violations under chapter 517, Florida Statutes. Osborne, 670 So.2d at 933. The Department issued an order “requiring respondents to cease and desist their violations of securities laws, imposing administrative fines, and denying respondents’ application for registration to deal in securities.” Id. On appeal, the district court concluded that the “same clear and convincing standard is applicable to disputes over the granting of a license as it is to the revocation or suspension of a license,” and the imposition of administrative fines is subject to the clear and convincing evidence standard. Osborne Stern & Co. v. Dep’t of Banking and Fin., 647 So.2d 245, 249 (Fla. 1st DCA 1994). However, the First District also certified the following question to this Court:

IN DENYING AN APPLICATION FOR REGISTRATION TO SELL SECURITIES AND IMPOSING CIVIL FINES FOR ALLEGED VIOLATIONS OF PROVISIONS OF CHAPTER 517 REGULATING THE SALE OF SECURITIES, IS THE DEPARTMENT OF BANKING AND FINANCE REQUIRED TO PROVE SUCH ALLEGATIONS BY CLEAR AND CONVINCING EVIDENCE?

Osborne, 670 So.2d at 933.

This Court concluded that the certified question required the determination of the appropriate burden of proof in two separate contexts, that of applicant registration and that of the imposition of fines. Therefore, this Court rephrased the question certified by the district court. Importantly, we observe that in the second part of the question, this Court rephrased the term “civil fines” as “administrative fines” and articulated the issues as follows:

Issue 1: Must the Department of Banking and Finance prove by clear and convincing evidence that an applicant has violated provisions of chapter 517, regulating the sale of securities, in order to deny the applicant’s registration to sell securities because of those violations?
Issue 2: Must the Department of Banking and Finance prove by clear and convincing evidence alleged violations of chapter 517, regulating the sale of securities, in order to impose administrative fines upon any person for those violations?

Osborne, 670 So.2d at 933 (emphasis added). This Court concluded that satisfaction of the clear and convincing evidence standard was not required in denying an application for registration to sell securities, but it was required in order to assess administrative fines for securities violations under chapter 517. Id.

In the present case, the District, the Attorney General, and the Florida Department of Environmental Protection argue that the district court overextended Osborne when it concluded that the clear and convincing evidence standard applied to the circuit court’s assessment of civil penalties against RLI. The District maintains that the circuit court was only bound to apply the preponderance of the evidence standard. RLI argues that the circuit court was bound by the clear and convincing evidence standard as stated in Osborne.

Was Osborne Overextended?

RLI misstates this Court’s holding in Osborne by saying that “the Florida Supreme Court held that when a court is asked to impose civil fines against a party, it is necessary for the moving party to prove the alleged violations by clear and convincing evidence.” 99 So.3d at 561 (emphasis added). In fact, Osborne discarded the term “civil fines” when it rephrased the certified question and utilized the term “administrative fines.” 670 So.2d at 933. Further, RLI makes no distinction between the “administrative fines” in Osborne and the “civil penalties” in RLI, 99 So.3d at 560-61. The question certified by the district court merges these distinct terms under the umbrella of “monetary penalties.” Id. at 561. However, Osborne is distinguishable from RLI.

Osborne arose in the context of securities violations under chapter 517, Florida Statutes. Section 517.221(3) authorized the Department of Banking and Finance to “impose and collect an administrative fine.” § 517.221(3), Fla. Stat. (1993). Consistent with the applicable statute, Osborne repeatedly refers to administrative fines. Indeed, the relevant section in Osborne is entitled “Administrative Fines,” and this relatively short section makes five separate references to administrative fines. 670 So.2d at 935. Osborne also states that “the existence of evidence in the record supporting the hearing officer’s findings is irrelevant to whether the fact-finder held the Department to the correct standard of proof at the administrative proceeding.” Id. (emphasis added). This limiting language in Osborne leads us to conclude that the clear and convincing standard applicable to the imposition of administrative fines does not extend to the circuit court’s award of civil penalties in RLI.

CONCLUSION

For the foregoing reasons, we answer the rephrased certified question in the negative. When the Legislature statutorily authorizes a state governmental agency to recover a “civil penalty” in a “court of competent jurisdiction” but does not specify the agency’s burden of proof, the agency is not required under Osborne to prove the alleged violation by clear and convincing evidence, but rather by a preponderance of the evidence. We reverse the district court’s decision for further proceedings consistent with this opinion.

It is so ordered.

POLSTON, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, and PERRY, JJ., concur.

      . Consistent with this explanation, the current edition of Black's Law Dictionary defines a preponderance of the evidence as follows:
      [t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.

        Black’s Law Dictionary 1301 (9th ed. 2009).

        . In re Beverly, 342 So.2d 481 (Fla.1977).

      . Woodby v. Immigration & Naturalization Serv., 385 U.S. 276, 87 S.Ct. 483, 17 L.Ed.2d 362 (1966).

      . Chaunt v. U.S., 364 U.S. 350, 81 S.Ct. 147, 5 L.Ed.2d 120 (1960).

      . Westinghouse Elec. Corp., Inc. v. Shuler Bros., Inc., 590 So.2d 986 (Fla. 1st DCA 1991).

      . Dep’t of Law Enf. v. Real Prop., 588 So.2d 957 (Fla.1991).

      . Ferris v. Turlington, 510 So.2d 292 (Fla.1987).

      . Latham v. Fla. Comm'n on Ethics, 694 So.2d 83 (Fla. 1st DCA 1997).

      . Diaz de la Portilla v. Fla. Elections Comm'n, 857 So.2d 913 (Fla. 3d DCA 2003).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    In re AMENDMENTS TO The FLORIDA PROBATE RULES.
    No. SC13-888.
    Supreme Court of Florida.
    May 22, 2014.
    James Raymond George, Chair, Florida Probate Rules Committee, Fort Lauder-dale, FL; John F. Harkness, Jr., Executive Director, and Heather Savage Telfer, Staff Liaison, The Florida Bar, Tallahassee, FL, for Petitioner.
    Henry P. Trawick, Jr., Sarasota, FL, Responding with comments.
   PER CURIAM.

Before the Court are proposed amendments to the Florida Probate Rules. See Fla. R. Jud. Admin. 2.140(f). The proposals were approved by the Board of Governors of The Florida Bar and are intended to conform the Florida Probate Rules to Florida Rule of Judicial Administration 2.425 (Minimization of the Filing of Sensitive Information). After considering the comment concerning the proposals filed with the Court, and the response of the Probate Rules Committee (Committee), we adopt the amendments as proposed by the Committee.

In In re Implementation of Committee on Privacy & Court Records Recommendations, 78 So.3d 1045 (Fla.2011), the Court adopted new Florida Rule of Judicial Administration 2.425, along with various amendments to other rules, in order to minimize the amount of unnecessary sensitive personal information included in documents filed with the courts. The proposals we adopt here are in response to the Court’s request in that opinion that the various rules committees review their bodies of rules and forms and propose any amendments needed to ensure consistency with the minimization amendments. Id. at 1055 n. 31.

