author: MORRIS, Judge.

text:
    Leighton N. HARDEY and Aileen M. Hardey, Appellants/Cross-Appellees, v. Robert SHELL and Kay Shell, Appellees/Cross-Appellants.
    No. 2D12-3925.
    District Court of Appeal of Florida, Second District.
    Aug. 13, 2014.

      Eilsa S. Worthington of Elisa S. Wor-thington, P.A., Pineland, for Appellants/Cross-Appellees.
    John R. Hamilton of Foley & Lardner LLP, Orlando, for Appellees/Cross-Appel-lants.
   MORRIS, Judge.

Leighton and Aileen Hardey appeal a final judgment entered against them on their complaint filed against their neighbors, Robert and Kay Shell. On appeal, the Hardeys argue that the trial court erred in entering summary judgment on their count for declaratory relief on the basis that it is barred by the statutes of limitations in sections 95.11 and 95.231, Florida Statutes (2009). We agree and reverse the summary judgment on the Hardeys’ count for declaratory relief. However, we find no merit to the other issues raised by the Hardeys on appeal or the Shells on cross-appeal.

I. Factual Background

The Hardeys and the Shells own neighboring properties fronting on the east side of Hickory Boulevard in Bonita Beach, Florida. The Shells’ lot is situated between Hickory Boulevard and the side of a natural cove of Estero Bay. The Shells’ lot is so narrow that the back of their home is built on pilings over the water. The Hardeys’ lot is south of the Shells’ lot; the Hardeys’ lot is wider at 100 feet by 100 feet and extends farther to the east than the Shells’ lot. The cove of Estero Bay runs along the eastern side of the Shells’ lot and ends at the northern line of the Hardeys’ lot; the cove frontage is the only waterfront on either lot. Both properties have seawalls. The Hardeys bought their property in 1992. The Shells acquired their property in 2009 from Mr. Shell’s LLC, which had purchased the property in 2005.

In 2010, Mr. Shell laid claim to the Hardeys’ waterfront, asserting that the Hardeys’ entire waterfront and dock were included in the legal description of the Shells’ lot. Shortly thereafter, Mr. Shell erected a fence across the Hardeys’ pool deck and along the entire length of the Hardeys’ waterfront, about three feet back from the Hardeys’ seawall. The fence was erected on cemented metal posts, some of which were drilled into the Hardeys’ pool deck.

The current dispute between the Har-deys and the Shells must be understood in the context of the relevant history of the two properties. First, the legal description of the Shells’ property changed sometime between 1955 and 197Í. In 1955, the Langleys conveyed what is now the Shells’ property to Marian Buchanan, but the legal description is defective and does not close; the 1955 deed describes the point of beginning as the water’s edge in the northeast corner of the lot, yet the fourth and final call ends at Hickory Boulevard in the northwest corner and does not close at the water’s edge in the northeast corner. Perhaps to remedy this, the legal description to the property was changed when Marian Buchanan sold the property to the Seils in 1971, but this new legal description still does not appear to close. The 1971 deed describes the point of beginning as the northeast side of Hickory Boulevard, which is the northwest corner of the lot. The northern line of the lot then runs northeasterly to the cove; the eastern line of the lot then runs southeasterly along the water; the southern line of the lot then runs southwesterly 100 feet to Hickory Boulevard; the western line of the lot runs northwesterly 100 feet to the point of beginning. The problem with this description, as aptly explained by the Hardeys, is that “the fourth call seems to overshoot the northeast side of Hickory Boulevard.” The 1955 deed describes the southern line of the lot running 40 feet to Hickory Boulevard, while the 1971 deed describes the southern line of the lot running 100 feet to Hickory Boulevard. The legal description in the 1971 deed is the legal description by which the Shells took title.

Second, in 1979, the Franks owned what is now the Hardeys’ property and replaced their old wooden seawall with a new concrete one. The new seawall was constructed one and one-half feet out into the water in front of the old one and the space between the two seawalls was filled with dirt. The new seawall created a problem because the waters of the cove no longer intersected with the common line between the two affected properties. The cove was now separated from the common lot line by the new seawall and the small strip of land between the new seawall and the old sea wall.

The altered description of the property now owned by the Shells and the construction of the improvements on the lot now owned by the Hardeys have caused much confusion among the property owners.

Third, shortly after the Hardeys acquired their property, Marjorie McLy-mond, who had purchased from the Seils what is now the Shells’ property, told Mr. Hardey that her legal description showed that her southern lot line extended 100 feet and that she therefore owned the Har-deys’ entire waterfront. Mr. Hardey then learned that the Lee County Property Appraiser had depicted on the tax map the Hardeys’ waterfront strip as being part of Mrs. McLymond’s lot. Thereafter, in 1997, Mr. Hardey sued his sellers, their realtor, and Mrs. McLymond in an effort to resolve the issue. The Lee County Property Appraiser corrected the tax map to reflect that the disputed waterfront strip was part of the Hardeys’ lot. Mrs. McLymond did not continue to assert a right to the waterfront strip, and the Har-deys believed that the dispute had been resolved. The case was ultimately dismissed for lack of prosecution. When the Shells bought their property from Mrs. McLymond in 2005, she told them that the dispute had been resolved.

After the Shells erected the fence on the Hardeys’ pool deck and asserted their right to the waterfront property at issue in 2010, the Hardeys filed a complaint against the Shells alleging five counts. In November 2010, the parties agreed to an order granting the Shells’ motion to dismiss counts three, four, and five without prejudice to the Hardeys’ right to amend. In June 2011, the Shells filed a motion for summary judgment, claiming that the remaining counts for declaratory relief and for reformation of the Shells’ deed are barred by the statute of limitations in sections 95.11 and 95.281. In August 2011, the Hardeys filed a motion to amend their complaint. On January 17, 2012, the trial court held a hearing on the Shells’ motion for summary judgment, and that same day, the Hardeys voluntarily dismissed their count for reformation.

In a written order filed on February 9, 2012, the trial court granted the Shells’ motion for summary judgment:

The Court finds that the [Hardeys] are precluded from proceeding pursuant to Florida Statutes 95.231 and 95.11. The Court finds that the same issue raised in this proceeding was litigated in [the earlier case against Mrs. McLy-mond]. Based on a review of the pleadings in that case[,] it is clear that the Statute of Limitations would begin to run pursuant to Florida Statute 95.11, at the latest, as of the filing of that previous matter. Based on the foregoing, the Court finds that this case violates the four[-]year statute of limitation outlined in Florida Statute 95.11.
Likewise, it appears that the property description being disputed by the [Har-deys] has been in place since at least 1971. Pursuant to the twenty[-]year restriction under Florida Statute 95.231[,] this cause of action is also barred.

In March 2012, the Shells filed a motion for attorneys’ fees on the basis of section 57.105(1), Florida Statutes (2009). In April 2012, the Hardeys filed an amended motion to amend their complaint. After a hearing held in June 2012, the trial court entered an order denying the motions and ultimately entered a final judgment.

II. Analysis

“Summary judgment is proper only if (1) no genuine issue of material fact exists, viewing every possible inference in favor of the party against whom summary judgment has been entered and (2) the moving party is entitled to a judgment as a matter of law.” Anmiger v. Associated Outdoor Clubs, Inc., 48 So.3d 864, 869 (Fla. 2d DCA 2010) (citations omitted) (citing Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000), and Huntington Nat’l Bank v. Merrill Lynch Credit Corp., 779 So.2d 396, 398 (Fla. 2d DCA 2000)).

We first address the trial court’s conclusion that the Hardeys’ claim is barred by the four-year statute of limitations in section 95.11(3). The Hardeys were involved in a dispute with Mrs. McLymond in 1997 after Mrs. McLymond asserted a claim to the waterfront strip, and the Hardeys filed an action against her for declaratory relief. But the tax map was corrected, the dispute was resolved, and Mrs. McLymond essentially withdrew her claim to the waterfront strip. There was no longer a “present controversy” or “an actual, present, adverse and antagonistic interest in the subject matter” required for an action for declaratory judgment against Mrs. McLymond. See Meadows Cmty. Ass’n v. Russell-Tutty, 928 So.2d 1276, 1279 (Fla. 2d DCA 2006) (quoting May v. Holley, 59 So.2d 636, 639 (Fla.1952)). Until the Shells laid claim to the Hardeys’ waterfront strip in 2010, there was no cause of action and no basis upon which to seek a declaration as to who owned the waterfront strip.

In January 2010, the Shells first asserted their claim to the waterfront strip by expressing their intention to remove the pilings of the Hardeys’ dock. In May 2010, the Shells erected a fence across the Hardeys’ pool deck. These events created a present controversy between the Shells and the Hardeys and an actual, present, adverse and antagonistic interest in the waterfront strip. At that time, the necessary elements for a cause of action for a declaratory judgment had occurred. See id. The Hardeys’ complaint was filed in June 2010, well within the four-year statute of limitation applicable to the present controversy. Based on these undisputed facts, the trial court erred in granting summary judgment on the basis of section 95.11.

