text:
    Eric Engreen GREEN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-4655.
    District Court of Appeal of Florida, First District.
    Oct. 21, 2014.
    Rehearing Denied Dec. 4, 2014.
    Eric Engreen Green, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

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


source: Caselaw Access Project

author: THOMAS, J.

license: Public Domain

text:
    SOUTHERN NATIONAL TRACK SERVICES, INC., Appellant, v. DJ GILLEY, Appellee.
    No. 1D13-5412.
    District Court of Appeal of Florida, First District.
    Oct. 23, 2014.
    Rehearing Denied Dec. 5, 2014.

      Richard W. Glenn, Jupiter, for Appellant.
    Stephen C. Bullock of Brannon Brown Haley & Bullock, P.A., Lake City, for Ap-pellee.
   THOMAS, J.

Appellant appeals a final summary judgment with respect to its claims against Appellee for breach of warranty by failure to disclose and for damages based on fraudulent misrepresentation. Appellant also appeals the trial court’s final judgment for attorney’s fees and costs predicated on Appellee having prevailed in this matter. As explained below, we reverse the final summary judgment and remand the fee judgment.

Factual Background

This matter arises out of a real estate transaction. Appellant contracted to purchase from Appellee a piece of property that included a number of small cottages and one larger “modular” structure. It is this latter structure that formed the basis of the dispute below. Through its representative, Mr. Plezia, Appellant purchased this property for the purpose of housing Appellant’s employees, including Mr. Ple-zia, when they were in the vicinity performing work on behalf of Appellant. According to Appellant’s complaint, the structure in question was advertised as a two-bedroom residence complete with fountain and swimming pool.

Undisputed is that Mr. Plezia did a brief walk-through of the buildings on the property, including the modular structure, before signing a contract which gave Appellant the right to obtain an inspection of the property within 20 days of acceptance. The contract also provided an express warranty by Appellee that, as of the time of closing, there existed no violations of “land use plans, zoning, restrictions, prohibitions and other requirements imposed by governmental authority .... ”

Mr. Plezia testified that by all appearances, the structure was a two-bedroom residence. Mr. Plezia’s unrebutted testimony is that, after signing the contract, but before the transaction was closed, Mr. Plezia walked through the modular structure with Appellee and her daughter and discussed how, at various times, Appellee, her daughter, and her parents resided in the structure and other aspects of the building that Mr. Plezia testified were all typical of a residence. Also undisputed is that, other than these walk-through, Appellant took no steps to have the property inspected or to confirm that the building was built as a residence.

Some months later, Mr. Plezia testified, he noticed water leakage problems that worsened as the rainy season progressed, and he discovered what appeared to be patches of black mold on some of the walls that had been painted over. He also testified that later inspection revealed that the structure was not a modular residence at all, but a large storage shed that had been converted into a residence without conforming to the applicable building codes, permitting regulations, and zoning laws.

Appellant then filed a three count complaint for 1) breach of contractual warranty by failure to disclose; 2) fraudulent misrepresentation; and 3) rescission. The first count was based on the disclosure obligations mandated by Johnson v. Davis, 480 So.2d 625 (Fla.1985). On Appellee’s motion to dismiss, the trial court dismissed that count based on its finding that the property in question was commercial, not residential; therefore, the Johnson disclosure obligations were inapplicable.

By the time the court heard the motion for summary judgment leading to the judgment on appeal, the relevant pending claims were for breach of the warranty as to the property’s compliance with applicable codes and regulations, the attendant failure to disclose that the structure in question was not a residential building, and the claim for damages flowing from those misrepresentations about the true nature of the property.

Appellee asserted she was entitled to summary judgment, because there were no genuine issues of material fact regarding whether Appellant failed to have the property inspected until after signing the contract; Appellant performed little or no due diligence; and all of the defects would have been readily discovered, had Appellant “done its due diligence under the contract and pursuant to Florida law” before purchasing and closing on the property. Appellee cited to portions of Mr. Plezia’s deposition and her own affidavit in which she denied any “knowledge of any Building Code compliance issues, any roof leaks, mold infestation or any other alleged defects” of the property.

In its final summary judgment, the court found that “[cjertain material facts to Plaintiffs cause of action have not been established ... in this record” and that there was “no admissible evidence in the record to support any” claim that Appellee breached the contract. The court also noted the contract provision affording Appellant 20 days to have the property professionally inspected and provide Appellee written notice of any defects. The court found it was undisputed that Appellant did not conduct an inspection and did not provide Appellee with any notice of defects, resulting in a waiver “as a matter of law” of any such defects. The court also reiterated its prior judgment that, because this case involved a contract for commercial property, Appellee had no duty to disclose, and also found that, even if such a duty did exist, “the record supports the undisputed facts that Defendant did not fail to disclose any known defects regarding the property.” The court also found “from the record” that the contract, “along with the Seller’s duties, merged with the Deed at the time of closing.” The court further found that the record did “not support any material facts that Defendant committed any fraud or misrepresentation regarding any alleged defects in this commercial transaction” and demonstrated that Appellant’s representative, Mr. Plezia, “did not have any verbal communication with the Defendant prior to negotiating and signing the Contract and, therefore, any statements made by Defendant thenceforth would be irrelevant.”

Substantive Analysis

The standard of review of a final summary judgment is de novo. Le v. Lighthouse Assocs., Inc., 57 So.3d 283, 284 (Fla. 4th DCA 2011). “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.” Armiger v. Associated Outdoor Clubs, Inc., 48 So.3d 864, 869 (Fla. 2d DCA 2010) (citations omitted). “If the record reflects the existence of any genuine issue of material fact or the possibility of any issue, or if the record raises even the slightest doubt that an issue might exist, summary judgment is improper.” Holland v. Verheul, 583 So.2d 788, 789 (Fla. 2d DCA 1991).

A party seeking summary judgment faces a significant burden, and based upon our review of the record, Appellee failed to overcome this burden. The trial court did not view the facts through the appropriate lens, because it did not acknowledge the different inferences that could be drawn from the facts, particularly those inferences reasonably drawn in Appellant’s favor.

We hold that there are genuine issues of material fact concerning whether Appellee, either directly or through her agents, misrepresented: 1) the very nature of the structure in question (i.e., a genuine residence built to those standards applying to residences, as opposed to a storage shed converted to a “residence” and not complying with such standards); and 2) whether the structure complied with various governmental laws and regulations. The fact that Appellee’s affidavit denied any knowledge of building codes or other violations only highlights the existence of a conflict in the facts, which generally precludes summary judgment rather than proves that no conflict exists.

The trial court attached great significance to the fact that any statements Ap-pellee may have made to Appellant occurred after the contract was signed, but before closing. The court found that any such statements made during this period would be “irrelevant,” and cited Wasser v. Sasoni, 652 So.2d 411 (Fla. 3d DCA 1995). But Wasser does not address the timing of any alleged misrepresentations (i.e., after a contract was signed but before closing); rather, it holds that “an intentional nondisclosure of known facts materially affecting the value of commercial property, is not actionable under Florida law,” and that “a misrepresentation is not actionable where its truth might have been discovered by the exercise of ordinary diligence.” Id. 412.