As proposed by the Committee, we amend rules 5.120 (Administrator Ad Li-tem and Guardian Ad Litem); 5.200 (Petition for Administration); 5.210 (Probate of Wills Without Administration); 5.385 (Determination of Beneficiaries and Shares); 5.405 (Proceedings to Determine Protected Homestead Real Property); 5.406 (Proceedings To Determine Exempt Property); 5.407 (Proceedings to Determine Family Allowance); 5.530 (Summary Administration); 5.550 (Petition to Determine Incapacity); 5.555 (Guardianships of Minors); 5.560 (Petition for Appointment of Guardian of an Incapacitated Person); 5.590 (Application for Appointment as Guardian; Disclosure Statement; Filing); 5.636 (Settlement of Minors’ Claims); and 5.646 (Standby Guardians). Consistent with the requirements of rule 2.425, the amendments are intended to minimize the amount of sensitive personal information required in documents filed with the court in probate proceedings. The amendments include, among other things, requiring a minor’s initials and year of birth instead of a minor’s name and date of birth, and adding committee notes explaining rule 2.425 exceptions for use of a minor’s name and birth date. References to rule 2.425 also are added.

Accordingly, we amend the Florida Probate Rules as reflected in the appendix to this opinion. New language is underscored, and deleted language is struck through. The committee notes are offered for explanation only and are not adopted as an official part of the rules. The amendments shall become effective immediately upon the release of this opinion.

It is so ordered.

POLSTON, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, LABARGA, and PERRY, JJ., concur.

APPENDIX

RULE 5.120. ADMINISTRATOR AD LITEM AND GUARDIAN AD LITEM

(a) [No Change]

(b) Petition. The petition for appointment of a guardian ad litem shall state to the best of petitioner’s information and belief:

(1) the nameinitial and residence address of each minor, person with a developmental disability, or incapacitated person and bir-th-dateyear of birth of each minor who has an interest in the proceedings;
(2) — (5) [No Change]

(c)-(g) [No Change]

Committee Notes

Rule History

1977 Revision — 2012 Revision: [No Change]

2014 Revision: Amends subdivision (b)(1) to conform to Fla. R. Jud. Admin. 2,425. Committee notes revised.

Statutory References

[No Change]

Rule References

Fla. Prob. R. 5.041 Service of pleadings and documents.

Fla. R. Jud. Admin. 2.516 Service of pleadings and documents.

Fla. R. Jud. Admin. 2,425 Minimization of the Filing of Sensitive Information.

RULE 5.200. PETITION FOR ADMINISTRATION

The petition for administration shall be verified by the petitioner and shall contain:

(a)-(b) [No Change]

(c) so far as is known, the names and addresses of the surviving spouse, if any, and the beneficiaries and their relationship to the decedent and the dateyear of birth of any beneficiaries who are minors;

(d)-(j) [No Change]

Committee Notes

Rule History

1977 Revision — 2012 Revision: [No Change]

2014 Revision: Subdivision (c) amended to conform to Fla. R. Jud. Admin. 2,425. Committee notes revised.

Statutory References

[No Change]

Rule References

Fla. Prob. R. 5.020 Pleadings; verification; motions.

Fla. Prob.R. 5.040 Notice.

Fla. Prob. R. 5.041 Service of pleadings and documents.

Fla. Prob. R. 5.180 Waiver and consent. Fla. Prob. R. 5.201 Notice of petition for administration.

Fla. R. Jud. Admin. 2.516 Service of pleadings and documents.

Fla. R. Jud. Admin. 2.425 Minimization of the Filing of Sensitive Information.

RULE 5.210. PROBATE OF WILLS WITHOUT ADMINISTRATION

(a) Petition and Contents. A petition to admit a decedent’s will to probate without administration shall be verified by the petitioner and shall contain:

(1) — (2) [No Change]
(3) so far as is known, the names and addresses of the surviving spouse, if any, and the beneficiaries and their relationships to the decedent, and the datename and year of birth of any who are minors;
(4) — (8) [No Change]
(b)-(d) [No Change]

Committee Notes

[No Change]

Rule History

1975 Revision — 2011 Revision: [No Change]

2014 Revision: Subdivision (a)(3) amended to conform to Fla. R. Jud. Admin. 2,425. Committee notes revised.

Statutory References

[No Change]

Rule References

Fla. Prob. R. 5.015 General definitions.

Fla. Prob. R. 5.020 Pleadings, verification; motions.

Fla. Prob. R. 5.205(a)(7) Filing evidence of death.

Fla. Prob. R. 5.215 Authenticated copy of will.

Fla. Prob. R. 5.216 Will written in foreign language.

Fla. Prob. R. 5.230 Commission to prove will.

Fla. Prob. R. 5.240 Notice of administration.

Fla. Prob. R. 5.270 Revocation of probate.

Fla. R. Jud. Admin. 2.425 Minimization of the Filing of Sensitive Information.

RULE 5.385. DETERMINATION OF BENEFICIARIES AND SHARES

(a)-(c) [No Change]

Committee Notes

[No Change]

Rule History

1988 Revision — 2012 ' Revision: [No Change]

2014 Revision: Fla. R. Jud. Admin. 2.425(b)(6) provides an exception for the full name of any minor “in any document or order affecting minor’s ownership of real property.” Committee notes revised.

Statutory References

[No Change]

Rule References

Fla. Prob. R. 5.025 Adversary proceedings.

Fla. Prob. R. 5.040 Notice.

Fla. Prob. R. 5.041 Service of pleadings and documents.

Fla. Prob. R. 5.120 Administrator ad litem and guardian ad litem.

Fla. Prob. R. 5.205(a)(5) Filing evidence of death.

Fla. R. Jud. Admin. 2.516 Service of pleadings and documents.

Fla. R. Jud. Admin. 2,425 Minimization of the Filing of Sensitive Information.

RULE 5.405. PROCEEDINGS TO DETERMINE PROTECTED HOMESTEAD REAL PROPERTY

(a) [No Change]

(b) Contents. The petition shall be verified by the petitioner and shall state:

(1)-(2) [No Change]

(3) the name of the decedent’s surviving spouse and the names and dates of birth-of-the decedent’sof surviving lineal descendants, and a statement as to whether the decedent had any minor children as of the date of death. If so, they should be identified with name and year of birth;

(4)-(5) [No Change]

(c) Order. The court’s order on the petition shall describe the real property and determine whether any of the real property constituted the protected homestead of the decedent. If the court determines that any of the real property was the protected homestead of the decedent, the order shall identify by name the person or persons entitled to the protected homestead real property and define the interest of each.

Committee Notes

[No Change]

Rule History

1984 Revision — 2012 Revision: [No Change]

2014 Revision: Amends subdivisions (b)(3) and (c) to conform to Fla. R. Jud. Admin. 2,425. Committee notes revised.

Constitutional Reference

[No Change]

Statutory References

[No Change]

Rule References

Fla. Prob. R. 5.020 Pleadings; verification; motions.

Fla. Prob. R. 5.040 Notice.

Fla. Prob. R. 5.041 Service of pleadings and documents.

Fla. Prob. R. 5.205(a)(6) Filing evidence of death.

Fla. Prob. R. 5.340 Inventory.