Moreover, the twenty-year limitation in section 95.231 does not bar the Hardeys’ count for declaratory relief. Section 95.281(2) provides: “After 20 years from the recording of a deed or the probate of a will purporting to convey real property, no person shall assert any claim to the property against the claimants under the deed or will or their successors in title.” This statute is “not a traditional statute of limitation but is a curative act with a limitation provision.” Holland v. Hattaway, 438 So.2d 456, 461 (Fla. 1st DCA 1983).

The purpose of such a statute is to “cure” or clear an existing title to real estate or an interest in it, of formal irregularities, that is, of clouds, doubts and suspicions against the title resulting from technical defects in the form or execution of deeds ... by limiting the time within which such defects can be asserted to a stated time as measured from some event, such as their recording.

Id. However, “its curative effect extends only to correct technical defects in an otherwise valid deed executed by the person(s) owning the property in question.” Davis v. Hinson, 67 So.3d 1107, 1111-12 (Fla. 1st DCA 2011). Section 95.231(2) “cannot validate conveyances made by persons who have no possessory interest in the property. In other words, it cannot be used to create a title where none existed before.” Davis, 67 So.3d at 1112 (citation omitted) (citing Holland, 438 So.2d at 461-62).

The trial court concluded that the Har-deys’ claim is barred by section 95.231 because the “the property description being disputed by the [Hardeys] has been in place since at least 1971.” However, the dispute in this ease specifically involves the waterfront strip, and in order for section 95.231 to bar the Hardeys’ claim, the 1971 deed would have to convey the waterfront strip. This is the core of the dispute below. The Shells have failed to show that there is no disputed issue regarding whether the 1971 deed includes the waterfront strip. To the contrary, one surveyor opined that the waterfront strip is not included in the Shells’ lot, while a second surveyor was unable to conclude which lot included the waterfront strip. Section 95.231 cannot be used to grant the Shells title in the waterfront strip where none existed under the 1971 deed. Because the Shells have not demonstrated that the 1971 deed in their chain of title indisputably conveys the waterfront strip at issue here, the trial court erred in ruling that section 95.231 operates as a matter of law to bar the Hardeys’ claim for declaratory relief. The trial court erred in granting summary judgment on this basis.

Reversed and remanded for further proceedings.

ALTENBERND and BLACK, JJ„ Concur.

      . Both surveyors speculated that the waterfront strip could belong to the State of Florida.
      In addition, the legal description in the 1971 deed does not appear to include the waterfront strip of land at issue here. The legal description does appear to contain an error in that the southern line of the lot runs in a southwesterly direction 100 feet, which would run it back across Hickory Boulevard. Any error or confusion in this description appears to relate to the southwest corner of the lot where Hickory Boulevard is, not the strip of waterfront land at issue here.


source: Caselaw Access Project

author: DAVIS, Chief Judge.

license: Public Domain

text:
    Virginia HAMMOND a/k/a Virginia Hammond Khan, Appellant, v. KINGSLEY ASSET MANAGEMENT, LLC, a limited liability company; Nabel Muhanna, M.D., an individual; S.H.I. Holdings, LLC; Kiran Shailendra, an individual; Rahim Sabadia, as cotrustee of the Sabadia Family Trust; LA. Khan; Phani R. Tummala; Millenium Partners, LLC, a Georgia limited liability company; and King Engineering Associates, Inc., a Florida corporation, Appellees.
    Nos. 2D13-4425, 2D13-4522.
    District Court of Appeal of Florida, Second District.
    Aug. 13, 2014.
    Virginia Hammond, pro se.
    Luis Martinez-Monfort, Amanda M. Uli-ano, and Keith W. Meehan of Gardner Brewer Martinez-Monfort, P.A., Tampa, for Appellee Kingsley Asset Management, LLC.
    E.A. “Seth” Mills, Jr., and Adam Denver Griffin of Mills Paskert Divers, P.A., Tampa, for Appellees Millenium Partners, LLC, and I.A. Khan.
    No appearance for remaining Appellees.
   DAVIS, Chief Judge.

In these consolidated appeals, Virginia Hammond, pro se, challenges the trial court’s nonfinal orders denying her motion to dissolve a writ of garnishment entered against her and granting the garnishee’s motion to deposit funds into the registry of the court. Because Kingsley Asset Management has not obtained a deficiency judgment in the underlying foreclosure proceeding, we reverse.

Kingsley brought a three-count action against Hammond and five other named defendants. Count one of the complaint was for foreclosure of a mortgage on a piece of commercial property in Pasco County and specifically sought a foreclosure sale and, “if the proceeds of the sale are insufficient to Plaintiffs claim, a Deficiency Judgment against Defendant.” Count two was an action for damages on the promissory note. And count three alleged damages stemming from the guaranty agreements the defendants each signed.

Following a bench trial, the trial court entered a final judgment of foreclosure against Hammond in the amount of $13,953,990.32. That judgment specifically stated that the clerk was not to set the matter for a foreclosure sale until written application for such was made by Kingsley. On the breach of promissory note alleged in count two, the trial court entered a separate final judgment against Hammond in the same amount identified in the foreclosure judgment. This order specifically stated, “[L]et execution issue.” Both of these orders were entered on the same day and in the same circuit court case number.

Kingsley subsequently applied for a foreclosure sale, and that sale was held May 22, 2013. Hammond’s 15.75% interest in the property was sold at public auction to Kingsley for a credit bid of $1100. Kingsley did not seek a deficiency judgment below, and based on the record before us, none has been entered.

At the same time that the underlying cause was progressing below, Hammond and her ex-husband Ishtiaq Khan, who holds an interest in Kingsley, were engaging in binding arbitration in Georgia to settle postdissolution disputes arising from the terms of their divorce settlement. Following that arbitration, the Georgia arbitrator directed Khan to pay Hammond the lump sum of $1,164,595.

Subsequent to entry of' that award, Kingsley filed its “Notice to Defendant of Service of Writ of Garnishment” and a motion for writ of garnishment naming Khan as the garnishee and seeking a response from Khan as to whether he was indebted to Hammond. The writ of garnishment was issued the same day. Khan then filed his answer, stating that he was indebted to Hammond in the amount of $1,164,595, and his motion to deposit those funds into the registry of the court. The trial court granted Khan’s motion after an evidentiary hearing. Hammond then moved to dissolve the writ of garnishment, but the trial court denied the motion after evidentiary hearing. Hammond now challenges these two orders of the trial court.

On appeal, Hammond first argues that the trial court erred in issuing the writ of garnishment in Kingsley’s favor because Kingsley never obtained a deficiency judgment in the foreclosure proceedings. We agree.

Initially, we note that Kingsley is correct that it has the right to pursue both a claim for foreclosure of the mortgage and a claim for damages on the note. “It has long been the common law that, to collect money owed on a note, a mortgagee may pursue its legal and equitable remedies simultaneously, until the debt is satisfied.” Royal Palm Corp. Ctr. Ass’n v. PNC Bank, NA, 89 So.3d 923, 929 (Fla. 4th DCA 2012). “[T]he reason that an action at law on a note may be pursued simultaneously with the equitable remedy of foreclosure is that the two remedies are not inconsistent.” Id. at 932.

However, Kingsley cannot rely on Royal Palm to support its conclusion that it need not obtain a deficiency judgment in the instant case. Although Royal Palm and the instant case share some factual similarities, the posture of the Royal Palm case is different than that presented here.

Royal Palm is similar to the instant case in that the plaintiff filed a multicount complaint seeking both to foreclose the mortgage and to receive damages for breach of the note. The trial court found in favor of the plaintiff on both counts and did not set a sale of the mortgaged property, withholding the sale pending application by the plaintiff. On the damages count, the trial court in Royal Palm ordered the defendant to pay the designated amount, stating “for which let execution issue.” So, similar to the instant case, the damages judgment in Royal Palm was final and collectible, but the foreclosure judgment was not “collectible” until the plaintiff requested a foreclosure sale. It is at that point in Royal Palm that the defendant appealed, arguing that such was an improper procedure for the trial court. Accordingly, the only questions before the Fourth District in Royal Palm were whether the plaintiff could pursue both the equitable and legal remedy simultaneously and whether the trial court could rule on both issues. The Fourth District answered both those questions affirmatively because there was no danger of double recovery.

In the instant ease, however, the final judgments for damages and foreclosure are not before us. Rather, the issue before us is whether, now that Kingsley has sought and obtained a foreclosure sale of the property, it can collect purely on the money judgment without first obtaining a deficiency judgment. We conclude that it cannot.

This case is analogous to Century Group, Inc. v. Premier Financial Services East, L.P., 724 So.2d 661, 662 (Fla. 2d DCA 1999), in which “[t]he question this court face[d][wa]s the effect on a collection action if the party attempts to execute on a promissory note following a foreclosure sale rather than pursue the deficiency amount in a deficiency judgment hearing.” In addressing that issue, this court stated:

It is axiomatic that a party can only recover once on the same debt. Thus, if Premier had pursued execution of the money judgment and recovered the entire judgment amount, then it could not pursue execution of the foreclosure judgment. If Premier pursued foreclosure, and the sale amounts satisfied the judgment, then Premier could not pursue its judgment on the note. Complications arise, however, if the proceeds resulting from the initial collection method, execution on the note or foreclosure, do not satisfy the entire debt. In that circumstance, a party is required to pursue another method of collection to obtain the entire amount of the judgment.