Notably, the Wasser court recognized that “exceptions to the general rule could exist under .certain circumstances, for example, where specific misrepresentations regarding a latent defect are made to a negligent purchaser.” Id. at 412-18. Here, as discussed below, there were facts from which one could reasonably infer intentional non-disclosure or possible misrepresentations about latent defects (e.g., the non-residential nature of the structure). Furthermore, even “ordinary diligence” would not have revealed the truth regarding these possible scenarios. The Wasser court explained that “a negligent-purchaser is not justified in relying upon a misrepresentation which is obviously false, and “which would be patent to him if he had utilized his opportunity to make a cursory examination or investigation.’ ” Id. at 418 (quoting Besett v. Basnett, 389 So.2d 995, 997 (Fla.1980) (emphasis added)). But again, as discussed below, there was conflicting evidence as to whether any representation that the structure in question was a residence was “obviously false.”

Attached to both Mr. Plezia’s deposition and affidavit was a copy of the real estate advertisement concerning the property, including the structure in question, from which it could readily and reasonably be inferred that it was a two-bedroom home complete with swimming pool and other accoutrements typical of residences, not storage sheds. Mr. Plezia testified that he walked through the structure with the real estate agent before signing the contract and saw nothing to indicate that the structure was anything other than a modular residence. He did another walk-through with Appellee herself before closing, during which, according to Mr. Plezia, Appel-lee made various representations which could reasonably be inferred to represent the structure was a purpose-built home, and not a converted storage shed. We also note that the very contractual provision allowing for inspection, upon which Appellee and the court rely so heavily, referred to Appellant’s right to retain an entity for a person “specializing in home inspections.” Thus, the contractual language itself perpetuated the notion that the structure in question was a “home,” as commonly understood.

From all of this, it is reasonable to infer that these facts as alleged persuaded Mr. Plezia that it was not necessary to hire an expert in “home inspections” or perform some other “due diligence” in order to ascertain whether the structure was a home. He testified that he had purchased homes in the past and never did either of these things. This is important because there are facts in the record to support the inference that, because the structure was actually a converted storage shed and not a purpose-built home, all of the other defects complained of flowed from this fact.

Furthermore, Mr. Plezia testified that he found what looked like black mold that had been painted over. Considering his testimony that Appellee told him she personally had lived in the “home,” one could reasonably infer that she had knowledge of this and, therefore, acquiesced in concealing this defect. Nor is it clear how the court concluded from this record that an inspection would have revealed this alleged mold, as the mold did not reveal itself until after the alleged leaks began, leaks that may not have occurred had the roof been built according to residential standards, as opposed to storage shed standards. Of course, we express no opinion on whether Appellant will successfully prove these inferences are credible, which must be defined in a trial on the merits of the allegations.

We last address the trial court’s summary conclusion that the contractual warranty at issue merged with the deed at the time of closing, thus, presumably, precluding Appellant’s claim. The court cited as support for its conclusion Stephan v. Brown, 233 So.2d 140 (Fla. 2d DCA 1970). That case stands for the proposition that a real estate contract becomes merged with the deed and that, absent the existence of a warranty in the deed, the seller is “under no duty or obligation with respect to any warranty against encumbrances on the property after the deed had been accepted by the purchaser.” Id. at 141.

In Sager v. Turner, however, the real estate sale contract for a mobile home park included a contractual provision similar to the one here: “Seller warrants that at the time of closing there are no violations of licenses, permits, planning or zoning ordinances, easements land or deed restrictions.” 402 So.2d 1282 (Fla. 4th DCA 1981). In Turner, after the deal closed, the buyer went to the city in which the property was located to obtain a license. The city “issued a conditional license, contingent upon [buyer’s] repair of all mechanical, electrical and plumbing violations which existed. [Buyer] made the required repairs and brought this action to recover its expenditures in so doing.” Id. The purchaser succeeded in obtaining a summary judgment, and the seller appealed, arguing reversal was warranted based on the merger doctrine pursuant to Fraser v. Schoenfeld, 364 So.2d 533 (Fla. 3d DCA 1978). Id.

In Fraser, which relied on the same cases as Brown, the Third District found the buyer’s claim for damages based on breach of a similar warranty, with respect to municipal code compliance, was barred by merger, holding: “ ‘where, as here, the purchaser has knowledge of claimed violations and, thereafter, closes the deal, he is precluded by the doctrine of merger from a subsequent suit on a covenant contained in the contract of sale.’ ” Turner, 402 So.2d at 1283 (quoting Fraser, 364 So.2d at 534). The Turner court reversed the trial court’s summary judgment because, unlike in Fraser, the buyer in Turner did not have any prior knowledge of the claimed code violations. Id. at 1283.

It is a general rule that preliminary agreements and understandings relative to the sale of property usually merge in the deed executed pursuant thereto. However, there are exceptions to the merger rule. The rule that acceptance of a deed tendered in performance of a contract to convey land merges or extinguishes the covenants and stipulations contained in the contract does not apply to those provisions of the antecedent contract which the paHies do not intend to be incorporated in the deed, or which are not necessarily performed or satisfied by the execution and delivery of the stipulated conveyance.

Id. (quoting Milu, Inc. v. Duke, 204 So.2d 31, 33 (Fla. 3d DCA 1967) (citation omitted; emphasis added). In affirming the summary judgment, the Turner court found that the evidence was uncontradict-ed that “the city license could not be obtained because of violations which existed at closing.” Id.

Here, there is no evidence that the parties intended for the warranty at issue to merge with the deed. Also, Appellant could not use the structure in question as a result of zoning and building code violations that existed at the time of closing, and its ability to use the structure as a residence was not “necessarily performed or satisfied by the execution and delivery of the stipulated conveyance.” Thus, the trial court erred in granting summary judgment based on the merger doctrine.

Judgment for Attorney’s Fees and Costs

The trial court entered a judgment for attorney’s fees and costs in favor of Appel-lee, and Appellant duly included with its notice of appeal this judgment as one of the orders it was challenging. As Appel-lee correctly points out, however, Appellant did not address this fee judgment in its initial brief; thus, Appellee filed a motion to dismiss Appellant’s appeal of this judgment. Appellant responds that the judgment is entirely predicated on Appel-lee having obtained the summary judgment on appeal, thus, if the summary judgment is reversed, this court must vacate the fee judgment.

As a general rule, failure to address an issue raised on appeal results in waiver, but Appellant is correct that “[ojnce a final judgment is reversed and remanded by an appellate court, there can be no prevailing party for purposes of an award of prevailing party attorney’s fees. Consequently, an award of attorney’s fees and costs predicated on a reversed or vacated final judgment also must be reversed.” Marty v. Bainter, 727 So.2d 1124, 1125 (Fla. 1st DCA 1999). Rather than relying on this principle, however, the proper and preferred practice for a party appealing a fee judgment, which is predicated on the underlying substantive judgment on appeal, is to make some argument in the appropriate brief(s) as to why the fee judgment should also be reversed, citing appropriate authority.

Due to Appellant’s failure to raise any argument challenging the attorney’s fee award, we grant Appellee’s motion to dismiss Appellant’s appeal of the judgment for attorney’s fees and costs. Our dismissal is without prejudice, in the event Appellant prevails on the merits below, and Appellant timely challenges the judgment for attorney’s fees and costs under Bainter.