Fla. Prob. R. 5.404 Notice of taking possession of protected homestead.

Fla. R. Jud. Admin. 2.516 Service of pleadings and documents.

Fla. R. Jud. Admin. 2,425 Minimization of the Filing of Sensitive Information.

RULE 5.406. PROCEEDINGS TO DETERMINE EXEMPT PROPERTY

(a) [No Change]

(b) Contents. The petition shall be verified by the petitioner and shall:

(1) describe the property and the basis on which it is claimed as exempt property; and
(2) state the name and address of the decedent’s surviving spouse or, if none, the names and addresses of decedent’s children entitled by law to the exempt property and the datesyear of birth of those who are minors.

(c) [No Change]

Committee Notes

[No Change]

Rule History

1984 Revision-2012 Revision: [No Change]

2014 Revision: Subdivision (b)(2) amended to conform to Fla. R. Jud. Admin. 2.425 and provide the year of birth of a minor. Committee notes revised.

Statutory References

[No Change]

Rule References

Fla. Prob. R. 5.020 Pleadings; verification; motions.

Fla. Prob. R. 5.040 Notice.

Fla. Prob. R. 5.041 Service of pleadings and documents.

Fla. Prob. R. 5.042 Time.

Fla. Prob. R. 5.420 Disposition of personal property without administration.

Fla. R. Jud. Admin. 2.516 Service of pleadings and documents.

Fla. R. Jud. Admin. 2,425 Minimization of the Filing of Sensitive Information.

RULE 5.407. PROCEEDINGS TO DETERMINE FAMILY ALLOWANCE

(a) [No Change]

(b) Contents. The petition shall be verified by the petitioner and shall:

(1) state the names and addresses of the decedent’s surviving spouse and the decedent’s adult lineal heirs and the initials, address, and year of birth of the decedents’ lineal heirs who are minors and who were being supported by the decedent or who were entitled to be supported by the decedent at the time of the decedent’s deathT-stating — bhe-dates of birth of those-who-are.minors; and
(2) for each person for whom an allowance is sought, state the adult person’s name, or minor child’s initials, and relationship to the decedent, the basis on which the allowance is claimed, and the amount sought.

(c) [No Change]

Committee Notes

Rule History

2003 Revision-2012 Revision: [No Change]

2014 Revision: Subdivisions (b)(1) and (b)(2) are amended to conform to Fla. R. Jud. Admin. 2,425. Committee notes revised.

Statutory References

[No Change]

Rule References

Fla. Prob. R. 5.020 Pleadings; verification; motions.

Fla. Prob. R. 5.040 Notice.

Fla. Prob. R. 5.041 Service of pleadings and documents.

Fla. R. Jud. Admin. 2.516 Service of pleadings and documents.

Fla. R. Jud. Admin. 2.425 Minimization of the Filing of Sensitive Information.

RULE 5.530. SUMMARY ADMINISTRATION

(a) Petition. The petition must be verified as required by law and must contain:

(1) a statement of the interest of each petitioner, each - petitioner’s name and address, and the name and office address of each petitioner’s attorney;
(2) the name and last known address of the decedent, last 4 digits of the decedent’s social security number, date and place of death of the decedent, and state and county of the decedent’s domicile;
(3) so far as is known, the names and addresses of the surviving spouse, if any, and the beneficiaries and their relationship to the decedent and the dateyear of birth of any who are minors;
(4)-(8) [No Change]
(9) a statement either;
(A) that all creditors’ claims are barred or
(B) that a diligent search and reasonable inquiry for any known or reasonably ascertainable creditors has been made and one of the following:
(i) A statement that the estate is not indebted.
(ii) The name and address of each creditor, the nature of the debt, the amount of the debt and whether the amount is estimated or exact, and when the debt is due. If provision for payment of the debt has been made other than for full payment in the proposed order of distribution, the following information must be shown:
(a) The name of the person who will pay the debt.
(b) The creditor’s written consent for substitution or assumption of the debt by another person.
(c) The amount to be paid if the debt has been compromised.
(d) The terms for payment and any limitations on the liability of the person paying the debtj.
(10) — (12) [No Change]

(b)-(d) [No Change]

Committee Notes

[No Change]

Rule History

1977 Revision-2013 Revision: [No Change]

2014 Revision: Subdivision (a)(3) amended to provide only the year of birth of a minor to conform to Fla. R. Jud. Admin. 2.425. Committee notes revised.

Statutory References

[No Change]

Rule References

Fla. Prob. R. 5.020 Pleadings; verification; motions.

Fla.Prob.R. 5.040 Notice.

Fla. Prob. R. 5.041 Service of pleadings and documents.

Fla. Prob. R. 5.205(a)(3) Filing evidence of death.

Fla. R. Jud. Admin. 2.420 Public access to judicial branch records.

Fla. R. Jud. Admin. 2.425 Minimization of the filing of sensitive information.

Fla. R. Jud. Admin. 2.516 Service of pleadings and documents.

RULE 5.550. PETITION TO DETERMINE INCAPACITY

(a) Contents. The petition to determine incapacity shall be verified by the petitioner and shall state:

(1) — (6) [No Change]

(7) the names, relationships, and addresses of the next of kin of the alleged incapacitated person, specifying the da-tesyear of birth of any who are minors, to the extent known to the petitioner.

(b)-(d) [No Change]

Committee Notes

Rule History

1980 Revision — 2006 Revision: [No Change]

2014 Revision: Amends subdivision (a)(7) to conform with Fla. R. Jud. Admin. 2.425. Committee notes revised.

Statutory References

[No Change]

Rule References

Fla. Prob. R. 5.020 Pleadings; verification; motions.

Fla. Prob. R. 5.040(a)(3) Notice.

Fla. Prob. R. 5.800(a) Application of revised chapter 744 to existing guardian-ships.

Fla. R. Jud. Admin. 2.425 Minimization of the Filing of Sensitive Information.

RULE 5.555. GUARDIANSHIPS OF MINORS

(a)-(f) [No Change]

Committee Notes

[No Change]

Rule History

1991 Revision — 2006 Revision: [No Change]

2014 Revision: Fla. R. Jud. Admin. 2.425(b)(4)—(5) provides exceptions for using the birth date of any minor “whenever the birth date is necessary for the court to establish or maintain subject matter jurisdiction,” as well as using the full name in situations in which the “name of the minor in any order relating to parental responsibility, time-sharing, or child support.” Committee notes revised.

Statutory References

[No Change]

Rule References

Fla. Prob. R. 5.040 Notice.

Fla. Prob. R. 5.541 Recording of hearings.

Fla. Prob. R. 5.560 Petition for appointment of guardian of an incapacitated person.

Fla. Prob. R. 5.620 Inventory.

Fla. Prob. R. 5.6B6 Settlement of minors’ claims.

Fla. Prob. R. 5.690 Initial guardianship report.

Fla. R. Jud. Admin. 2.425 Minimization of the Filing of Sensitive Information.