Id. at 662 (citation omitted). This court further noted that “[ajlthough a party may pursue both a foreclosure action and an execution on note, typically a party will follow a foreclosure sale by initiating a deficiency hearing to obtain a deficiency judgment.” Id. This court reversed, concluding that

Premier is attempting to execute on the promissory note to obtain the difference between the foreclosure sale amount and the amount of the judgment. Premier’s collection efforts have the potential to result in an inequity. By executing on a promissory note and then setting-off the amount recovered at foreclosure, Premier avoids a hearing on the amount of deficiency between the foreclosure sale amount and the judgment amount pursuant to section 702.06, Florida Statutes.

Id.-, see also Flagship Bank v. Bryan, 384 So.2d 1823, 1324 n. 3 (Fla. 5th DCA 1980) (“[T]he indebtedness can be collected only once, and any payment on any of the judgments must be credited to the others.”).

The same is true here. To avoid the possibility of a double recovery, before Kingsley can execute on the promissory note, the trial court must conduct a deficiency hearing to determine the amount of set-off from the foreclosure sale. We therefore reverse the trial court’s order denying the motion to set aside the writ of garnishment. Accordingly, we must also reverse the trial court’s order granting the garnishee’s motion to place funds in the registry of the court pursuant to the writ of garnishment. We remand with instructions to grant Hammond’s motion to dissolve the writ of garnishment and for further proceedings consistent with this opinion.

Reversed and remanded.

KELLY and LaROSE, JJ., Concur.

      . Based on die terms of the note, Hammond and her coinvestors were jointly and severally liable on the mortgage debt.

      . We also note that because Hammond is jointly and severally liable here, a deficiency hearing will allow the court to determine if Kingsley has collected on the debt from any of the other defendants.

      . Although on appeal both parties raise arguments as to whom the funds should then be dispersed, that issue has yet to be considered by the trial court and therefore is not before us.


author: FORST, J.

text:
    Carl SELPH, Appellant, v. Decirena SELPH, Appellee.
    No. 4D13-2488.
    District Court of Appeal of Florida, Fourth District.
    Aug. 13, 2014.

      Chet E. Weinbaum, Fort Pierce, for appellant.
    No appearance for appellee.
   FORST, J.

The husband appeals the trial court’s order entering a domestic violence injunction against him. We find that the order is not supported by competent, substantial evidence. Accordingly, we reverse and remand the case to the trial court with instructions to vacate the injunction.

An order imposing an injunction is reviewed for an abuse of discretion. Weisberg v. Albert, 123 So.3d 663, 664 (Fla. 4th DCA 2013); Malchan v. Howard, 29 So.3d 453, 454 (Fla. 4th DCA 2010). A trial court abuses its discretion by entering a domestic violence injunction when the ruling is not supported by competent, substantial evidence. See, e.g., Kunkel v. Stanford ex reí. C.S., 187 So.3d 608, 609 (Fla. 4th DCA 2014). When evaluating whether a trial court’s order granting an injunction is supported by competent, substantial evidence, “legal sufficiency ... as opposed to evidentiary weight, is the appropriate concern of an appellate tribunal.” Stone v. Stone, 128 So.Bd 239, 240 (Fla. 4th DCA 2013) (quoting Brilhart v. Brilhart ex reí S.L.B., 116 So.3d 617, 619 (Fla. 2d DCA 2013)).

A trial court may issue a domestic violence injunction when the petitioner establishes that he or she is “either a ‘victim of domestic violence as defined in section 741.28 or has reasonable cause to believe he or she is in imminent danger of becoming the victim of any act of domestic violence.’” Lopez v. Lopez, 922 So.2d 408, 410 (Fla. 4th DCA 2006) (quoting § 741.30(l)(a), Fla. Stat. (2005)). Section 741.28 defines domestic violence as “any assault, aggravated assault, battery, aggravated battery ... false imprisonment, or any criminal offense resulting in physical injury or death of one family or household member by another family or household member.” § 741.28(2), Fla. Stat. (2013).

In this case, the wife testified that the husband’s dog “attacked” her after the husband told the dog to “get him.” The wife said that the husband laughed while the dog jumped up on her. This “dog attack” happened in December 2012, and the petition was filed in May 2013. The wife did not call police or seek medical attention, although she testified that she was scratched during the ordeal. The wife also testified that she worked long hours for little pay at the husband’s doughnut shop; he forced her to move out of the house; and he threatened her immigration status. The husband in turn testified that his dog had never attacked anyone and was frequently around children, including his own. The husband also stated that the wife asked to help out at the doughnut shop because she was bored at home. Pri- or to the hearing, the wife and the husband had no contact with each other for the previous three months and there is a pending divorce action.

When the husband’s counsel argued that the “dog attack” was an insufficient basis for a domestic violence injunction, the trial court interjected:

Well, I take all of these other allegations as really in the nature of domestic violence. The limiting her contact, the not, if I take it as true, the $15 a day for working from 4:30 in the morning until 2:00, the moving her out of the house, all those things constitute, would constitute legally some basis for a domestic violence injunction.

Chapter 741 defines which allegations may be considered “in the nature of domestic violence” for the purposes of granting a domestic violence injunction. Long hours for little pay, moving the wife out of the house, and limiting her contact do not constitute an assault, battery, false imprisonment, or a criminal offense resulting in physical injury. See § 741.28(2), Fla. Stat. (2013) (defining “domestic violence”). The wife’s allegations, arguably, most closely fall under “false imprisonment”; however, when viewed with the other circumstances noted below, we cannot conclude that the evidence supports a finding that the' husband “forcibly, by threat, or secretly confined], abduet[ed], imprison[ed], or restrained his wife] without lawful authority and against her ... will.” § 787.02(l)(a), Fla. Stat. (2013) (defining the term “false imprisonment” in the context of a criminal allegation).

In reaching our conclusion, we note the absence of allegations of physical abuse, other than the “dog attack.” Moreover, there is no evidence that the wife was forcibly confined or restrained. As a point of fact, at the time that she filed the petition for injunction, the wife had not been in contact with the husband for three months, let alone “confin[ed]” or “restrain[ed].” See id.

With respect to the “dog attack,” there was no evidence that this “attack” was any more than horseplay with no harmful intent. See Stone, 128 So.3d at 241. The wife’s testimony did not counter that of the husband that the “dog attack” was merely an excitable family pet jumping on the wife and scratching her. Such a conclusion is supported by the fact that the wife did not even mention the “attack” when she initially sought an injunction, the length of time between the “attack” and the filing of the petition, the lack of police reports, and the wife’s failure to seek medical attention as a result of the “attack.” See id.

The evidence adduced at the hearing was not legally sufficient to support a finding of domestic violence as defined in section 741.28. As such, the trial court erred by entering a domestic violence injunction against the husband. Although the injunction in this case has since expired, we reverse and remand the case to the trial court with instructions to vacate the injunction. See Stone, 128 So.3d at 242 (vacating an expired injunction “due to the collateral consequences such an injunction might cause”).

Reversed.

STEVENSON and CIKLIN, JJ., concur.


author: SUAREZ, J.

text:
    HILLSTONE RESTAURANT GROUP, INC., Appellant, v. P.F. CHANG’S China Bistro, Inc., Appellee.
    Nos. 3D13-773, 3D13-55.
    District Court of Appeal of Florida, Third District.
    Aug. 13, 2014.

      Hinshaw & Culbertson and James H. Wyman, Coral Gables, for appellant.
    McIntosh, Sawran & Cartaya and Michael J. Lynott, Miami, and Kimberly J. Kanoff, Ft. Lauderdale, for appellee.
    Before WELLS, SUAREZ, and EMAS, JJ.
   ON MOTION FOR REHEARING AND CLARIFICATION

SUAREZ, J.

We grant Appellee P.F. Chang’s China Bistro, Inc.’s Motion for Clarification, withdraw our former opinion of May 21, 2014, and substitute the following in its place. We deny rehearing or clarification in all other respects.

Hillstone Restaurant Group, Inc. fik/a Houston’s Restaurant, Inc. (“Houston’s”), the landlord, appeals a summary judgment entered in favor of P.F. Chang’s China Bistro Inc. (“P.F. Chang’s”), the tenant, holding that Houston’s had a contractual duty to defend and indemnify P.F. Chang’s for damages resulting from a lawsuit against both parties that arose out of a trip-and-fall on property leased to P.F. Chang’s. Based on the facts of the trip- and-fall and the terms of the parties’ lease, we find that Houston’s did not have a contractual duty to defend or indemnify P.F. Chang’s and, therefore, reverse the summary judgment and the attorney’s fee award and remand with instructions.