Conclusion

We reverse the final summary judgment and remand for further proceedings consistent with this opinion.

REVERSED and REMANDED.

PADOVANO and CLARK, JJ„ concur.

      . Appellant also ultimately dropped its rescission claim.


author: PER CURIAM.

text:
    David Joshua CRUZ, Appellant, v. STATE of Florida, Appellee.
    No. 1D14-3309.
    District Court of Appeal of Florida, First District.
    Oct. 27, 2014.
    Rehearing Denied Dec. 9, 2014.
    Matt Shirk, Public Defender, and Elizabeth H. Webb, Assistant Public Defender, Jacksonville, for Appellant.
    No appearance for Appellee.
   PER CURIAM.

Upon consideration of appellant’s response to the Court’s order of September 29, 2014, the Court has determined that the appeal is untimely. Accordingly, the appeal is dismissed. The dismissal is without prejudice to appellant filing a petition for belated appeal pursuant to Florida Rule of Appellate Procedure 9.141(c).

LEWIS, C. J., CLARK and MARSTILLER, JJ., concur.


author: KHOUZAM, Judge.

text:
    Jean MAZER, a/k/a Mazer Jean, Appellant, v. STATE of Florida, Appellee.
    No. 2D14-1061.
    District Court of Appeal of Florida, Second District.
    Oct. 29, 2014.
    Rehearing Denied Dec. 11, 2014.
    Jean Mazer, a/k/a Mazer Jean, pro se.
   KHOUZAM, Judge.

We affirm the denial of Jean Mazer’s motion to correct illegal sentence filed under Florida Rule of Criminal Procedure 3.800(a). The postconviction court denied Mazer’s motion as untimely based on then-binding precedent from other district courts. See Geter v. State, 115 So.3d 375, 376 (Fla. 3d DCA 2012); Gonzalez v. State, 101 So.3d 886, 888 (Fla. 1st DCA 2012). In those cases, the Third District and First District, respectively, determined that Miller v. Alabama, — U.S. —, 132 S.Ct. 2455, 2460, 183 L.Ed.2d 407 (2012) — which held that “mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition on ‘cruel and unusual punishments’ ” — did not apply retroactively. But subsequently, in Toye v. State, 133 So.3d 540 (Fla. 2d DCA 2014), we decided that Miller does apply retroactively to sentences that were final before Miller was rendered and we certified conflict with Geter and Gonzalez.

It would be our normal practice to reverse and remand for the postconviction court to reconsider the appellant’s motion, see, e.g., Figueroa v. State, 139 So.3d 964, 965 (Fla. 2d DCA 2014); Baker v. State, 138 So.3d 1175, 1176 (Fla. 2d DCA 2014), but the postconviction court also examined Mazer’s motion on the merits and determined that even if it applied to Mazer’s case, Miller did not preclude a sentence of life without parole for second-degree murder. First, because second-degree murder is a felony punishable by a term of years up to life in prison, see § 782.04(2), Fla. Stat. (1997), a life sentence was discretionary in Mazer’s case, not mandatory. See Starks v. State, 128 So.3d 91, 92 (Fla. 2d DCA 2013); Mason v. State, 134 So.3d 499, 500 (Fla. 4th DCA 2014). And second, the postconviction court examined the trial court record and concluded that the trial court exercised its discretion to depart from a guidelines sentence by considering certain information related to Mazer’s youth at the time he committed the offense. See Mason, 134 So.3d at 501; cf. Mackey v. State, — So.3d—, 2014 WL 3605552, 39 Fla. L. Weekly D1526 (Fla. 4th DCA July 23, 2014) (reversing and remanding for the trial court to expressly consider whether the distinctive attributes of youth diminished the penological justifications for imposing a sentence of life without parole on the appellant). Accordingly, we affirm the postconviction court’s denial of Mazer’s rule 3.800(a) motion.

Affirmed.

MORRIS and BLACK, JJ., Concur.

      . The issue of whether Miller is to be applied retroactively is currently on review in the Florida Supreme Court. Falcon v. State, 111 So.3d 973 (Fla. 1st DCA), review granted, 137 So.3d 1019 (Fla.2013).


author: SCALES, J.

text:
    REWJB DAIRY PLANT ASSOCIATES, etc., et al., Appellants, v. BOMBARDIER CAPITAL, INC., Appellee.
    No. 3D12-3444.
    District Court of Appeal of Florida, Third District.
    Oct. 29, 2014.
    Rehearing Denied Dec. 23, 2014.

      Jose Garcia-Pedrosa; Ross & Girten, and Lauri Waldman Ross, Miami, for appellants.
    May, Meacham & Davell, P.A., and Robert C. Meacham and Christopher D. Barber, Fort Lauderdale, for appellee.
    Before ROTHENBERG, LOGUE, and SCALES, JJ.
   SCALES, J.

REWJB Dairy Plant Associates, etc., et al. (REWJB or Farm Stores), Defendants below, appeal from the trial court’s December 4, 2012, order granting Plaintiff Bombardier Capital Inc.’s (Bombardier) motion for additur. The order granting Bombardier’s additur motion also retroactively granted Bombardier’s motion for directed verdict on Farm Stores’ accord and satisfaction defense. We reverse and remand for a new trial on both liability and damages. We likewise reverse the order insofar as it granted a directed verdict on Farm Stores’ defense of accord and satisfaction.

I. Facts

A. The Contract

In August 1999, REWJB, doing business as Farm Stores, executed and delivered to Bombardier, its flnancer, a master lease agreement; an amendment to the master lease agreement; an interim lease addendum; and, at various times after August 1999, fourteen sequentially-numbered equipment schedules, which expressly incorporate the master lease agreement into each equipment schedule (collectively, all delivered documents are referred to as “the Contract”). The Contract consisted of certain voluminous equipment schedules (equipment schedule or equipment schedules referred to as “ES”), whereby Bombardier leased to Farm Stores eight prefabricated buildings (“prefabs”),, certain computer equipment and related items, and an icemaker.

The ES relevant to this appeal relate to seven of the prefabs leased pursuant to ES 4-10, and the computer equipment leased pursuant to ES 2.

The Contract provided that each ES was separately enforceable and that the terms and conditions of the Contract would apply to each ES. Thus, each ES represented a separate contract.

Some of the ES contained an automatic renewal provision, which included an option allowing Farm Stores to purchase the leased property for a specific price. Pursuant to this provision, the lease would automatically renew unless Farm Stores provided Bombardier with notice at least 270 days prior to the lease term’s expiration.

B. The Parties’ Correspondence

On May 1, 2005, Farm Stores wrote to Bombardier, stating:

As we have previously advised your firm, Farm Stores desires to return all the equipment under schedule 002. Please notify us as to where we may return the equipment and kindly forward the necessary documentation to terminate the above referenced lease to my attention.

On June 9, 2005, Bombardier responded that ES 2 — whose five-year term commenced in August 2000 and expired July 1, 2005 — required Farm Stores to provide 270 days’ (i.e., on or before October 4, 2004) written notice prior to the end of the lease term. Bombardier advised Farm Stores that, since Farm Stores’ May 1, 2005, notice was untimely, ES 2 would be automatically renewed for a one-year term, but Farm Stores could purchase the equipment for the price outlined in ES 2.