RULE 5.560. PETITION FOR APPOINTMENT OF GUARDIAN OF AN INCAPACITATED PERSON

(a)-(c) [No Change]

Committee Notes

Rule History

1975 Revision-2006 Revision: [No Change]

2014 Revision: Fla. R. Jud. Admin. 2.425(b)(4) — (5) provides exceptions for using the birth date of any minor “whenever the birth date is necessary for the court to establish or maintain subject matter .jurisdiction,” as well as using the full name in situations in which the “name of the minor in any order relating to parental responsibility, time-sharing, or child support.” Committee notes revised.

Statutory References

[No Change]

Rule References

Fla. Prob. R. 5.020 Pleadings; verification; motions.

Fla.Prob.R. 5.040 Notice.

Fla. Prob. R. 5.550 Petition to determine incapacity.

Fla. R. Jud. Admin. 2,425 Minimization of the Filing of Sensitive Information.

RULE 5.590. APPLICATION FOR APPOINTMENT AS GUARDIAN; DISCLOSURE STATEMENT; FILING

(a) Individual Applicants.

(1) The application for appointment shall contain:

(A) the applicant’s qualifications to serve as a guardian; and
(B) the names of all wards who are adults and the initials of any ward who is a minor for whom the applicant is then acting as guardian, the court file number and circuit court in which each case is pending, and a statement as to whether the applicant is acting as a limited or plenary guardian of the person or property, or both, of each ward.

(2) [No Change]

(b) Nonprofit Corporate Guardians.

(1) [No Change]

(2) A disclosure statement shall contain:

(A) the corporation’s qualifications to serve as a guardian; and
(B) the names of all wards who are adults and the initials of any ward who is a minor for whom the corporation is then acting as guardian, the court file number and circuit court in which each case is pending, and a statement as to whether the corporation is acting as a limited or plenary guardian of the person or property, or both, of each ward.
(3)[No Change]

(c)-(d) [No Change]

Committee Notes

Rule History

1988 Revision — 2008 Revision: [No Change]

2014 Revision: Amends subdivisions (a)(1)(B) and (b)(1)(B) to conform to Fla. R. Jud. Admin. 2.425. Creates a rule reference. Committee notes revised.

Statutory References

[No Change]

Rule References

Fla. R. Jud. Admin. 2,425 Minimization of the Filing of Sensitive Information.

RULE 5.636. SETTLEMENT OF MINORS’ CLAIMS

(a) [No Change]

(b) Petition. The petition for approval of a settlement shall contain:

(1) the nameinitials, residence address, and datathe year of birth of the minor;
(2) the name and address of any guardian appointed for the minor;
(3) the name and residence address of the natural guardians or other persons having legal custody of the minor;
(4) a statement disclosing the interests of any natural or court-appointed guardian whose interest may be in conflict with that of the minor;
(5) a description of the cause of action in which the minor’s interest arises;
(6) a summary of the terms of the proposed settlement; and
(7) copies of all agreements, releases, or other documents to be executed on behalf of the minor.

(c)-(f) [No Change]

Committee Notes

[No Change]

Rule History

1992 Revision — 2006 Revision: [No Change]

2014 Revision: Amends subdivision (b)(1) to conform to Fla. R. Jud. Admin. 2.425. Committee notes revised.

Statutory References

[No Change]

Rule References

Fla. Prob.R. 5.040 Notice.

Fla. Prob. R. 5.042 Time.

Fla. Prob. R. 5.120 Administrator ad litem and guardian ad litem.

Fla. Prob. R. 5.610 Execution by guardian.

Fla. Prob. R. 5.630 Petition for approval of acts.

Fla. R. Jud. Admin. 2.425 Minimization of the Filing of Sensitive Information.

RULE 5.646. STANDBY GUARDIANS

(a)-(b) [No Change]

(c)Petition for Confirmation.

(1) Contents. A standby guardian, not later than 20 days after the assumption of duties as guardian, shall petition for confirmation of appointment. The petition shall be verified by the petitioner and shall state:
(A) the petitioner’s residence and post office address;
(B) the name, age, and residence and post office address of the adult incapacitated person or initials, year of birth, and residence address of minor;
(C)-(H) [No Change]
(2) [No Change]

Committee Notes

[No Change]

Rule History

2006 Revision — 2008 Revision: [No Change]

2014 Revision: Subdivision (c)(1)(B) amended to conform to Fla. R. Jud. Admin. 2.425. Committee notes revised.

Statutory Reference

[No Change]

Rule References

Fla. Prob. R. 5.590 Application for appointment as guardian; disclosure statement; filing.

Fla. Prob. R. 5.600 Oath.

Fla. R. Jud. Admin. 2.425 Minimization of the Filing of Sensitive Information.

      . We have jurisdiction. See art. V, § 2(a), Fla. Const.


text:
    Christian FLEMING, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-3411.
    District Court of Appeal of Florida, First District.
    April 21, 2006.
    Nancy A. Daniels, Public Defender; P. Douglas Brinkmeyer, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General; Carolyn J. Mosley, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant appeals his sentence entered after resentencing pursuant to the 1994 sentencing guidelines, alleging that the trial court scored 40 points for severe victim injury without a jury finding, and made an upward departure based in part on three grounds found by the trial court and not the jury in violation of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). Additionally, appellant argues that the fourth reason for departure is facially invalid. Because the State concedes error regarding the upward departure, we reverse appellant’s sentence and remand for resentencing.

Appellant was convicted on May 14,1997 of aggravated battery by causing great bodily harm, permanent disability, or permanent disfigurement (count one), shooting within a dwelling (count two), and false imprisonment (count three). Appellant was resentenced after a hearing held on April 3, 2003. The scoresheet included 40 points for severe victim injury, resulting in a range of 55.5 months to 92.5 months. The trial court made an upward departure and provided the following written reasons:

Offense was one of violence and was committed in a manner that was especially heinous, atrocious or cruel.
Victim suffered ... permanent physical injury.
Offense committed in order to prevent or avoid arrest, to impede or prevent prosecution for the conduct underlying the arrest, or to effect an escape from custody.
Primary offense is scored at level 7 or higher and the defendant has been convicted of one or more offense that scored, or would have scored, at an offense level 8 or higher.

The trial court imposed a prison term of 20 years, consisting of consecutive terms of ten years for the first count, and five years each for counts two and three.

Because Apprendi was decided prior to appellant’s resentencing, appellant brings this appeal pursuant to Isaac v. State, 911 So.2d 813 (Fla. 1st DCA 2005) (providing that Apprendi applies where an appellant is resentenced subsequent to that decision), review pending, No. SC05-2047 (Fla. filed Oct. 31, 2005). But see, e.g., Galindez v. State, 910 So.2d 284 (Fla. 3d DCA 2005) (certifying conflict with Isaac), review pending, No. SC05-1341 (Fla. filed July 29, 2005).

Appellant first argues that the jury did not find “severe victim injury,” and therefore, the trial court erred in scoring 40 points on this basis. Although the jury must make a finding of severe victim injury pursuant to Apprendi, in this case severe victim injury was found by the jury when it convicted appellant of aggravated battery by causing great bodily harm, permanent disability, or permanent disfigurement. Cf. Arrowood v. State, 843 So.2d 940, 941 (Fla. 1st DCA 2003) (stating, “[t]he jury’s findings of DUI manslaughter and DUI serious bodily injuries support the imposition of the death and severe victim injury points”). Accordingly, the trial court’s assessment of 40 points for severe victim injury was not error in this case.