In 2007, Sabena Beriy and Aron Beriy, her husband, (the “Beriys”) brought suit against both P.F. Chang’s and Houston’s alleging that she fell on a “protruding curb and/or unlevel and dangerous surface in the ingress/egress” of P.F. Chang’s. The Beriys alleged negligence in the “care, design, maintenance, repair, management, cleaning and/or operation” of the site. P.F. Chang’s and Houston’s filed cross-claims against each other for indemnity based on the parties’ lease.

The trial court granted summary judgment for P.F. Chang’s, specifically finding that “the subject curb where Ms. Beriy fell was located in the Common Area in the Development. It was not located on P.F. Chang’s Premises.” The trial court then found that Houston’s breached its contractual duty to defend and indemnify and that P.F. Chang’s was entitled to recover its attorneys’ fees and costs. The trial court entered final judgment and reserved jurisdiction to determine the amount of attorney’s fees. It later entered a separate final judgment for attorney’s fees and costs incurred by P.F. Chang’s in defending the underlying suit and litigating the cross-claims. The two judgments are consolidated for the purposes of this appeal.

In granting P.F. Chang’s motion, the trial court appears to have confused the word, “Premises,” as defined under the lease, with the word “premises” as defined in a dictionary. The lease between the parties states:

Landlord does hereby demise and lease to Tenant and Tenant does hereby take and hire from Landlord ... that certain tract of land described on Exhibit A’ ... (the ‘Site’), together with all improvements ... to be constructed by Landlord on the Site (the ‘Site Improvements’) and all appurtenances thereunto belonging (said Site, Site Improvements and appurtenances hereinafter collectively referred to as ‘Premises’).

Under that definition, the leased “Premises” incorporates the “Site” and the “Site Improvements” which are defined in the lease. Additionally, Exhibit “A” to the lease, entitled “Legal Description of the Premises,” identifies and defines a tract of land referred to as “Parcel ‘C’.” Therefore, under the lease, the “Premises” is both the “Site” and “Parcel C,” together with all Site Improvements and appurtenances thereto.

There is no dispute that Parcel “C” was the “Premises” leased to P.F. Chang’s. There is also no dispute that the trip-and-fall occurred in Parcel “C.” Thus, determination of the claims in this matter requires an analysis of which entity, if any, is required to indemnify the other for claims relating to a trip-and-fall in Parcel C.

The Indemnification portion of the lease contains two indemnification paragraphs. One is titled Indemnification by Landlord and the other is entitled Indemnification by Tenant. Paragraph 11.2, “Indemnification by Landlord,” states:

Landlord covenants and agrees to pay, defend, indemnify and save harmless Tenant from and against any and all liability, loss, damage, cost, expense (including without limitation all attorneys’ fees and expenses of Tenant), causes of action, suits, claims, demands or judgments of any nature whatsoever based upon, arising from or connected in any manner with (a) injury to or death of any person ... occurring in or on any part of the Development other than the Premises, (b) the use, non-use, condition, possession, construction, operation, maintenance, management or occupation of any part of the Development other than the Premises.... (emphasis added).

That paragraph requires Houston’s to indemnify and hold P.F. Chang’s harmless for any injury or construction defect which occurs on the “Development” but not if it occurs on the “Premises” as defined in the Lease. As the trip-and-fall occurred on Parcel C, which is coextensive with the “Premises,” Houston’s is not contractually obligated to indemnify or pay any attorneys’ fees incurred by P.F. Chang’s in the personal injury action brought by the Be-riys.

Conversely, paragraph 11.1, “Indemnification by Tenant,” states:

Tenant covenants and agrees to pay, defend, indemnify and save harmless Landlord from and against any and all liability, loss, damage, cost, expense (including without limitation all attorneys’ fees and expenses of Landlord) causes of action, suits, claims, demands or judgments of any nature whatsoever based upon, arising from or connected in any manner with (a) injury to or the death of any person ... occurring on the Premises during the Term, (b) the use, non-use, condition, possession, construction, operation, maintenance, management or occupation of the Premises or any part thereof....

Under that paragraph, P.F. Chang’s is contractually obligated to indemnify Houston’s for any claims arising from an injury occurring on the Premises. Because it is undisputed that the injury occurred on Parcel C, P.F. Chang’s is, in fact, obligated to indemnify Houston’s for the claim brought by the Beriys.

Consistent with the trial court’s ruling, P.F. Chang’s also argues that the location of the trip-and-fall was within the “Common Area” as defined by the lease, rather than on its “Premises.” Paragraph 18.1 of the lease states that “The ‘Common Area’ is that area within the Development which is neither occupied by building ... nor devoted permanently to the exclusive use of a particular tenant .... ” Because the trip-and-fall was alleged to have occurred at the ingress or egress of P.F. Chang’s, there is no merit in P.F. Chang’s contention that the area at issue was not “devoted permanently” to the exclusive use of P.F. Chang’s. Moreover, Exhibit A-l to the lease identifies Parcel C as being P.F. Chang’s “Dedicated Area.” As such, Parcel C appears to have been “devoted permanently” to P.F. Chang’s by the terms of the lease.

P.F. Chang’s further argues that Houston’s was liable to indemnify it because Exhibit B to the lease, entitled “Site Improvements” includes the requirement that Houston’s “[djesign and install all parking lots, driveways and curbs within the entire Development up to the back of the curb adjoining Tenant’s building.” That argument ignores that the “Premises” leased to P.F. Chang’s includes the “Site Improvements.” It likewise ignores that paragraph 6.1 of the lease states that “TENANT AGREES THAT TENANT IS LEASING THE PREMISES ‘AS IS’, AND LANDLORD MAKES NO WARRANTIES, EXPRESS OR IMPLIED, AS TO FITNESS, MERCHANTABILITY, USE OR CONDITION OF THE PREMISES.” (capitalization in original). Where the lease defines the leased “Premises” to include the “Site Improvements,” it is disingenuous for P.F. Chang’s to argue that the curb over which Ms. Beriy allegedly fell was not a part of its Premises under the lease.

As to P.F. Chang’s claim for common law indemnity, we find that the trial court erred in determining that Houston’s was at fault and that P.F. Chang’s was wholly without fault given the terms of the lease and the lack of any factual development that resulted from the settlement.

Accordingly, we reverse the summary judgment and attorney’s fees award in favor of P.F. Chang’s and remand with instructions for the trial court to enter summary judgment in favor .of Houston’s.

Reversed and remanded.

      . Following mediation between all parties, P.F. Chang’s settled the claims against both P.F. Chang’s and Houston's. Houston's declined to participate in the settlement.

      . Exhibit “A” to the lease also identifies "Parcel C” as "a portion of Tract 'A' ” and includes a map which shows "Parcel C” in relation to "Tract A,” and shows the square footage and acreage of "Parcel C.” Exhibit "A-l” entitled "Site Plan of Development, Dedicated Area and Tenant’s Monument Sign" contains drawing showing the "Dedicated Area,” which parallels the map of "Parcel C.”

      . As quoted above, paragraph 1.1 of the lease states "said Site, Site Improvements and appurtenances hereinafter collectively referred to as ‘Premises.’ ”


author: PER CURIAM.

text:
    The DEVEREUX FOUNDATION, INC., d/b/a Devereux Florida, Community Partnership for Children, Inc., Florida Department of Children and Families, Heartland for Children, Inc., and Gulf Coast Jewish Family and Community Services, Inc., Appellants, v. S.D., a minor child, by and through his next friend, David BAZERMAN, Appellee.
    No. 4D14-1212.
    District Court of Appeal of Florida, Fourth District.
    Aug. 13, 2014.
    E. Blake Paul, J. Davis Connor and Matthew J. Vaughn of Peterson & Myers, P.A., Lakeland, for appellants.
    Joel S. Fass of Colodny, Fass, Talenfeld, . Karlinsky, Abate & Webb, P.A., Fort Lauderdale, for appellee.
   PER CURIAM.

We affirm the order on appeal. On remand, appellee shall be given leave to file an amended complaint specifying that he seeks damages only for injuries suffered in Broward County.

GROSS, CIKLIN, JJ., and KASTRENAKES, JOHN, Associate Judge, concur.


text:
    Dennis MASSA, Appellant, v. JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, As Acquirer of Certain Assets and Liabilities of Washington Mutual Bank from the FDIC Acting as Receiver, Appellee.
    No. 4D13-4740.
    District Court of Appeal of Florida, Fourth District.
    Aug. 13, 2014.
    Dennis Massa, Boynton Beach, pro se.

      William L. Grimsley, Esq. of McGlin-chey Stafford, Jacksonville, for appellee JPMorgan Chase Bank, National Association.
   PER CURIAM.

Based on appellee’s confession of error, we reverse the circuit court’s final summary judgment of foreclosure and remand for further proceedings.

Reversed and remanded.

MAY, CIKLIN and LEVINE, JJ., concur.


author: WOLF, J.

text:
    DEPARTMENT OF CHILDREN AND FAMILIES, Appellant, v. C.T., Father of C.T. and A.T., Minor Children, Appellee.
    No. 1D14-1300.
    District Court of Appeal of Florida, First District.
    Aug. 14, 2014.
    Dwight 0. Slater, Children’s Legal Services, Department of Children and Families, Tallahassee, for Appellant.
    No appearance for Appellee.
   WOLF, J.