Between Bombardier’s June 9, 2005, response letter and August 22, 2005, the parties engaged in discussions regarding the Contract and the various ES. As a result of such discussions, Farm Stores’ president sent Bombardier an August 23, 2005, letter, which Farm Stores characterizes as the memorialization of the parties’ “goodbye agreement.”

In that August 28, 2005, “goodbye agreement” letter, Farm Stores states that it will continue to lease the computer equipment covered by ES 2 for an additional year (i.e., from July 1, 2005, through January 30, 2006), after which time Farm Stores will own the equipment. In furtherance of this “goodbye agreement,” Farm Stores issued a $31,560.71 check to Bombardier (rent for the months of July, August, and September 2005), which Bombardier negotiated.

Farm Stores’ “goodbye agreement” letter also purported to address that portion of the parties’ Contract related to the prefabs. The relevant part of the letter reads as follows:

As for the prefabricated buildings, Farm Stores proposes to issue one final payment per month per building until such time as all the buildings are paid in full. Farm Stores will commence with the first such payment on or about September 1, 2005.

Consistent with the “goodbye agreement” letter, payments in full for prefabs identified in ES 4, 9, and 10, followed sequentially in August, September, and October 2005. Cover letters — dated August 25, 2005; September 11, 2005; and October 4, 2005 — accompanied the payments and made clear that each payment was tendered for each of these prefabs, and was intended as payment in full satisfaction of Bombardier’s claims regarding ES 4, 9, and 10. Bombardier cashed each check.

C. Pre-trial Proceedings

Bombardier disputes that the parties had a “goodbye agreement,” and that, even if such “goodbye agreement” existed, Farm Stores did not fully perform same, thus rendering Farm Stores liable for all sums due under the Contract.

Farm Stores asserts that the “goodbye agreement” letter constituted an accord and satisfaction, and, to the extent that the account was not satisfied, it was Bombardier who prevented such satisfaction.

On January 19, 2006, Bombardier filed a single-count complaint against Farm Stores for breach of contract. While not expressly delineated in its complaint, Bombardier essentially claimed that Farm Stores: (1) failed to pay certain sums in connection with computer equipment and related items leased under ES 2; (2) failed to pay certain sums in connection with the prefabs leased under ES 4 through 10; and (3) failed to reimburse Bombardier, as required by the Contract, for certain personal property tax payments, which Bombardier allegedly made to taxing authorities. Farm Stores answered, raising accord and satisfaction and set off as affirmative defenses.

Farm Stores subsequently filed amended affirmative defenses to assert equitable estoppel as a defense to Bombardier’s claims, i.e., that Bombardier was equitably estopped from pursing certain of its claims because Farm Stores had detrimentally relied upon Bombardier’s acquiescence to the “goodbye agreement” and related payments and correspondence. Farm Stores also raised a defense of payment, asserting that Bombardier had been paid for ES 2 and “most or all” of the prefabs.

In May 2011, the parties filed cross-motions for summary judgment. The trial court found that, despite the confusing language contained in the automatic renewal provisions, the automatic renewal provisions were applicable, and, therefore, the leases on the prefabs were automatically renewed for twelve months because Farm Stores “did not give the applicable 270[-]day notice.”

However, the trial court denied Bombardier’s motion for summary judgment on Farm Stores’ defenses of accord and satisfaction and setoff. The trial court determined that disputed issues of fact remained as to: (1) whether an accord had been reached, and, if so, whether the parties had satisfied that accord; and (2) the related issue of whether Bombardier had appropriately applied the funds paid by Farm Stores.

With regard to the computer equipment lease (i.e., ES 2), the trial court denied Bombardier’s summary judgment motion, holding that the parties’ dispute regarding whether a valid notice obligation existed presented a fact question for the jury.

D. Trial Proceedings

A new trial judge inherited this case on the morning of trial, and the trial ensued on May 14, 2012.

During trial, Bombardier presented alternative damage schedules, and its damage witness presented the jury with different damage options. Farm Stores presented no evidence of damages during trial, but in closing argument suggested it was owed $11,000 from Bombardier.

At the conclusion of the evidence, Bombardier moved for a directed verdict on Farm Stores’ accord and satisfaction defense. The trial court reserved ruling, but, at least initially, determined that the defense presented a factual question for jury determination, and the jury was instructed on this defense. Recognizing the previously entered summary judgment, the trial court instructed the jury as follows:

One. As to schedules 4 through 10 (the leases on the prefabricated buildings), I have ruled that, A, the lease contains a 270-day notice provision if Farm Stores did not wish to renew the lease; B, Farm Stores did not give the 270-day notice as required by the leases; C, as a result, pursuant to the terms of the schedule, the leases on the prefab building[s] were renewed for 12 months. Accordingly, the Court has granted Summary Judgment in Bombardier’s favor as to the equipment schedules.
Number two, as to Farm Store’s [sic] defense of payment, Farm Stores admits that it did not make full payment. Accordingly, the Court finds in Bombardier’s favor as to Farm Stores’ defense of payment.

The trial court also instructed the jury on Farm Stores’ defense of accord and satisfaction.

The trial court proposed, and both parties agreed to use, a general verdict form. The verdict form simply stated:

1. Did Farm Stores breach their contracts with Bombardier in any way?
YES_NO_
2. If the answer to this question is No, your verdict is for Farm Stores and do nothing but sign and date this verdict.
If the answer to this question is Yes, please state in dollars th¿ total amount of damages that the greater weight of the evidence shows has been proven by Bombardier.
$-

After a week-long trial, on May 21, 2012, the jury returned a verdict, answering ‘Tes” to question one. It awarded damages to Bombardier in the amount of $51,000.

E. Post-Trial Motions

Pursuant to section 768.74, Florida Statutes (2012), Bombardier filed post-trial motions: (1) for additur or for a new trial on damages, (2) to set aside the verdict, and (3) for entry of judgment in accordance with its motion for directed verdict. Bombardier urged:

Clearly, the jury believed (and found that) Farm Stores was in breach of one or more of the schedules entered into between the parties. However, ... the amount of damages awarded to Bombardier cannot be explained under any view of the evidence. Moreover, even taking into consideration Bombardier’s motion for a directed verdict on the defense of accord and satisfaction, there is still no way to rationalize the verdict amount.

(footnote omitted).

On July 27, 2012, the trial court held a hearing on Bombardier’s motions but did not make any oral findings. At the conclusion of the hearing, the trial court requested the testimony of four witnesses, the transcript of the post-trial motion hearing, and that the parties submit proposed orders within thirty days of the date of the hearing.

On September 21, 2012, Farm Stores submitted its proposed order, not surprisingly, suggesting that the trial court deny Bombardier’s motions for additur and new trial. Bombardier submitted its proposed order, suggesting that the trial court grant its motion and add $1,077,062.18 to the existing $51,000 jury award.

On December 4, 2012, the trial court entered a written order, adopting Bombardier’s proposed order verbatim. The trial court found: (1) Bombardier was entitled to a directed verdict on Farm Stores’ defense of accord and satisfaction; (2) additur was appropriate “because ... no evidence concerning the contractually required notice of termination was ever presented in connection with the prefabricated building schedules”; (3) the verdict had “no correlation to any reasonable evidence presented by any party”; (4) there “is no way to rationalize or reconcile the verdict amount,” and (5) Bombardier was entitled to judgment in the amount of $1,128.062.18.