Appellant also argues that the first three grounds for upward departure entered by the trial court were found by the trial judge and not the jury in violation of Apprendi and also that the fourth ground is invalid on its face, as appellant does not have any present or prior convictions at level 8 or higher. The State concedes error on all four grounds relating to the upward departure. Because of this concession, we reverse appellant’s sentence and remand for resentencing.

REVERSED and REMANDED with directions.

BENTON, POLSTON, and THOMAS, JJ., concur.

      . Appellant's original departure sentence was reconsidered after a recalculation of the scoresheet under the 1994 guidelines pursuant to Hope v. State, 797 So.2d 1252 (Fla.2001). Fleming v. State, 808 So.2d 287 (Fla.1st DCA 2002).

      . See Behl v. State, 898 So.2d 217 (Fla. 2d DCA 2005) (applying the ruling in Apprendi to a trial court’s assessment of victim injury points).


author: WETHERELL, J.

text:
    James K. LINDSEY, Appellant, v. WELLS FARGO BANK, N.A., as Trustee for the Certificateholders of Soundview Home Loan Trust 2007-Opt1, Julie Ann MacDonald Unknown, Spouse of Julie Ann MacDonald; County Creek V111 Homeowners Association, Inc.; Unknown Person(s) in Possession of the Subject Property, Appellees.
    No. 1D12-2406.
    District Court of Appeal of Florida, First District.
    Feb. 27, 2013.

      Jay B. Watson and Joshua T. Kaleel of The Law Office of Jay B. Watson, P.A., Jacksonville, for Appellant.
    H. Michael Muniz of Kahane & Associates, P.A., Plantation, for Appellee Wells Fargo Bank, N.A., As Trustee for the Cer-tificateholders of Soundview Home Loan Trust 2007-OPT1.
   WETHERELL, J.

James K. Lindsey appeals the final summary judgment entered in favor of Wells Fargo Bank in this mortgage foreclosure case. We reverse and remand for further proceedings because Wells Fargo failed to establish its standing to foreclose and, likewise, failed to refute Lindsey’s affirmative defense contesting Wells Fargo’s standing.

In March 2007, Lindsey executed and delivered a promissory note to Option One Mortgage. The note was secured by a mortgage on property owned by Lindsey in Duval County. Lindsey stopped making payments on the note in January 2009, and he was thereafter given due notice that he was in default on his obligations under the note.

On April 2, 2009, Wells Fargo filed a complaint to foreclose the mortgage in which it alleged that it “owns and holds the Note and Mortgage or is a person entitled to enforce the Note.” The copy of the note and mortgage attached to the complaint named Option One as the lender and mortgagee. Wells Fargo subsequently filed the original note with the court along with an Assignment of Mortgage dated April 10, 2009, showing the transfer of the mortgage from Option One to Wells Fargo effective March 26, 2009. The Assignment of Mortgage did not purport to transfer the note, and the original note filed with the court did not include a special endorsement to Wells Fargo or a blank endorsement.

Lindsey answered the complaint in due course. The answer specifically denied the allegation that Wells Fargo owns and holds the note and mortgage. The answer also raised several affirmative defenses, including a claim that Wells Fargo lacked standing because it did not own the note and mortgage when the foreclosure complaint was filed. Wells Fargo filed a motion to strike this defense as baseless, but the trial court denied the motion.

In February 2012, Wells Fargo moved for summary judgment. In support of the motion, Wells Fargo filed affidavits attesting to Lindsey’s payment history, the default letter sent to Lindsey, the total amount owed on the note, and the attorney’s fees and costs incurred in this action. The affidavits did not attest to Wells Fargo’s ownership of the note. Wells Fargo did file a “Certification of Compliance” form completed by its attorney stating that Wells Fargo “holds the note and the rights there under through assignment by the previous note holder” and indicating that the original note had been filed with the court; however, the form was unsworn and the space provided on the form for the date the purported note assignment was filed with the court was blank.

Wells Fargo asserted in its motion for summary judgment that the affirmative defense challenging its standing was legally insufficient because the note was a “bearer instrument” that Wells Fargo was entitled to enforce as the holder of the note. The argument in support of the motion (which simply incorporated by reference the argument in Wells Fargo’s previously denied motion to strike Lindsey’s affirmative defenses) relied heavily on Riggs v. Aurora Loan Services, LLC, in which the court explained that “possession of the original note, indorsed in blank, was sufficient under Florida’s Uniform Commercial Code to establish that it was the lawful holder of the note, entitled to enforce its terms.” See 36 So.3d 932, 933 (Fla. 4th DCA 2010) (emphasis added).

On April 10, 2012, following a hearing on Wells Fargo’s motion for summary judgment, the trial court entered a Final Judgment of Mortgage Foreclosure. The judgment made no findings on Wells Fargo’s standing, but by virtue of the relief granted, the court necessarily found that Wells Fargo had the requisite standing to initiate and maintain this action. The judgment set the foreclosure sale for the property secured by the note for June 4, 2012, but upon Lindsey’s motion, the trial court stayed the sale pending this appeal.

We review the trial court’s ruling on a motion for summary judgment de novo. See Chen v. Whitney Nat’l Bank, 65 So.3d 1170, 1172 (Fla. 1st DCA 2011). Summary judgment is proper where there are no genuine issues of material fact and the moving party is entitled to a judgment as a matter of law. Id. The party seeking summary judgment must also factually refute any affirmative defenses or establish that they are legally insufficient. Id.; see also Thomas v. Ocwen Loan Servicing, LLC, 84 So.3d 1246 (Fla. 1st DCA 2012).

“To have standing to foreclose, it must be demonstrated that the plaintiff holds the note and mortgage in question.” Mazine v. M & I Bank, 67 So.3d 1129, 1132 (Fla. 1st DCA 2011); see also BAC Funding Consortium, Inc. v. Jean-Jacques, 28 So.3d 936, 938 (Fla. 2d DCA 2010). The plaintiff must have the requisite standing when the foreclosure complaint is filed. See Rigby v. Wells Fargo Bank, N.A., 84 So.3d 1195, 1196 (Fla. 4th DCA 2012) (quoting Venture Holdings & Acquisitions Grp., LLC v. A.I.M. Funding Grp., LLC, 75 So.3d 773, 776 (Fla. 4th DCA 2011)).

Thus, in this case, Wells Fargo had the burden to demonstrate that it held Lindsey’s note and mortgage on April 2, 2009, the date it filed its complaint for foreclosure. We agree with Lindsey that, on the record presented, summary judgment was improper because Wells Fargo did not establish its standing or refute Lindsey’s affirmative defense claiming lack of standing. See Gonzalez v. Deutsche Bank Nat’l Trust Co., 95 So.3d 251, 253-54 (Fla. 2d DCA 2012) (reversing summary judgment because plaintiff failed to establish that it held the note when the foreclosure complaint was filed); Rigby, 84 So.3d at 1196 (same); Gee v. U.S. Bank Nat’l Ass’n, 72 So.3d 211, 213-14 (Fla. 5th DCA 2011) (same); BAC Funding Consortium, 28 So.3d at 938 (same).