In this appeal from a non-final, post-dependency order, the Department of Children and Families (Department) asserts that the lower court erred as a matter of law in finding that the Interstate Compact on the Placement of Children (ICPC) does not apply to the placement of children with out-of-state parents. Because we find that the lower court misinterpreted our decision in Department of Children & Families v. L.G., 801 So.2d 1047 (Fla. 1st DCA 2001), and ignored subsequent case law, we reverse that portion of the lower court’s order that held the ICPC does not apply to the facts of this case.

The children in this case were removed from the father’s custody based on allegations of drug use and neglect. The children were adjudicated dependent and placed in the temporary custody of the maternal grandmother while both parents worked toward goals of reunification in their respective case plans. During the pendency of the case, the father relocated to Maryland where he pursued intensive in-patient and out-patient drug rehabilitation, in compliance with his case plan.

During a status hearing on the case, for which the father travelled from Maryland to appear, the court found that the father would likely be reunified with the children at the end of the school year because of his compliance with the case plan. The maternal grandmother asserted an unwillingness to continue to serve as a custodian should the children be returned to the father only to be removed again in the future. Taking this to mean that the maternal grandmother was unwilling to continue as custodian even for the rest of the school year, the court determined the children should be reunified with the father in Maryland right away.

The Department objected to immediate placement because the agency had no information about the home in Maryland, no way of monitoring the situation, and had not yet completed the ICPC process whereby Maryland authorities could conduct a home study and accept placement of the children in that state. Finding there was “no evidence of safety concerns” and that L.G. holds that the ICPC does not apply when children are placed with out-of-state parents, the court ordered reunification with the father. The court noted that the Department would continue to supervise the father for the next six months and that he would present himself for random urinalysis.

The ICPC was adopted into Florida Statutes at section 409.401. It applies whenever a “sending agency,” which by definition includes a court of a party state, places a child in a “receiving state.” “Placement” is defined as:

the arrangement for the care of a child in a family free or boarding home or in a child-caring agency or institution but does not include any institution caring for the mentally ill, mentally defective or epileptic or any institution primarily educational in character, and any hospital or other medical facility.

§ 409.401, art. 11(d), Fla. Stat. (2013). The ICPC does not apply to the “sending or bringing of a child into a receiving state by a parent, stepparent, grandparent, adult brother or sister, adult uncle or aunt, or a guardian and leaving the child with any such relative or nonagency guardian in the receiving state.” § 409.401, art. VIII(a), Fla. Stat.

In L.G., this court read these provisions together to find that the ICPC does not apply when a custodial parent, who has lawful custody of the child at all pertinent times and full authority to plan for the child, chooses to relocate to another state. L.G., 801 So.2d at 1050. “In plain language, Article VIII(a) renders Article III [Conditions for Placement] of the ICPC inapplicable to the “ ‘sending or bringing of a child into a receiving state hy a parent.’ Id. at 1053 (emphasis added). The case involved a child over whom the court had never assumed custody.

Any potential confusion in this District caused by language in L.G. that seemed to imply that the ICPC only applied when placement was into “foster care” should have been resolved by Department of Children & Families v. S.D., 921 So.2d 801 (Fla. 1st DCA 2006), which cited with approval H.P. v. Department of Children & Families, 838 So.2d 583, 586 (Fla. 5th DCA 2003), which expressly held that the ICPC applies when a court exercises its jurisdiction to place a child with an out-of-state parent. In H.P., the Fifth DCA found that:

the ICPC applies to the interstate placements with parents if a child is under the jurisdiction of the juvenile or family court, the court has assumed responsibility to determine where the child will reside, and until such time as the interrupted parent-child relationship is restored and the. state’s intervention is ended.

H.P., 838 So.2d at 586 (quoting The Interstate Compact on the Placement of Children, A Manual and Instructional Guide for Juvenile and Family Court Judges, page 34). When a court takes such control over a child, the “ ‘living status is that of a placement.’ Id.

In such circumstances, the parent’s situation is not custody or possession as a matter of parental right, but rather it is the same as the position of a foster parent. In both instances they are caregivers only because of the authority conferred to them by the state acting through the court. When a child is with a caregiver under these circumstances, the child is in foster care.

Id. The H.P. court noted that its decision was in accord with Department of Children & Families v. Benway, which aptly concluded that “[o]nce a court has legal custody of a child, it would be negligent to relinquish that child to an out-of-state parent without some indication that the parent is able to care for the child appropriately.” 745 So.2d 437, 439 (Fla. 5th DCA 1999).

In this ease, the children were under the jurisdiction of the court, the court assumed the responsibility to determine where the children would reside, and the State’s intervention had not yet ended. Under these conditions, the ICPC did apply and the lower court violated the ICPC by sending the children to Maryland without complying with the ICPC Conditions of Placement. See § 409.401, art. Ill, Fla. Stat. We, therefore, REVERSE the order on appeal to the extent it misapprehends our decision in L.G.

ROBERTS and ROWE, JJ., concur.

      . While there were serious irregularities in the procedural process by which the lower court eventually ordered reunification, due to events that have occurred since the filing of this appeal, those concerns are no longer before this court.

      . These terms are defined at section 409.401, article II, Florida Statutes (2013).


text:
    Chandrakant PATEL and Nayan Patel, Appellants, v. The BANK OF NEW YORK MELLON, etc., Appellee.
    No. 5D14-203.
    District Court of Appeal of Florida, Fifth District.
    Aug. 15, 2014.
    Kelley A. Bosecker, St. Petersburg, for Appellant.
    Kimberly N. Hopkins, of Shapiro, Fish-man & Gaché, LLP Tampa, for Appellee.
   PER CURIAM.

Appellee, Bank of New York Mellon, filed a complaint to foreclose on its mortgage executed by Appellant’s Chandrakant Patel and Nayan Patel, on June 12, 2008. Appellants responded on July 7, 2008, asking for additional time because they were attempting to lower their payments. They made no denials and raised no defenses. Finally, on May 7, 2010, Appellee moved for summary judgment. The hearing was ultimately scheduled for December 14, 2010. Appellants in “this unopposed action for foreclosure,” asked for a minimum extension for the hearing to investigate whether adjustments and modifications to their mortgage could be made. At that time, Appellee moved for the court to administratively close the file, and the motion was granted.

A year later, on December 13, 2011, Appellee moved to reopen the file and reschedule the summary judgment hearing. This motion was granted and a new summary judgment hearing was set for November 29, 2012. Appellants moved for an extension until a date after February 8, 2013. This motion was denied. On November 2, 2012, a final judgment of foreclosure was entered. On December 14, 2012, Appellants, through current counsel filed a notice of appeal but it was dismissed on January 18, 2013, based on failure to pay the filing fee. Even so, a month later, Appellants filed an emergency motion to stay all proceedings including the scheduled sale, until Appellants’ pending appeal to this Court. The court then held a case management conference. At this hearing, the court denied Appellant’s ore tenus motion to vacate judgment. It is the denial of this ore tenus motion to vacate judgment that is now being appealed. Counsel’s various arguments directed to the summary judgment are made too late. Since there was no proper appeal of the summary judgment, it may not be collaterally attacked. Concerning her appeal of the ore tenus motion to vacate judgment, we find no error committed by the trial judge.

We therefore AFFIRM.

ORFINGER, LAWSON, JJ., and HARRIS, C. M., Senior Judge, concur.


text:
    G.M., a Child, Petitioner, v. FLORIDA DEPARTMENT OF JUVENILE JUSTICE and Darrell Johnson, Superintendent of the Duval Regional Juvenile Detention Center and the State of Florida, Respondents.
    No. 1D14-3262.
    District Court of Appeal of Florida, First District.
    Aug. 18, 2014.

      Matt Shirk, Public Defender, and Elizabeth H. Webb, Assistant Public Defender, Jacksonville, for Petitioner.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

G.M., a juvenile, filed a petition for writ of habeas corpus challenging his detention. Because of the exigent circumstances, we previously granted relief by an unpublished order and now write to explain our reasoning.

Petitioner entered a plea in a delinquency proceeding and was released to home detention. Thereafter, he was adjudicated and ordered to secure detention pending placement in a moderate-risk facility. Petitioner appeared for a review hearing 29 days after disposition. At that hearing, a representative of the Department of Juvenile Justice (“DJJ”) informed the court that petitioner was on a waiting list for the moderate-risk program. DJJ asserted that one of the reasons a placement determination had not been made previously was because petitioner had not cooperated when DJJ attempted to administer psychiatric or educational questions to petitioner. The trial court ordered that petitioner continue to be held in secure detention. Petitioner’s counsel objected to the continued detention and the case was passed for review to a later date.