Pursuant to section 768.74(4), Florida Statutes (2012), the trial court allowed Farm Stores seven days to advise whether Farm Stores accepted the additur. As outlined in the statute, if Farm Stores objected to the additur, the trial court would order a new trial on damages only. Farm Stores responded to the trial court’s additur order by filing this appeal, thus rejecting the trial court’s proposed additur award.

II. Analysis

A. Additur and New Trial

Try as we might, we, like the trial court and the parties, are simply unable to reconcile the jury’s verdict with the evidence. Nor are we able to discern how the jury adjudicated Farm Stores’ defenses, how they calculated damages, or how they applied the trial court’s instructions.

1. The Trial Court’s Additur Order

The verdict form at issue here simply reads, “Did Farm Stores breach their contracts with Bombardier in any way?” Although both parties agreed to the use of this general verdict form, it is impossible to determine which ES the jury determined Farm Stores breached. Similarly, while the jury’s award surely suggests that Farm Stores prevailed on its defense that an accord was reached on the prefab disputes, it is impossible to quantify the effect of the defense on the various contracts implicated.

It is similarly impossible to determine how the jury resolved the dispute regarding the notice provision in ES Number 2. It is also impossible to determine how (or if) the jury award was affected by Farm Stores’ setoff defense.

The order on appeal, though, calculated additur very specifically. The trial court simply assumed the jury found in favor of Farm Stores on ES Number 2 (computer equipment), and awarded nothing to Bombardier on that claim. However, responding to the jury’s $51,000 breach of contract award, the trial court also found that, even if the jury “awarded nothing for computer equipment [ES Number 2], the icemaker [ES Number 3], prefabs 8, 9 and 10 and taxes, the damage calculation options and evidence for pre-fabs 5, 6, and 7 were ... in the hundreds of thousands of dollars.” Yet, the trial court’s order rejects the jury’s implicit finding that the parties’ dispute over the prefabs was resolved by Farm Stores’ asserted accord and satisfaction, and, instead retroactively' grants a directed verdict to Bombardier on that issue.

The trial court then awards Bombardier damages, based on automatic renewals for prefabs 5, 6, and 7, through May 1, 2012, and interest through May 14, 2012 (the first day of trial), resulting in a total damage figure of $1,128,062.18.

2. New Trial on Liability and Damages

Pursuant to section 768.74(4), Florida Statutes (2012), if the party adversely affected by an additur does not agree to the additur, “the court shall order a new trial in the cause on the issue of damages only.” (emphasis added).

However, a new trial on both liability and damages is required where liability was hotly contested at trial, and it is evident the “jury’s ... mingling of the issues of liability and damages on the verdict form [is] suggestive of compromise.” Westminster Cmty. Care Servs., Inc. v. Mikesell, 12 So.3d 838, 841-42 (Fla. 5th DCA 2009); Food Lion v. Jackson, 712 So.2d 800, 803 (Fla. 5th DCA 1998) (recognizing that section 768.74 “instructs that the adverse party be given the choice of accepting the amount of additur or a new trial on damages only,” and holding that a new trial on the issue of liability also should be ordered if liability was hotly contested).

In the instant case, the jury answered ‘Yes” to the question whether Farm Stores breached its contracts with Bombardier “in any way.” Unfortunately, the jury was not asked which of the several ES, comprising the Contract, Farm Stores had breached. And, as mentioned, it is impossible to discern, from the verdict form, or from the record, which ES were breached or how the jury’s consideration of Farm Stores’ affirmative defenses were reflected in the ultimate damage award. Not only is it clear from the record that liability was hotly disputed, but also it is clear that the jury’s verdict was the result of some type of compromise on the issue of liability. Neither party provided any plausible explanation for the jury’s verdict. Indeed, with this jury verdict form, any explanation would likely be nothing more than rank speculation.

Therefore, given this case’s unique factual backdrop, we are compelled to reverse and remand for a new trial on all issues. See Timmy Woods Beverly Hills, Ltd. v. Greenwald, 475 So.2d 256, 258 n. 5 (Fla. 3d DCA 1985) (“A rule which requires a complete new trial when liability is close and damages clearly inadequate prevents appellate courts from having to engage in the type of post-hoc mind-reading which would be necessary to decide whether the jury was confused, in which case a new trial on damages alone would be adequate, or compromising, which would require a new trial on liability as well.”).

B. Directed Verdict

We also reverse the post-trial order granting a directed verdict in favor of Bombardier on Farm Stores’ defense of accord and satisfaction. See Health Options, Inc. v. Palmetto Pathology Servs. P.A., 983 So.2d 608, 613 (Fla. 3d DCA 2008) (stating an order granting a motion for directed verdict is reviewed de novo).

There was conflicting evidence on the issue of whether the parties’ conduct constituted an accord and satisfaction for some, or all, of Bombardier’s ES claims. The record reflects Bombardier negotiated checks tendered by Farm Stores as full and final payment for each of several prefabs, and the parties’ correspondence regarding this issue plainly presents a factual issue for jury consideration. Such a conflict generally is a question for the province of the jury. See Cornette v. Rite Commc’n Sys., Inc., 573 So.2d 1055, 1056 (Fla. 2d DCA 1991) (reversing directed verdict on accord and satisfaction where there was conflicting evidence for the jury to resolve); S. Bell Tel. & Tel. Co. v. Acme Elec. Contractors, Inc., 418 So.2d 1187, 1189 (Fla. 4th DCA 1982) (“Generally, the determination of whether there is an accord and satisfaction is left to the finder of fact.”).

This ruling is, obviously, without prejudice to the parties’ ability to again move for a directed verdict on this, or any other, issue if the facts established at trial warrant such relief.

III. Conclusion

We remand for a new trial on both liability and damages. We likewise reverse the directed verdict on Farm Stores’ defense of accord and satisfaction.

Reversed and remanded with directions consistent herein.

      . ES 4, 5, 6, 7, 8, 9, and 10.

      . ES 1, which also was a prefab, is not at issue in this appeal.

      . ES 2.

      . ES 3.

      . The automatic renewal provision appearing in some of the ES is quite confusing, and appears to be the victim of a typographical error. Specifically, the automatic renewal provision references subparagraph (ii), which provides for the return of the equipment, rather than a lease extension. The provision reads, in relevant part, as follows:
      Purchase, and Renewal, Options: At the end of the initial non-cancelable term, provided that no Event of Default as defined in the Lease has occurred and is continuing to occur at the end of the initial non-cancela-ble term or subsequent renewal term, Lessee shall have the option to exercise the following options by providing Lessor with at least (270) days written notice of its intent to do one or more of the following:
      (i) purchase all and only all of the equipment for an amount equivalent to 20.00% of the original equipment cost;
      (ii) Return, all and only all, the Equipment to Lessor at Lessee's expense, with the original documentation, in the original packaging, at a location chosen by the Lessor.
      If Lessee fails to notify Lessor of its intentions at least two hundred seventy (270) days prior to the expiration of this Schedule, it is agreed that Lessee shall extend the Lease as to all of the Equipment covered hereunder in accordance with option (ii) above. During the renewal period, Lessee may purchase any or all of the Equipment covered hereunder for the price computed in accordance with option (i) above by providing Lessor with sixty (60) days prior written notice.
      (emphasis added).