The original note names Option One (not Wells Fargo) as the lender and, contrary to Wells Fargo’s argument, the note is not a “bearer instrument” because it was payable to Option One. See § 673.1091, Fla. Stat. (2011) (defining “payable to bearer,” and distinguishing instruments that are “payable to order”). Moreover, unlike the note in the Riggs case relied on by Wells Fargo, the original note in this case was not endorsed in blank or otherwise assigned to Wells Fargo. See Gee, 72 So.3d at 213 (explaining that if the note being sued upon in a foreclosure action does not name the plaintiff, the note must bear an endorsement in favor of the plaintiff or a blank endorsement or the plaintiff must submit evidence of an assignment of the note from the payee or an affidavit of ownership); see also § 671.201(5), Fla. Stat. (2011) (defining “bearer” as person in possession of negotiable instrument payable to such person or endorsed in blank).

The cases relied on by Wells Fargo in support of the trial court’s ruling do not sway us from our conclusion that Wells Fargo failed to establish its standing to foreclose; the cited cases are factually distinguishable from this case. In Taylor v. Deutsche Bank National Trust Company, 44 So.3d 618 (Fla. 5th DCA 2010), for example, the note included the same language as the note in this case: “I understand that the Lender may transfer this Note. The Lender or anyone who takes this Note by transfer and who is entitled to receive payments under the Note is called the ‘Note Holder.’ ” But, unlike this ease, the summary judgment evidence in Taylor included a document assigning Deutsche Bank the original lender’s interest in both the mortgage and the note. Id. at 621. It was the assignment of the note, not the “note holder” language in the note, that gave Deutsche Bank standing to foreclose. Id. at 623. Similarly, in Harvey v. Deutsche Bank National Trust Company, 69 So.3d 300, 304 (Fla. 4th DCA 2011), the court held that the bank had standing to foreclose because it had possession of the original note that had been endorsed in blank. Likewise, in Taylor v. Bayview Loan Servicing, LLC, 74 So.3d 1115, 1117-18 (Fla. 2d DCA 2011), the court held that the plaintiff had standing to foreclose even without a written assignment of the mortgage because the mortgage follows the note and, as reflected in an allonge, the note was “endorsed without recourse” to the plaintiff prior to the filing of the foreclosure complaint.

Here, Wells Fargo filed a document showing that the mortgage was assigned to it by Option One. The document did not, however, assign the note. Moreover, even if the document could somehow be construed to have also assigned the note, it would raise a disputed issue of fact (thereby precluding summary judgment) as to whether the note was assigned before or after the foreclosure complaint was filed. See Vidal v. Liquidation Props., Inc., 104 So.3d 1274 (Fla. 4th DCA Jan.9, 2013); McLean v. JP Morgan Chase Bank Nat’l Ass’n, 79 So.3d 170, 173 (Fla. 4th DCA 2012); and cf. Gonzalez, 95 So.3d at 253 (noting that because the mortgage follows the note, the date the mortgage was assigned to the plaintiff is irrelevant so long as the record demonstrates that the note was assigned to the plaintiff before the foreclosure complaint was filed).

In sum, because the evidence of record failed to establish that Wells Fargo was the holder of the note and mortgage at the time the foreclosure complaint was filed, Wells Fargo failed to prove its standing (and failed to refute Lindsey’s affirmative defense challenging its standing) and, thus, the trial court erred in entering summary judgment in favor of Wells Fargo. Accordingly, we reverse the Final Judgment of Mortgage Foreclosure and remand for further proceedings.

REVERSED and REMANDED for further proceedings.

ROBERTS and MARSTILLER, JJ., concur.

      . We find no merit in Wells Fargo’s argument that Lindsey waived this defense by not raising it in his motion to dismiss. First, lack of standing is not one of the issues listed in Florida Rule of Civil Procedure 1.140(b) that is waived if not raised in a motion to dismiss; it is an affirmative defense that is waived if not raised in the answer to the complaint. See Wells Fargo Bank, N.A. v. Reeves, 92 So.3d 249, 253 (Fla. 1st DCA 2012); Phadael v. Deutsche Bank Trust Co., 83 So.3d 893, 894 (Fla. 4th DCA 2012). Second, Wells Fargo did not argue below that the standing issue was not properly before the court because the issue was not raised in Lindsey’s motion to dismiss, but rather it argued that the issue was refuted by its summary judgment evidence. Third, because Lindsey’s answer denied the allegation in the complaint that Wells Fargo owns and holds the note, Wells Fargo had the burden to establish that it was the owner and holder of the note in order to obtain summary judgment. See Lizio v. McCullom, 36 So.3d 927, 929 (Fla. 4th DCA 2010) ("Where the defendant denies that the party seeking foreclosure has an ownership interest in the mortgage, the issue of owner-' ship becomes an issue the plaintiff must prove.”) (citing Carapezza v. Pate, 143 So.2d 346, 347 (Fla. 3d DCA 1962)).

      . The judgment was entered three years after the complaint was filed (and 39 months after Lindsey last made a payment on the note), but there were significant periods of time— 7/18/09 to 5/13/10, 2/10/11 to 10/23/11, and 10/25/11 to 2/20/12 — during which there was inexplicably no record activity by the parties.


author: PER CURIAM. THOMAS, J.,

text:
    ALPHA DATA CORPORATION, a Florida corporation, Appellant, v. HX5, L.L.C., a Florida limited liability company, Timothy Deckert, individually, Margarita Howard, individually, Tracy Allen, individually, Charles Brasfeild, individually, and individually Margarita Howard, InfoPro Corporation, an Alabama corporation, Appellees.
    Nos. 1D12-2885, 1D12-5517.
    District Court of Appeal of Florida, First District.
    Oct. 18, 2013.
    As Corrected Dec. 18, 2013.

      M. Hope Keating and Barry Richard of Greenberg Traurig, P.A., Tallahassee; A. Benjamin Gordon of Keefe, Anchors & Gordon, P.A., Fort Walton Beach, for Appellant.
    Tiffany A. Sullivan of Moore, Hill & Westmoreland, P.A., Pensacola, for Appel-lees InfoPro Corporation and Charles Brasfeild.
    John R. Zoesch, III, and J. Nixon Daniel, III, of Beggs & Lane, R.L.L.P., Pensacola, for Appellees HX5, L.L.C., Margarita Howard, Timothy Deckert, and Tracy Allen.
   PER CURIAM.

Appellant, Alpha Data Corporation, a government contractor that provides information technology and engineering services, filed a multi-count complaint against Appellees HX5, Margarita Howard, Timothy Deckert, and Tracy Allen. Count I alleged theft of trade secrets, Count II alleged Appellees breached a teaming agreement, Count III alleged breach of a “Mentor-Protege Agreement”, Count IV alleged promissory estoppel, Count V alleged breach of a fiduciary relationship, and Count VII alleged unjust enrichment. The trial court entered summary judgment in favor of Appellees on all counts, and Alpha Data appeals that judgment. As explained below, we affirm the court’s judgment as to Counts III and V. As to the remaining counts, we are constrained to agree with Alpha Data that there existed genuine issues of material fact, thus precluding summary judgment.