The petition for writ of habeas corpus argued that petitioner had been detained longer than the 15-day maximum post-commitment detention allowed under section 985.27(l)(a), Florida Statutes (2014). In response, the state argued that while normally a juvenile would be entitled to release from secure detention when DJJ failed to place him within the 15-day period, in this case petitioner had caused the delay by refusing to cooperate with commitment staff and that the trial court was correct in not rewarding this behavior. The state asserted that a party may not benefit from his or her refusal to cooperate, self-created error or purposeful delay. The state did not cite to any exception to the 15-day time limit provided in section 985.27(l)(a). Instead, the state cited to cases concerning the rights of adult criminal defendants under Florida law or the Florida Rules of Criminal Procedure. See Gonzalez v. State, 136 So.3d 1125, 1147 (Fla.2014) (“Under the invited error doctrine, a party may not make or invite error at trial and then take advantage of the error on appeal.”); Goodrich v. State, 834 So.2d 893, 894-895 (Fla. 3d DCA 2002) (“It is obvious that Goodrich is trying to reap the benefit of the erroneous setting of the trial date beyond the window period, the type of ‘gotcha’ tactic we have frequently condemned.”).

As this court has repeatedly stated, the power to place juveniles charged with a delinquent act in detention is entirely statutory in nature. 5.W. v. Woolsey, 673 So.2d 152, 154 (Fla. 1st DCA 1996). Therefore, strict compliance with the statute is required. W.C. v. Smith, 898 So.2d 1137, 1138 (Fla. 1st DCA 2005). Section 985.27(l)(a) provides:

A child who is awaiting placement in a nonsecure residential program must be removed from detention within 5 days, excluding Saturdays, Sundays, and legal holidays. Any child held in secure detention during the 5 days must meet detention admission criteria under this part. The department may seek an order from the court authorizing continued detention for a specific period of time necessary for the appropriate residential placement of the child. However, such continued detention in secure detention care may not exceed 15 days after entry of the commitment order, excluding Saturdays, Sundays, and legal holidays, and except as otherwise provided in this section.

In G.P. v. Bessette, 831 So.2d 1256 (Fla. 1st DCA 2002), this court strictly construed the 15-day post-commitment secure detention maximum. See also J.T.F. v. Housel, 37 So.3d 279 (Fla. 4th DCA 2010) (providing that a child committed to DJJ for a moderate-risk residential program may only be held in secure detention awaiting dispositional placement for a period not to exceed 15 days after commitment); L.K. v. State, 729 So.2d 1011 (Fla. 4th DCA 1999) (“Notwithstanding the child’s acquiescence in a longer period of detention, the plain language of the statute forbids the trial judge from ordering detention in excess of 15 days after commitment.”). As in G.P., the post-commitment secure detention in this case clearly exceeded the statutory maximum and petitioner was entitled to be released.

We note that petitioner’s failure to cooperate with DJJ staff may have resulted in a contempt proceeding, but there was no showing that the due process procedural requirements of the statutes or rules were met. As this court noted in W.C. v. Smith, the Florida Statutes contain two separate, but identical, statutes on indirect criminal contempt in juvenile proceedings. Both sections 984.09(4)(b) (dependency actions) and 985.037(4) (delinquency actions) provide that if a child is charged with indirect contempt of court, the court must hold a hearing within 24 hours to determine whether the child committed indirect contempt of a valid court order. At the hearing, certain due process rights must be provided to the child: (i) the right to a copy of the order .to show cause alleging facts supporting the contempt charge, (ii) the right to an explanation of the nature and the consequences of the proceedings, (iii) the right to legal counsel, (iv) the right to confront witnesses, (v) the right to present witnesses, (vi) the right to have a transcript or record of the proceeding, and (vii) the right to appeal to an appropriate court. Likewise, the Florida Rules of Juvenile Procedure contain two separate, but substantially identical, rules concerning the prosecution of indirect criminal contempt. Both rule 8.150(b) (delinquency proceedings) and rule 8.285(b) (dependency proceedings) provide that a juvenile accused of indirect criminal contempt must be provided with a show cause order, arraignment, representation by counsel, opportunity for bail, opportunity to personally appeal' before the court to offer facts in defense or mitigation of the contempt, and personal presence of the contemnor in open court upon pronouncement of sentence.

Because petitioner had been detained longer than the 15-day maximum post-commitment detention allowed and there was no showing that the due process procedural requirements of the rules or statutes on contempt had been satisfied, we granted the petition for writ of habeas corpus and ordered that petitioner be immediately released from detention.

VAN NORTWICK, CLARK, and SWANSON, JJ., concur.


author: MAY, J.

text:
    Judy RODRIGO, Appellant, v. STATE FARM FLORIDA INSURANCE COMPANY, Appellee.
    No. 4D12-3410.
    District Court of Appeal of Florida, Fourth District.
    Aug. 20, 2014.
    Roy W. Jordan, Jr. of Roy W. Jordan, Jr., P.A., West Palm Beach, for appellant.
    Anthony J. Russo, Jared M. Krukar and Curt Allen of Butler Pappas Weihmuller Katz Craig LLP, Tampa, for appellee.
   On Motion for Rehearing, Rehearing En Banc, and For Certification

MAY, J.

We deny the insured’s motion for rehearing, rehearing en banc, and for certification. We do however withdraw our previously issued opinion and substitute this opinion in its place.

An insured appeals an adverse final summary judgment on her claim for property damage to her condominium, its contents, and related expenses. She argues the trial court erred in entering summary judgment because: (1) the insurer waived a condition precedent, the sworn proof of loss requirement; and (2) her personal property was covered because the damage was caused by a named peril, an “explosion.” We disagree and affirm.

The insured’s next door neighbor died, and time passed before the body was discovered. During that time, the decomposed body leaked bodily fluids, which infiltrated the walls and the insured’s apartment causing damage. This is the event that gave rise to the insured’s claim.

The insurance policy required the insured to file a sworn proof of loss within 60 days of the date of loss. While the insured sent invoices and lists of damages, no one disputes that she failed to file a sworn proof of loss. The policy further provided: Loss Payment. We will adjust all losses with you.... Loss will be payable 60 days after we receive your proof of loss and:

a. reach agreement with you;
b. there is an entry of a final judgment; or
c.there is a filing of an appraisal award with us.

None of these events occurred. However, the insurer’s adjuster contacted a contractor, who inspected the unit and 'signed an appraisal award. The insurer then tendered payment to the insured for that amount, but denied liability for personal property damage. The insured did not accept the payment.

The insured filed a two-count complaint against the insurer. The first count alleged that the appraisal was invalid, and requested the court to modify or vacate the award, or appoint new appraisers and a neutral umpire for a second appraisal. In the second count, the insured alleged that the insurer breached its contract by failing to pay the owner the amount necessary to repair and remediate her unit, to compensate her for damage to her personal property, and for living expenses.

In its amended answer, the insurer pled that the insured had:

(1) materially breached her duty to satisfy conditions precedent;
(5) failed to satisfy all policy provisions before bringing legal action; and
(6) otherwise failed to comply with her contractual obligations.

The insurer moved for partial summary judgment on the issue of coverage for personal property damage. While acknowledging that the insured made a claim for personal property damage, the insurer argued the policy covered personal property damage only for named perils, and a decomposing body was not one of them. The insured responded that the claim resulted from an “explosion,” a named peril under the policy. She supplied an affidavit of a licensed physician, who attested that the deceased’s body “underwent advanced decomposition” and “the internal contents of her body explosively expanded and leaked.”

The insurer also moved for summary judgment on whether the insured failed to comply with a condition precedent — submitting a sworn proof of loss — constituting a material breach of the insurance policy. Because the insurer and insured never reached an agreement, no final judgment was entered, and no valid appraisal award existed, there was no coverage for the claims. The insured responded, in part, that the insurer had waived the “sworn proof of loss” requirement by tendering payment to the insured, and that other genuine issues of material fact precluded entry of a summary judgment.

The trial court entered a single final summary judgment for the insurer, finding that the insurer did not waive the condition precedent of a sworn proof of loss, there was no coverage, and the damage caused by the decomposing body did not constitute an “explosion” as a named peril. From this summary judgment, the insured now appeals.

The standard of review governing a trial court’s ruling on a motion for summary judgment based upon the interpretation of an insurance policy is de novo. Chandler v. Geico Indem. Co., 78 So.3d 1293,1296 (Fla.2011).

The insured argues that the trial court erred by entering summary judgment because the insurer did not show that it was prejudiced by the insured’s failure to submit a sworn proof of loss. We disagree.

“[A]n insurer need not show prejudice when the insured breaches a condition precedent to suit.” Goldman v. State Farm Fire Gen. Ins. Co., 660 So.2d 300, 303 (Fla. 4th DCA 1995). Proof of loss is a condition precedent to an insured’s suit against an insurer. Soronson v. State Farm Fla. Ins. Co., 96 So.3d 949, 952 (Fla. 4th DCA 2012); Kramer v. State Farm Fla. Ins. Co., 95 So.3d 303, 306 (Fla. 4th DCA 2012).

While the insured argued that she provided the insurer with bills, estimates, invoices, and other documents to prove her damages, she failed to file a sworn proof of loss. Therefore, the insured materially breached a condition precedent, and the insurer was not obligated to pay. The trial court properly entered summary judgment in the insurer’s favor. See Arni-ca Mut. Ins. Co. v. Drummond, 970 So.2d 456, 459-60 (Fla. 2d DCA 2007).