      . Farm Stores’ accord and satisfaction affirmative defense read as follows:
      [A]n agreement was reached between the parties, first verbally and then confirmed in correspondence passing between them, that Defendants would pay off the prefabricated buildings that remained unpaid, at the rate of one building per month, at the buy-out amount of 20% of original cost, as set forth in the contract between the parties. For a period of several months, Defendants paid to Plaintiff the exact buy-out amounts required by mailing checks in those amounts to Plaintiff, which checks Plaintiff accepted, presented for payment, and was paid.

      . Farm Stores’ affirmative defense for set-off read:
      Plaintiff improperly applied payments that it received from defendants by applying to equipment (Schedule 2) payments made for prefabricated buildings (Schedules 1 and 3-10), although nothing was owed to Plaintiff for equipment under Schedule 2. The payments improperly applied should instead be set off against any sums that may remain due for prefabricated buildings.
      During the course of litigation, Farm Stores took the position that its agreement — as manifested in its August 23, 2005, "goodbye agreement” letter to Bombardier — to pay an additional year of rent for the computer equipment leased per ES 2 was based on Farm Stores' erroneous belief that the 270-day notice provision was contained in ES 2. Farm Stores' president testified that he had actually stricken the 270-day notice provision from ES 2, so that his initial May 1, 2005, purported termination of ES 2 should have been effective. Thus, Farm Stores should receive a set off for sums Farm Stores paid to Bombardier after Farm Stores’ May 1, 2005, purported termination of ES 2.

      . While not entirely clear, it seems that, given the trial court's summary judgment rulings, if the jury found that the parties had entered into the "goodbye agreement,” then, presumably, whether Farm Stores had failed to provide the required lease termination notice with regard to the prefabs would be irrelevant.

      . Section 768.74, Florida Statutes (2012), provides, in pertinent part:
      (1) In any action to which this part applies wherein the trier of fact determines that liability exists on the part of the defendant and a verdict is rendered which awards money damages to the plaintiff, it shall be the responsibility of the court, upon proper motion, to review the amount of such award to determine if such amount is excessive or inadequate in light of the facts and circumstances which were presented to the trier of fact.
      (2) If the court finds that the amount awarded is excessive or inadequate, it shall order a remittitur or additur, as the case may be.

      . The trial court’s additur award is calculated based solely on the automatic renewal of the leases associated with prefabs 5, 6, and 7, through May 1, 2012, and interest through May 14, 2012 (the date trial commenced). No portion of the award is attributable to any of Bombardier's other claims (i.e., prefabs 4, 8, 9 and 10, computer equipment leased pursuant to ES 2, the ice maker leased pursuant to ES 3, Bombardier's claim for taxes).

      . We have jurisdiction pursuant to Florida Rule of Appellate Procedure 9.110(a)(3) and 9.130(a)(4). See Westminster Cmty. Care Servs., Inc. v. Mikesell, 12 So.3d 838, 839 n. 1 (Fla. 5th DCA 2009) (reviewing a trial court’s order granting the plaintiff's motion for addi-tur and new trial on damages as an appeal-able nonfinal order pursuant to Rules 9.110(a)(4) and 9.130(a)(4)).

      .While the evidence might have established that Farm Stores tendered, and Bombardier negotiated, payments for prefabs 4, 8, 9, and 10, Farm Stores admitted it had not yet tendered such payments for prefabs 5, 6, and 7. According to Farm Stores' own proposed order on post-trial motions, payments for prefabs 5, 6, and 7, were valued at $186,062.

      . Our task is further complicated by the fact that, consistent with the trial court's summary judgment, the jury was instructed that Farm Stores had not provided the required 270-day notice contained in the prefab contracts. While this instruction was proper, the general verdict form used does not allow for meaningful appellate review of how damages or affirmative defenses were decided by the jury.


text:
    George BLOUNT, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 1D13-2579.
    District Court of Appeal of Florida, First District.
    Oct. 31, 2014.
    Rehearing Denied Dec. 3, 2014.
    Nancy A. Daniels, Public Defender, and David A. Henson, Assistant Public Defender, Tallahassee, for Appellant.

      Pamela Jo Bondi, Attorney General, and Angela R. Hensel, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant was convicted of attempted second-degree murder as a principal for a shooting that occurred during a fight at a bar. He was sentenced to 15 years in prison. This is his direct appeal.

Appellant raises one narrow issue: whether the trial court erred in admitting the victim’s deposition under the past recollection recorded exception to the hearsay rule in section 90.803(5), Florida Statutes (2012), because the State did not establish the foundation necessary to meet the exception. We affirm.

At trial, Appellant objected to the admission of the deppsition based upon a lack of foundation; he did not object on any other ground. The trial court overruled the objection and admitted the deposition based upon the totality of the circumstances test embraced by the court in Polite v. State, 41 So.3d 935 (Fla. 5th DCA 2010) (Polite I). The State concedes that the trial court’s reasoning was erroneous because in Polite v. State, 116 So.3d 270 (Fla.2013) (Polite II), the Florida Supreme Court quashed Polite I and rejected the totality of the circumstances test. Nevertheless, the State argues that we should affirm the trial court’s ruling under the “tipsy coachman” doctrine because the foundation presented below was sufficient under Polite II. Appellant responds that the foundation was not sufficient under Polite II. We agree with the State.

In Polite II, the Court held that “the admission of past recollection recorded under section 90.803(5) requires the witness to indicate that the statement was made at a time when the events were fresh in his or her mind and also attest to the accuracy of the memorandum or record.” 116 So.3d at 278; see also id. at 279 (stating that the witness “must testify that the recorded statement accurately reflects the witness’s knowledge”). Here, unlike several recent cases in which we reversed and remanded for a new trial when the trial court admitted statements under section 90.803(5) based on the totality of circumstances test in Polite I, the victim’s trial testimony established that he then had an insufficient memory of the events surrounding the shooting, that he once had knowledge of these events, that he described the events in his deposition when they were still fresh in his mind, and that he told the truth in his deposition about the events that he remembered at that time. This testimony is sufficient under Polite II to establish the necessary foundation to admit the victim’s deposition under section 90.803(5).

Appellant’s reliance on Kimbrough v. State, 846 So.2d 540 (Fla. 4th DCA 2003), is misplaced. That case involved a declar-ant who “conveniently forgot making the statement” at issue, id. at 542, and the basis of the appellate court’s decision reversing the admission of the declarant’s statement under section 90.803(5) was that the declarant himself “could not testify either that the statement was his or that it was accurate.” Id. at 544. Here, the victim specifically testified that he remembered giving his deposition and he also attested to the truthfulness of what he said in his deposition. Accordingly, Kim-brough is distinguishable.

In sum, for the reasons stated above, we affirm Appellant’s judgment and sentence.

AFFIRMED.

VAN NORTWICK, WETHERELL, and MAKAR, JJ., concur.

      . This statute provides an exceptibn to the hearsay rule for "[a] memorandum or record concerning a matter about which a witness once had knowledge, but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made by the witness when the matter was fresh in the witness's memory and to reflect that knowledge correctly.”