The trial court found that the Statute of Frauds precluded the claims of breach of agreement, breach of the Mentor-Protege Agreement, promissory estoppel and fraudulent inducement because there were no written agreements and the alleged oral contracts could not be performed within one year; that Appellant could not prove damages; that damages were speculative; that Appellant failed to demonstrate the existence of a fiduciary relationship; that Appellant’s claim of promissory estoppel is barred by the Economic Loss Rule; and that Appellant failed to demonstrate the existence of trade secrets or the misappropriation thereof. The summary judgment also concluded that Appellant could not prove any of the defendants caused damages to Appellant. The summary judgment further found that the two breach of agreement claims failed because there was not a meeting of the minds between the parties on the essential terms of the alleged agreement, and that the unsigned draft teaming agreement and unsigned draft mentor-protege agreement were only agreements to agree.

We affirm the trial court’s finding that the Statute of Frauds bars ADC’s claim that HX5 breached the Mentor-Protege Agreement.

No action shall be brought ... upon any agreement that is not to be performed within the space of 1 year from the making thereof ... runless the agreement- or promise upon which such action shall be brought, or some note or memorandum thereof shall be in writing and signed by the party to be charged therewith or by some other person by her or him thereunto lawfully authorized.

§ 725.01, Fla. Stat.

The general rule is that the Statute of Frauds bars enforcement of oral contracts which by their terms are not to be performed within a year. Yates v. Ball, 132 Fla. 132, 181 So. 341, 344 (1937). The fact that a contract may not be performed within a year does not bring it within the statute. Id. “In other words, to make a parol contract void, it must be apparent that it was the understanding of the parties that it was not to be performed within a year from the time it was made.” Id. Contracts for an indefinite period generally do not fall within the Statute of Frauds. Id.

Here, it is undisputed that HX5 never signed the proposed Mentor-Protege Agreement ADC sent to it. It is clear from the record and, according to the terms of the unsigned agreement that ADC sent to HX5, and which forms the basis of the alleged oral contract, this partnership was intended to last three years, thus bringing it within the Statute and, consequently, unenforceable.

We reverse the summary judgment in all other respects and remand for further proceedings because there remain genuine issues of material fact. Orders granting summary judgment are reviewed de novo. Dianne v. Wingate, 84 So.3d 427 (Fla. 1st DCA 2012). An appellate court’s “task is to determine whether, after reviewing every inference in favor of Appellant as the non-moving party, no genuine issue of material fact exists and the non-moving party is entitled to a judgment as a matter of law.” Id. Summary judgment should only be granted when there is no doubt that material fact issues remain. If there is even the slightest doubt that material factual issues remain, summary judgment may not be entered. Any doubts must be resolved in favor of the non-moving party. Feizi v. Dep’t of Mgmt. Servs., 988 So.2d 1192 (Fla. 1st DCA 2008).

As to allegations involving breach of contract, fraud in the inducement, unjust enrichment and promissory estoppel and injunctive relief the record clearly shows that genuine issues of material fact remained as to whether Appellant could prove or whether Appellee could defeat the elements of the remaining counts and whether Appellant could prove how it was damaged. These factual disputes preclude summary judgment. Moreover, a recent opinion from our supreme court requires us to reverse the trial court’s finding that the Economic Loss Rule bars Alpha Data’s fraudulent inducement claim. See Tiara Condo. Ass’n, Inc. v. Marsh & McLennan Co., 110 So.3d 399, 407 (Fla.2013) (holding the Economic Loss Rule is limited to product liability cases).

It is up to the fact finder to resolve factual disputes. Consequently, Appellees were not entitled to judgment as a matter of law.

This holding also requires reversal of the trial court’s judgment awarding costs to Appellees.

BENTON and CLARK, JJ., concur; THOMAS, J., concurs and dissents with opinion.

THOMAS, J.,

concurring in part and dissenting in part.

I concur with the majority’s opinion affirming the trial court’s order as to ADC’s claims for breach of the Mentor-Protege Agreement and for breach of fiduciary duty. I also concur with the majority’s reversal of the trial court’s order finding that the Economic Loss Rule barred ADC’s fraudulent inducement claim, pursuant to our supreme court’s recent decision in Tiara Condominium Association, Inc. v. Marsh & McLennan Companies, Inc., 110 So.3d 399 (Fla.2013). I respectfully dissent, however, with the majority’s holding that there existed genuine issues of material fact concerning ADC’s claims for theft of trade secrets, breach of the teaming agreement, promissory estoppel, fraudulent inducement, and unjust enrichment.

With respect to the trade secrets claim, in my view, ADC failed to establish that any of the trade secrets it alleges Appel-lees misappropriated were trade secrets at all. Rather, all of the information forming the basis of its claim was generally known or readily accessible to third parties. “Information that is generally known or readily accessible to third parties cannot qualify for trade secret protection.” Am. Red Cross v. Palm Beach Blood Bank, Inc., 143 F.3d 1407, 1410 (11th Cir.1998).

As for the rest of the claims, the underlying and fatal flaw in ADC’s case is that any damages arising from the alleged actions by Appellees are purely speculative and, thus, ADC’s claims are barred. “Damages cannot be based on speculation, conjecture or guesswork.” Swindell v. Crowson, 712 So.2d 1162, 1164 (Fla. 2d DCA 1998).

Here, ADC’s claims rest on two assumptions: First, that a proposal submitted jointly by HX5 and ADC, as opposed to InfoPro, would have resulted in the award of the contract; and second, pursuant to the alleged teaming agreement, that HX5 and ADC would have come to terms on a subcontract for ADC. Whether either or both of these would have occurred is the very definition of speculative. It is impossible to know whether the government employees responsible for assessing and awarding the contract would have looked just as favorably upon a proposal submitted by HX5 and ADC as it did upon HX5 and InfoPro. In fact, ADC’s own expert agreed that whether an HX5/ADC partnership would have been better positioned to obtain the contract was purely speculative.

Furthermore, the record is undisputed that, prior to the pre-solicitation for the contract at issue, the HX5 defendants Howard and Deckert, according to ADC’s own chief executive officer, resigned in lieu of being terminated. The chief executive officer also accused Appellee Howard of stealing from ADC. Yet these were the same people whom ADC now contends would have to come to an agreement to work together as primary and subcontractors. Whether they would have been able to overcome these differences and come to an agreement is, again, pure speculation. Thus, ADC was unable to establish the essential element of non-speculative damages to support its claims for breach of contract, promissory estoppel, or fraudulent inducement.

Finally, the majority has overlooked that the teaming agreement ADC alleges HX5 breached was nothing more than an unenforceable “agreement to agree.” A court cannot “afford a remedy for the breach of a promise to negotiate a contract, because there would be no way to determine whether the parties would have reached an agreement had they negotiated.” State, Dep’t of Corr. v. C & W Food Serv., Inc., 765 So.2d 728, 730 (Fla. 1st DCA 2000).