The trial court also correctly found that the insurer did not waive the sworn proof of loss requirement by tendering payment because “[¡Investigating any loss or claim under any policy or engaging in negotiations looking toward a possible settlement of any such loss or claim” does not constitute a waiver of a “sworn proof of loss” requirement. § 627.426(l)(c), Fla. Stat. (2007) (emphasis added).

Just prior to oral argument, the insured filed a notice of supplemental authority and argued that the supreme court’s recent decision in State Farm Mutual Automobile Insurance Co. v. Curran, 135 So.3d 1071 (Fla.2014), rendered the sworn proof of loss a condition subsequent rather than a condition precedent. We disagree as our supreme court limited its rationale and holding to the unique subject of uninsured motorist coverage and compulsory medical exams. Even if it had not done so, we find the issue in this case vastly different than the one encountered in Cmran.

In Curran, the court held that an insurance policy’s requirement of a compulsory medical examination (“CME”) was a condition subsequent, not a condition precedent to coverage. In doing so, the court specifically said that “a CME provision in the UM coverage context is not a condition precedent to coverage and we find that an insured’s breach of this provision should not result in post-occurrence forfeiture of insurance coverage without regard to prejudice.” Id. at 1079 (emphasis added) (citations omitted).

In reaching this conclusion, a plurality of the court discussed the purpose of uninsured motorist (“UM”) coverage, and “stressed” that such coverage was not designed for the benefit of insurers. Id. at 1077. It also reviewed the role of CMEs in the process of settling personal injury claims. Id. It then rejected the insurer’s argument and concluded “that a CME provision in the UM context is a post-loss obligation of the insured and is not a condition precedent to coverage.” Id. at 1078.

Unlike the UM policy in Curran, the policy in this case specifically provided:

Loss Payment. We will adjust all losses with you.... Loss will be payable 60 days after we receive your proof of loss and:
a. reach agreement with you;
b. there is an entry of a final judgment; or
c. there is a filing of an appraisal award with us.
Your Duties After Loss. After a loss to which this insurance may apply, you shall see that the following duties are performed
d.submit to us, within 60 days after the loss, your signed, sworn proof of loss.

(emphasis added). This places an affirmative duty on the insured to provide the sworn proof of loss. Unlike a CME, which is requested by the insurer to substantiate a claim already made by the insured, the sworn proof of loss is a condition precedent. For this reason, Curran does not mandate a reversal in this case.

The insured next argues that the trial court erred by entering partial summary judgment on the personal property claim because there was an issue of material fact as to whether there was an explosion under the policy’s terms. We disagree.

The policy provided personal property coverage for named perils. Among those named perils was an “explosion.” That term was not defined. It is black letter law that “[a]n insurance contract must be construed in accordance with the plain language of the policy.” Harrington v. Citizens Prop. Ins. Corp., 54 So.3d 999, 1001 (Fla. 4th DCA 2010) (quoting Taurus Holdings, Inc. v. U.S. Fid. & Guar. Co., 913 So.2d 528, 532 (Fla.2005)). It was the insured’s burden to prove that the term “explosion” included the explosive expansion of a decomposing body.

Rather than stretching common sense, the trial court correctly gave the term “explosion” its “plain and unambiguous meaning as understood by the ‘man-on-the-street.’ ” Id. at 1001 (citation omitted). The plain meaning of the term “explosion” does not include a decomposing body’s cells explosively expanding, causing leakage of bodily fluids. In short, although novel in her attempt to do so, the insured could not establish that the decomposing body was tantamount to an explosion.

The trial court correctly entered summary judgment for the insurer. We therefore affirm.

Affirmed,

GROSS and FORST, JJ., concur.

      . The insured raises other issues, which we find lack merit. While we agree with the insured on the insufficiency of the insurer’s affidavits, it does not alter the outcome of the case. Our decision turns on the plain reading of the insurance policy and the agreed upon facts.

      . The Merriam-Webster Dictionary defines "explosion” as "the act or instance of exploding” and "a large-scale, rapid, or spectacular expansion or bursting out or forth.” Merriam-Webster: An Encyclopdia Britannica Company, http://www.merriam-webster.com/ dictionaiy/explosion (last visited Mar. 28, 2014).


author: TAYLOR, J.

text:
    PHOENIX MOTOR COMPANY, Appellant, v. DESERT DIAMOND PLAYERS CLUB, INC., Appellee.
    No. 4D13-4422.
    District Court of Appeal of Florida, Fourth District.
    Aug. 20, 2014.

      Marc E. Brandes of Kurkin Brandes LLP, Aventura, for appellant.
    Robert P. Bissonnette of Robert P. Bis-sonnette, P.A., Fort Lauderdale, for appel-lee.
   TAYLOR, J.

Phoenix Motor Company (“Phoenix Motor”) appeals a non-final order denying its motion to compel arbitration in its dispute with Desert Diamond Players Club, Inc. (“Desert”) over the export of purchased cars. Because we conclude that the arbitration agreement in the purchase agreements applies to the export policy dispute, we reverse.

Desert entered into four agreements for the purchase of new motor vehicles from Phoenix Motor. The purchase agreements contained an arbitration clause which provided in pertinent part:

Seller and Purchaser hereby agree that the parties shall attempt to settle disputes arising out of or relating to this agreement or breach thereof by meeting of a designated representative of Seller and Purchaser .... If such dispute cannot be settled at this meeting, the parties shall choose a mediator from the American Arbitration Association (“AAA”) to mediate the dispute. If the matter is not then settled in a manner satisfactory [to] the parties at such mediation, either party may submit the dispute to binding arbitration by a sole arbitrator from the AAA in accordance with the AAA’s Commercial Arbitration Rules, and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.... The procedures specified herein shall be the sole and exclusive procedures for the resolution of disputes between the parties arising out of or relating to this Agreement ....

The purchase agreements also stated that “[t]he Purchaser, before or at the time of delivery of the motor vehicle covered by the Order, shall execute such other forms of agreement or documents as may be required by the terms and conditions of payment indicated on the front of this Order.”

Desert also signed an export policy for each vehicle it purchased. The export policy stated that Phoenix Motor would impose liquidated damages on Desert if Desert exported the new vehicle outside the United States sales territory within one year of purchase. The policy stated that “[execution of the purchase/lease documents by the purchaserAessee shall constitute acceptance of these terms and conditions.”

When Desert executed a purchase agreement and submitted payment for a fifth vehicle, Phoenix Motor deducted liquidated damages from the payment, claiming that Desert exported the previous four vehicles in violation of the export policy. Desert brought an action for declaratory relief to determine that the export policy was invalid and unenforceable. Pursuant to the arbitration clause in the purchase agreements, Phoenix Motor filed a motion to compel arbitration. The trial court denied Phoenix Motor’s motion and Phoenix appealed.

Phoenix Motor argues that the arbitration agreement in the purchase agreement applies to the export policy because both agreements arise out of the same transaction. Desert responds that the export policy does not contain an arbitration agreement and the export policy makes no references to the arbitration clause in the purchase agreement.

When a trial court denies a motion to compel arbitration, its factual findings are reviewed under a competent, substantial evidence standard, and its legal conclusions regarding the construction and validity of an arbitration agreement are reviewed de novo. BKD Twenty-One Mgmt. Co. v. Delsordo, 127 So.Sd 527, 529-30 (Fla. 4th DCA 2012).

“In ruling on a motion to compel arbitration of a dispute, the court must consider three issues: ‘(1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration was waived.’ ” O’Keefe Architects, Inc. v. CED Constr. Partners, Ltd., 944 So.2d 181, 185 (Fla.2006). The only factor at issue in this case is whether there was a valid agreement to arbitrate a dispute arising from the export policy. When deciding if the parties agreed to arbitrate a matter, courts generally apply state law principles that govern the formation of contracts. Sitarik v. JFK Med. Ctr. Ltd. Partnerships (JFK), 7 So.3d 576, 578 (Fla. 4th DCA 2009).

“Where two or more documents are executed by the same parties, at or near the same time, in the course of the same transaction, and concern the same subject matter, they will be read and construed together.” Collins v. Citrus Nat’l Bank, 641 So.2d 458, 459 (Fla. 5th DCA 1994); see also KRC Enters., Inc. v. Soder-quist, 553 So.2d 760, 761 (Fla. 2d DCA 1989). But if the parties execute “two separate contracts and only one contract contains an arbitration clause, the parties cannot be compelled to arbitrate disputes arising from the contract that does not call for arbitration.” Lee v. All Fla. Constr. Co., 662 So.2d 365, 366 (Fla. 3d DCA 1995) (holding that a homeowner could not arbitrate a dispute over a home repair contract, which did not have an arbitration clause, on the grounds that another contract for a home addition with the same contractor contained an arbitration clause). “Arbitration provisions from one contract cannot be extended to a separate contract between the same parties unless the parties expressly agree to do so.” Eugene W. Kelsey & Son, Inc. v. Architectural Openings, Inc., 484 So.2d 610, 611 (Fla. 5th DCA 1986) (holding that the arbitration agreement in a written contract did not apply to a dispute arising from a subsequent oral agreement, which did not incorporate the arbitration clause from the written contract).