      . See McNeal v. State, 143 So.3d 1078 (Fla. 1st DCA 2014); Cherry v. State, 135 So.3d 1131 (Fla. 1st DCA 2014).


text:
    Kortni ROBINSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D14-2908.
    District Court of Appeal of Florida, Fifth District.
    Oct. 31, 2014.
    Rehearing Denied Dec. 22, 2014.
    Kortni Robinson, Florida City, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   ON MOTION FOR REHEARING

PER CURIAM.

Appellee has filed a motion for rehearing of this court’s prior opinion, dated September 19, 2014. We grant Appellee’s motion, withdraw our previous opinion, and substitute this opinion, affirming the order denying Appellant’s motion for postconviction relief.

AFFIRMED.

PALMER, WALLIS and LAMBERT, JJ., concur.


text:
    Frank PRITCHARD, Appellant, v. STATE of Florida, Appellee.
    No. 5D14-1798.
    District Court of Appeal of Florida, Fifth District.
    Nov. 4, 2014.
    Frank D. Pritchard, White Springs, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See DelToro v. State, 584 So.2d 51 (Fla. 2d DCA1991).

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


author: WELLS, Judge.

text:
    BULL MOTORS, LLC., etc., Appellant, v. Mary K. BROWN, Appellee.
    No. 13-1509.
    District Court of Appeal of Florida, Third District.
    Nov. 5, 2014.

      Kirschbaum, Birnbaum, Lippman & Gregoire, and Nancy W. Gregoire, Ft.Lauderdale; Richard A. Ivers, Coral Springs, for appellant.
    James M. Loren, Plantation; Sina Ne-gahbani, Miami, for appellee.
    Before WELLS, EMAS and LOGUE, JJ.
   WELLS, Judge.

Bull Motors, L.L.C., d/b/a Maroone Ford of Miami appeals from a permanent injunction mandating the inclusion of specific language in both its conditional financing transaction agreements involving a spot delivery, and in its notifications to purchasers whose initial financing applications have been rejected. We reverse the final injunctive order for two reasons, first because it was entered without affording Bull Motors the opportunity to be heard at an evidentiary hearing on the matter, and second because the order is overly broad and exceeds the relief requested.

This action was filed in 2003 when Mary Brown realized that she had not received the Credit Life and Disability insurance coverage that she allegedly was promised and applied for at the time she applied for financing for the purchase of a new Ford Escort. Although Brown was not charged a premium for the applied-for insurance, she claimed that she would not have gone through with the purchase of the car without the insurance and sought damages for fraudulent inducement. She also sought declaratory and injunctive relief under section 501.211 of the Florida Statutes, Florida’s Deceptive and Unfair Trade Practices Act (FDUTPA).

In a bifurcated proceeding, a jury awarded Brown $700 for the damage she incurred when she had to pay two installment payments on her car while she was disabled following two surgeries; $1,528.21 for FDUTPA violations; and $50,000 in punitive damages. These awards subsequently were nullified when the court below granted Bull Motors’ motion for judgment in accordance with its motion for directed verdict.

The court below subsequently granted declaratory and injunctive relief pursuant to section 501.211(1) of the Florida Statutes, finding that when Bull Motors signed Brown’s name to new financing applications with no request for disability insurance coverage after she had been rejected for financing and disability insurance, it had engaged in “unfair, deceptive, unconscionable and injurious [conduct]” as proscribed by that provision.

The parties then were directed to confer with each other to agree to an appropriate consent injunctive decree and advised that should they fail to agree, the court would hold a hearing to determine the appropriate injunctive relief. After two non-evi-dentiary hearings to determine the scope of the injunctive relief to be imposed, on May 28, 2013, Brown’s counsel sent a proposed final judgment to the trial court. The proposed order required Bull Motors to include specific language in all of its spot delivery contracts and to provide a proposed notification to every customer whose initial financing application had been disapproved. The letter transmitting this proposed order was mailed by regular post to counsel for Bull Motors. Two days later, on May 30, 2013, before Bull Motors had an opportunity to request a hearing, the order was signed by the court below.

That order states in pertinent part:

ORDERED AND ADJUDGED
A permanent Injunction is hereby entered against the Defendant (which includes it agents/representatives) as follows:
Pursuant to Fla. Stat. § 501.211(1) and in light of the factual record, this Court had previously decreed Defendant’s conduct to be fraudulent, unfair, deceptive and unconscionable and thus a clear violation of FDUTPA. In order to protect the consuming public and prevent future misconduct by the Defendant as to the type suffered by the aggrieved consumer in this case (i.e., one relating to the forging of the consumer’s signatures on financial documents and/or retail sales installment contracts (RISC), on all future vehicle sales transactions involving financing where conditional credit approval is sought and/or where vehicle spot delivery occurs and/or where the customer (“consumer”) subsequent to contracting is to be re-contracted because [of] failed financing on the original terms, the Court hereby issues this injunctive order and decrees that the Defendant (which includes its agent/representatives) must strictly adhere to the following directives and procedures:
1. On all conditional financing transactions involving spot delivery, Defendant shall modify its spot delivery form or create a standard form that reads at the top of the document (in 20 bold font) as follows:
YOU HAVE CONDITIONALLY BEEN APPROVED FOR FINANCING. THE FINANCING IS NOT FINAL AND YOU MAY HAVE TO BRING THE VEHICLE BACK TO U.S. IF FINANCING IS DISAPPROVED. IF THE CONDITIONAL APPROVAL IS REJECTED, YOU HAVE THE RIGHT TO CANCEL THE TRANSACTON AND RECEIVE A REFUND; IF YOU DECIDE TO NEVERTHELESS PROCEED WITH THE SALES TRANSACTION, YOU HAVE THE RIGHT TO REVIEW AND SIGN A NEW FINANCING APPLICATION — WHICH YOU ONLY NEED TO SIGN IF ITS [SIC] FULLY COMPLETED.
_(Initial)
_(Date)
2. All financing transactions requiring re-contracting shall require Defendant to provide the customer with a notice (sent via certified mail return receipt request) containing the following:
Dear Customer:
Your financing agreement signed on_, was disapproved. We are enclosing a copy of this agreement for your review.
Date of rejection_
Reason for disapproval_
Additional or differing terms or requirements necessary to qualify for financing, are as follows:
We have made alternate financing arrangements with _ (a finance company/lending institution) and are enclosing herein for your review a new proposed financing agreement. Please contact us to discuss your financing options.
Signature of Manager /s/
8. Defendant is strictly prohibited from having consumers sign RISCs in blank or only partially filled-out.
4. Defendant is required to maintain originals of all financial documents signed by the consumer. If the original cannot be maintained because the financing institution/bank requires the original documents, the Defendant is required to maintain legible copies of same.
Defendant’s failure to adhere with the terms of this decree and upon adjudication of any violation of same, may result in the entry of a contempt order upon which further orders may be entered including but not limited to the imposition of monetary sanctions.
The Court reserves jurisdiction to enforce the Court’s decree, and provide and enter such other orders as necessary or appropriate, including those to enforce compliance.

Bull Motors challenges the validity of this mandatory injunction on a number of grounds. However, we find only two have merit: first, we agree that the injunction was improperly entered without conducting an evidentiary hearing, and second we agree that the injunction is invalid because it is overly broad and falls far outside the scope of relief sought below.