Here, the unsigned proposed teaming agreement provides that in the event the parties’ joint proposal resulted in a successful bid, the “successful Prime Contractor (i.e., HX5) will execute its best effort to negotiate a subcontract agreement that meets the intent of this Teaming Agreement within 30 days after the contract award.” ADC essentially acknowledged that this is an agreement to agree by citing various federal cases from around the country in which courts in other jurisdictions have found that such teaming agreements may constitute the basis for contractual liability where the prime contractor fails to enter into a subcontract with the subcontractor as anticipated in the teaming agreement. That may be, but this court is bound by its prior decision in C & W Food Services, which holds to the contrary.

The clause here is very similar to that in C &W Food Services. In that matter, the contract included a renewal clause. 765 So.2d at 729. C & W sued when the Department unilaterally decided not to renew the contract without any negotiations. Id. “[T]he company asserted that the Department had breached its duty to negotiate renewal in good faith. This argument was based on the Department’s contracting manual, which incorporates a directive that the renewal clause of a procurement contract must include a provision for good faith negotiations.” Id. This court rejected this argument, explaining:

Whether the Department’s contracting manual is the equivalent of a rule is, in our view, immaterial. Even if the contract could be construed to incorporate the good faith negotiation requirement from the manual, C & W would be without a remedy. The obligation to negotiate renewal in good faith is, at most, an agreement to agree on something in the future. Because the parties have not yet agreed on the essential terms for the period in which the contract could be renewed, they do not have an enforceable contract for that period. An agreement to negotiate the terms of a renewal does not create a contractual right to renew.

Id. Consequently, this court affirmed the trial court’s summary judgment in favor of the Department. Id. at 731.

Similarly, here, the teaming agreement, in addition to including an agreement to submit a joint bid proposal, also includes an agreement to attempt to reach a subcontractor agreement with mutually acceptable terms, in the event the joint bid proposal proved successful. This is the essence of an agreement to agree on something in the future and, thus, is unenforceable under Florida law.

For the foregoing reasons, the trial court correctly entered summary judgment as to all of these claims. Even when viewing the evidence in a light most favorable to ADC, ADC was not entitled to relief as a matter of law. Consequently, I would also affirm the costs award.

      . Alpha Data’s complaint also alleged two counts against InfoPro Corporation and Charles Brasfeild. The judgments arising from that case are addressed in our opinion in case number 1D12-2886 (which was consolidated for all putposes with case number 1D12-5140).

      . The trial court also entered a separate judgment awarding costs, which is the subject of the appeal in case number 1D12-5517, which has been consolidated with this case for all purposes.

      . Alpha Data’s briefs do not address the trial court’s finding that it failed to establish the existence of a fiduciary duty. Thus, any argument that this was error is waived, hence our affirmance as to that issue.

      . Appellant did not address the trial court's finding that Appellant failed to establish the existence of a fiduciary duty. Thus, any argument that this was error is waived and the trial court’s finding is affirmed.


author: PER CURIAM. FORST, J.,

text:
    ST. PETER’S ACADEMY, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 4D14-0860.
    District Court of Appeal of Florida, Fourth District.
    April 16, 2014.
    Thomas W. Tierney of Rossway Swan Tierney Barry, Vero Beach, for appellant.
    Laurel Hopper, Fort Pierce, for appel-lee.
   ON MOTION TO STAY

PER CURIAM.

Appellant’s motion for stay is denied.

Denied.

STEVENSON and GROSS, JJ„ concur.

FORST, J., dissents with opinion.

FORST, J.,

dissenting:

St. Peter’s Academy (“Appellant”) filed a notice of appeal- from the Department of Children and Families’ (hereinafter “the Department”) order revoking Appellant’s license to operate its child care facilities. Appellant also seeks to stay the Department’s order pending disposition of the appeal from that order. The issue of the stay is before this Court and I respectfully dissent from the decision to deny Appellant’s motion to stay.

When appellate review is sought, “a stay of an agency order revoking or suspending a license shall be granted as a matter of right unless the court, upon petition of the agency, determines that a stay would constitute a probable danger to the health, safety, or welfare of the state.” Ludwig v. Dep’t of Health, 778 So.2d 531, 533 (Fla. 1st DCA 2001) (referencing section 120.68(3), Florida Statutes (2000)). In this case, Appellant concedes to two Class I violations. The first violation occurred in January 2012 and involved a child wandering off Appellant’s premises. The second (and only other referenced) violation occurred in June 2013 and involved a bus driver and transportation aide leaving a child behind on a bus. Thus, during the two years preceding the Department’s final order revoking Appellant’s license, there was one Class I incident (the second such within the space of four or more years). The employees who were responsible for the 2013 violation were terminated, and Appellant has implemented “a three-tier review process” in an effort to avoid such incidents in the future (whether this is “too little, too late” for the purposes of challenging the revocation is a matter reserved for this court’s review of the appeal of the Department’s final order).

At this time, the only matter before this panel is Appellant’s Motion for Stay. A stay of an agency order revoking a license shall be granted “as a matter of right,” with one exception. The Department’s objections to the motion for a stay have not established that Appellant’s administration and/or current employees are inherently negligent or that the response to the two incidents was insufficient and that permitting the facility to remain open during the pendency of the appeal creates “a probable danger to the health, safety, or welfare of the state.” Id. (emphasis added). Accordingly, I would grant Appellant’s motion to stay the Department’s order revoking its license during the pendency of the instant appeal. Therefore, I respectfully dissent from the Court’s decision to deny Appellant’s motion to stay.


text:
    Thomas C. GEFTOS, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-3370.
    District Court of Appeal of Florida, Fourth District.
    April 23, 2014.
    Carey Haughwout, Public Defender, and Tom Wm. Odom, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Capalbo v. State, 73 So.3d 838, 841-42 (Fla. 4th DCA 2011).

DAMOORGIAN, C.J., LEVINE and CONNER, JJ., concur.


text:
    D’Angelo Lavelle DIXON, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-5171.
    District Court of Appeal of Florida, Second District.
    May 7, 2014.
   PER CURIAM.

Affirmed. See Carbajal v. State, 75 So.3d 258 (Fla.2011); State v. Miller, 313 So.2d 656 (Fla.1975); Hughes v. State, 22 So.3d 132 (Fla. 2d DCA 2009); Waiter v. State, 965 So.2d 861 (Fla. 2d DCA 2007); Shortridge v. State, 884 So.2d 321 (Fla. 2d DCA 2004); Desmond v. State, 576 So.2d 743 (Fla. 2d DCA 1991); Collins v. State, 97 So.3d 305 (Fla. 4th DCA 2012); Foss v. State, 24 So.3d 1275 (Fla. 5th DCA 2009); Logan v. State, 1 So.3d 1253 (Fla. 4th DCA 2009); Francois v. State, 934 So.2d 536 (Fla. 3d DCA 2006); Felton v. State, 919 So.2d 557 (Fla. 5th DCA 2005); Swain v. State, 492 So.2d 752 (Fla. 1st DCA 1986).

KHOUZAM, MORRIS, and SLEET, JJ., Concur.