For a contract’s arbitration clause to extend to another document, the contract must expressly refer to the document or sufficiently describe the document so that the document could be interpreted as part of the contract. Affinity Internet, Inc. v. Consol. Credit Counseling Services, Inc., 920 So.2d 1286, 1288-89 (Fla. 4th DCA 2006) (citations omitted) (holding that a contract does not incorporate the arbitration clause of the company’s user agreement when that user agreement was neither expressly referred to nor sufficiently described in the contract). In other words,

the doctrine [of incorporation by reference] requires that there must be some expression in the incorporating document ... of an intention to be bound by the collateral document .... A mere reference to another document is not sufficient to incorporate that other document into a contract, particularly where the incorporating document makes no specific reference that it is ‘subject to’ the collateral document.

Temple Emanu-El of Greater Fort Laud-erdale v. Tremarco Indus., Inc., 705 So.2d 988, 984 (Fla. 4th DCA 1998) (alterations in original) (citations omitted).

In Morse Operations, Inc. v. Sonar Radio Carp., 449 So.2d 1002 (Fla. 4th DCA 1984), a dealer and a purchaser executed a buyer’s order and a finance agreement for the sale of a car. After experiencing problems with the car, the purchaser brought an action against the dealer under the buyer’s order. The buyer’s order contained an arbitration agreement and a provision that stated “[t]he Purchaser, before or at the time of delivery of the motor vehicle covered by this Order will execute such other forms of agreement or documents as may be required by the terms and conditions of payment indicated on the front of this Order.”. Id. at 1008. The buyer’s order also stated that the “Purchaser agrees that this Order on the face and reverse side hereof and any separate credit disclosure shall include all of the terms and conditions .... ” Id. We held that the buyer’s order, which required the parties to submit to arbitration, controlled the entire transaction, because the plain language of the order demonstrated that the parties contemplated executing additional documents when the order was signed. Id.

Similarly, in Passerrello v. Robert L. Lipton, Inc., 690 So.2d 610 (Fla. 4th DCA 1997), a purchaser sued a dealership alleging statutory false advertising and joined the bank that financed the transaction as a defendant. The financing contract and the purchase agreement were executed at the same time and then the financing contract was assigned to the bank. The financing contract provided that the bank was “subject to all claims and defenses” which the purchaser could assert against the dealer. Id. at 611. Although the purchase agreement contained an arbitration clause and the financing contract did not, we held that the purchaser was required to arbitrate with the bank as well as the dealership. Id.

This case is similar to both Passer-rello and Morse. Each case concerns a purchase agreement and collateral documents executed as part of the same transaction. Similar to the clause in Morse, the purchase agreements in this case provide that “[t]he Purchaser, before or at the time of delivery of the motor vehicle covered by the Order, shall execute such other forms of agreement or documents as may be required by the terms and conditions of payment indicated on the front of this Order.” This clause demonstrates that the parties contemplated executing additional documents when they signed the purchase agreements. Moreover, the export policy reads in pertinent part that the “[ejxecution of the purchaseAease documents by the purchaserAessee shall constitute acceptance of these terms and conditions.” When the two clauses are read together, they indicate the parties’ intent for the purchase agreement and the export policy to be part of the same contract. Since the purchase agreements further state that “[t]he procedures specified herein shall be the sole and exclusive procedures for the resolution of disputes between the parties arising out of or relating to this Agreement,” we find the purchase agreements to be the controlling documents and the arbitration clause to apply to disputes arising from the export policy.

For the reasons stated, we reverse the trial court’s order denying the motion to compel arbitration and remand for further proceedings.

Reversed and Remanded.

CONNER, J., and PEREZ, GLADYS, Associate Judge, concur.


text:
    John D. BRICK, Appellant, v. STATE of Florida, Appellee.
    No. 4D14-1313.
    District Court of Appeal of Florida, Fourth District.
    Aug. 20, 2014.
    John D. Brick, South Bay, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We reverse the trial court’s order which summarily denied appellant’s rule 3.850 motion for postconviction relief without ordering a response, without attachments, and without explanation. The State in this appeal concedes that although the motion was facially insufficient, the trial court should have dismissed the motion with leave to amend. See Fla. R. Crim. P. 3.850(f)(2); Spera v. State, 971 So.2d 754, 761 (Fla.2007). We agree and remand this matter for further proceedings consistent with rule 3.850(f)(2).

Reversed and Remanded.

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


author: SCHER, ROSEMARIE, Associate Judge.

text:
    Richard W. VAZZA and Stephen F. Vazza, Appellants, v. ESTATE OF Richard R. VAZZA, Appellee.
    No. 4D1L-320.
    District Court of Appeal of Florida, Fourth District.
    Aug. 20, 2014.

      Gerald F. Richman and Michael J. Na-poleone of Richman Greer, P.A., West Palm Beach, for appellants.
    Steven A. Lessne and Jeffrey T. Kuntz of GrayRobinson, P.A., Fort Lauderdale for appellee.
    Lawrence P. Heffernan, Boston, MA, for appellee.
   SCHER, ROSEMARIE, Associate Judge.

Richard W. Vazza and Stephen F. Vaz-za, former personal representatives of their father’s estate, appeal the trial court’s December 8, 2013 “Order on [Successor] Personal Representative’s Motion to Void and Set Aside Transactions Involving Conflicts of Interest.” The order required the Vazzas to return and reimburse the estate for allegedly improperly distributed funds.

Despite the disputed allegations regarding whether the Vazzas acted properly under Florida law and within their statutory power, the trial court entered its order requiring return of specific funds without holding an evidentiary hearing. Accordingly, we reverse and remand the case back to the trial court to hold an evidentia-ry hearing. See In re Estate of Winston, 610 So.2d 1323, 1325 (Fla. 4th DCA 1992) (citing § 733.6175, Fla. Stat. (1991)) (“[T]he Florida probate court has exclusive jurisdiction and is obligated to review estate fees upon the petition of a proper party.”).

Reversed and remanded for evidentiary hearing.

GROSS and MAY, JJ., concur.


text:
    Kristina Michelle BRANA, Roscox Corporation, and Jordan Grabel, M.D., Petitioners, v. Adolfo ROURA, Respondent.
    Nos. 4D14-639, 4D14-677.
    District Court of Appeal of Florida, Fourth District.
    Aug. 20, 2014.
    Carri S. Leininger of Williams, Leininger & Cosby, P.A., North Palm Beach, for petitioners, Kristina Michelle Brana and Roscox Corporation.
    Ian E. Robinson of Adams Coogler, P.A., West Palm Beach, for petitioner, Jordan Grabel, M.D.
    Bard D. Rockenbach of Burlington & Rockenbach, P.A., West Palm Beach, Ronald M. Rowars, P.A., Port St. Lucie, and Custer McGovern, Lake Worth, for respondent.
   PER CURIAM.

We grant the consolidated petitions for writ of certiorari, and quash the trial court’s orders denying petitioners’ motions for protective order filed on September 27 and October 2, 2013. Respondent’s subpoenas issued to hospitals where petitioner Grabel performed spinal surgeries sought “each and every document ... to include all records, pertaining to [Dr. Grabel].” As worded, the subpoenas would require the production of confidential medical records of Dr. Grabel’s patients. However, respondent failed to show to the trial court that he complied with the notice provisions of section 456.057(7)(a), Florida Statutes (2012), which requires notice to patients whose medical records are sought before issuance of a subpoena for the records by a court of competent jurisdiction. Coopers-mith v. Perrine, 91 So.3d 246 (Fla. 4th DCA 2012).

Respondent’s subpoenas issued to insurance carriers requiring disclosure of financial information concerning payments made by those carriers to Dr. Grabel for services provided as a litigation expert seek information protected from disclosure by Florida Rule of Civil Procedure 1.280(b)(5)(A)(iii)4., which states “the expert shall not be required to disclose his or her earnings as an expert witness or income derived from other services.” El-kins v. Syken, 672 So.2d 517, 522 (Fla. 1996); Gramman v. Stachkunas, 750 So.2d 688, 690 (Fla. 5th DCA 1999). A subpoena may not be used to secure discovery of financial or business records concerning a litigation expert unless “unusual or compelling circumstances” have been shown. Smith v. Eldred, 96 So.3d 1102, 1104 (Fla. 4th DCA 2012); Miller v. Harris, 2 So.3d 1070, 1073 (Fla. 2d DCA 2009). The trial court’s orders denying petitioners’ motions for protective orders do not state any basis for a finding of unusual or compelling circumstances in this case.

Accordingly, the trial court’s orders denying petitioners’ motions for protective order are vacated and remanded for further proceedings consistent with this opinion.

Petitions granted; orders denying motions for protective orders vacated and remanded with directions.

GROSS, CONNER and KLINGENSMITH, JJ., concur.