While “[t]he grant or denial of an injunction is a matter that lies within the sound discretion of the trial court,” injunctions which compel or mandate affirmative action by a party are disfavored:

The grant or denial of an injunction is a matter that lies within the sound discretion of the trial court. E. Fed. Corp.. v. State Office Supply Co., 646 So.2d 737, 741 (Fla. 1st DCA 1994). “Injunctions are classified as prohibitory or mandatory in their effect and as temporary or permanent in their duration.” See Henry P. Trawick, Jr., Trawick’s Florida Practice & Procedure § 28.1 (2010 ed.). Mandatory injunctions, which compel an affirmative action by the party enjoined, are looked upon with disfavor, and the courts are even more reluctant to issue them than prohibitory ones. See Johnson v. Killian, 157 Fla. 754, 27 So.2d 345, 346 (1946). “Issuance of mandatory injunctions before final hearing is disfavored and should be granted only in ‘rare cases where the right is clear and free from reasonable doubt.”’ Spradley v. Old Harmony Baptist Church, 721 So.2d 735, 737 (Fla. 1st DCA 1998) (quoting Am. Fire & Cas. Co. v. Rader, 160 Fla. 700, 36 So.2d 270, 271 (1948)).

Grant v. GHG014, LLC, 65 So.3d 1066, 1067 (Fla. 4th DCA 2010) (emphasis added).

Here, no evidentiary hearing was held to allow Bull Motors to present evidence and to voice its opposition to the permanent mandatory injunctive relief proposed. Instead, the trial court adopted the plaintiffs proposed order and signed it before Bull Motors was given time to request a hearing or file a written response, let alone advance its position at an eviden-tiary hearing. “Procedural due process requires that each litigant be given proper notice and a full and fair opportunity to be heard.” Carmona v. Wal-Mart Stores, East, LP, 81 So.3d 461, 463 (Fla. 2d DCA 2011). On that basis alone, the order must be reversed. See Waste Mgmt., Inc. of Fla. v. Dunn, 873 So.2d 623, 623-24 (Fla. 3d DCA 2004) (vacating an order granting injunctive relief because the trial court did not conduct an evidentiary hearing); Lopez v. Paredes, 653 So.2d 472, 473-74 (Fla. 3d DCA 1995) (holding that the trial court’s order was injunctive in nature, and as such required an evidentiary hearing on the entitlement to relief); see also Miami Bridge Co. v. Miami Beach Ry. Co., 152 Fla. 458, 12 So.2d 438, 443 (1943) (“It is settled by an overwhelming weight of authority that, except in rare cases, where the right is clear and free from reasonable doubt, a mandatory injunction, commanding the defendant to do some positive act, will not be ordered except upon final hearing, and then only to execute the judgment or decree of the court.” (quoting Fla. E. Coast Ry. Co. v. Taylor, 56 Fla. 788, 47 So. 345, 345-46 (1908))). For this reason alone, the injunction entered below must be reversed.

Moreover, the injunction mandating Bull Motors’ future behavior and specifying the precise language the company must use with all future customers, is overly broad.

An injunction should never be broader than is necessary to secure to the injured party relief warranted by the circumstances involved in the particular case. E.g., DeRitis v. AHZ Corp., 444 So.2d 93, 94 (Fla. 4th DCA 1984) (quoting Fla. Peach Orchards, Inc. v. State, 190 So.2d 796, 798 (Fla. 1st DCA 1966)). Entry of an overly broad injunction can constitute a violation of the First Amendment. See, e.g., Animal Rights Found. of Fla., Inc. v. Siegel, 867 So.2d 451, 456 (Fla. 5th DCA 2004); Adoption Hot Line, Inc. v. State, 402 So.2d 1307, 1308-09 (Fla. 3d DCA 1981).

Chevaldina v. R.K./FL Mgmt., Inc., 133 So.3d 1086, 1091 (Fla. 3d DCA 2014). Here, the trial court could have prohibited the conduct identified as violative of FDUTPA, without in effect dictating how this defendant should conduct its business and communicate in the future with all of its customers. Id. (vacating injunction and observing that injunction issued “improperly burdens [defendant’s] speech more than necessary”).

Finally, the order grants relief not pled. See Sunbeam Television Corp. v. Mitzel, 83 So.3d 865, 875 (Fla. 3d DCA 2012) (“[L]itigants at the outset of a suit must be compelled to state their pleadings with sufficient particularity for a defense to be prepared.” (quoting Arky, Freed, Stearns, Watson, Greer, Weaver & Harris, P.A. v. Bowmar Instrument Corp., 537 So.2d 561, 563 (Fla.1988))); see also Cioffe v. Morris, 676 F.2d 539, 543 n. 8 (11th Cir.1982) (confirming that unplead issues tried without consent deny due process). Brown never alleged that the solution to the identified misconduct — the forgery of her signature — was for Bull Motors to provide all future customers "with specific forms regarding financing approval. That solution was only suggested by counsel at the first non-evidentiary hearing. Brown certainly never pled entitlement to a permanent mandatory injunction which would specify the exact language Bull Motors would be required to use in all future sales contracts.

In fact, Bull Motors’ counsel explained to the court at one of the non-evidentiary hearings that since 2011 it consistently had been presenting its customers (a) with a Spot Delivery Agreement which notified customers that their attempted purchases were subject to third party financing and that the vehicle being purchased had to be returned if the purchaser was not successful in obtaining third party financing; and, (b) where financing failed, with a Cancellation Notice advising customers that their application for financing had been denied and that they had the option of cancelling the transaction or entering into a new financing contract. While the trial court summarily dismissed these Spot Delivery Agreements and Cancellation Notices as suitable only for a “gnat” (referring to the size of the print), as Bull Motors argues “the two forms ... exceed all requirements of Florida and federal law” and contain all the disclosures delineated in the ex parte permanent injunction imposed on Bull Motors by the trial court.

We therefore reverse and remand with directions to vacate the permanent injunction and for an evidentiary hearing before any permanent injunctive relief is ordered.

      . In her third amended complaint, Brown also sought redress for purported violations of the Truth in Lending Act (TILA) 15 U.S.C. section 1601 et seq. and Florida’s Motor Vehicle Retail Sales Finance Act, section 520.01 et seq. Both of these claims were dismissed before trial.

      . In fact the very language of section 501.211 suggests enjoining the violating behavior, rather than mandating behavior:
      (1) Without regard to any other remedy or relief to which a person is entitled, anyone aggrieved by a violation of this part may bring an action to obtain a declaratory judgment that an act or practice violates this part and to enjoin a person who has violated, is violating, or is otherwise likely to violate this part.
      § 501.211, Fla. Stat. (2013).

      . See generally C.B. v. Dobuler, 997 So.2d 463, 466 (Fla. 3d DCA 2008) ("It is not for us, as judges, to question the wisdom of the legislation.” (quoting K.E. v. Dep’t of Juvenile Justice, 963 So.2d 864, 868 (Fla. 1st DCA 2007)).

      . By failing to hold an evidentiary hearing before issuing the injunctive relief as written. Bull Motors was not given the opportunity to provide evidentiary support for its position that the existing forms better addressed industry standards, and that the proposed language provided by opposing counsel and adopted by the court would result in redundancy, inconsistency, and increased customer confusion.